CLJ Bulletin, Issue 2011, Vol 45

18 November 2011

CLJ Law Malaysia

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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) 2011

1. Legislation Highlights

Principal Acts

NUMBER

TITLE

DATE COMING INTO FORCE

REPEALING

ACT 728 Malaysian Quarantine And Inspection Services Act 2011 Not Yet In Force - Nil -
ACT 729 National Sports Institute Act 2011 16 September 2011 [PU(B) 503/2011] - Nil -
ACT 730 Trade Descriptions Act 2011 1 November 2011 [PU(B) 540/2011] - Nil -
ACT 731 Money Services Business Act 2011 Not Yet In Force - Nil -
ACT 732 National Wages Consultative Council Act 2011 23 September 2011 [PU(B) 507/2011] - Nil -

Amending Acts

NUMBER

TITLE

DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

ACT A1403 Securities Commission (Amendment) Act 2011 3 October 2011 [PU(B) 517/2011] ACT 498
ACT A1404 Valuers, Appraisers And Estate Agents (Amendment) Act 2011 19 August 2011 ACT 242
ACT A1405 International Organizations (Privileges And Immunities) (Amendment) Act 2011 16 September 2011 ACT 485
ACT A1406 Capital Markets And Services (Amendment) Act 2011 3 October 2011 [PU(B) 518/2011] ACT 671
ACT A1407 Lembaga Pembangunan Industri Pembinaan Malaysia (Amendment) Act 2011 Not Yet In Force ACT 520

PU(A)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

PU(A) 365/2011 Factories And Machinery (Exemption To Titan Petchem (M) Sdn Bhd, Pp2 Plant, Pasir Gudang, Johor) Order 2011 2 November 2011 ACT 139
PU(A) 366/2011 Customs (Values) (Crude Petroleum Oil) (No 22) Order 2011 3 November 2011 ACT 235
PU(A) 367/2011 Loans Guarantee (Declaration Of Bodies Corporate) (Senai Airport Terminal Services Sdn Bhd) Order 2011 3 November 2011 ACT 96
PU(A) 368/2011 Loans Guarantee (Bodies Corporate) (Remission Of Tax And Stamp Duty) (No 4) Order 2011 3 November 2011 ACT 96
PU(A) 369/2011 Customs (Values) (Palm Oil) (No 45) Order 2011 4 November 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

PU(B) 559/2011 Notice Of Completion Of Assumption Of Control (Koperasi Pegawai-Pegawai Melayu Malaysia Berhad (Moccis)) 31 October 2011 ACT 502
PU(B) 560/2011 Notice To Third Parties Of Anti-Money Laundering And Anti-Terrorism Financing Act 2001 2 November 2011 ACT 613
PU(B) 561/2011 Notice To Third Parties Of Anti-Money Laundering And Anti-Terrorism Financing Act 2001 2 November 2011 ACT 613
PU(B) 562/2011 Appointment Of Deputy Public Prosecutor 2 November 2011 ACT 593
PU(B) 563/2011 Appointment Of Lock-Up To Be A Place Of Confinement 3 November 2011 ACT 537

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL ACT NO

DR 27/2011 Restricted Residence (Repeal) Bill 2011 - ACT 377
DR 28/2011 Banishment (Repeal) Bill 2011 - ACT 79
DR 29/2011 Supply Bill 2012 - -
DR 30/2011 Finance (No 2) Bill 2011 - -
DR 31/2011 Inland Revenue Board of Malaysia (Amendment) Bill 2011 - ACT 533

^^

2. Articles

a) Legal Network Series Articles

1. Educating Future Mediators [Read excerpt]
By Lord Neuberger Of Abbotsbury, Master Of The Rolls*

2. Promotional Expenses Or Entertainment [Read excerpt]
By Khoo Chen Giap*

^^

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT
[2009] 1 LNS 1419 [HC] Nordic Water Products Aktiebolag & Anor v. Pumpen Environmental Sdn Bhd

COPYRIGHT: Artistic works - Whether copyright subsisted in design drawings for Zickert Z-2000 hydraulic sludge scraper and their three dimensional forms - Whether 1st plaintiff copyright owner

COPYRIGHT: Infringement - Defendant copying, making and/or reproducing sludge scrapers in three dimensional form without consent of 1st plaintiff - Whether defendant infringed copyright subsisting in works and/or their three dimensional forms

EVIDENCE: Statutory declaration - Deponent not called to testify as to truth of contents - Whether statutory declaration can be relied on

EVIDENCE: Exhibit - Admissibility of - Sample of defendant's product not ascertained as actually being used in the construction of the sludge scraper - Whether sample of defendant's product can be used to determine substantial similarities between plaintiffs' and defendant's products - Whether visual comparison sufficient

TRADE MARKS: Passing off - Misrepresentation - Defendant representing that sludge scrapers manufactured and installed by defendant at various sewage treatment plants were in fact plaintiffs' Zickert Z-2000 hydraulic sludge scraper - Whether defendant passed off its sludge scrapers as that of plaintiffs

TRADE MARK: Passing off - Goodwill and reputation - Whether goodwill and reputation can subsist in a design

WORDS AND PHRASES: "reproduction" - Meaning of - Copyright Act 1987, s. 3

[2010] 1 LNS 373 [HC] Malayan Banking Berhad v. Leaderpac Manufacturing Sdn Bhd & Ors

BANKING: Securities for advances - Charge over land and factory erected thereon - Guarantee executed by chargor/defendants - Term loan, letter of credit, trust receipt, overdraft, banker's acceptance and foreign exchange control facilities - Factory destroyed by fire - Chargee/bank receiving proceeds under fire policy - Whether bank under contractual obligation to apply proceeds to rebuilding factory - Bank recalling facilities and enforcing charge - Whether chargor entitled to return of title deeds upon application of insurance proceeds by bank to satisfy term loan - Application by bank for summary judgment as per certificate of indebtedness - Whether bank wrongfully terminated facility agreement - Whether charge over land was in respect of term loan only or entire credit facility

[2010] 1 LNS 375 [HC] Caltex Oil Malaysia Limited v. PPMS Technologies Sdn Bhd & Ors

CONTRACT: Claim for goods sold and delivered - Suit against 2nd and 3rd defendants as guarantors - 1st defendant company already wound-up - 3rd defendant claiming undue influence on part of 2nd defendant - Whether doctrine operates as between parties on the same contracting side - Whether operates only between opposite parties to the contract - Whether plaintiff influenced 3rd defendant into signing guarantee - Whether 3rd defendant's consent vitiated - Contracts Act 1950, s. 16

[2010] 1 LNS 380 [HC] PP v. Abdul Halid Abdullah

CRIMINAL LAW: Penal Code - Sections 300, 302 - Murder - Whether accused stabbed victim with knife - Cause of death - Mens rea - Whether accused intended to cause injury by stabbing victim - Whether injury intended sufficient in ordinary course of nature to cause death - Penal Code, s. 300(c) - Flight from scene of crime - Inference - Defence of lawful accident - Penal Code, s. 80 - Whether requirements satisfied - Whether sufficient for accused to show that startled victim fell from stairs onto his knife - Whether reasonable doubt raised on prosecution's case

[2010] 1 LNS 381 [HC] PP v. Koperasi Insurance (Malaysia) Berhad & Another Cases

COMPANY LAW: Separate legal entity - Locus standi - Allegation of tortious act against company - Whether shareholder, director or corporate nominee could sue in personal capacity - Whether company must sue in its own name

TORT: Negligence - Duty of care - Civil proceedings - Prosecution of claim - Whether one litigant owes another a duty of care - Whether remedy lies in rules of court rather than in tort of negligence - Whether cause of action lies in negligence

TORT: Negligence - Duty of care - Defendant obtaining default judgment against plaintiff - Defendant advertising winding-up petition - Judgment set aside for irregular service - Winding-up petition set aside - Defendant refusing to issue letter of release - Whether defendant's court action negligent or reckless - Whether plaintiff's underwriting agency wrongfully terminated by defendant - Whether cause of action lies in negligence

TORT: Malicious prosecution - Civil proceedings - Judgment - Winding-up proceedings - Defendant obtaining default judgment against plaintiff - Defendant commencing winding-up proceedings against plaintiff - Judgment set aside for irregular service - Action withdrawn - Winding-up petition against plaintiff set aside - Whether defendant's action amounted to malicious prosecution - Reasonable and probable cause

TORT: Defamation - Libel - Defendant allegedly advertising winding-up petition against plaintiff in newspaper - Winding-up petition against plaintiff set aside - Whether fact of publication established - Whether alleged publication of winding-up petition defamatory - Absolute privilege - Defamation Act 1957, s. 11(1)

^^

b. CLJ Volume 8 (Part 1) 2011

COURT

FEDERAL COURT

Inspector Yusof Hj Othman & Ors v. Kwan Hung Cheong
Zaki Tun Azmi CJ, Zulkelfi Makinudin, Raus Sharif FCJJ
(Criminal Procedure; Police - Release on bail under s. 388 CPC following release from detention under s. 117 of same - Whether lawful for police to issue bail - Powers to issue bail - Whether abused) [2011] 8 CLJ 1 [FC]

COURT OF APPEAL

Overseas Assurance Corporation (Malaysia) Bhd v. MSIG Insurance (Malaysia) Bhd
Zainun Ali, Ramly Ali, Balia Yusof Wahi JJCA
(Equity - Contribution in equity - Appellant and respondent provided separate insurance cover for housing project - Respondent paid full loss claimed by insured - Whether respondent entitled to contribution from appellant) [2011] 8 CLJ 20 [CA]

Padiberas Nasional Bhd v. Zainon Ahmad & Ors
Ramly Ali, Syed Ahmad Helmy, Clement Skinner JJCA
(Labour Law - Employees claiming retirement/termination benefits after accepting VSS) [2011] 8 CLJ 38 [CA]

HIGH COURT

Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restauran Semenanjung Malaysia v. YB Menteri Sumber Manusia, Malaysia & Ors
Mohd Zawawi Salleh J
(Administrative Law - Judicial review - Decision of Minister not to accord recognition to applicant trade union) [2011] 8 CLJ 53 [HC]

Mohammad Daud Salleh v. Kamarudin Nordin & Ors
Lee Swee Seng JC
(Civil Procedure - Mode of commencement - Negligence for issuing identity card to another - Whether remedy sought in private or public law) [2011] 8 CLJ 72 [HC]

MOL Logistics (Malaysia) Sdn Bhd v. Bank Of Tokyo-Mitsubishi (Malaysia) Bhd
Hasnah Mohammed Hashim JC
(Banking; Evidence - Banker and customer - Authorisation - Expert evidence - Forgery of signature) [2011] 8 CLJ 90 [HC]

Wing Fah Enterprise Sdn Bhd v. Matsushita Electronic Components (M) Sdn Bhd
Suraya Othman J
(Contract - Illegal - Licence required to deal in scrap metals - Absence of licence) [2011] 8 CLJ 111 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Exercise of administrative powers - Judicial review - Decision of Minister not to accord recognition to applicant trade union - Whether Minister under obligation to provide a reasoned decision - Industrial Relations Act 1967, s. 9(3) - Trade Unions Act 1959, s. 26(3) - Trade Unions Regulations 1959, reg. 65(2)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restauran, Semenanjung Malaysia v. YB Menteri Sumber Manusia, Malaysia & Ors
(Mohd Zawawi Salleh J) [2011] 8 CLJ 53 [HC]

BANKING

Banker and customer - Authorisation - Whether defendant authorised to debit sum from plaintiff's account - Whether there is valid authorisation - Whether defendant exercised reasonable skill and care in executing plaintiff's order - Whether defendant aware of forged signature on Cashier's Order - Whether Cashier's Orders collected by authorised personnel of plaintiff - Whether defendant acted reasonably and exercised care in discharging their duties - Whether defendant was negligent in discharging their duty - Whether defendant indebted to plaintiff
MOL Logistics (Malaysia) Sdn Bhd v. Bank Of Tokyo-Mitsubishi (Malaysia) Bhd
(Hasnah Mohammed Hashim JC) [2011] 8 CLJ 90 [HC]

CIVIL PROCEDURE

Mode of commencement - Whether correct originating process used - Plaintiff filed writ against defendants for negligence for issuing identity card bearing same name and number as plaintiff's to another person - Whether remedy sought for was in private or public law - Whether action commenced by writ proper - Whether plaintiff should have applied for judicial review - Rules of High Court 1980, O. 53, O. 18 r. 19(1)(a), (d)
Mohammad Daud Salleh v. Kamarudin Nordin & Ors
(Lee Swee Seng JC) [2011] 8 CLJ 72 [HC]

CONTRACT

Illegality - Contravention of law - Parties in pari delicto - Plaintiff bought scrap metal production waste from defendant - Licence required to deal in scrap metals under Second-Hand Dealers Act 1946 - Whether 'deal in' in s. 6 of Act included both buying and selling of scrap metals - Whether absence of licence rendered agreement illegal, void and unenforceable - Whether parties could waive requirement for licence under the Act - Contracts Act 1950, s. 25
Wing Fah Enterprise Sdn Bhd v. Matsushita Electronic Components (M) Sdn Bhd
(Suraya Othman J) [2011] 8 CLJ 111 [HC]

CRIMINAL PROCEDURE

Bail - Release on - Release on bail under s. 388 CPC following release from detention under s. 117 of same - Whether lawful for police to issue bail following release from detention - No clear order from court that application for release on bail was granted - Whether application deemed rejected - Whether police officer could exercise power under s. 388 CPC after rejection - Police investigations not continued into case to justify release on bail - Whether abuse of power - Whether art. 5(1) Federal Constitution infringed giving rise to claim in damages - Penal Code, s. 454, Federal Constitution, art. 5(1)
Inspector Yusof Hj Othman & Ors v. Kwan Hung Cheong
(Zaki Tun Azmi CJ, Zulkefli Makinudin, Raus Sharif FCJJ) [2011] 8 CLJ 1 [FC]

EQUITY

Contribution in equity - General principles - Appellant and respondent provided separate insurance cover for housing project - 'Rateable proportion' clause in both policies limiting liability of each policy to 50% of total loss - Houses damaged by design fault - Loss from such damage not covered by respondent's policy - Respondent paid full loss claimed by insured - Whether respondent's payment ex-gratia - Whether respondent entitled to contribution from appellant
Overseas Assurance Corporation (Malaysia) Bhd v. MSIG Insurance (Malaysia) Bhd
(Zainun Ali, Ramly Ali, Balia Yusof Wahi JJCA) [2011] 8 CLJ 20 [CA]

EVIDENCE

Burden of proof - Forgery of signature - Whether plaintiff proved forgery on a balance of probabilities
MOL Logistics (Malaysia) Sdn Bhd v. Bank Of Tokyo-Mitsubishi (Malaysia) Bhd
(Hasnah Mohammed Hashim JC) [2011] 8 CLJ 90 [HC]

Expert evidence - Handwriting - Whether expert evidence conclusive or merely to assist court - Forgery - Whether signatures forged - Whether expert evidence was challenged by defendant
MOL Logistics (Malaysia) Sdn Bhd v. Bank Of Tokyo-Mitsubishi (Malaysia) Bhd
(Hasnah Mohammed Hashim JC) [2011] 8 CLJ 90 [HC]

INSURANCE

Double insurance - Liability of insurers to contribute - Appellant and respondent provided separate insurance cover for housing project - 'Rateable proportion' clause in both policies limiting liability of each policy to 50% of total loss - Houses damaged by design fault - Loss from such damage not covered by respondent's policy - Respondent paid full loss claimed by insured - Whether respondent's payment ex-gratia - Whether respondent entitled to contribution from appellant
Overseas Assurance Corporation (Malaysia) Bhd v. MSIG Insurance (Malaysia) Bhd
(Zainun Ali, Ramly Ali, Balia Yusof Wahi JJCA) [2011] 8 CLJ 20 [CA]

LABOUR LAW

Employment - Termination - Mutual termination pursuant to acceptance of Voluntary Separation Scheme package (VSS) - Employees claiming retirement/termination benefits after accepting VSS - Whether employees entitled to be paid benefits as per employment handbook - Whether respondents expressly waived rights to receive retirement/termination benefits when accepting VSS
Padiberas Nasional Bhd v. Zainon Ahmad & Ors
(Ramly Ali, Syed Ahmad Helmy, Clement Skinner JJCA) [2011] 8 CLJ 38 [CA]

Trade union - Recognition - Applicant requesting that membership check be done by way of membership verification as opposed to secret ballot - Reasons for the same - Whether DGTU bound to comply with wishes of applicant - Whether DGTU acted impartially in carrying out membership check - Trade Unions Regulations 1959, reg. 62
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restauran, Semenanjung Malaysia v. YB Menteri Sumber Manusia, Malaysia & Ors
(Mohd Zawawi Salleh J) [2011] 8 CLJ 53 [HC]

Trade union - Recognition - Minister advising 4th respondent not to accord recognition to the applicant - Reasons for the same - Whether Minister under an obligation to give reasons for his decision - Whether Minister exercised his discretion properly - Factors to consider - Industrial Relations Act 1967, s. 9(5)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restauran, Semenanjung Malaysia v. YB Menteri Sumber Manusia, Malaysia & Ors
(Mohd Zawawi Salleh J) [2011] 8 CLJ 53 [HC]

Trade union - Recognition - Whether a membership check by way of secret ballot would produce a result not intended by s. 9(3) IRA and reg. 4(1)(c) Industrial Relations Regulations 1980 - Industrial Relations Act 1967, s. 9(3) - Industrial Relations Regulations 1980, reg. 4(1)(c)
Kesatuan Kebangsaan Pekerja-pekerja Hotel, Bar & Restauran, Semenanjung Malaysia v. YB Menteri Sumber Manusia, Malaysia & Ors
(Mohd Zawawi Salleh J) [2011] 8 CLJ 53 [HC]

POLICE

Powers - Powers to issue bail - Whether abused - Criminal Procedure Code, ss. 117, 388 - Penal Code, s. 454 - Federal Constitution, art. 5(1)
Inspector Yusof Hj Othman & Ors v. Kwan Hung Cheong
(Zaki Tun Azmi CJ, Zulkefli Makinudin, Raus Sharif FCJJ) [2011] 8 CLJ 1 [FC]

^^

CASE OF THE WEEK

FOLIN & BROTHERS SDN BHD & ORS v. FOLIN FOOD PROCESSING SDN BHD & ORS

CIVIL PROCEDURE: Settlement - Consent order - Agreement by parties to resolve issues by obtaining expert opinion - Whether expert decision binding on parties if expert materially departs from terms of instruction - Whether expert's decision can be challenged for fraud, collusion, partiality, lack of independence

COMPANY LAW: Liquidation - Liquidator, rights of - Rights of liquidators to obtain information and documents relating to valuation of company's assets

COMPANY LAW: Winding up - Disposition of property - Whether valuation properly carried out - Whether company assets undervalued - Valuation not independent and not reflecting fair value of property


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