Bulletin_46

CLJ Bulletin, Issue 2010, Vol 46

26 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 7) 2010
	c) CLJ Volume 8 (Part 8) 2010

1. Articles

a) Legal Network Series Articles

1. Constitutional Justice: Lessons From Magna Carta ^{[Read
excerpt]}
By Sir Anthony Clarke, Master Of The Rolls*

b) CLJ Articles

1. Allocation Of Control In Hostile Takeover: Lessons From Cadbury ^{[Read
excerpt]}
by Assoc Prof Dr Mushera Ambaras Khan*

2. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2010] 1 LNS 297 [HC] Riviera Promotions Sdn Bhd v. Genting Perkasa Sdn Bhd & Ors

CONTRACT: Damages - Award of - Defendants refusing to complete sale of land to plaintiff - Plaintiff awarded damages - Uncertainty - Whether substantial damages awarded in lieu of specific performance - Whether there was a concluded contract for sale of land - Whether specific performance could have been or was awarded - Plaintiff appealing against deputy registrar's award of RM10 nominal damages - Whether plaintiff proved loss of RM20 million - Date of assessment - Measure of damages

CONTRACT: Specific performance - Damages in lieu of specific performance - Whether awarded by court, uncertainty as to - Whether there was a concluded contract for sale of land - Whether specific performance could have been or was awarded - Plaintiff appealing against deputy registrar's award of nominal damages

CIVIL PROCEDURE: Damages - Assessment of damages - Plaintiff appealing against deputy registrar's assessment - Deputy registrar awarded RM10 nominal damages - Whether plaintiff proved loss of RM20 million claimed - Date of assessment - Measure of damages

[2010] 1 LNS 318 [HC] Ang Kok San v. PP & Another Case

CRIMINAL LAW: Dangerous Drugs Act 1952, s. 39B(1)(a) - Trafficking in a dangerous drug - Methamphetamine, 2,164.90g - Drugs found inside padlocked bag left in hotel room - Keys to padlock allegedly found on accused's person - Whether bag belonged to accused - Whether accused had custody and control of the drugs - Possession - Power to deal with it as owner to the exclusion of all other persons - Actual physical possession - Mens rea possession - Whether accused had knowledge of the drugs - Application of presumption of trafficking under s. 37(da) - Defence, whether of mere denial

[2010] 1 LNS 319 [HC] Sashi Kumar Suppiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors

ADMINISTRATIVE LAW: Remedies - Habeas corpus - Application for - Detention under s. 4(1) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Refusal of advisory board to grant adjournment to enable applicant to be represented by counsel on appointed day - Whether right to counsel absolute - Refusal of advisory board to call applicant's witnesses for cross-examination - Articles 5(3), 151(1)(a) Federal Constitution, whether violated - Appointment of chairman and members of advisory board, whether there was procedural non-compliance with art. 151(2) Federal Constitution - Emergency (Public Order & Prevention of Crime) (Procedure) Rules 1972, r. 10

CONSTITUTIONAL LAW: Fundamental liberties - Preventive detention - Detention under s. 4(1) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Application for habeas corpus - Refusal of advisory board to grant adjournment to enable applicant to be represented by counsel on appointed day - Whether right to counsel absolute - Refusal of advisory board to call applicant's witnesses for cross-examination - Articles 5(3), 151(1)(a) Federal Constitution, whether violated - Appointment of chairman and members of advisory board, whether there was procedural non-compliance with art. 151(2) Federal Constitution - Emergency (Public Order & Prevention of Crime) (Procedure) Rules 1972, r. 10

PREVENTIVE DETENTION: Detention order - Detention under s. 4(1) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Application for habeas corpus - Refusal of advisory board to grant adjournment to enable applicant to be represented by counsel on appointed day - Whether right to counsel absolute - Refusal of advisory board to call applicant's witnesses for cross-examination - Articles 5(3), 151(1)(a) Federal Constitution, whether violated - Appointment of chairman and members of advisory board, whether there was procedural non-compliance with art. 151(2) Federal Constitution - Emergency (Public Order & Prevention of Crime) (Procedure) Rules 1972, r. 10

[2009] 1 LNS 352 [HC] PP v. Shahar Yusof & Ors & Another Cases

CRIMINAL LAW: Corruption - Corruptly soliciting gratification - Whether trial Judge had erred in facts and law in deciding prosecution had established prima facie case against accused persons - Whether defence had cast any reasonable doubts on prosecution's case - Anti-Corruption Act 1997, s. 10(a), (aa)

CRIMINAL LAW: Anti-Corruption Act 1997 - Section 42 - Trial judge invoked presumption that gratification corruptly accepted or agreed to be accepted - Whether presumption an ingredient required for offence under s. 10(a), (aa) and s. 11(a) of the Anti-Corruption Act 1997

CRIMINAL LAW: Corruption - What was promised or undertaken by the 3 accused persons in return for payment was not true - Whether guilty notwithstanding - Anti-Corruption Act 1997, s. 12

CRIMINAL LAW: Corruption - Corruptly accepting gratification - Whether trial Judge had erred in facts and law in deciding prosecution had established a prima facie case against accused persons - Anti-Corruption Act 1997, s. 11

CRIMINAL PROCEDURE: Trial - Failure to cross-examine prosecution witness on crucial issue - Whether to be treated as acceptance of evidence

CRIMINAL PROCEDURE: Sentence - Corruption - Appeal by prosecution against sentence - Deterrent sentences - Factors to be considered

CRIMINAL PROCEDURE: Charge - Prosecution, election by - Whether evidence of case shows the element of extortion and not the element of corruption since SP1 and SP2 did not commit the offence - Whether charge incorrectly framed

EVIDENCE: Cross-examination - Defence not brought up during prosecution's case by cross-examining prosecution witness on the matter - Whether defence an afterthought

EVIDENCE: Adverse inference - Failure of prosecution to call witness - Whether adverse inference under s. 114(g) of the Evidence Act 1950 should be invoked

[2009] 1 LNS 384 [HC] Boo Are Ngor v. Pentadbir Tanah Daerah Muar & Anor

CIVIL PROCEDURE: Affidavits - Filing and service - Failure to file and serve affidavit-in-reply to originating summons within 14 days of service of plaintiff's affidavit - Failure to obtain leave to file out of time - Effect of such failure - Rules of the High Court 1980, O. 28 r. 3(4)

CIVIL PROCEDURE: Affidavits - Incomplete - Affidavit in reply not properly entitled - Effect of such defect - Rules of the High Court 1980, O. 41 r. 1

LAND LAW: Acquisition of land - Compensation - Compensation sum paid into court and subsequently released to third party - Whether Land Administrator should have paid compensation sum into court - Rights of plaintiff as trustee of half share of the acquired land - Land Acquisition Act, 1960, s. 29(1)

TRUSTS AND TRUSTEES: Trust property - Compulsory acquisition of property - Compensation sum paid into court and subsequently released to third party - Rights of plaintiff as trustee of half share of the acquired land

CITATION	TITLE	SUBJECT
[2010] 1 LNS 297 [HC]	Riviera Promotions Sdn Bhd v. Genting Perkasa Sdn Bhd & Ors	CONTRACT: Damages - Award of - Defendants refusing to complete sale of land to plaintiff - Plaintiff awarded damages - Uncertainty - Whether substantial damages awarded in lieu of specific performance - Whether there was a concluded contract for sale of land - Whether specific performance could have been or was awarded - Plaintiff appealing against deputy registrar's award of RM10 nominal damages - Whether plaintiff proved loss of RM20 million - Date of assessment - Measure of damages CONTRACT: Specific performance - Damages in lieu of specific performance - Whether awarded by court, uncertainty as to - Whether there was a concluded contract for sale of land - Whether specific performance could have been or was awarded - Plaintiff appealing against deputy registrar's award of nominal damages CIVIL PROCEDURE: Damages - Assessment of damages - Plaintiff appealing against deputy registrar's assessment - Deputy registrar awarded RM10 nominal damages - Whether plaintiff proved loss of RM20 million claimed - Date of assessment - Measure of damages
[2010] 1 LNS 318 [HC]	Ang Kok San v. PP & Another Case	CRIMINAL LAW: Dangerous Drugs Act 1952, s. 39B(1)(a) - Trafficking in a dangerous drug - Methamphetamine, 2,164.90g - Drugs found inside padlocked bag left in hotel room - Keys to padlock allegedly found on accused's person - Whether bag belonged to accused - Whether accused had custody and control of the drugs - Possession - Power to deal with it as owner to the exclusion of all other persons - Actual physical possession - Mens rea possession - Whether accused had knowledge of the drugs - Application of presumption of trafficking under s. 37(da) - Defence, whether of mere denial
[2010] 1 LNS 319 [HC]	Sashi Kumar Suppiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors	ADMINISTRATIVE LAW: Remedies - Habeas corpus - Application for - Detention under s. 4(1) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Refusal of advisory board to grant adjournment to enable applicant to be represented by counsel on appointed day - Whether right to counsel absolute - Refusal of advisory board to call applicant's witnesses for cross-examination - Articles 5(3), 151(1)(a) Federal Constitution, whether violated - Appointment of chairman and members of advisory board, whether there was procedural non-compliance with art. 151(2) Federal Constitution - Emergency (Public Order & Prevention of Crime) (Procedure) Rules 1972, r. 10 CONSTITUTIONAL LAW: Fundamental liberties - Preventive detention - Detention under s. 4(1) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Application for habeas corpus - Refusal of advisory board to grant adjournment to enable applicant to be represented by counsel on appointed day - Whether right to counsel absolute - Refusal of advisory board to call applicant's witnesses for cross-examination - Articles 5(3), 151(1)(a) Federal Constitution, whether violated - Appointment of chairman and members of advisory board, whether there was procedural non-compliance with art. 151(2) Federal Constitution - Emergency (Public Order & Prevention of Crime) (Procedure) Rules 1972, r. 10 PREVENTIVE DETENTION: Detention order - Detention under s. 4(1) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Application for habeas corpus - Refusal of advisory board to grant adjournment to enable applicant to be represented by counsel on appointed day - Whether right to counsel absolute - Refusal of advisory board to call applicant's witnesses for cross-examination - Articles 5(3), 151(1)(a) Federal Constitution, whether violated - Appointment of chairman and members of advisory board, whether there was procedural non-compliance with art. 151(2) Federal Constitution - Emergency (Public Order & Prevention of Crime) (Procedure) Rules 1972, r. 10
[2009] 1 LNS 352 [HC]	PP v. Shahar Yusof & Ors & Another Cases	CRIMINAL LAW: Corruption - Corruptly soliciting gratification - Whether trial Judge had erred in facts and law in deciding prosecution had established prima facie case against accused persons - Whether defence had cast any reasonable doubts on prosecution's case - Anti-Corruption Act 1997, s. 10(a), (aa) CRIMINAL LAW: Anti-Corruption Act 1997 - Section 42 - Trial judge invoked presumption that gratification corruptly accepted or agreed to be accepted - Whether presumption an ingredient required for offence under s. 10(a), (aa) and s. 11(a) of the Anti-Corruption Act 1997 CRIMINAL LAW: Corruption - What was promised or undertaken by the 3 accused persons in return for payment was not true - Whether guilty notwithstanding - Anti-Corruption Act 1997, s. 12 CRIMINAL LAW: Corruption - Corruptly accepting gratification - Whether trial Judge had erred in facts and law in deciding prosecution had established a prima facie case against accused persons - Anti-Corruption Act 1997, s. 11 CRIMINAL PROCEDURE: Trial - Failure to cross-examine prosecution witness on crucial issue - Whether to be treated as acceptance of evidence CRIMINAL PROCEDURE: Sentence - Corruption - Appeal by prosecution against sentence - Deterrent sentences - Factors to be considered CRIMINAL PROCEDURE: Charge - Prosecution, election by - Whether evidence of case shows the element of extortion and not the element of corruption since SP1 and SP2 did not commit the offence - Whether charge incorrectly framed EVIDENCE: Cross-examination - Defence not brought up during prosecution's case by cross-examining prosecution witness on the matter - Whether defence an afterthought EVIDENCE: Adverse inference - Failure of prosecution to call witness - Whether adverse inference under s. 114(g) of the Evidence Act 1950 should be invoked
[2009] 1 LNS 384 [HC]	Boo Are Ngor v. Pentadbir Tanah Daerah Muar & Anor	CIVIL PROCEDURE: Affidavits - Filing and service - Failure to file and serve affidavit-in-reply to originating summons within 14 days of service of plaintiff's affidavit - Failure to obtain leave to file out of time - Effect of such failure - Rules of the High Court 1980, O. 28 r. 3(4) CIVIL PROCEDURE: Affidavits - Incomplete - Affidavit in reply not properly entitled - Effect of such defect - Rules of the High Court 1980, O. 41 r. 1 LAND LAW: Acquisition of land - Compensation - Compensation sum paid into court and subsequently released to third party - Whether Land Administrator should have paid compensation sum into court - Rights of plaintiff as trustee of half share of the acquired land - Land Acquisition Act, 1960, s. 29(1) TRUSTS AND TRUSTEES: Trust property - Compulsory acquisition of property - Compensation sum paid into court and subsequently released to third party - Rights of plaintiff as trustee of half share of the acquired land

b. CLJ Volume 8 (Part 7) 2010

COURT

FEDERAL COURT

Cahaya Baru Development Bhd v. Lembaga Lebuhraya Malaysia
(Acquisition of land - Objection against compensation) [2010] 8 CLJ 761

COURT OF APPEAL

Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd
(Appeal against winding up - Companies Act 1965, s. 218(1)(i)) [2010] 8 CLJ 775

Maso Daloh & Anor v. PPT
(Trafficking in 34,942 grams of cannabis - Defence of both accused) [2010] 8 CLJ 788

Walton International Ltd v. Yong Teng Hing; Pendaftar Cap Dagangan, Malaysia (Interested Party)
(Trade marks - Registration - Opposition) [2010] 8 CLJ 802

HIGH COURT

Caltex Oil Malaysia Ltd v. Suria Murni (Selangor) Sdn Bhd & Another Case
(Breach - Agreement for sale of diesel) [2010] 8 CLJ 824

Dr Che Wan Fadhil Che Wan Putra & Yang Lain lwn. Universiti Teknologi Malaysia
(Badan berkanun - Kuasa-kuasa) [2010] 8 CLJ 845

Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors
(Fundamental liberties - Freedom of speech and expression) [2010] 8 CLJ 869

Omega Securities Sdn Bhd v. Kok Fook Loy
(Margin account - Claim for monies due) [2010] 8 CLJ 888

SUBJECT INDEX

CIVIL PROCEDURE

Affidavits - Affidavit in opposition of winding up petition - Admissibility of affidavit - Non-compliance with r. 30(1) Companies (Winding-Up) Rules 1972 - Clear and unambiguous words of provision - Whether affidavit could not be relied upon
Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 8 CLJ 775 [CA]

Defence - Denial - Claim for monies due under a margin facility agreement - Falsification of signatures appearing in relevant documents - Whether signatures forged - Evidence of handwriting experts - Cheating scheme - Whether claim proven on a balance of probabilities
Omega Securities Sdn Bhd v. Kok Fook Loy
(Mary Lim JC) [2010] 8 CLJ 888 [HC]

Judgments and orders - Order of court - Court order directing respondent to release and refund trust money to petitioner - Respondent never appealed against court order - Whether court order final and binding - Whether legally impossible for respondent to challenge validity of court order in winding up proceedings - Whether just and equitable for respondent to be wound up - Companies Act 1965, s. 218(1)(i)
Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 8 CLJ 775 [CA]

Pleadings - Defence - Claim for monies due under a margin facility agreement - Falsification of signatures appearing in relevant documents - Cheating scheme - Whether particulars specifically and properly pleaded
Omega Securities Sdn Bhd v. Kok Fook Loy
(Mary Lim JC) [2010] 8 CLJ 888 [HC]

COMPANY LAW

Winding up - Appeal against winding up - Court order directing respondent to release and refund trust money to petitioner - Respondent never appealed against court order - Whether court order final and binding - Whether legally impossible for respondent to challenge validity of court order in winding up proceedings - Whether just and equitable for respondent to be wound up - Companies Act 1965, s. 218(1)(i)
Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 8 CLJ 775 [CA]

Winding up - Petition - Affidavit in opposition to petition - Admissibility of affidavit - Non-compliance with r. 30(1) Companies (Winding-Up) Rules 1972 - Clear and unambiguous words of provision - Whether affidavit could not be relied upon
Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 8 CLJ 775 [CA]

CONSTITUTIONAL LAW

Fundamental liberties - Freedom of speech and expression - Whether restriction imposed by s. 15(5)(a) Universities and University Colleges Act 1971 violates art. 10(1)(a) Federal Constitution
Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors
(Aziah Ali J) [2010] 8 CLJ 869 [HC]

Fundamental liberties - Restriction of freedom - Whether restriction imposed by s. 15(5)(a) Universities and University Colleges Act 1971 reasonable within art. 10(2)(a) Federal Constitution - Whether pith and substance of impugned law relates to permitted restrictions - Restriction in s. 15(5)(a) expedient in interest of public order or morality to maintain discipline of students - Restriction not absolute - Restriction in s. 15(5)(a) does not violate art. 10(1)(a)
Muhammad Hilman Idham & Ors v. Kerajaan Malaysia & Ors
(Aziah Ali J) [2010] 8 CLJ 869 [HC]

CONTRACT

Breach - Agreement - Agreement for sale of diesel - Sale of diesel by plaintiff to defendant for commercial inland use - Diesel used by defendant for bunkering purposes causing plaintiff to lose government subsidy - Whether there was a breach of the agreement
Caltex Oil Malaysia Ltd v. Suria Murni (Selangor) Sdn Bhd & Another Case
(Hanipah Farikullah JC) [2010] 8 CLJ 824 [HC]

Damages - Remoteness - Whether loss fell within ambit of s. 74 Contracts Act - Commercial inland use diesel used by defendant for bunkering purposes causing plaintiff to lose government subsidy - Whether loss naturally arose from defendant's breach - Whether at the time contract was made defendant knew of possible loss that will arise due to his breach - Damages for loss of subsidy allowed
Caltex Oil Malaysia Ltd v. Suria Murni (Selangor) Sdn Bhd & Another Case
(Hanipah Farikullah JC) [2010] 8 CLJ 824 [HC]

Estoppel - Estoppel by conduct - Typographical error in delivery order - Error rectified by plaintiff through letter sent to defendant - Letter not replied to by defendant - Whether defendant now estopped from denying typographical error and relying on erroneous statement in delivery order
Caltex Oil Malaysia Ltd v. Suria Murni (Selangor) Sdn Bhd & Another Case
(Hanipah Farikullah JC) [2010] 8 CLJ 824 [HC]

Facility agreement - Margin account - Claim for monies due - Defence of denial - Falsification of signatures appearing in relevant documents - Whether signatures forged - Pleadings - Evidence of handwriting experts - Cheating scheme - Whether claim proven on a balance of probabilities
Omega Securities Sdn Bhd v. Kok Fook Loy
(Mary Lim JC) [2010] 8 CLJ 888 [HC]

Terms - Implied terms - Terms implied from contents of purchase orders, delivery orders and invoices - Implied term in sale of diesel by plaintiff to defendant that plaintiff would be able to claim reimbursement of government subsidy
Caltex Oil Malaysia Ltd v. Suria Murni (Selangor) Sdn Bhd & Another Case
(Hanipah Farikullah JC) [2010] 8 CLJ 824 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 34,942 grams of cannabis - Appeal by both accused against conviction and sentence to death - Defence of both accused - Whether a bare denial - Whether defence fabricated - Whether trial judge failed to evaluate available evidence properly - Benefit of doubt - Whether conviction unsafe
Maso Daloh & Anor v. PP
(Zaleha Zahari, KN Segara & Ramly Ali JJCA) [2010] 8 CLJ 788 [CA]

CRIMINAL PROCEDURE

Defence - Explanation by both accused - Appeal against conviction and sentence to death for trafficking in dangerous drugs - Whether defence a bare denial or fabricated - Whether trial judge failed to evaluate available evidence properly - Benefit of doubt - Whether conviction unsafe
Maso Daloh & Anor v. PP
(Zaleha Zahari, KN Segara & Ramly Ali JJCA) [2010] 8 CLJ 788 [CA]

EVIDENCE

Burden of proof - Forgery of signature - Whether defendant bore burden - Standard of proof - Balance of probabilities
Omega Securities Sdn Bhd v. Kok Fook Loy
(Mary Lim JC) [2010] 8 CLJ 888 [HC]

Expert evidence - Handwriting - Falsification of signatures in documents pertaining to a margin facility agreement - Conclusions reached by handwriting experts - Whether signatures genuine
Omega Securities Sdn Bhd v. Kok Fook Loy
(Mary Lim JC) [2010] 8 CLJ 888 [HC]

Inference - Facts giving rise to more than one inference - Whether most favourable inference should then be accorded to accused
Maso Daloh & Anor v. PP
(Zaleha Zahari, KN Segara & Ramly Ali JJCA) [2010] 8 CLJ 788 [CA]

LAND LAW

Acquisition of land - Acquisition by State Authority - Objection against compensation by defendant - Whether acquisition of land under s. 3(1)(a) Land Acquisition Act 1960 ruled out defendant's involvement as land acquired by State Authority for a public purpose - Land Acquisition Act 1960, ss. 3(1)(a), (b), (c) - Highway Authority Malaysia (Incorporation) Act 1980, s. 22(1)
Cahaya Baru Development Bhd v. Lembaga Lebuhraya Malaysia
(Alauddin Mohd Sheriff PCA, Zulkefli Makinudin & Raus Sharif FCJJ) [2010] 8 CLJ 761 [FC]

Acquisition of land - Inquiry by Land Administrator - Objection against award of compensation - Whether Land Administrator exercised his powers in accordance with relevant provisions of Land Acquisition Act 1960 - Land Acquisition Act 1960, ss. 2, 11(1)(d), 14, 37, 55(1)(a)
Cahaya Baru Development Bhd v. Lembaga Lebuhraya Malaysia
(Alauddin Mohd Sheriff PCA, Zulkefli Makinudin & Raus Sharif FCJJ) [2010] 8 CLJ 761 [FC]

Acquisition of land - Objection against compensation - Acquisition under s. 3(1)(a) Land Acquisition Act 1960 by State Authority for a public purpose - Whether defendant a "person interested" within meaning of s. 37(3) - Whether defendant entitled to object against compensation awarded - Land Acquisition Act 1960, ss. 2, 3(1)(a), (b), (c), 11(1)(d), 14, 37(1), (3), 55(1)(a) - Highway Authority Malaysia (Incorporation) Act 1980, s. 22(1)
Cahaya Baru Development Bhd v. Lembaga Lebuhraya Malaysia
(Alauddin Mohd Sheriff PCA, Zulkefli Makinudin & Raus Sharif FCJJ) [2010] 8 CLJ 761 [FC]

SECURITIES

Margin account - Utilisation of margin facility agreement - Claim for monies due - Defence of denial - Falsification of signatures appearing in relevant documents - Whether signatures forged - Pleadings - Evidence of handwriting experts - Cheating scheme - Whether claim proven on a balance of probabilities
Omega Securities Sdn Bhd v. Kok Fook Loy
(Mary Lim JC) [2010] 8 CLJ 888 [HC]

STATUTORY INTERPRETATION

Construction of statutes - Literal approach - Clear and unambiguous words employed in r. 30(1) Companies (Winding-Up) Rules 1972 - Whether effect must be given to them
Gulf Business Construction (M) Sdn Bhd v. Israq Holding Sdn Bhd
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 8 CLJ 775 [CA]

TRADE MARKS

Registration - Opposition - Appeal - Registration by respondent of trade mark in Class 9 - Whether respondent first user of trade mark - Whether appellant had acquired reputation or goodwill in trade mark - Whether respondent's use of trade mark likely to deceive or cause confusion to public - Failure by appellant to appeal against decision of Registrar of Trade Marks dismissing its opposition against respondent's application for registration of trade mark in Class 14 - Whether to be regarded as acceptance by appellant that it could not claim a monopoly over trade mark - Trade Marks Act 1976, ss. 14(1)(a), 19(1)(a), (b)
Walton International Ltd v. Yong Teng Hing; Pendaftar Cap Dagangan, Malaysia (Interested Party)
(Zainun Ali, Ramly Ali & Zaharah Ibrahim JJCA) [2010] 8 CLJ 802 [CA]

WORDS & PHRASES

"person interested" - Land Acquisition Act 1960, ss. 2, 37(1), (3) - Definition of - Whether defendant an "interested person" within meaning of Act
Cahaya Baru Development Bhd v. Lembaga Lebuhraya Malaysia
(Alauddin Mohd Sheriff PCA, Zulkefli Makinudin & Raus Sharif FCJJ) [2010] 8 CLJ 761 [FC]

INDEKS PERKARA

PIHAK BERKUASA AWAM

Badan berkanun - Kuasa-kuasa - Universiti (defendan) menarik balik skala gaji yang telah diselaraskan di dalam satu skim gaji pensyarah-pensyarahnya (plaintif-plaintif) - Sama ada defendan mempunyai bidangkuasa untuk membuat penyelarasan gaji plaintif-plaintif - Penjawat awam - Doktrin estoppel - Pelanggaran hak-hak kontrak plaintif-plaintif - Akta Universiti dan Kolej Universiti 1971, ss. 7, 24D - Perlembagaan Persekutuan, Perkara 132(2)
Dr Che Wan Fadhil Che Wan Putra & Yang Lain lwn. Universiti Teknologi Malaysia
(Mohd Zawawi Salleh H) [2010] 8 CLJ 845 [HC]

c. CLJ Volume 8 (Part 8) 2010

COURT

FEDERAL COURT

Azhar Che Wil v. PP
(Charge - Acquittal of co-accused - Reference to acquitted accused remained in charge - Whether charge bad in law) [2010] 8 CLJ 905

COURT OF APPEAL

BCM Development Sdn Bhd v. The Titular Roman Catholic Bishop Of Malacca Johore
(Agreement - Termination - Whether justified) [2010] 8 CLJ 920

Dato' Seri Anwar Ibrahim v. PP
(Charge - Sodomy - Whether charge mala fide and oppressive) [2010] 8 CLJ 934

Mamasobri Useng v. PP
(Trafficking in cannabis - Accused having remote control to compartment containing drugs - Actual possession and knowledge) [2010] 8 CLJ 949

Subramaniam AV Sankar & Ors v. Peter Tang Swee Guan
(Court of Appeal - Jurisdiction to review own decision) [2010] 8 CLJ 963

HIGH COURT

Dr Chan Choo Lip v. Malaysian Medical Council & Anor
(Autrefois acquit/convict, doctrine of - Whether applicable to disciplinary proceedings conducted by statutory bodies) [2010] 8 CLJ 992

Jitender Singh Pagar Singh & Ors v. Kerajaan Malaysia
(Acquisition of land - Compensation - Whether assessment properly done) [2010] 8 CLJ 1001

SUBJECT INDEX

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
Dr Chan Choo Lip v. Malaysian Medical Council & Anor
(Rhodzariah Bujang JC) [2010] 8 CLJ 992 [HC]

CIVIL PROCEDURE

Appeal - Hearing of appeal - Whether Court of Appeal may decide an appeal by framing an issue not raised by either side - Courts of Judicature Act 1964, s. 69(4)
Subramaniam AV Sankar & Ors v. Peter Tang Swee Guan
(Tengku Baharudin Shah, Abdul Malik Ishak & Azhar Ma'ah JJCA) [2010] 8 CLJ 963 [CA]

Appeal - Review - Application to Court of Appeal to review and set aside decision of another coram of Court of Appeal - Scope of Court of Appeal's jurisdiction to review own decision - Whether inherent jurisdiction of court includes power to review its own decision - Whether miscarriage of justice occasioned by decision of earlier coram
Subramaniam AV Sankar & Ors v. Peter Tang Swee Guan
(Tengku Baharudin Shah, Abdul Malik Ishak & Azhar Ma'ah JJCA) [2010] 8 CLJ 963 [CA]

Judgment - Review - Application to Court of Appeal to review and set aside decision of another coram of Court of Appeal - Scope of Court of Appeal's jurisdiction to review own decision - Whether inherent jurisdiction of court includes power to review its own decision - Whether miscarriage of justice occasioned by decision of earlier coram
Subramaniam AV Sankar & Ors v. Peter Tang Swee Guan
(Tengku Baharudin Shah, Abdul Malik Ishak & Azhar Ma'ah JJCA) [2010] 8 CLJ 963 [CA]

Jurisdiction - Court of Appeal - Review - Whether Court of Appeal may review and set aside decision of another coram of Court of Appeal - Scope of Court of Appeal's jurisdiction to review own decision - Whether inherent jurisdiction of court includes power to review own decision - Whether miscarriage of justice occasioned by decision of earlier coram
Subramaniam AV Sankar & Ors v. Peter Tang Swee Guan
(Tengku Baharudin Shah, Abdul Malik Ishak & Azhar Ma'ah JJCA) [2010] 8 CLJ 963 [CA]

CONTRACT

Agreement - Termination - Breach - Agreement by plaintiff to develop defendant's lands - Dispute as to who was responsible to remove squatters occupying the lands - Whether plaintiff entitled to suspend payment obligations under agreement due to squatter issue - Whether plaintiff's failure to pay amounted to fundamental breach - Whether defendant justified in terminating agreement - Contracts Act 1950, s. 56
BCM Development Sdn Bhd v. The Titular Roman Catholic Bishop Of Malacca Johore
(KN Segara, Sulong Matjeraie & Sulaiman Daud JJCA) [2010] 8 CLJ 920 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 23,829g of cannabis - Whether legal presumption of trafficking under s. 37(da) could be invoked - Drugs found in car driven by accused - Accused looking worried and panicky when car stopped by customs officer - Accused having remote control to open compartment containing drugs - Actual possession and knowledge of drugs established - Accused failed to rebut presumption of trafficking - Prosecution's case proven beyond reasonable doubt - Dangerous Drugs Act 1952, s. 37(da)
Mamasobri Useng v. PP
(Hasan Lah, Ahmad Maarop & Mohamed Apandi Ali JJCA) [2010] 8 CLJ 949 [CA]

Penal Code - Murder - Section 302 read together with s. 35 - Charge against seven prison officers for murder of 19 year-old detainee - Acquittal and discharge of six prison officers except for one - Whether charge against remaining officer rendered bad as reference to acquitted and discharged six and s. 35 Penal Code were not deleted - Whether remaining officer prejudiced - Whether deprived of right to recall witnesses
Azhar Che Wil v. PP
(Arifin Zakaria CJ (Malaya), Ghazali Mohd Yusoff & Raus Sharif FCJJ) [2010] 8 CLJ 905 [FC]

CRIMINAL PROCEDURE
Appeal - Appellate court, power and duty of - Misdirection by trial court - Whether miscarriage of justice occasioned - Whether sufficient independent evidence to warrant the decision in existence - Courts of Judicature Act 1964, s. 60(1)
Mamasobri Useng v. PP
(Hasan Lah, Ahmad Maarop & Mohamed Apandi Ali JJCA) [2010] 8 CLJ 949 [CA]

Charge - Murder of 19 year-old detainee - Charge against seven prison officers under s. 302 Penal Code read together with s. 35 of same - Acquittal and discharge of six prison officers except for one - Whether charge against remaining officer rendered bad as reference to acquitted and discharged six and s. 35 Penal Code were not deleted - Whether remaining officer prejudiced - Whether deprived of right to recall witnesses
Azhar Che Wil v. PP
(Arifin Zakaria CJ (Malaya), Ghazali Mohd Yusoff & Raus Sharif FCJJ) [2010] 8 CLJ 905 [FC]

Charge - Setting aside - Application to set aside and quash sodomy charge - Allegation that charge and prosecution was mala fide, oppressive and abuse of process of court - Allegation that no conclusive clinical findings in medical report to prove charge of sodomy - Whether medical report alone is conclusive evidence - Application to set aside charge dismissed
Dato' Seri Anwar Ibrahim v. PP
(Abu Samah Nordin, Sulaiman Daud & Azhar Ma'ah JJCA) [2010] 8 CLJ 934 [CA]

EVIDENCE

Circumstantial evidence - Conduct - Accused's stunned, scared and nervous appearance, evidence of - Proper inference to be drawn from such conduct - Whether evidence of such conduct admissible under s. 8 Evidence Act 1950 - Whether such conduct evidence of a guilty mind - Failure of accused to offer any explanation - Evidence Act 1950, ss. 8, 9
Mamasobri Useng v. PP
(Hasan Lah, Ahmad Maarop & Mohamed Apandi Ali JJCA) [2010] 8 CLJ 949 [CA]

Presumption - Drug trafficking - Whether reliance upon presumption under s. 37(da) Dangerous Drugs Act 1952 correct - Actual possession and knowledge of drugs established - Dangerous Drugs Act 1952, s. 37 (da)
Mamasobri Useng v. PP
(Hasan Lah, Ahmad Maarop & Mohamed Apandi Ali JJCA) [2010] 8 CLJ 949 [CA]

LAND LAW

Acquisition of land - Compensation - Assessment by learned judge - Whether assessment properly done - Whether sufficient weight given to valuer's reports - Whether judge had improperly limited his judicial discretion in merely concurring with decision made by assessors - Role of judge in land references
Jitender Singh Pagar Singh & Ors v. Kerajaan Malaysia
(Aziah Ali J) [2010] 8 CLJ 1001 [HC]

Acquisition of land - Compensation - Award - Appeal against - Whether assessment properly done - Whether High Court judge erred in law - Whether sufficient weight given to valuer's reports - Whether judge had improperly limited his judicial discretion in merely concurring with decision made by assessors
Jitender Singh Pagar Singh & Ors v. Kerajaan Malaysia
(Aziah Ali J) [2010] 8 CLJ 1001 [HC]

Acquisition of land - Compensation - Right to adequate compensation - Whether Land Acquisition Act 1960, ss. 40D(2) and 40D(3) deprive right to adequate compensation under art. 13 Federal Consitution
Jitender Singh Pagar Singh & Ors v. Kerajaan Malaysia
(Aziah Ali J) [2010] 8 CLJ 1001 [HC]

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
Dr Chan Choo Lip v. Malaysian Medical Council & Anor
(Rhodzariah Bujang JC) [2010] 8 CLJ 992 [HC]

CASE OF THE WEEK

PP v. MOHD AZAM BASIRON & ANOR

CRIMINAL LAW: Penal Code - Section 302 - Murder - Prima facie case - Whether established - Testimony of accomplice witness - Whether reliable - Whether there was independent corroborative evidence to support testimony of witness - Whether prosecution proved main ingredients of charge - Whether charge defective - Whether respondents entitled to acquittals

EVIDENCE: Corroboration - Murder - Testimony of accomplice witness - Whether there was a shred of independent corroborative evidence to support testimony - Whether prosecution proved main ingredients of charge - Whether charge defective - Prima facie case - Whether established

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