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CLJ Bulletin, Issue 2013, Vol 43 25 October 2013 Print this page 
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New This Week
1. Cases Of The Week
a) MALAYAN BANKING BHD v. PUSAT MEMBELI BELAH PELANGI SDN BHD
b) PELABUHAN TANJUNG PELEPAS SDN BHD lwn. JVR CAAPCO (M) SDN BHD;
KURNIA INSURANS (MALAYSIA) BHD (PIHAK KETIGA) [2013] 2 SMC 31
2. Latest Cases
3. Articles
4. Legislation Highlights
c) PU(A)
d) PU(B)
MALAYAN BANKING BHD v. PUSAT MEMBELI BELAH PELANGI SDN BHD
COURT OF APPEAL, PUTRAJAYA
LOW HOP BING JCA, ABU SAMAH NORDIN JCA, ALIZATUL KHAIR OSMAN JCA
[CIVIL APPEAL NO: C-02-1743-2010]
14 JUNE 2013
COMPANY LAW: Charge - Registration - Company's properties charged as security - Failure to register charge within 30 days - Application for extension of time to register charge made more than ten years later - Whether there were reasonable and credible reasons for inordinate delay - Whether charge void - Companies Act 1965, ss. 114 & 180(1)
LAND LAW: Charge - Registration of charge - Purchase of shop lots - - Shop lots charged as security - Statutory obligation under s. 180(1) of Companies Act 1965 to register charge within 30 days after creation - Failure to register charge - Respondent had wound up - Request for title deeds of properties arising from agreement by respondent's liquidators - Application for extension of time to register charge made more than ten years later - Whether there were reasonable and credible reasons for inordinate delay - Whether charge void - Companies Act 1965, ss. 114 & 180(1)
PP v. MOHD KHAYRY ISMAIL
HIGH COURT MALAYA, KUALA LUMPUR
SU GEOK YIAM J
[CRIMINAL TRIAL NO: 45-93-2010]
22 JUNE 2013
CRIMINAL LAW: Murder - Section 302 of Penal Code - Circumstantial evidence - Charges of two counts of murder - `Mercun bola' hidden in gift - Accused in heavy debt with deceased persons - Deceased persons owned internet cafe where accused frequented to indulge in online gambling - Accused's request for loan denied by deceased - Prior threat - Proximity of time between threat and incident - Witness evidence that accused showed desire to burn internet cafe and its owners three months prior to incident - Whether accused had motive to kill deceased persons
CRIMINAL PROCEDURE: Trial - Defence story - Whether afterthought - Whether defence story put to prosecution's witnesses - Whether defence plausible and cast reasonable doubt on prosecution's case - Whether accused had motive to kill - Whether court had reason to reject evidence of accused's friends to whom he made confessions - Whether CCTV recording identified accused leaving bag where bomb exploded - Whether deceased persons intended victims - Whether accused liable - Penal Code, s. 302
PELABUHAN TANJUNG PELEPAS SDN BHD lwn. JVR CAAPCO (M) SDN BHD;
KURNIA INSURANS (MALAYSIA) BHD (PIHAK KETIGA) [2013] 2 SMC 31 
MAHKAMAH SESYEN, JOHOR BAHRU
MOHD GHAZALI MOHAMAD TAIB HS
[SAMAN NO: 52-951-03-2012]
30 MEI 2013
TORT: Kecuaian - Ganti rugi - Dakwaan kecuaian pengendali pelabuhan - Kerosakan kontena dan kargo - Kegagalan mengenal pasti tempat pendaratan yang betul - Garisan kuning telah pudar dan lampu tidak terang semasa pelepasan kontena - Sama ada disebabkan oleh ketidakselenggaraan - Sama ada kerugian diakibatkan oleh pengabaian defendan - Sama ada kewajipan berhati-hati dimungkiri - Tuntutan subrogasi - Sama ada polisi perlindungan insuran pihak ketiga akan memberi perlindungan kepada defendan di bawah doktrin subrogasi - Sama ada kecuaian berjaya dibuktikan
INSURAN: Subrogasi - Kecuaian - Ganti rugi - Dakwaan kecuaian pengendali pelabuhan - Kerosakan kontena dan kargo - Kerugian - Sama ada kerugian diakibatkan oleh pengabaian defendan - Tuntutan subrogasi - Sama ada polisi perlindungan insuran pihak ketiga memberi perlindungan kepada defendan di bawah doktrin subrogasi - Sama ada kecuaian berjaya dibuktikan
JUDICIAL QUOTES
KAMSINAH KARIM v. ACP KAMARUDIN A AZIZ (PENGERUSI LEMBAGA TATATERTIB POLIS JOHOR) & ORS [2013] 7 CLJ 127
[3] Issue: Whether, in a summary trial under s. 173 of the Criminal Procedure Code (‘CPC’), the Magistrate’s failure to make a finding of guilt before ordering the a ccused to be cautioned and discharged under s. 173A(2)(a) of the CPC rendered such an order flawed and defective, or whether such an order could be construed as a ‘conviction’ in law.
“The learned Magistrate had failed to take the most important step stipulated in s. 173A(2) of the CPC, ie, to find that the charge had been proved before proceeding further to sentence “A” according to law ... The question in this case is not whether the court has to record a conviction under s. 173A(1) or (2) of the CPC before exercising its powers under the same section but whether the court had recorded a finding that the charge was proved which would only then be tantamount to a finding of guilt. I agree that unless the Magistrate makes a clear and affirmative finding of guilt, it was wrong for him to proceed to the next step of exercising his powers under s. 173A of the CPC. It cannot be gainsaid that a finding that the prosecution has proved its case beyond reasonable doubt must precede a finding of guilt” – per Gunalan Muniandy JC in Kamsinah Karim v. ACP Kamarudin A Aziz (Pengerusi Lembaga Tatatertib Polis Johor) & Ors [2013] 7 CLJ 127.
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Legal Network Series
MOHAMAD SHAH GUBAH AHMAD v. MAHKAMAH PERUSAHAAN MALAYSIA & ANOR
ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Whether Industrial Court failed to properly direct itself on the law and facts or had committed a jurisdictional error which warranted correction by judicial review - Whether Industrial Court's finding that that the 10 hour period required by OGP Technical Services Sdn Berhad constituted a "spread over period of 10 hours" unsubstantiated by the evidence - Whether Industrial Court's finding that it was a contractual term between applicant and 2nd respondent that he should comply with any spread over period required by OGP was unsupported by the evidence - Whether wrong for Industrial Court to provide a reason for termination for the Employer where none was offered - Whether Industrial Court had acted in breach of the "no evidence" principle and had made a decision which was technically unreasonable or irrational
ADMINISTRATIVE LAW: Judicial review - Application for - Substantial time taken for claim to proceed through the Industrial Court process and judicial review application - Whether inequitable and unjust to subject applicant to a further process before the Industrial Court to claim what was due to him - Whether unnecessary to have matter referred back to Industrial Court for another decision on appropriate compensation to be paid to him - Whether further consequential order on compensation to be paid should be made
PER: SOO SHUI CHING; EX PARTE: MALAYAN BANKING BERHAD AND ANOTHER APPEAL
BANKRUPTCY: Receiving and adjudication order - Appeal against - Judgment debtor claiming able to pay the debt within meaning of s. 6(3) of Bankruptcy Act 1967 and that creditor's petition should be dismissed - Complaint by judgment creditor that court should not have granted leave to introduce mode of payment - Whether only meant for a limited purpose to decide if judgment debtor able to pay the debt within meaning of s. 6(3) - Whether Court could do so in the interest of justice in view of s. 93(5) - Whether judgment creditor prejudiced as issue relating to mode of payment already before the Senior Assistant Registrar - Whether judgment creditor only entitled to sum stated in Bankruptcy notice which judgment debtor was prepared to pay by instalments - Whether judgment debtor should be allowed to pay sum by instalment
LOH KWEE ENG v. PHUA NAI PENG
FAMILY LAW: Matrimonial property - Division of property - Whether there was almost non-existent contribution by respondent towards acquiring of Property by petitioner - Whether only right and proper that respondent made monthly repayments to the Bank - Whether respondent would have to pay rental towards another accommodation if he had decided to move out from said Property - Whether said repayments amounted to respondent's "contribution" towards the matrimonial home
FAMILY LAW: Children - Maintenance - For third underage child – Respondent prepared to provide RM300/- per month for her maintenance - Whether respondent played the share market and derived a lucrative income from the shares he traded in - Whether respondent able to pay maintenance of RM500/- per month to the third child
SEGAMAT KINISAYANG SUPERMARKET SDN BHD v. CONTIGREEN SDN BHD
LAND LAW: Lease - Agreement for a lease - Lack of registration - Whether Lease should never have been entered into by registered proprietor with plaintiff without the chargee bank's consent - Whether Lease entered into in contravention of s. 226(1) of the National Land Code 1965 (NLC) - Whether Lease a legally effective lease under the NLC as never registered under the NLC - Whether the Court should recognise such a "lease" in equity so as to confer legal rights and liabilities - Whether purported Lease Agreement repudiated by plaintiff itself - Whether registered proprietor accepted plaintiff's repudiation of the Lease Agreement
LAND LAW: Indefeasibity of title and interests - Registered owner - Whether defendant was the bona fide purchaser of the Property for value and the registered proprietor - Whether defendant's title to the Property was indefeasible under s. 340 of the NLC - Whether defendant acquired the Property free from any encumbrance or claim
MARUTHIAH CHILLAYAH v. HYDRO ALUMINIUM MALAYSIA SDN BHD
CIVIL PROCEDURE: Appeal - Appeal against decision of sessions court - Question of law whether respondent was bound by the decision of its Board of Directors to award gratuity payment to appellant - Whether Sessions Court Judge adequately addressed this issue by failing to appreciate uncontroverted evidence regarding the Board of Directors' decision - Whether Sessions Court Judge arrived at an erroneous conclusion that respondent was not liable to pay gratuity in accordance with that decision - Whether Sessions Court Judge erred and misdirected himself in law
EVIDENCE: Documentary evidence - Admissibility of - Minutes of Board of Directors meeting, P2 - Whether P2 was an official company document of defendant that was before the court as evidence - Whether contents of P2 properly admitted and not hearsay - Whether fact that P2 was a confidential document that came to plaintiff's knowledge through persons who were not called as witnesses affected its admissibility - Whether how P2 came to plaintiff's knowledge was irrelevant and could not be used to disentitle plaintiff to his claim based on P2 - Whether plaintiff could rely on P2 to sustain his claim founded on the decision of the Board of Directors
CLJ 2013 Volume 8 (Part 1)
COURT
SC INDIA
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
AK Patnaik, Hl Gokhale JJ
(Constitutional Law - Advocate defending members of banned organisations - Effect on suitability of spouse for post of Civil Judge) [2013] 8 CLJ 1 [SC India]COURT OF APPEAL
Malayan Banking Bhd v. Pusat Membeli Belah Pelangi Sdn Bhd
Low Hop Bing, Abu Samah Nordin, Alizatul Khair Osman JJCA
(Company Law; Land Law - Charge - Registration – Company's properties charged as security - Failure to register charge within 30 days) [2013] 8 CLJ 28 [CA]HIGH COURT
Lembaga Tabung Angkatan Tentera v. Prime Utilities Bhd
Hasnah Mohammed Hashim J
(Company Law - Derivative action - Suit against directors - Companies Act 1965, ss. 181A and 181B) [2013] 8 CLJ 38 [HC]PP v. Nanda Kumar K Kaliapan & Ors
Choong Siew Khim JC
(Criminal Law; Evidence - Murder - Identification - Whether there was evidence to link all accused persons to murder - Penal Code, s. 302) [2013] 8 CLJ 52 [HC]Re Nor Azah Awin; ex p Lee Swee Eng; Bank Perusahaan Kecil & Sederhana Malaysia Bhd (Intervener)
Azizah Nawawi JC
(Bankruptcy - Application to proceed against bankrupt - Whether leave of bankruptcy court required - Bankruptcy Act 1967, ss. 8(1), 40(3) [2013] 8 CLJ 73 [HC]Sigur Ros Sdn Bhd v. Malayan Banking Bhd & Anor
Nallini Pathmanathan J
(Arbitration; Civil Procedure; Contract - Agreement - Construction - Arbitration clause - Whether effect of arbitration clause in one agreement incorporated into another agreement) [2013] 8 CLJ 86 [HC]Sysmex (Malaysia) Sdn Bhd v. Sia Kee Chow & Ors
Suraya Othman J
(Company Law - Directors - Fiduciary duties - Breach of duties) [2013] 8 CLJ 120 [HC]SUBJECT INDEX
ARBITRATION
Agreement - Construction - Arbitration clause - Whether effect of arbitration clause in one agreement incorporated into another agreement - Charter party and bank guarantee comprised two separate contractual documents - Whether bank guarantee subject to arbitration agreement contained in charter party
Sigur Ros Sdn Bhd v. Malayan Banking Bhd & Anor
(Nallini Pathmanathan J) [2013] 8 CLJ 86 [HC]BANKRUPTCY
Practice and procedure - Locus standi - Leave to intervene - Failure to apply for leave to intervene - Whether mere procedural irregularity - Whether court could allow reliefs claimed - Bankruptcy Act 1967, s. 8(1)
Re Nor Azah Awin; ex p Lee Swee Eng; Bank Perusahaan Kecil & Sederhana Malaysia Bhd (Intervener)
(Azizah Nawawi JC) [2013] 8 CLJ 73 [HC]Receiving order - Locus standi - Application to proceed against bankrupt - Whether leave of bankruptcy court required - Whether claim for unsecured monetary amount and provable in bankruptcy - Whether proof of debt required - Whether expectancy or possibility of an interest amounted to interest in property - Bankruptcy Act 1967, ss. 8(1), 40(3)
Re Nor Azah Awin; ex p Lee Swee Eng; Bank Perusahaan Kecil & Sederhana Malaysia Bhd (Intervener)
(Azizah Nawawi JC) [2013] 8 CLJ 73 [HC]CIVIL PROCEDURE
Declaratory relief - Locus standi - Plaintiff sought declaration that defendant not entitled to call upon bank guarantee - Whether court entitled to look outside of s. 41 of Specific Relief Act 1950 in determining locus standi to initiate suit for declaratory relief - Whether plaintiff had interest in subject matter or would be 'peculiarly affected' - Whether existence of alternative remedies precluded claim for declaratory relief
Sigur Ros Sdn Bhd v. Malayan Banking Bhd & Anor
(Nallini Pathmanathan J) [2013] 8 CLJ 86 [HC]Locus standi - Declaratory relief - Plaintiff sought declaration that defendant not entitled to call upon bank guarantee - Whether court entitled to look outside of s. 41 of Specific Relief Act 1950 in determining locus standi to initiate suit for declaratory relief - Whether plaintiff had interest in subject matter or would be 'peculiarly affected'
Sigur Ros Sdn Bhd v. Malayan Banking Bhd & Anor
(Nallini Pathmanathan J) [2013] 8 CLJ 86 [HC]COMPANY LAW
Charge - Registration - Company's properties charged as security - Failure to register charge within 30 days - Application for extension of time to register charge made more than ten years later - Whether there were reasonable and credible reasons for inordinate delay - Whether charge void - Companies Act 1965, ss. 114 & 180(1)
Malayan Banking Bhd v. Pusat Membeli Belah Pelangi Sdn Bhd
(Low Hop Bing, Abu Samah Nordin, Alizatul Khair Osman JJCA) [2013] 8 CLJ 28 [CA]Derivative action - Suit against directors - Whether minority shareholder fulfilled requirements for leave to commence derivative action - Companies Act 1965, ss. 181A and 181B - Whether applicant acted in good faith and in best interests of company
Lembaga Tabung Angkatan Tentera v. Prime Utilities Bhd
(Hasnah Mohammed Hashim J) [2013] 8 CLJ 38 [HC]Directors - Fiduciary duties - Breach of duties - Whether directors breached fiduciary and statutory duties by setting up companies in secret - Whether directors guilty of diverting funds for personal gain - Whether directors failed to act in good faith in best interest of company - Companies Act 1965, ss. 131 & 132
Sysmex (Malaysia) Sdn Bhd v. Sia Kee Chow & Ors
(Suraya Othman J) [2013] 8 CLJ 120 [HC]CONSTITUTIONAL LAW
Constitution of India - Arts. 14, 16, 19(1)(a), 21, 22(1), 234, 235, 237 and 309 - Advocate defending members of banned organisations - Effect on suitability of spouse for post of Civil Judge - All accused persons (including aliens), whether they are members of banned organisation or not, held, have a fundamental right to be represented by an advocate under Art. 22(1) - Such representation being in discharge of duties as an advocate would not affect suitability of spouse of such advocate for said post - Any contrary view would have the effect of affecting fundamental rights of advocate and spouse concerned and accused persons concerned
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]Constitution of India - Arts. 14, 16, 19(1)(a), 22(1), 234, 235, 237 and 309 - Political affinity with banned organisation, when cannot be a bar to public appointment to sensitive posts like Civil Judges - (a) That husband of candidate, an advocate had represented members of a banned organisation in court or (b) mere allegation in police report regarding direct links of candidate with some banned organisation(s) without any proof of the same, when candidate for said post denying allegation of links, held, cannot be a ground for non-appointment - Further held, unless such affinities are considered as likely to effect integrity and efficiency of candidate/appointee, or unless there is clear material indicating involvement of candidate in subversive or violent activities of the banned organisation, denial of public appointment on such ground would be violative of Arts. 14, 16 and 22(1) - As from available materials on record, it was prima facie difficult to hold that appellant had links with banned organisation, State Government directed to place all records before appropriate authority i.e. Selection Committee of High Court - Selection Committee directed to consider the reports and take appropriate decision expeditiously - Courts, Tribunals and Judiciary - Judiciary - Appointment of Judges
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]Constitution of India - Arts. 21, 22(1), 19(1)(a) and 14 - Due process protection - Right to legal representation - Duties of advocates - Defending accused persons belonging/with links to banned/illegal organisations, including aliens - Solemn duty of advocates in regard thereto - Principles reiterated - Bar Council of India Rules, 1975 - Pt. VI, Ch. II, S. II, Rr. 11 and 15 - Duties to client - Advocates Act, 1961, S. 49
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]Constitution of India - Articles 226, 32, 136, 16 and 14 - Mandamus - For appointment, reiterated, cannot be issued in case a person has wrongly not been considered for/has been wrongly denied appointment, since there is no fundamental right to appointment but only a right to be fairly considered for appointment
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]Constitution of India - Arts. 234, 233 and 235 - Appointment of Judges - Role and duties of High Court in consultative process - Need for High Court to play active role - Failure of High Court to discharge such duties and abdication of such responsibility - Impropriety - Held, High Court in present case clearly erred on administrative side in failing to discharge its responsibility under Art. 234
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]Courts, Tribunals and Judiciary - Judiciary - Appointment of Judges - Adverse police verification report - Procedure to be followed for determining suitability of candidate - Duties of: (a) State Government, and (b) Selection Committee of High Court, pointed out - State Government must send all relevant records to High Court for its consideration - High Court has to take an independent decision regarding suitability of candidate - High Court simply cannot go by police report though such report would form relevant part of its consideration - Constitution of India, Arts. 234, 235, 237 and 309
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]Courts, Tribunals and Judiciary - Judiciary - Appointment of Judges - Determination of suitability of candidate and appointment - Judicial review of - Appointment to post of Civil Judge being governed by Art. 234 of the Constitution and service rules concerned, judicial review regarding an allegation of departure therefrom, held, is permissible - Constitution of India, Arts. 234, 235, 226, 32 and 136
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]Courts, Tribunals and Judiciary - Judiciary - Appointment of Judges - Meaningful and effective consultation with High Court - Mandatory requirement of - Adverse police verification report - Non-appointment of selected candidate without meaningful/effective consultation with High Court as required under Art. 234 of the Constitution, while State Government took said decision of non-appointment - Illegality - Duty of High Court to play active role - Appellant being duly selected in written test and interview for post of Civil Judge conducted by State PSC - State Government simply informing High Court that appellant had links with some banned organisation and thus was not considered for said appointment - High Court not informed as to which that banned organisation was or how appellant had links with it - High Court also did not call for records which were relied on by State Government to arrive at abovesaid conclusion regarding said links - Non-appointment of appellant in present case, held, is illegal - It violates procedure of meaningful consultation as required under Art. 234 - Constitution of India - Arts. 234, 235, 237 and 309 - Andhra Pradesh State Judicial Service Rules, 2007 - Rr. 4(2)(d) and 4(1) - Appointment of Civil Judges - Non-appointment - Necessity of following procedure of meaningful consultation
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]Courts, Tribunals and Judiciary - Judiciary - Appointment of Judges - Suitability of candidate - Scope of determination of, during probation period and implications for determining suitability during consultation process under Art. 234 of the Constitution - Constitution of India - Arts. 234, 235, 237 and 309 - Andhra Pradesh State Judicial Service Rules, 2007, Rr. 9, 10 and 11
K Vijaya Lakshmi v. State Of Andhra Pradesh & Anor
(AK Patnaik, Hl Gokhale JJ) [2013] 8 CLJ 1 [SC India]CONTRACT
Construction - Agreement - Clauses in agreement - Whether effect of arbitration clause in one agreement incorporated into another agreement - Charter party and bank guarantee comprised two separate contractual documents - Whether bank guarantee subject to arbitration agreement contained in charter party - Whether clear and specific words to that effect
Sigur Ros Sdn Bhd v. Malayan Banking Bhd & Anor
(Nallini Pathmanathan J) [2013] 8 CLJ 86 [HC]Guarantee - Bank guarantee - Expiry - Bank guarantee given to cover expenses to reinstate vessel - Bank guarantee expired before demand for payment made - Whether call for payment could be made after expiry of bank guarantee
Sigur Ros Sdn Bhd v. Malayan Banking Bhd & Anor
(Nallini Pathmanathan J) [2013] 8 CLJ 86 [HC]CRIMINAL LAW
Murder - Identification - Four accused charged with murdering cashier at petrol station - Robbery - Whether identification of accused persons positively consistent and unshaken - Reliance on CCTV recording - Two persons seen to proceed to payment counter while two others waited outside - Whether recording credible and corroborated witnesses' evidence - Whether there was evidence to link all accused persons to murder - Penal Code, s. 302
PP v. Nanda Kumar K Kaliapan & Ors
(Choong Siew Khim JC) [2013] 8 CLJ 52 [HC]EVIDENCE
Identification evidence - Accused, of - Whether prosecution witnesses' positive identification of accused persons at murder scene consistent and unshaken - Whether CCTV recording of incident corroborated witnesses' oral testimonies - Whether defence of grave and sudden provocation and sudden fight succeeded - Whether criminal knowledge or intention under s. 35 Penal Code inferable against accused
PP v. Nanda Kumar K Kaliapan & Ors
(Choong Siew Khim JC) [2013] 8 CLJ 52 [HC]LAND LAW
Charge - Registration of charge - Purchase of shop lots - Shop lots charge as security - Statutory obligation under s. 180(1) of Companies Act 1965 to register charge within 30 days after creation - Failure to register charge - Respondent had wound up - Request for title deeds of properties arising from agreement by respondent's liquidators - Application for extension of time to register charge made more than ten years later - Whether there were reasonable and credible reasons for inordinate delay - Whether charge void - Companies Act 1965, ss. 114 & 180(1)
Malayan Banking Bhd v. Pusat Membeli Belah Pelangi Sdn Bhd
(Low Hop Bing, Abu Samah Nordin, Alizatul Khair Osman JJCA) [2013] 8 CLJ 28 [CA]CLJ 2013 Volume 8 (Part 2)
COURT
HIGH COURT
PP v. Mohd Khayry Ismail
Su Geok Yiam J
(Criminal Law; Criminal Procedure - Murder - Section 302 Penal Code - Two counts of murder - Circumstantial evidence - Explosives hidden in a gift - Prior threat to kill - Proximity of time between threat and incident - Whether accused had motive to kill deceased persons - Trial - Defence story - Whether defence an afterthought - Whether defence plausible and cast reasonable doubt on prosecution's case - Whether deceased persons the intended victims - Whether accused guilty) [2013] 8 CLJ 141 [HC]PP v. Tan Peng Tong & Anor
Nurchaya Arshad JC
(Criminal Law; Evidence - Murder - Section 302 of Penal Code - Circumstantial evidence - Murder of three year old girl - Accused persons parents and guardians of child victim - Whether victim subjected to severe physical and mental abuse and neglect - Victim developed lung infection and stopped breathing - Whether injuries sustained spoke of gross physical abuse - Whether death precipitated by failure to provide victim with timely and adequate medical care - Whether injuries sufficient in ordinary course of nature to cause death) [2013] 8 CLJ 282 [HC]SUBJECT INDEX
CRIMINAL LAW
Murder - Section 302 of Penal Code - Circumstantial evidence - Charges of two counts of murder - `Mercun bola' hidden in gift - Accused in heavy debt with deceased persons - Deceased persons owned internet cafe where accused frequented to indulge in online gambling - Accused's request for loan denied by deceased - Prior threat - Proximity of time between threat and incident - Witness evidence that accused showed desire to burn internet cafe and its owners three months prior to incident - Whether accused had motive to kill deceased persons
PP v. Mohd Khayry Ismail
(Su Geok Yiam J) [2013] 8 CLJ 141 [HC]Murder - Section 302 of Penal Code - Circumstantial evidence - Murder of three year old girl - Accused persons parents and guardians of child victim - Whether victim subjected to severe physical and mental abuse and neglect - Victim developed lung infection and stopped breathing - Whether injuries sustained spoke of gross physical abuse - Whether death precipitated by failure of accused to provide victim with timely and adequate medical care
PP v. Tan Peng Tong & Anor
(Nurchaya Arshad JC) [2013] 8 CLJ 282 [HC]CRIMINAL PROCEDURE
Trial - Defence story - Whether afterthought - Whether defence story put to prosecution's witnesses - Whether defence plausible and cast reasonable doubt on prosecution's case - Whether accused had motive to kill - Whether court had reason to reject evidence of accused's friends to whom he made confessions - Whether CCTV recording identified accused leaving bag where bomb exploded - Whether deceased persons intended victims - Whether accused liable - Penal Code, s. 302
PP v. Mohd Khayry Ismail
(Su Geok Yiam J) [2013] 8 CLJ 141 [HC]EVIDENCE
Circumstantial evidence - Securing conviction on - Whether sufficient to convict accused of murder - Whether extensive physical injuries spoke of gross physical abuse - Whether injuries sufficient in ordinary course of nature to cause death - Whether death precipitated by failure of accused to provide victim with timely and adequate medical care - Whether defence a bare denial and failed to cast reasonable doubt on prosecution's case
PP v. Tan Peng Tong & Anor
(Nurchaya Arshad JC) [2013] 8 CLJ 282 [HC]
Legal Network Series Article
1. RETHINKING THE LEGAL PROFESSION IN THE 21ST CENTURY - FUTURE MODELS FOR DELIVERING LEGAL SERVICES
JUSTICE FOR USERS - NEW STRUCTURES ON OLD FOUNDATIONS [Read excerpt]
by: JLORD JUSTICE CARNWATH* [2013] 1 LNS(A) lxx2. THE BUSINESS JUDGMENT RULE FOR DIRECTORS IN THE AGE OF TECHNOLOGICAL ADVANCEMENT:
LESSONS FOR MALAYSIA* [Read excerpt]
by: DR HASANI MOHD ALI** [2013] 1 LNS(A) lxxi
Principal Acts
| Number | Title | Date coming into force | Repealing |
| ACT 759 | Islamic Financial Services Act 2013 | 30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9 | -Nil- |
| ACT 758 | Financial Services Act 2013 | 30 June 2013 [PU(B) 276/2013] - except s 129 and Schedule 9 | -Nil- |
| ACT 757 | Strata Management Act 2013 | Not Yet In Force | -Nil- |
| ACT 756 | Traditional And Complementary Medicine Act 2013 | Not Yet In Force | -Nil- |
| ACT 755 | Finance Act 2013 | See s 3 for the Income Tax Act; s 41 for the Stamp Act; s 47 for the Petroleum (Income Tax) Act and s 55 for the Real Property Gains Tax Act | -Nil- |
Amending Acts
| Number | Title | Date coming into force | Principal/Amending Act No |
| ACT A1453 | Supplementary Supply (2012) Act 2013 | 7 September 2013 | |
| ACT A1452 | Animals (Amendment) Act 2013 | 20 August 2013 | ACT 647 |
| ACT A1451 | Perbadanan Kemajuan Filem Nasional Malaysia (Amendment) Act 2013 | 1 April 2013 [PU(B) 89/2013] | ACT 244 |
| ACT A1450 | Strata Titles (Amendment) Act 2013 | Not Yet In Force | ACT 318 |
| ACT A1449 | Industrial Designs (Amendment) Act 2013 | 1 July 2013 [PU(B) 86/2013] | ACT 552 |
PU(A)
| Number | Title | Date of Publication | Date coming into force | Principal/Amending Act No |
| PU(A) 316/2013 | Factories And Machinery (Exemption To Petron Malaysia Refining & Marketing Bhd, Port Dickson, Negeri Sembilan) (No. 2) Order 2013 | 23 October 2013 | 24 October 2013 | ACT 139 |
| PU(A) 315/2013 | Factories And Machinery (Exemption To Malaysia LNG Sdn Bhd, Bintulu, Sarawak) (No. 3) Order 2013 | 23 October 2013 | 24 October 2013 | ACT 139 |
| PU(A) 314/2013 | Income Tax (Deduction From Remuneration) (Amendment) Rules 2013 | 17 October 2013 | 1 January 2013 | ACT 53 |
| PU(A) 313/2013 | Customs (Values) (Crude Petroleum Oil) (No. 21) Order 2013 | 17 October 2013 | 17 October 2013 to 30 October 2013 | ACT 235 |
| PU(A) 312/2013 | Renewable Energy (Feed-In Approval And Feed-In Tariff Rate) (Amendment) (No. 2) Rules 2013 | 11 October 2013 | 28 March 2013 | ACT 725 |
PU(B)
| Number | Title | Date of Publication | Date coming into force | Principal/Amending Act No |
| PU(B) 423/2013 | Notification Under Section 39 | 23 October 2013 | 24 October 2013 | ACT 532 |
| PU(B) 422/2013 | Notice Of Vacancies Of Elected Offices In The Malaysian Optical Council | 22 October 2013 | 23 October 2013 | PU(A) 293/2002 |
| PU(B) 421/2013 | Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Sarawak | 22 October 2013 | 23 October 2013 | PU(A) 293/2002 |
| PU(B) 420/2013 | Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Sabah | 22 October 2013 | 23 October 2013 | PU(A) 293/2002 |
| PU(B) 419/2013 | Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Federal Territory Of Labuan | 22 October 2013 | 23 October 2013 | PU(A) 293/2002 |
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