Bulletin_47

CLJ Bulletin, Issue 2011, Vol 47

2 December 2011

CLJ Law Malaysia

http://www.cljlaw.com

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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 4) 2011
	c) CLJ Volume 8 (Part 5) 2011

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(A) 376/2011 Customs (Values) (Crude Petroleum Oil) (No 23) Order 2011 17 November 2011 ACT 235

PU(A) 377/2011 Road Transport (Fee And Charge For Erecting Structures For Billboard On Federal Road) (Amendment) Rules 2011 18 November 2011 ACT 333

PU(A) 378/2011 Customs (Values) (Palm Oil) (No 47) Order 2011 21 November 2011 ACT 235

PU(A) 379/2011 Income Tax (Deduction For Payment Of Premium To Malaysia Deposit Insurance Corporation) Rules 2011 22 November 2011 ACT 53

PU(A) 380/2011 Factories And Machinery (Exemption To Petronas Carigali Sdn Bhd, Sabah Operation, Sabah) Order 2011 23 November 2011 ACT 139

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(B) 572/2011 Returns And Statements Of Election Expenses - Sarawak 16 November 2011 ACT 5

PU(B) 573/2011 Constitution Of The Syariah Appeal Court, Syariah High Court And Syariah Subordinate Court For The Federal Territory Of Kuala Lumpur 17 November 2011 ACT 505

PU(B) 574/2011 Exemption From Paragraphs 5(1)(A) And (B) Of Arms Act 1960 18 November 2011 ACT 206

PU(B) 575/2011 Exemption From Subsection 3(2) Of Arms Act 1960 18 November 2011 ACT 206

PU(B) 576/2011 Appointment Of Analysts 21 November 2011 ACT 149

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

DR 36/2011 Housing Development (Control and Licensing) (Amendment) Bill 2011 - ACT 118

DR 37/2011 Standards of Malaysia (Amendment) Bill 2011 - ACT 549

DR 38/2011 Perumahan Rakyat 1Malaysia Bill 2011 - -

DR 39/2011 Criminal Procedure Code (Amendment) Bill 2010 (Amendment) Bill 2011 - ACT A1378

DR 40/2011 Criminal Procedure Code (Amendment) Bill 2011 - ACT 593

DR 41/2011 Evidence (Amendment) Bill 2011 - ACT 56

DR 42/2011 Peaceful Assembly Bill 2011 - -

DR 43/2011 Police (Amendment) Bill 2011 - ACT 344

State Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

- [EN] Penang Freedom of Information Enactment 2010
[BM] Enakmen Kebebasan Maklumat Pulau Pinang 2010
- -

2. Articles

a) Legal Network Series Articles

1. Opening Remarks At Criminal Bar Association Conference ^{[Read
excerpt]}
By The RT Hon Lord Justice Leveson*

2. Pemakaian Dan Permasalahan Mengenai Akta Suruhanjaya Hak Asasi Manusia Malaysia: Sedikit Perbandingan Dengan Filipina* ^{[Read
excerpt]}
By Wan Siti Adibah Wan Dahalan

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 1112 [HC] Syarikat Neptune Enterprise Sdn Bhd v. Timberwell Enterprise Sdn Bhd

CONTRACT: Breach - Goods sold and delivered - Allegation that two invoices were fictitious and created for purpose of obtaining drawdown from plaintiff's banking facility - Defendant acknowledging delivery of logs - Whether logs were sold by plaintiff to defendant - Whether plaintiff proved its case

CIVIL PROCEDURE: Limitation - Whether plaintiff's cause of action time barred - Plaintiff maintaining limitation period extended by virtue of a payment by defendant on or about 25 September 2003 - Whether the two invoices related to two separate transactions - Whether the payment related to the first or both invoices

[2009] 1 LNS 1123 [HC] Yamazaki Mazak Singapore Ltd v. Zhang Hui Industries Sdn Bhd; DBS Bank Ltd (Intervener)

EQUITY: Estoppel - Estoppel by representation - Alleged that letter from plaintiff wrongfully and falsely represented to intervener that it had received down payment for machines - Balance purchase price of machinery released directly to plaintiff's account by intervener - Declaration sought regarding intervener's claim to possession and custody of machines - Whether plaintiff estopped from claiming title to machines in question

[2009] 1 LNS 1140 [HC] PP v. Mohd Hazaki Yusof

CRIMINAL PROCEDURE: Appeal - Appeal against acquittal and discharge - Trial Judge holding that both ingredients of offence not proved - Whether trial Judge erred in fact and in law

CRIMINAL LAW: Penal Code - s. 420 - Dishonest inducement - Respondent introducing himself to SP1 with calling card bearing his 3 qualifications - Failure to produce certificates to prove respondent's qualifications - Whether respondent made false representation regarding his qualifications - Whether respondent dishonestly induced SP1 into believing his qualifications - Whether respondent dishonestly induced SP1 to appoint respondent as Director of 6 companies

[2009] 1 LNS 1209 [HC] Perkasa Trading Sdn Bhd & Anor v. Yang Kai Hsiung & Anor

EVIDENCE: Cross-examination - Failure to cross-examine DW1 on his witness statements -Whether every essential and material case for 1^st plaintiff had been put to DW1 in cross examination - Whether 1^st plaintiff deemed to have accepted what DW1 said in his witness statements or that it had abandoned its pleaded case - DW1 found to be an untruthful witness - Whether the unchallenged evidence of an untruthful witness must be accepted in any event

TORT: Negligence - Warranties represented as true and accurate regarding financial, taxation or liability position of 2^nd plaintiff at time of sale of shares to 1^st plaintiff - Alleged failure to disclose sales tax liabilities and misrepresentation - Whether 1^st and 2^nd defendants committed breach of warranties under sale and purchase agreement - Failure to ensure that 2^nd plaintiff was properly licensed as a licensed manufacturer under the Sales Tax Act 1972 - Whether 1^st defendant had failed in his duty to ensure that he or the 2^nd plaintiff was in possession of a manufacturer's licence before 2^nd plaintiff started to manufacture woven bags

[2009] 1 LNS 1216 [HC] Ravindran Kandasamy v. PP

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Finding that defence of appellant failed to raise a reasonable doubt - Whether Sessions Judge applied the correct law and gave reasons before arriving at her decision - Whether any reason to disturb her findings

EVIDENCE : Accomplice - Whether witness was an accomplice - Corruption cases - SP2 did not play active role apart from giving trap money to appellant - SP5 participated in trap arranged by Anti Corruption Agency after lodging complaint to them - Whether Sessions Judge correct in making finding of fact that both SP2 and SP5 were not accomplices

EVIDENCE: Witness - Corroboration - Whether SP2 and SP5 were trap witnesses whose evidence needed to be corroborated - Whether a trap witness could not corroborate another trap witness - Whether there was sufficient documentary evidence which corroborated the evidence of SP2 and SP5 that trap money was given to appellant

EVIDENCE: Presumption - Anti-Corruption Act 1997, s. 42 - Sessions Judge invoking s. 42 - RM1,700.00 in marked notes found in appellant's possession - Appellant a police officer - Whether the defence and SP2's evidence rebutted the presumption - Whether presumption under s. 42(1) of the Anti-Corruption Act applied

CITATION	TITLE	SUBJECT
[2009] 1 LNS 1112 [HC]	Syarikat Neptune Enterprise Sdn Bhd v. Timberwell Enterprise Sdn Bhd	CONTRACT: Breach - Goods sold and delivered - Allegation that two invoices were fictitious and created for purpose of obtaining drawdown from plaintiff's banking facility - Defendant acknowledging delivery of logs - Whether logs were sold by plaintiff to defendant - Whether plaintiff proved its case CIVIL PROCEDURE: Limitation - Whether plaintiff's cause of action time barred - Plaintiff maintaining limitation period extended by virtue of a payment by defendant on or about 25 September 2003 - Whether the two invoices related to two separate transactions - Whether the payment related to the first or both invoices
[2009] 1 LNS 1123 [HC]	Yamazaki Mazak Singapore Ltd v. Zhang Hui Industries Sdn Bhd; DBS Bank Ltd (Intervener)	EQUITY: Estoppel - Estoppel by representation - Alleged that letter from plaintiff wrongfully and falsely represented to intervener that it had received down payment for machines - Balance purchase price of machinery released directly to plaintiff's account by intervener - Declaration sought regarding intervener's claim to possession and custody of machines - Whether plaintiff estopped from claiming title to machines in question
[2009] 1 LNS 1140 [HC]	PP v. Mohd Hazaki Yusof	CRIMINAL PROCEDURE: Appeal - Appeal against acquittal and discharge - Trial Judge holding that both ingredients of offence not proved - Whether trial Judge erred in fact and in law CRIMINAL LAW: Penal Code - s. 420 - Dishonest inducement - Respondent introducing himself to SP1 with calling card bearing his 3 qualifications - Failure to produce certificates to prove respondent's qualifications - Whether respondent made false representation regarding his qualifications - Whether respondent dishonestly induced SP1 into believing his qualifications - Whether respondent dishonestly induced SP1 to appoint respondent as Director of 6 companies
[2009] 1 LNS 1209 [HC]	Perkasa Trading Sdn Bhd & Anor v. Yang Kai Hsiung & Anor	EVIDENCE: Cross-examination - Failure to cross-examine DW1 on his witness statements -Whether every essential and material case for 1^st plaintiff had been put to DW1 in cross examination - Whether 1^st plaintiff deemed to have accepted what DW1 said in his witness statements or that it had abandoned its pleaded case - DW1 found to be an untruthful witness - Whether the unchallenged evidence of an untruthful witness must be accepted in any event TORT: Negligence - Warranties represented as true and accurate regarding financial, taxation or liability position of 2^nd plaintiff at time of sale of shares to 1^st plaintiff - Alleged failure to disclose sales tax liabilities and misrepresentation - Whether 1^st and 2^nd defendants committed breach of warranties under sale and purchase agreement - Failure to ensure that 2^nd plaintiff was properly licensed as a licensed manufacturer under the Sales Tax Act 1972 - Whether 1^st defendant had failed in his duty to ensure that he or the 2^nd plaintiff was in possession of a manufacturer's licence before 2^nd plaintiff started to manufacture woven bags
[2009] 1 LNS 1216 [HC]	Ravindran Kandasamy v. PP	CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Finding that defence of appellant failed to raise a reasonable doubt - Whether Sessions Judge applied the correct law and gave reasons before arriving at her decision - Whether any reason to disturb her findings EVIDENCE : Accomplice - Whether witness was an accomplice - Corruption cases - SP2 did not play active role apart from giving trap money to appellant - SP5 participated in trap arranged by Anti Corruption Agency after lodging complaint to them - Whether Sessions Judge correct in making finding of fact that both SP2 and SP5 were not accomplices EVIDENCE: Witness - Corroboration - Whether SP2 and SP5 were trap witnesses whose evidence needed to be corroborated - Whether a trap witness could not corroborate another trap witness - Whether there was sufficient documentary evidence which corroborated the evidence of SP2 and SP5 that trap money was given to appellant EVIDENCE: Presumption - Anti-Corruption Act 1997, s. 42 - Sessions Judge invoking s. 42 - RM1,700.00 in marked notes found in appellant's possession - Appellant a police officer - Whether the defence and SP2's evidence rebutted the presumption - Whether presumption under s. 42(1) of the Anti-Corruption Act applied

b. CLJ Volume 8 (Part 4) 2011

COURT

COURT OF APPEAL

Ketua Pengarah Insolvensi v. Dato' Dr Chen Lip Keong & Ors
Suriyadi Halim Omar, KN Segara, Ramly Ali JJCA
(Bankruptcy - High Court setting aside DGI's sanction granted to bankrupt to pursue suit against respondents) [2011] 8 CLJ 393 [CA]

Nanda Kumar Kunyikanan & Anor v. PP
Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA
(Criminal Procedure - Prosecution unable to produce eye-witnesses - Police attempts to locate and arrest witnesses futile - Whether failure amounted to withholding or suppression of evidence) [2011] 8 CLJ 406 [CA]

PP v. Manimaran Manickam
Raus Sharif FCJ, Abu Samah Nordin, Sulong Matjeraie JJCA
(Criminal Procedure - Plea bargaining - Dispute on circumstances leading to plea - Whether warranting retrial on original charge) [2011] 8 CLJ 439 [CA]

HIGH COURT

Affin-ACF Finance Bhd v. Meriplex Sdn Bhd & Ors
Nallini Pathmanathan J
(Contract - Novation - Existence of - Assignment of hire-purchase agreements - Whether only benefit under agreements assigned) [2011] 8 CLJ 455 [HC]

Khor Lye Hock & Anor v. Makassar Engineering & Construction Sdn Bhd & Ors
Nallini Pathmanathan J
(Civil Procedure; Company Law - Striking out - Pleadings - Members' rights - Oppression - Relief) [2011] 8 CLJ 476 [HC]

Perbadanan Kemajuan Pertanian Selangor v. Megafores Nursery Sdn Bhd & Ors
Mah Weng Kwai JC
(Company Law - Winding-up - Just and equitable grounds) [2011] 8 CLJ 484 [HC]

Sayed Omeid lwn. PP
Ghazali Cha H
(Prosedur Jenayah - Ekstradisi - Bidangkuasa - Mahkamah Sesyen - Keesahan pertuduhan) [2011] 8 CLJ 501 [HC]

SUBJECT INDEX

BANKRUPTCY

Official Assignee - Sanction - High Court setting aside DGI's sanction granted to bankrupt to pursue suit against respondents - Whether DGI must furnish grounds for granting sanction - Whether DGI must assess merit of bankrupt's suit against respondents before grant of sanction - Whether application for sanction bona fide - Whether respondents were persons aggrieved under s. 86 Bankruptcy Act 1967 - Whether respondents had locus standi to initiate application to set aside DGI's sanction - Whether respondents deprived of legal rights - Whether appeal allowed - Bankruptcy Act 1967, s. 38(1)(a)
Ketua Pengarah Insolvensi v. Dato' Dr Chen Lip Keong & Ors
(Suriyadi Halim Omar, KN Segara, Ramly Ali JJCA) [2011] 8 CLJ 393 [CA]

CIVIL PROCEDURE

Striking out - Pleadings - Petition under s. 181 Companies Act 1965 - Application to strike out prayers (a) to (f) in petition - Petitioner was the managing director and shareholder of first respondent - Whether oppressive act affected first petitioner in his capacity as a member - Whether relief available - Whether s. 181(2) to be read in conjunction with s. 181(1) Companies Act 1965 - Whether conditions satisfied - Rules of the High Court 1980, O. 18 r. 19(1)
Khor Lye Hock & Anor v. Makassar Engineering & Construction Sdn Bhd & Ors
(Nallini Pathmanathan J) [2011] 8 CLJ 476 [HC]

COMPANY LAW

Members' rights - Oppression - Mismanagement - Petition under s. 181 Companies Act 1965 - Whether oppressive act affected first petitioner in his capacity as a member - Whether relief available - Whether s. 181(2) to be read in conjunction with s. 181(1) Companies Act 1965 - Whether conditions satisfied
Khor Lye Hock & Anor v. Makassar Engineering & Construction Sdn Bhd & Ors
(Nallini Pathmanathan J) [2011] 8 CLJ 476 [HC]

Oppression - Relief - Petition under s. 181 Companies Act 1965 - Whether oppressive act affected first petitioner in his capacity as a member - Whether relief available - Whether s. 181(2) to be read in conjunction with s. 181(1) Companies Act 1965 - Whether conditions satisfied
Khor Lye Hock & Anor v. Makassar Engineering & Construction Sdn Bhd & Ors
(Nallini Pathmanathan J) [2011] 8 CLJ 476 [HC]

Winding-up - Just and equitable grounds - Company's incorporation illegal - Company's substratum failed - Directors breached common law and statutory fiduciary duties - Company's management deadlocked - Public funds and public policy involved in company's operations - Whether prudent to wind up - Companies Act 1965, ss. 218(1)(f), (i), 132(1), 132E and 133A - Selangor Agricultural Development Corporation Enactment No. 12 of 1972, s. 14B(1) - Incorporation (State Legislatures Competency) Act 1962, s. 14(1) - Contracts Act 1950, ss. 24(a), (b)
Perbadanan Kemajuan Pertanian Selangor v. Megafores Nursery Sdn Bhd & Ors
(Mah Weng Kwai JC) [2011] 8 CLJ 484 [HC]

Contract

Novation - Existence of - Assignment of hire-purchase agreements - Whether only benefit under agreements assigned - True nature of assignment - Whether hybrid novation agreement created to make 'assignee' liable for hire-purchase instalments for use of goods - Whether owner had duty or discretion to repossess hired goods - Whether owner's failure to give credit for value of hired goods affected claim - Contracts Act 1950, ss. 92, 94
Affin-ACF Finance Bhd v. Meriplex Sdn Bhd & Ors
(Nallini Pathmanathan J) [2011] 8 CLJ 455 [HC]

Criminal Procedure

Sentencing - Plea bargaining - Trafficking in dangerous drugs - Charge reduced to one of possession - Plea of guilty - Dispute on circumstances leading to plea - Doubt whether bargain inclusive of sentence to be imposed - Whether warranting retrial on original charge - Dangerous Drugs Act 1952, ss. 6, 39A(2), 39B(1)(a) - Criminal Procedure Code, s. 376
PP v. Manimaran Manickam
(Raus Sharif FCJ, Abu Samah Nordin, Sulong Matjeraie JJCA) [2011] 8 CLJ 439 [CA]

Sentencing - Possession of 404 grams of cannabis - Sentenced to six years imprisonment and ten strokes of whipping - Whether inadequate - Dangerous Drugs Act 1952, ss. 6, 39A(2)
PP v. Manimaran Manickam
(Raus Sharif FCJ, Abu Samah Nordin, Sulong Matjeraie JJCA) [2011] 8 CLJ 439 [CA]

Trial - Plea bargaining - Whether allowable - Process and procedure - Whether request therefor to be made to Public Prosecutor - Whether judge may indicate likely sentence to be imposed - Whether to be transparent - Whether process to be recorded and to form part of notes of proceedings - Dangerous Drugs Act 1952, ss. 6, 39A(2) - Criminal Procedure Code, s. 376
PP v. Manimaran Manickam
(Raus Sharif FCJ, Abu Samah Nordin, Sulong Matjeraie JJCA) [2011] 8 CLJ 439 [CA]

Witness - Material witness - Prosecution unable to produce eye-witnesses who fled scene of drug trafficking - Whether testimony of witnesses could have altered verdict of case - Whether deliberate attempt by prosecution to frustrate defence - Police attempts to locate and arrest witnesses futile - Whether failure amounted to withholding or suppression of evidence - Whether s. 114(g) Evidence Act 1950 applicable
Nanda Kumar Kunyikanan & Anor v. PP
(Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA) [2011] 8 CLJ 406 [CA]

INDEKS PERKARA

PROSEDUR JENAYAH

Bidangkuasa - Mahkamah Sesyen - Perintah ekstradisi - Sama ada Mahkamah Sesyen mempunyai bidangkuasa memutuskan keesahan pertuduhan sebelum memberikan perintah ekstradisi - Akta Ekstradisi 1992, ss. 18 & 20
Sayed Omeid lwn. PP
(Ghazali Cha H) [2011] 8 CLJ 501 [HC]

Ekstradisi - Perintah ekstradisi - Permohonan semakan perintah esktradisi yang diberikan Mahkamah Sesyen - Sama ada perintah ekstradisi diberikan tanpa pertimbangan keesahan pertuduhan yang dikenakan - Akta Ekstradisi 1992, ss. 18 & 20
Sayed Omeid lwn. PP
(Ghazali Cha H) [2011] 8 CLJ 501 [HC]

Pertuduhan - Perintah ekstradisi - Sama ada keesahan pertuduhan perlu dipertimbangkan sebelum perintah ekstradisi diberikan - Sama ada pertuduhan menepati kehendak s. 153 Kanun Tatacara Jenayah
Sayed Omeid lwn. PP
(Ghazali Cha H) [2011] 8 CLJ 501 [HC]

c. CLJ Volume 8 (Part 5) 2011

COURT

FEDERAL COURT

Aszahaddi Abu Hassan lwn. PP
Arifin Zakaria HB (Malaya) Hashim Yusoff, Abdull Hamid Embong HHMP
(Undang-undang Jenayah; Keterangan - Akta Dadah Berbahaya 1952 - Seksyen 39B(1)(a) - Pengedaran - Saksi - Akta Keterangan 1950, s. 114(g)) [2011] 8 CLJ 509 [FC]

COURT OF APPEAL

Epic Quest Sdn Bhd & Anor v. Sheila Eleanor De Costa
Abu Samah Nordin, Syed Ahmad Helmy, Clement Skinner JJCA
(Legal Profession; Company Law - Lien for services - Appeal against granting of solicitor's lien - Separate legal entity - Veil of incorporation - Whether ought to be lifted) [2011] 8 CLJ 518 [CA]

PP v. Murugesan Muniyandi
Hasan Lah, Sulong Matjeraie, Sulaiman Daud JJCA
(Criminal Procedure - Sentence - Adequacy of sentence) [2011] 8 CLJ 527 [CA]

HIGH COURT

Affin Bank Bhd v. Tan Sri Lee Kim Yew
Mohamad Ariff Yusof J
(Contract - Terms - Construction - Intention of the parties - Formation - Concluded contract) [2011] 8 CLJ 541 [HC]

Araman Jaya Sdn Bhd v. Kumpulan A Besik Sdn Bhd
Nik Hasmat Mohamad JC
(Company Law; Contract; Evidence - Directors - Resolutions - Whether resolution has binding effect on company) [2011] 8 CLJ 557 [HC]

Dato' Dr Tan Chee Khuan v. Chin Choong Seng
Chew Soo Ho JC
(Tort - Defamation - Libel) [2011] 8 CLJ 574 [HC]

Lim Chon Jet & Ors v. Yusen Jaya Sdn Bhd
David Wong Dak Wah J
(Contract - Sale and purchase agreement - Breach - Illegality - Damages) [2011] 8 CLJ 598 [HC]

SUBJECT INDEX

COMPANY LAW

Directors - Resolutions - Effect of resolutions - Whether company compelled to carry out matters stated in resolution - Whether resolution may amount to a contractual undertaking by company - Whether resolution has binding effect on company
Araman Jaya Sdn Bhd v. Kumpulan A Besik Sdn Bhd
(Nik Hasmat Mohamad JC) [2011] 8 CLJ 557 [HC]

Separate legal entity - Veil of incorporation - Possession of appellants' documents - Whether respondent can exercise solicitors' lien against appellants for legal fees due and owing by other companies within group of companies - Special circumstances - Whether corporate veil ought to be lifted - Law Kam Loy v. Boltex Sdn Bhd
Epic Quest Sdn Bhd & Anor v. Sheila Eleanor De Costa
(Abu Samah Nordin, Syed Ahmad Helmy, Clement Skinner JJCA) [2011] 8 CLJ 518 [CA]

CONTRACT

Agreement - Sale and purchase agreement - Breach - Allegations of - Late delivery of houses - Whether defendant in breach of statutory duties - Whether plaintiffs proved loss and damages suffered as a result of defendant's breach - Whether plaintiffs entitled to quantifiable and unquantifiable losses - Housing (Control and Licensing of Developers) Rules 1980 (Sabah),
r. 12(1)(o), (q) & (r)
Lim Chon Jet & Ors v. Yusen Jaya Sdn Bhd
(David Wong Dak Wah J) [2011] 8 CLJ 598 [HC]

Breach - Damages - Quantum of damages - Assessment of - Quantifiable and unquantifiable loss - Calculation of - Whether accepted
Lim Chon Jet & Ors v. Yusen Jaya Sdn Bhd
(David Wong Dak Wah J) [2011] 8 CLJ 598 [HC]

Form of contract - Directors' resolutions - Whether directors' resolution may amount to a contractual undertaking by company - Whether resolution has binding effect on company
Araman Jaya Sdn Bhd v. Kumpulan A Besik Sdn Bhd
(Nik Hasmat Mohamad JC) [2011] 8 CLJ 557 [HC]

Formation - Concluded contract - Whether the sale and purchase of the ICULS to CHHB had been a concluded contract between them - Factors to consider - Evaluation of the evidence adduced - Effect of - Whether the plaintiff could now rely on the terms in the Put Option Agreement - Whether the clause sought to be relied on by the plaintiff a legal impossibility
Affin Bank Bhd v. Tan Sri Lee Kim Yew
(Mohamad Ariff Yusof J) [2011] 8 CLJ 541 [HC]

Illegality - Sale and purchase agreement - Terms and conditions - Whether clauses in SPA contravened r. 12(1)(o) & (r) of the Housing (Control and Licensing of Developers) Rules 1980 (Sabah)
Lim Chon Jet & Ors v. Yusen Jaya Sdn Bhd
(David Wong Dak Wah J) [2011] 8 CLJ 598 [HC]

Terms - Construction - Intention of the parties - Factors to consider
Affin Bank Bhd v. Tan Sri Lee Kim Yew
(Mohamad Ariff Yusof J) [2011] 8 CLJ 541 [HC]

CRIMINAL PROCEDURE

Sentence - Adequacy of sentence - Eleven-year imprisonment for alternative charge under s. 304(a) Penal Code - Discount of three years on account of guilty plea - Whether trial judge erred in giving discount for guilty plea - Whether severity of offence taken into consideration - Whether sentence in line with recent case laws - Whether public interest to be taken into consideration when determining measure of sentence imposed
PP v. Murugesan Muniyandi
(Hasan Lah, Sulong Matjeraie, Sulaiman Daud JJCA) [2011] 8 CLJ 527 [CA]

EVIDENCE

Adverse inference - Evidence Act 1950, s. 114(g) - Failure to call material witnesses - Whether adverse inference would be drawn
Araman Jaya Sdn Bhd v. Kumpulan A Besik Sdn Bhd
(Nik Hasmat Mohamad JC) [2011] 8 CLJ 557 [HC]

LEGAL PROFESSION

Remuneration - Lien - Lien for services - Appeal against granting of solicitor's lien - Possession of appellants' documents - Whether respondent can exercise solicitor's lien against appellants for legal fees due and owing by other companies within group of companies - Whether appellants a separate legal entity - Whether corporate veil ought to be lifted - Whether lien legitimately exercised
Epic Quest Sdn Bhd & Anor v. Sheila Eleanor De Costa
(Abu Samah Nordin, Syed Ahmad Helmy, Clement Skinner JJCA) [2011] 8 CLJ 518 [CA]

TORT

Defamation - Libel - Republication of libellous words by person defamed to rebut defamation - Whether absolved initial publication by defamer - Whether republication had effect on damages awarded by court - Failure of defendant to show which offending words were opinion and which were statements of fact - Non-compliance with O. 78 r. 3(2) Rules of the High Court 1980 - Whether defences of fair comment and justification made out - Defamation Act 1957, ss. 8 & 9
Dato' Dr Tan Chee Khuan v. Chin Choong Seng
(Chew Soo Ho JC) [2011] 8 CLJ 574 [HC]

INDEKS PERKARA

KETERANGAN

Saksi - Kegagalan memanggil saksi tertentu - Sama ada terdapat penyembunyian keterangan - Akta Keterangan 1950, s. 114(g) - Sama ada wujudnya 'adverse inference'
Aszahaddi Abu Hassan lwn. PP
(Arifin Zakaria HB (Malaya), Hashim Yusoff, Abdull Hamid Embong HHMP) [2011] 8 CLJ 509 [FC]

UNDANG-UNDANG JENAYAH

Akta Dadah Berbahaya 1952 - Seksyen 39B(1)(a) - Pengedaran - Mengedar 4,562 gram cannabis - Rayuan terhadap sabitan dan hukuman - Sama ada beban pembuktian yang salah digunakan - Kegagalan memanggil saksi penting - Sama ada terdapat penyembunyian keterangan - Akta Keterangan 1950, s. 114(g) - Sama ada terpakai - Sama ada keterangan polis mencukupi dan tidak memerlukan sokongan melalui CCTV - Jagaan dan kawalan ke atas dadah oleh perayu - Sama ada terbukti - Sama ada hakim bicara membuat dapatan fakta yang betul
Aszahaddi Abu Hassan lwn. PP
(Arifin Zakaria HB (Malaya), Hashim Yusoff, Abdull Hamid Embong HHMP) [2011] 8 CLJ 509 [FC]

CASE OF THE WEEK

HAIRIE MAHTHINEM v. PP

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Conviction and sentence - Appeal against - Failure to consider appellant's defence - Whether trial judge did not consider whether appellant's version cast reasonable doubt on prosecution's case - Whether there was a fundamental misdirection by trial judge - Criminal Procedure Code, s. 182A

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Conviction and sentence - Appeal against - Physical and mens rea possession - Whether established - Dangerous Drugs Act 1952, s. 37(da)(vi)

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL / AMENDING ACT NO
PU(A) 376/2011	Customs (Values) (Crude Petroleum Oil) (No 23) Order 2011	17 November 2011	ACT 235
PU(A) 377/2011	Road Transport (Fee And Charge For Erecting Structures For Billboard On Federal Road) (Amendment) Rules 2011	18 November 2011	ACT 333
PU(A) 378/2011	Customs (Values) (Palm Oil) (No 47) Order 2011	21 November 2011	ACT 235
PU(A) 379/2011	Income Tax (Deduction For Payment Of Premium To Malaysia Deposit Insurance Corporation) Rules 2011	22 November 2011	ACT 53
PU(A) 380/2011	Factories And Machinery (Exemption To Petronas Carigali Sdn Bhd, Sabah Operation, Sabah) Order 2011	23 November 2011	ACT 139