Bulletin_45

CLJ Bulletin, Issue 2010, Vol 45

19 November 2010

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Articles
	a) Legal Network Series Articles
	b) CLJ Articles
	2. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 8 (Part 6) 2010

1. Articles

a) Legal Network Series Articles

1. Conkerton Memorial Lecture 2008 - The Autonomy Of The Citizen In The Context Of Family Law Disputes ^{[Read
excerpt]}
By Mr Justice Ryder*

b) CLJ Articles

1. Judicial Recognition Of The Orang Asli Land Rights In West Malaysia: Triumph And Hope ^{[Read
excerpt]}
by Noor Ashikin Hamid, Noraida Harun & Shariffah Nuridah Aishah Syed Nong Mohamad*

2. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2010] 1 LNS 273 [HC] Ng Khang Kee v. PP (BPR)

CRIMINAL LAW: Anti-Corruption Act 1997 - S. 11 - Appellant convicted of bribing SP1 with RM3,000 - Appellant alleging inducement and entrapment - Whether substantiated - SP1's evidence corroborated by SP4, SP6 and SP8 in all material particulars and in direct conflict with appellant's version - Whether sessions Judge had evaluated prosecution evidence in totality before invoking s. 42(1) presumption under s. 42(1) of the ACA 1997 and finding a prima facie case had been established - Whether prosecution had established its case against appellant beyond reasonable doubt

[2010] 1 LNS 277 [HC] Perwira Affin Bank Berhad v. Rosli Man & Anor

BANKING: Banks and banking business - Loan agreement - Whether plaintiff had complied with terms in respect of disbursement of the term loan facility - Whether letter of undertaking from Shubila Holdings Sdn. Bhd.'s agent was sufficient to meet condition precedent - 1^st defendant denying liability for the facility on grounds the condition precedent was not complied with - Whether 1^st defendant estopped from denying liability for the facility received

BANKING: Securities for advances - Deposit of shares as security - Whether there is sufficient evidence to show that the subject shares are with the plaintiff - Plaintiff established that subject shares were not delivered to it and were not in its possession - Whether claim premature as the shares had not been sold - Security of the shares required by plaintiff was never complied with - Failure by 1^st defendant to make repayment towards loans - Whether cancellation and facilities by plaintiff valid

[2009] 1 LNS 66 [HC] Wong Chiok Sing v. Lau Kah Ngiek

FAMILY LAW: Divorce - Service of petition - Procedure set out in Divorce and Matrimonial Proceedings Rules 1980, Rule 12(1) and (2) - Petition served by AR Registered post - Whether the service of the petition is good in law, notwithstanding that the petitioner did not make an application to the court to request that the petitioner be allowed to serve the petition by post pursuant to Rule 12(2) (b)

FAMILY LAW: Divorce - Service of petition - No acknowledgement of receipt of petition - Whether requirement for acknowledgement may be waived by the court

[2009] 1 LNS 74 [HC] Kesang Leasing Sdn Bhd v. Dato' Haji Mat @ Mat Shah Bin Ahmad & Others (No 2)

CIVIL PROCEDURE: Parties - Proper plaintiffs - Alleged transfer of two apartments to third parties by 1^st defendant, a director of the plaintiff - Properties had been transferred from plaintiff to another entity which then transferred them to third parties - Whether action brought by correct party

CIVIL PROCEDURE: Recall of witness after close of case - Application by 1^st defendant to reopen trial after close of case - Receiving and adjudication order against 1^st defendant annulled - Intention to cross-examine the plaintiff's witness - Whether trial judge may exercise his discretion to reopen case

CITATION	TITLE	SUBJECT
[2010] 1 LNS 273 [HC]	Ng Khang Kee v. PP (BPR)	CRIMINAL LAW: Anti-Corruption Act 1997 - S. 11 - Appellant convicted of bribing SP1 with RM3,000 - Appellant alleging inducement and entrapment - Whether substantiated - SP1's evidence corroborated by SP4, SP6 and SP8 in all material particulars and in direct conflict with appellant's version - Whether sessions Judge had evaluated prosecution evidence in totality before invoking s. 42(1) presumption under s. 42(1) of the ACA 1997 and finding a prima facie case had been established - Whether prosecution had established its case against appellant beyond reasonable doubt
[2010] 1 LNS 277 [HC]	Perwira Affin Bank Berhad v. Rosli Man & Anor	BANKING: Banks and banking business - Loan agreement - Whether plaintiff had complied with terms in respect of disbursement of the term loan facility - Whether letter of undertaking from Shubila Holdings Sdn. Bhd.'s agent was sufficient to meet condition precedent - 1^st defendant denying liability for the facility on grounds the condition precedent was not complied with - Whether 1^st defendant estopped from denying liability for the facility received BANKING: Securities for advances - Deposit of shares as security - Whether there is sufficient evidence to show that the subject shares are with the plaintiff - Plaintiff established that subject shares were not delivered to it and were not in its possession - Whether claim premature as the shares had not been sold - Security of the shares required by plaintiff was never complied with - Failure by 1^st defendant to make repayment towards loans - Whether cancellation and facilities by plaintiff valid
[2009] 1 LNS 66 [HC]	Wong Chiok Sing v. Lau Kah Ngiek	FAMILY LAW: Divorce - Service of petition - Procedure set out in Divorce and Matrimonial Proceedings Rules 1980, Rule 12(1) and (2) - Petition served by AR Registered post - Whether the service of the petition is good in law, notwithstanding that the petitioner did not make an application to the court to request that the petitioner be allowed to serve the petition by post pursuant to Rule 12(2) (b) FAMILY LAW: Divorce - Service of petition - No acknowledgement of receipt of petition - Whether requirement for acknowledgement may be waived by the court
[2009] 1 LNS 74 [HC]	Kesang Leasing Sdn Bhd v. Dato' Haji Mat @ Mat Shah Bin Ahmad & Others (No 2)	CIVIL PROCEDURE: Parties - Proper plaintiffs - Alleged transfer of two apartments to third parties by 1^st defendant, a director of the plaintiff - Properties had been transferred from plaintiff to another entity which then transferred them to third parties - Whether action brought by correct party CIVIL PROCEDURE: Recall of witness after close of case - Application by 1^st defendant to reopen trial after close of case - Receiving and adjudication order against 1^st defendant annulled - Intention to cross-examine the plaintiff's witness - Whether trial judge may exercise his discretion to reopen case

b. CLJ Volume 8 (Part 6) 2010

COURT

FEDERAL COURT

Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd
(Administrative Law - Judicial review - Certiorari) [2010] 8 CLJ 629

COURT OF APPEAL

ASM Metal Sdn Bhd v. Malayan Banking Bhd
(Banking - Securities for advances - Guarantee) [2010] 8 CLJ 645

Borhan Hj Daud & Ors v. Abd Malek Hussin
(Constitutional Law - Fundamental liberties - Preventive detention) [2010] 8 CLJ 656

Lim Hun Swee v. Malaysia British Assurance Bhd & Ors And Other Appeals
(Bankruptcy - Discharge - Appeal against) [2010] 8 CLJ 680

HIGH COURT

Alom Building Systems Sdn Bhd v. Malaysia Export Credit Insurance Bhd
(Insurance - Construction of policy - Export-credit insurance) [2010] 8 CLJ 699

PP v. Daud Ahmad
(Criminal Law - Murder - Defence - Grave and sudden provocation) [2010] 8 CLJ 727

Templer Park Golf & Resort Bhd & Anor v. Tetuan George Varughese
(Company Law - Winding up - Injunction to restrain petition) [2010] 8 CLJ 754

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application to quash award of Industrial Court - Reviewing findings of facts - Acting on an unpleaded issue - Finding made in the absence of positive proof - Consideration of irrelevant matters and failure to consider relevant matters - Whether award ought to be quashed
Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd
(Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff & Raus Sharif FCJJ) [2010] 8 CLJ 629 [FC]

BANKING

Securities for advances - Guarantee - Scope of guarantee - Guarantee for revolving credit facility secured by third party charge over guarantor's land - Earlier separate corporate guarantee given by same guarantor to secure repayment of overdraft facility - Borrower defaulting in repayment of both facilities - Whether lender may claim under the charge for amounts owing under earlier corporate guarantee
ASM Metal Sdn Bhd v. Malayan Banking Bhd
(Hasan Lah, Heliliah Mohd Yusof & Hishamudin Mohd Yunus JJCA) [2010] 8 CLJ 645 [CA]

BANKRUPTCY

Discharge - Appeal against - Whether discharge ought not be allowed - Whether fatal for DGI not to have prepared a full and complete report on bankrupt's conduct and affairs as required under s. 33 Bankruptcy Act 1967 - DGI's report brief and incomplete - Whether court could reject DGI's report and disallow discharge
Lim Hun Swee v. Malaysia British Assurance Bhd & Ors And Other Appeals
(Abu Samah Nordin, Ramly Ali & Mohamed Apandi Ali JJCA) [2010] 8 CLJ 680 [CA]

Discharge - Application - Conduct of official assignee - Failure to produce competent report - Bankruptcy Act 1967, s. 31(1) - Whether sufficient to support application for discharge - Whether Bankruptcy Act 1967, s. 16(2) complied with - Whether Bankruptcy Act 1967, s. 33(6)(b), (f) & (m) contravened - Whether there was basis to allow discharge
Lim Hun Swee v. Malaysia British Assurance Bhd & Ors And Other Appeals
(Abu Samah Nordin, Ramly Ali & Mohamed Apandi Ali JJCA) [2010] 8 CLJ 680 [CA]

Discharge - Discharge of bankrupt - Whether discharge proper as bankrupt paid only 1% of outstanding debt - Whether bankrupt committed offence under Bankruptcy Act 1967 - Report by Director General of Insolvency brief and incomplete - Whether discharge ought not be allowed - Whether court to consider interest of public commercial morality in deciding discharge applications - Bankruptcy Act 1967, s. 33
Lim Hun Swee v. Malaysia British Assurance Bhd & Ors And Other Appeals
(Abu Samah Nordin, Ramly Ali & Mohamed Apandi Ali JJCA) [2010] 8 CLJ 680 [CA]

Official assignee - Duty of - Conduct - Failure to produce competent report - Whether sufficient to support application of discharge - Whether court may refuse to accept incomplete or incompetent report - Bankruptcy Act 1967, s. 31(1)
Lim Hun Swee v. Malaysia British Assurance Bhd & Ors And Other Appeals
(Abu Samah Nordin, Ramly Ali & Mohamed Apandi Ali JJCA) [2010] 8 CLJ 680 [CA]

CIVIL PROCEDURE

Pleadings - Issue not pleaded - Whether court ought to ignore issues not pleaded - Whether parties bound by their pleadings
Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd
(Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff & Raus Sharif FCJJ) [2010] 8 CLJ 629 [FC]

COMPANY LAW

Winding up - Injunction to restrain petition - Non-payment of solicitor's bill - Whether contents of bill bona fide - Whether possibility of irreparable harm caused to debtor could be a cure for not honouring commitment to creditors - Whether application dismissed - Legal Profession Act 1976, ss. 126, 128
Templer Park Golf & Resort Bhd & Anor v. Tetuan George Varughese
(Hamid Sultan Abu Backer J) [2010] 8 CLJ 754 [HC]

CONSTITUTIONAL LAW

Fundamental liberties - Preventive detention - Detention under Internal Security Act 1960 - Whether there was procedural non-compliance - Whether details of alleged wrongful activity need to be explained to detainee - Federal Constitution, art. 5(3) - Internal Security Act 1960, ss. 8(1), 73(1), (3) Federal Constitution, art. 5(3) - Internal Security Act 1960, ss. 8(1), 73(1), (3)
Borhan Hj Daud & Ors v. Abd Malek Hussin
(Raus Sharif, Sulong Matjeraie & Ahmad Maarop JJCA) [2010] 8 CLJ 656 [CA]

Legislature - Constitutionality of statute - Whether Internal Security Act 1960 is a valid and constitutional legislation - Federal Constitution, art. 149
Borhan Hj Daud & Ors v. Abd Malek Hussin
(Raus Sharif, Sulong Matjeraie & Ahmad Maarop JJCA) [2010] 8 CLJ 656 [CA]

Right to counsel - Detention under Internal Security Act 1960 - Deprivation of legal representation during detention period - Whether invalidated detention process - Federal Constitution, art. 5(3)
Borhan Hj Daud & Ors v. Abd Malek Hussin
(Raus Sharif, Sulong Matjeraie & Ahmad Maarop JJCA) [2010] 8 CLJ 656 [CA]

CRIMINAL LAW

Murder - Defence - Grave and sudden provocation - Reaction and retaliation of accused out of proportion with alleged provocation by deceased - Reasonable man in similar situation would not have been so provoked - Defence failed - Penal Code s. 300 Exception 1
PP v. Daud Ahmad
(Ahmadi Asnawi J) [2010] 8 CLJ 727 [HC]

Murder - Defence - Sudden fight - No fight between deceased and accused in heat of passion - Defence failed - Penal Code s. 300 Exception 4
PP v. Daud Ahmad
(Ahmadi Asnawi J) [2010] 8 CLJ 727 [HC]

Penal Code - Section 302 - Murder - Mens rea - Whether accused act of constricting deceased throat/neck with scarf done with intention to cause death of deceased - Whether act of accused carried high probability to cause death - Section 300(a) Penal Code
PP v. Daud Ahmad
(Ahmadi Asnawi J) [2010] 8 CLJ 727 [HC]

Penal Code - Section 302 - Murder - Proof - Circumstantial evidence - Series of circumstances and coincidences considered in aggregate pointing to conclusion that accused caused death of deceased - Whether case proven beyond reasonable doubt
PP v. Daud Ahmad
(Ahmadi Asnawi J) [2010] 8 CLJ 727 [HC]

CRIMINAL PROCEDURE

Statement - Confession - Admissibility - Whether confession made by murder accused to his employer admissible - Whether confession had direct reference to offence - Whether statement made by accused under inducement, threat or promise
PP v. Daud Ahmad
(Ahmadi Asnawi J) [2010] 8 CLJ 727 [HC]

EVIDENCE

Confession - Admissibility - Whether confession made by murder accused to his employer admissible - Whether confession had direct reference to offence - Whether statement made by accused under inducement, threat or promise
PP v. Daud Ahmad
(Ahmadi Asnawi J) [2010] 8 CLJ 727 [HC]

INSURANCE

Construction of policy - Export-credit insurance - Claim by exporter against insurer for non-payment of buyer - Ascertainment of loss - Words, ordinary meaning or settled meaning within industry - Objective against subjective intention of parties - Fair and reasonable construction - Avoiding absurd or unjust interpretation that would render object of policy illusory - Function of court, whether should determine product dispute between exporter and buyer - Whether exporter had shown its claim to be within four corners of policy and its loss within perils insured against
Alom Building Systems Sdn Bhd v. Malaysia Export Credit Insurance Bhd
(Mary Lim JC) [2010] 8 CLJ 699 [HC]

Export-credit insurance - Contract of guarantee - Insuring exporter against non-payment by buyer - Claim against insurer for non-payment by buyer - Ascertainment of loss - Whether sufficient for exporter to merely wait six months in order to claim - Whether insurer could require exporter to comply with additional conditions - Estoppel - Whether buyer had claimed to be justified in withholding payment to exporter - Guarantee on payment by buyer - Whether conditions precedent in contract conjunctive or disjunctive - Whether insurer could require exporter to comply with all disjunctive conditions - Whether would lead to commercial absurdity
Alom Building Systems Sdn Bhd v. Malaysia Export Credit Insurance Bhd
(Mary Lim JC) [2010] 8 CLJ 699 [HC]

LABOUR LAW

Employment - Dismissal - Doctrine of condonation, extent and application of
Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd
(Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff & Raus Sharif FCJJ) [2010] 8 CLJ 629 [FC]

Industrial Court - Award - Jurisdictional errors - Acting on an unpleaded issue - Finding made in the absence of positive proof - Consideration of irrelevant matters and failure to consider relevant matters - Whether award ought to be quashed
Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd
(Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff & Raus Sharif FCJJ) [2010] 8 CLJ 629 [FC]

Industrial Court - Duty of court - Duty to act according to equity, good conscience and substantial merits of case without regard to technicalities and legal form - Extent of such duty - Whether Industrial Court free to disregard Industrial Court Rules in execution of such duty - Industrial Relations Act 1967, s. 30(5) - Industrial Court Rules 1967
Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd
(Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff & Raus Sharif FCJJ) [2010] 8 CLJ 629 [FC]

Industrial Court - Finding of fact - Finding based on unpleaded issue - Whether Industrial Court ought not to consider issues not raised in pleadings - Whether award of Industrial Court based on unpleaded issue ought to be quashed
Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd
(Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff & Raus Sharif FCJJ) [2010] 8 CLJ 629 [FC]

LAND LAW

Charge - Order for sale - Cause to the contrary - Form 16D claiming sums exceeding actual sum owed and payable by borrower - Form 16D invalid - Cause to the contrary established - National Land Code, 1956 s. 256(3)
ASM Metal Sdn Bhd v. Malayan Banking Bhd
(Hasan Lah, Heliliah Mohd Yusof & Hishamudin Mohd Yunus JJCA) [2010] 8 CLJ 645 [CA]

PREVENTIVE DETENTION

Detention - Detention under Internal Security Act 1960 - Alleged involvement in activities prejudicial to national security - Whether essence and particulars of alleged wrongful activities explained to detainee - Whether arrest and detention unlawful - Whether liable in tort - Federal Constitution, art. 5(3) - Internal Security Act 1960, ss. 8(1), 73(1), (3)
Borhan Hj Daud & Ors v. Abd Malek Hussin
(Raus Sharif, Sulong Matjeraie & Ahmad Maarop JJCA) [2010] 8 CLJ 656 [CA]

Detention under Internal Security Act 1960 - Right to counsel - Deprivation of legal representation during detention period - Whether invalidated detention process - Federal Constitution, art. 5(3)
Borhan Hj Daud & Ors v. Abd Malek Hussin
(Raus Sharif, Sulong Matjeraie & Ahmad Maarop JJCA) [2010] 8 CLJ 656 [CA]

TORT

Assault and battery - Liability - Detainee claiming to have been humiliated and mentally and physically assaulted while in police custody - Whether allegation of police abuse established on evidence - Whether detainee entitled to general, aggravated and exemplary damages - Quantum
Borhan Hj Daud & Ors v. Abd Malek Hussin
(Raus Sharif, Sulong Matjeraie & Ahmad Maarop JJCA) [2010] 8 CLJ 656 [CA]

False imprisonment - Claim for damages - Arrest under Internal Security Act 1960 - Allegation that essence and particulars of alleged wrongful activities not explained to detainee - Whether arrest and detention unlawful - Liability - Quantum - Federal Constitution, art. 5(3) - Internal Security Act 1960, ss. 8(1), 73(1), (3)
Borhan Hj Daud & Ors v. Abd Malek Hussin
(Raus Sharif, Sulong Matjeraie & Ahmad Maarop JJCA) [2010] 8 CLJ 656 [CA]

WORDS & PHRASES

'Claim' - Ordinary, dictionary meaning - Common-sense meaning - The aggregate of operative facts giving rise to a right enforceable by a court - Assertion - Demand - Specific claim to be justified in withholding payment
Alom Building Systems Sdn Bhd v. Malaysia Export Credit Insurance Bhd
(Mary Lim JC) [2010] 8 CLJ 699 [HC]

'Or' - Plain and ordinary meaning - Disjunctive - Alternative - Export-credit insurance - Contract of guarantee
Alom Building Systems Sdn Bhd v. Malaysia Export Credit Insurance Bhd
(Mary Lim JC) [2010] 8 CLJ 699 [HC]

CASE OF THE WEEK

DR CHAN CHOO LIP v. MALAYSIAN MEDICAL COUNCIL & ANOR

ADMINISTRATIVE LAW: Judicial review - Certiorari - Medical profession - Application to quash decision of Malaysian Medical Council to inquire into misconduct of medical practitioner - Practitioner acquitted of charges of misconduct by Court of Law - Whether could be subjected to inquiry before Council - Whether acquittal binding on Council - Autrefois acquit, doctrine of - Whether applicable - Whether Council's decision amenable to judicial review

PROFFESIONS: Medical practitioners - Misconduct - Statutory Inquiry - Malaysian Medical Council, power to conduct inquiry - Applicant acquitted of charges of misconduct by Court of Law - Whether could be subjected to inquiry before Council - Whether acquittal binding on Council - Autrefois acquit, doctrine of - Whether applicable

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