Legal Network Series

[2009] 1 LNS 905	SUMAN AMBANG & ANOR v. PERTAMA LAND & DEVELOPMENT SDN BHD & 2 ORS	ADMINISTRATIVE LAW: Natural justice - Breach - Allegation that plaintiffs should have been accorded a fair hearing before 1st and 2nd defendants destroyed their crops - Whether there was a breach of natural justice LAND LAW: Occupation - Whether plaintiffs had expressed or implied consent and/or licence to be on "Tanah Perkampungan" land - Provision of basic amenities and appointment of Ketua Kampung - Whether amounted to tacit approval for entry to State land - s. 88 of the Land Ordinance - Whether such permission or license which plaintiffs allegedly acquired could subsist upon issuance of the title - Status of plaintiffs - Whether they were squatters LAND LAW: Possession of land - Encroached land - Whether plaintiffs cultivated crops on "Tanah Perkampungan" which after alienation fell within 1st defendant's four titled lands - Allegation by plaintiffs that defendants encroached on the "Tanah Perkampungan" and destroyed plaintiffs' cultivated crops without following boundary of titled land - Surveyor's finding of survey critical but not called as witness - Whether plaintiffs proved that 1st and 2nd defendants encroached onto "Tanah Perkampungan" and unlawfully destroyed plaintiffs' cultivated crops LAND LAW: Possession - Recovery of - Allegation that destruction of plaintiffs' crops by 1st and 2nd defendants unlawful as without prior court order - Whether plaintiffs were squatters - If so, whether 1st and 2nd defendants could resort to common law of self help to oust plaintiffs - Whether destruction of cultivated crops not unlawful
[2009] 1 LNS 923	ITRAMAS TECHNOLOGY SDN BHD v. AMBANK (M) BERHAD & ANOR	CIVIL PROCEDURE: Injunction - Interim injunction - To restrain 1st defendant from paying and 2nd defendant from receiving performance or on-demand bond - Whether this was an on demand bond - Fraud - Whether facts and circumstances alleged by plaintiff amounted to fraud - Whether there was a serious question to be tried - Whether balance of convenience and justice leaned in favour of granting an injunction
[2009] 1 LNS 1465	SURESH RAGAVAN v. MENTERI SUMBER MANUSIA, MALAYSIA & ORS	ADMINISTRATIVE LAW: Judicial review - Certiorari - To quash 1st respondent's decision - Refusal to refer applicants' representation to the Industrial Court for adjudication - Mandamus - To compel reference of representation - Whether 1st respondent committed any error of law in exercising his discretion not to refer representation - Whether 1st respondent considered all relevant matters and had not taken into consideration irrelevant matters - Whether there were serious questions of fact or of law calling for adjudication - Whether 1st respondent usurped the functions of the Industrial Court
[2010] 1 LNS 1467	PP v. STEVEN LANI	CRIMINAL LAW: Penal Code - s. 304 - Culpable homicide not amounting to murder - Whether accused had intention to cause death of deceased - Whether premeditation established by the prosecution - Whether prosecution made out a prima facie case against accused for an offence under s. 304(a) CRIMINAL PROCEDURE: Charge - Alteration or amendment of - Finding that there was no prima facie case made out for offence charged - Whether High Court Judge had power to alter or amend charge to a less serious charge which he found to have been prima facie made out
[2010] LNS 1 1510	PANEAGLE HOLDINGS BHD v. MULTIMEDIA RESEARCH LAB SDN BHD	CONTRACT: Breach - Payment of debt - Goods sold, delivered and installed - Whether respondent fulfilled its contractual obligation pursuant to letter of award - Whether system supplied by respondent functioning and accepted by appellant - Whether respondent entitled to payment of balance sum EVIDENCE: Witness - Credibility of - Evidence of respondent's witnesses preferred to that of appellants - No reasons given - Inconsistency of respondent's witnesses deemed trivial in nature without giving any reasons - Whether trial judge properly weighed the evidence before arriving at his conclusion

CLJ 2012 Volume 7 (Part 1)

COURT

[SC India]

Narendra Champaklal Trivedi v. State Of Gujarat & Another Appeal
Dr BS Chauhan, Dipak Misra JJ
(Criminal Law; Constitutional Law - Prevention of Corruption Act 1988 - Sections 7 & 13(2)) [2012] 7 CLJ 1 [SC India]

COURT OF APPEAL

Wan Rusdi Wan Musa v. PP
Abdul Malik Ishak, Azhar Ma'ah, Mohtarudin Baki JJCA
(Criminal Law; Criminal Procedure - Dangerous Drugs - Trafficking in 6,907g of cannabis) [2012] 7 CLJ 16 [CA]

Wong Kin Hoong & Ors v. Ketua Pengarah Jabatan Alam Sekitar & Anor
KN Segara, Hishamudin Mohd Yunus, Jeffrey Tan JJCA
(Civil Procedure - Extension of time - Application for leave - Delay) [2012] 7 CLJ 35 [CA]

HIGH COURT

Dato' Ambiga Sreenevasan & Ors v. Menteri Dalam Negeri & Ors
Rohana Yusuf J
(Unincorporated Associations; Administrative Law - Societies - Application for judicial review of first respondent's decision to declare BERSIH as unlawful society) [2012] 7 CLJ 43 [HC]

Lim Kok Chong & Anor v. PP
John Ko Wai Seng JC
(Criminal Procedure - Forfeiture - Dangerous Drugs - Whether appellants raised reasonable doubt against forfeiture by admissible evidence) [2012] 7 CLJ 66 [HC]

PP v. Andal Arolla
Abdul Rahman Sebli J
(Criminal Law; Evidence - Penal Code - Section 302 - Murder - Corroboration - Accomplice evidence) [2012] 7 CLJ 77 [HC]

Sher Siow Yin & Satu Lagi lwn. CDT Venture Sdn Bhd & Satu Lagi
Umi Kalthum Abdul Majid H
(Prosedur Sivil - Pihak-pihak - Tindakan terhadap Kerajaan - Akta Prosiding Kerajaan 1956, s. 26) [2012] 7 CLJ 89 [HC]

Wisma Denmark Sdn Bhd v. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur
Prasad Sandosham Abraham JC
(Land Law - Acquisition of land - Compensation - Adequacy of - Determination - Land Acquisition Act 1960)[2012] 7 CLJ 94 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Remedies - Certiorari - Application for judicial review to declare BERSIH an unlawful society - Whether BERSIH society within definition of "society" in Societies Act 1966 - Whether decision in finding BERSIH unlawful tainted with irrationality - Whether impugned order liable to be quashed - Whether applicants' rights adversely affected by impugned order - Whether application to be allowed
Dato' Ambiga Sreenevasan & Ors v. Menteri Dalam Negeri & Ors
(Rohana Yusuf J) [2012] 7 CLJ 43 [HC]

CIVIL PROCEDURE

Extension of time - Application for leave - Delay of 11 years - Whether delay inordinate - Whether there were good reasons to allow extension - Whether merits of case and public interest relevant consideration in application for extension of time - Whether delay constituted abuse of process of court
Wong Kin Hoong & Ors v. Ketua Pengarah Jabatan Alam Sekitar & Anor
(KN Segara, Hishamudin Mohd Yunus, Jeffrey Tan JJCA) [2012] 7 CLJ 35 [CA]

CONSTITUTIONAL LAW

Constitution of India - Art. 142 - Invocation of jurisdiction under, to reduce sentence below statutory minimum - Where courts below awarded minimum sentence prescribed by statute, Supreme Court would not exercise its jurisdiction under Art. 142 to further reduce the sentence sought by convict on ground of mitigating circumstances - Supreme Court would not pass any order under Art. 142 which would amount to supplanting substantive law or ignoring any express statutory provision
Narendra Champaklal Trivedi v. State Of Gujarat & Another Appeal
(Dr BS Chauhan, Dipak Misra JJ) [2012] 7 CLJ 1 [SC India]

CRIMINAL LAW

Dangerous Drugs - Trafficking in 6,907g of cannabis - Conviction and sentence - Appeal against - Incriminating items found in car - Car owner unknown, not called to give testimony - Real owner of drugs - Whether reasonable doubts arose - Whether safe to convict appellant
Wan Rusdi Wan Musa v. PP
(Abdul Malik Ishak, Azhar Ma'ah, Mohtarudin Baki JJCA) [2012] 7 CLJ 16 [CA]

Penal Code - Section 302 - Murder - Prosecution's case based on eyewitnesses' evidence - Defence's version contradicted evidence by eyewitness - Whether prima facie case established - Whether case proved beyond reasonable doubt - Evidence on alleged murder weapon - Whether admissible - Admissibility of defence's version
PP v. Andal Arolla
(Abdul Rahman Sebli J) [2012] 7 CLJ 77 [HC]

Prevention of Corruption Act, 1988 - Sections 7 and 13(2) - Sentence - Reduction - When impermissible - Minimum sentence prescribed under statute awarded by courts below - Further reduction of sentence sought on grounds of (1) amount of gratification being paltry (Rs 50), (2) convict had lost his job, and (3) long lapse of time (18 yrs since occurrence), as mitigating factors - Reiterated, such mitigating factors are misplaced in view of statutory prescription of minimum sentence - Supreme Court would not exercise its jurisdiction under Art. 142 of the Constitution to direct further reduction of sentence on ground of such unwarranted sympathy - Even if amount is meagre, corruption deserves no sympathy or leniency - Constitution of India - Art. 142 - Corruption/Abuse of Power - Punishment - No leniency in sentence
Narendra Champaklal Trivedi v. State Of Gujarat & Another Appeal
(Dr BS Chauhan, Dipak Misra JJ) [2012] 7 CLJ 1 [SC India]

Prevention of Corruption Act, 1988 - Sections 7, 13(1)(a), (d) and 20 - Bribe - Illegal gratification and criminal misconduct - Conviction confirmed - Presumption under S. 20 - Rebuttal - Court's obligation - Mere recovery of bribe money from possession of accused not sufficient to constitute offence - Demand and acceptance of money as illegal gratification must be established on facts by prosecution - Presumption of acceptance of gratification as a motive or reward arises under S. 20 - Court is obliged to apply the presumption in case of offence under S. 7 - Presumption is rebuttable - Accused's explanation by way of rebuttal must be considered by court on basis of preponderance of probability - Held on facts, demand and acceptance of illegal gratification and recovery of tainted money from accused's possession, was established on facts by prosecution, but accused failed to rebut the presumption drawn against him - Hence, conviction justified
Narendra Champaklal Trivedi v. State Of Gujarat & Another Appeal
(Dr BS Chauhan, Dipak Misra JJ) [2012] 7 CLJ 1 [SC India]

CRIMINAL PROCEDURE

Charge - Alternative charges - Consent of Public Prosecutor to prosecute offences under s. 39B(1)(a), Dangerous Drugs Act 1952 - Alternative charge under s. 39B(1)(c) - Punishable section under s. 39B(3), DDA not mentioned in charge - Miscarriage of justice - Consent signed by Deputy Public Prosecutor - Implicit consent - Whether express consent of Public Prosecutor required
Wan Rusdi Wan Musa v. PP
(Abdul Malik Ishak, Azhar Ma'ah, Mohtarudin Baki JJCA) [2012] 7 CLJ 16 [CA]

Forfeiture - Dangerous Drugs - Property seized under s. 25(1), Dangerous Drugs (Forfeiture of Property) Act 1988 ('FPA') - Truck forfeited to government following Sessions Court order - Appeal against - Whether Sessions Court correct in raising presumption under s. 35 of FPA against first appellant as liable person - Whether appellants raised reasonable doubt against forfeiture by admissible evidence - Whether appellants lawfully entitled to truck - Whether order of forfeiture under s. 32(3) of FPA to be set aside
Lim Kok Chong & Anor v. PP
(John Ko Wai Seng JC) [2012] 7 CLJ 66 [HC]

Forfeiture - Order of - Appeal against - Sessions Court ordered for truck to be forfeited to government - Whether Sessions Court correct in raising presumption under s. 35, Dangerous Drugs (Forfeiture of Property) Act 1988 ('FPA') against first appellant as liable person - Whether appellants raised reasonable doubt against forfeiture by admissible evidence - Whether appellants lawfully entitled to truck - Whether order of forfeiture under s. 32(3) of FPA to be set aside
Lim Kok Chong & Anor v. PP
(John Ko Wai Seng JC) [2012] 7 CLJ 66 [HC]

EVIDENCE

Corroboration - Accomplice evidence - Evidence on alleged murder weapon contradicted by eyewitness - Whether evidence admissible
PP v. Andal Arolla
(Abdul Rahman Sebli J) [2012] 7 CLJ 77 [HC]

LAND LAW

Acquisition of land - Compensation - Adequacy of - Determination - Whether private valuer reliable and safe to rely upon - Whether claim for injurious affection justifiable for land not yet acquired - Method for calculation of market value and injurious affection - Land Acquisition Act 1960
Wisma Denmark Sdn Bhd v. Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur
(Prasad Sandosham Abraham JC) [2012] 7 CLJ 94 [HC]

UNINCORPORATED ASSOCIATIONS

Societies - Coalition for Clean and Fair Election (BERSIH) - Application for judicial review of first respondent's decision to declare BERSIH as unlawful society - Whether BERSIH within definition of "society" in Societies Act 1966 - Whether decision in finding BERSIH unlawful tainted with irrationality - Whether impugned order liable to be quashed - Whether applicants' rights adversely affected by impugned order - Whether application to be allowed
Dato' Ambiga Sreenevasan & Ors v. Menteri Dalam Negeri & Ors
(Rohana Yusuf J) [2012] 7 CLJ 43 [HC]

INDEKS PERKARA

PROSEDUR SIVIL

Pihak-pihak - Tindakan terhadap Kerajaan - Sama ada saman dan penyataan tuntutan mendedahkan kausa tindakan munasabah - Sama ada pihak wajar dinamakan - Sama ada nama penjawat awam bertanggungjawab dinyatakan - Sama ada peruntukan ss. 5 dan 6 Akta Prosiding Kerajaan 1956 dipatuhi
Sher Siow Yin & Satu Lagi lwn. CDT Venture Sdn Bhd & Satu Lagi
(Umi Kalthum Abdul Majid H) [2012] 7 CLJ 89 [HC]

Pliding - Pindaan - Sama ada pindaan saman dan penyataan tuntutan mendedahkan kausa tindakan munasabah - Sama ada saman dan penyataan tuntutan diserahkan kepada pihak sepatutnya - Akta Prosiding Kerajaan 1956, s. 26 - Kaedah-Kaedah Mahkamah Rendah 1980, A. 43 k. 3(2)(b)
Sher Siow Yin & Satu Lagi lwn. CDT Venture Sdn Bhd & Satu Lagi
(Umi Kalthum Abdul Majid H) [2012] 7 CLJ 89 [HC]

CLJ 2012 Volume 7 (Part 2)

ARTICLE

Which Way For Industrial Court Post Panzana Enterprise And Exxonmobil Exploration
by S Mariappen [2012] 7 CLJ i

COURT

COURT OF APPEAL

Ahmadi Yahya v. PP
Raus Sharif PCA, Azahar Mohamed, Anantham Kasinather JJCA
(Criminal Procedure - Courts - Jurisdiction - Court of Appeal - Jurisdiction to review prior decision in same case) [2012] 7 CLJ 113 [CA]

Panzana Enterprise Sdn Bhd v. Norizan Bakar & Anor
Low Hop Bing, Abdul Wahab Patail, Linton Albert JJCA
(Administrative Law; Labour Law - Industrial Court - Decision - Whether decision of employer to be given effect to) [2012] 7 CLJ 137 [CA]

Raja Abdul Rahman Raja Abdul Aziz v. Exxonmobil Exploration And Production Malaysia Inc.
KN Segara, Ramly Ali, Azahar Mohamed JJCA
(Labour Law - Industrial Court - Decision - Difference between disciplinary proceedings relating to public officers and private employers/employees) [2012] 7 CLJ 141 [CA]

Timbalan Ketua Polis Kelantan & Anor v. Ishak Mansor
Zaleha Zahari, Jeffrey Tan, Clement Skinner JJCA
(Administrative Law; Police - Disciplinary proceedings - Dismissal) [2012] 7 CLJ 149 [CA]

HIGH COURT

Ambiga Sreenevasan v. Ketua Pengarah Imigresen, Malaysia & Ors
Rohana Yusuf J
(Immigration - Denial of entry - Issuance of notice of refusal - Judicial review - Certiorari) [2012] 7 CLJ 170 [HC]

Ganga Gowri Raja Sundram lwn. PP
Kamardin Hashim H
(Prosedur Jenayah - Semakan - Inkues - Sama ada keputusan 'Open Verdict' wajar dan betul) [2012] 7 CLJ 180 [HC]

Marcel Jude Joseph v. The Minister Of Education, Malaysia
Abdul Rahman Sebli J
(Administrative Law; Civil Procedure - Judicial review - Certiorari - Parties - Amendment) [2012] 7 CLJ 196 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Dismissal from service - Wrongful dismissal - Issuance of restriction order against respondent pursuant to s. 4A(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 - First appellant imposed punishment of dismissal against respondent vide Public Officers (Conduct and Discipline) Regulations 1993 ('1993 Regulation') - High Court held respondent's dismissal invalid - Whether provisions in Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 should have been resorted to instead of 1993 Regulation - Appeal against decision of High Court - Whether respondent as junior police officer can only be subjected to one disciplinary Regulation - Federal Constitution, art. 135
Timbalan Ketua Polis Kelantan & Anor v. Ishak Mansor
(Zaleha Zahari, Jeffrey Tan, Clement Skinner JJCA) [2012] 7 CLJ 149 [CA]

Judicial review - Certiorari - Application to quash decision of Federal Government to abolish policy of teaching Science and Mathematics in English - Whether applicant adversely affected by decision - Whether decision justiciable - Whether court could interfere with policy decision of government - Whether application sustainable
Marcel Jude Joseph v. The Minister Of Education, Malaysia
(Abdul Rahman Sebli J) [2012] 7 CLJ 196 [HC]

Remedies - Judicial review - Dismissal from employment - Whether appropriate penalty - Whether Industrial Court and High Court erred in substituting own views for views of employer
Panzana Enterprise Sdn Bhd v. Norizan Bakar & Anor
(Low Hop Bing, Abdul Wahab Patail, Linton Albert JJCA) [2012] 7 CLJ 137 [CA]

CIVIL PROCEDURE

Limitation - Delay - Application for judicial review - Whether valid reason offered for delay - Whether application time barred - Rules of the High Court 1980, O. 53 r. 6
Marcel Jude Joseph v. The Minister Of Education, Malaysia
(Abdul Rahman Sebli J) [2012] 7 CLJ 196 [HC]

Parties - Amendment - Amendment to add new parties - Whether to be allowed - Whether application fell under purview of High Court judge - Whether Senior Assistant Registrar had jurisdiction to hear application for amendment - Whether order to add new parties regularly obtained - Rules of the High Court 1980, O. 53 r. 3(2)
Marcel Jude Joseph v. The Minister Of Education, Malaysia
(Abdul Rahman Sebli J) [2012] 7 CLJ 196 [HC

CRIMINAL PROCEDURE

Courts - Jurisdiction - Court of Appeal - Inherent powers of Court of Appeal - Whether could be invoked to confer "review jurisdiction" on Court of Appeal
Ahmadi Yahya v. PP
(Raus Sharif PCA, Azahar Mohamed, Anantham Kasinather JJCA) [2012] 7 CLJ 113 [CA]

Courts - Jurisdiction - Court of Appeal - Jurisdiction of Court of Appeal to review its prior decision in same case - Principles governing nature and extent of review jurisdiction - Whether injustice or procedural unfairness shown
Ahmadi Yahya v. PP
(Raus Sharif PCA, Azahar Mohamed, Anantham Kasinather JJCA) [2012] 7 CLJ 113 [CA]

IMMIGRATION

Denial of entry - Issuance of notice of refusal - Judicial review - Certiorari - Mandamus order for permission to enter - Whether Senior Federal Counsel and State Counsel entitled to be present during court proceedings - Whether parties proper and relevant - Jurisdiction of court - Whether applicant's case arguable
Ambiga Sreenevasan v. Ketua Pengarah Imigresen, Malaysia & Ors
(Rohana Yusuf J) [2012] 7 CLJ 170 [HC]

LABOUR LAW

Industrial Court - Decision - Dismissal for misconduct - Appropriate penalty - Whether decision of employer to be given effect to - Whether Industrial Court and High Court erred in substituting own views for views of employer
Panzana Enterprise Sdn Bhd v. Norizan Bakar & Anor
(Low Hop Bing, Abdul Wahab Patail, Linton Albert JJCA) [2012] 7 CLJ 137 [CA]

Industrial Court - Decision - Whether Industrial Court Chairman correct in finding employee guilty of misconduct - Whether there was difference between disciplinary proceedings relating to public officers under Federal Constitution and General Orders and cases dealing with private sector employers/employees under Industrial Relations Act 1967 (IRA) - Whether IC Chairman acted within requirements under IRA
Raja Abdul Rahman Raja Abdul Aziz v. Exxonmobil Exploration And Production Malaysia Inc.
(KN Segara, Ramly Ali, Azahar Mohamed JJCA) [2012] 7 CLJ 141 [CA]

POLICE

Disciplinary proceedings - Dismissal - Issuance of restriction order against respondent pursuant to s. 4A(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 - First appellant imposed punishment of dismissal against respondent vide Public Officers (Conduct and Discipline) Regulations 1993 ('1993 Regulation') - High Court held respondent's dismissal invalid - Whether provisions in Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 should have been resorted to instead of 1993 Regulation - Appeal against decision of High Court - Whether respondent as junior police officer can only be subjected to one disciplinary Regulation - Federal Constitution, art. 135
Timbalan Ketua Polis Kelantan & Anor v. Ishak Mansor
(Zaleha Zahari, Jeffrey Tan, Clement Skinner JJCA) [2012] 7 CLJ 149 [CA]

INDEKS PERKARA

PROSEDUR JENAYAH

Semakan - Inkues - Inkues - Permohonan memanggil dan memeriksa rekod-rekod prosiding - Sama ada keputusan 'Open Verdict' tidak selaras dengan keterangan - Terdapat dua versi mengenai isu bagaimana simati meninggal dunia - Tiada bukti konklusif atau saintifik - Sama ada keputusan 'Open Verdict' wajar dan betul
Ganga Gowri Raja Sundram lwn. PP
(Kamardin Hashim H) [2012] 7 CLJ 180 [HC]

Legal Network Series Articles

1. POSSIBILITIES OF BANKS AS RESULTING TRUSTEES IN COMMERCIAL LENDING TRANSACTIONS: AN OVERVIEW ^{[Read excerpt]}
    by: NOOR INAYAH YAAKUB, MAZLIZA MOHAMAD, SITI NOORAFIZAH AZIZAN [2012] 1 LNS(A) lxvii

Principal Acts

Amending Acts

PU(A)

PU(B)