Legal Network Series

[2012] 1 LNS 68	AMBANK (M) BERHAD (8515-D) v. GLORIOUS HOLIDAYS SDN BHD & ORS (NO. 2)	CONTRACT: Guarantee - 'Principal debtor' Clause - Whether liability of 2nd defendant, as a principal debtor, was a primary liability - Whether cause of action against 2nd defendant arose immediately upon 1st defendant's default to pay - Whether plaintiff as lender ought to have pursued all remedies available against 1st and 2nd defendants simultaneously, contemporaneously or successively to recover monies lent as no Agreement to the contrary - Whether any requirement for a demand to be made on 2nd defendant pursuant to the Individual Letter of Guarantee CIVIL PROCEDURE: Limitation of action - When cause of action accrued - Whether action in personam against 2nd defendant for recovery of moneys owing by 1st defendant should have been brought within 6 years under s. 6 of the Limitation Act 1953 from date of the last repayment - Whether letter of demand issued by plaintiff postponed commencement of the limitation period CIVIL PROCEDURE: Limitation of action - When cause of action accrued - Whether action in personam against 2nd defendant for recovery of moneys owing by 1st defendant should have been brought within 6 years under s. 6 of the Limitation Act 1953 from date of the last repayment - Whether letter of demand issued by plaintiff postponed commencement of the limitation period
[2012] 1 LNS 88	ROSLAN OSMAN & ANOR v. JOINT MANAGEMENT BODY - AMCORP TRADE CENTRE & ANOR & ANOTHER CASE	ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - To quash decision of 1st and 2nd respondent in refusing applicants to appoint proxies for them to vote at annual general meeting - Whether applicants should have appealed against 2nd respondent's decision to the State Authority before bringing matter for judicial review CIVIL PROCEDURE: Inherent powers - High Court's supervisory jurisdiction over inferior tribunals - Whether share units attached to the parcel could only be determined by the Director once strata titles of each respective parcel had been issued - Whether voting manner under s. 15 of Schedule 2 of the Strata Titles Act 1985 could be applied as no strata title for the respective parcels had been issued - Whether 2nd respondent's decision correct - Whether any error of law committed by 2nd respondent to warrant intervention
[2012] 1 LNS 94	ASTANA INTERNATIONAL SDN BHD & ORS v. RHB BANK BERHAD & ORS	BANKING: Banker and customer - Forgery - Whether PW4's signatures appearing on exhibits D101, P7, P9, P10-P67 were forged - Whether those documents constituted a valid mandate or authorization from plaintiffs to 1st defendant - Whether transactions were a nullity BANKING: Banker and customer - Contractual relationship - Duty of banker - Whether 1st defendant breached their contract with plaintiffs - Whether 1st defendant liable to make good the losses suffered by plaintiffs BANKING: Banker and customer - Forgery - Verification of signatures done by memorizing signatures and not by looking at signatures and comparing it with specimen card - Whether such practice was illegal, wrong and against public interest - Whether plaintiffs had proven their case of unauthorized transactions against 1st defendant - Whether 1st defendant acted unreasonably in handling plaintiffs' accounts - Whether prudent banker in similar circumstances would have acted as 1st defendant did - Whether 1st defendant liable to plaintiffs BANKING: Banker and customer - Duty of customer - Monthly statements sent regularly to plaintiffs without any complaints - Whether plaintiffs estopped from claiming 1st defendant was liable - Whether any duty at common law for customer to take precautions in the course of his business to prevent forgeries by his servants - Whether in the absence of a contract to the contrary, a duty was imposed upon customer to inspect his bank statements to ensure his account was properly maintained by bank - Whether fact that plaintiffs never complained of anything to 1st defendant for 5 years could be accepted as a valid defence TORT: Negligence - Banker and customer - Whether 1st defendant was negligent in their dealing with the 1st plaintiff - If so, whether plaintiffs had suffered losses due to 1st defendant's gross negligence TORT: Conversion - Banker and customer - 1st defendant denying receipt of any benefit from the operation of plaintiffs' accounts - Whether 1st defendant could raise such defences when the instruments relied upon by 1st defendant proven to be forged
[2011] 1 LNS 942	GAJANAN Y BHIDE v. MVE TECHNOLOGIES SDN BHD & ORS	LABOUR LAW: Employment - Termination of employment - Whether with just or reasonable cause - Circumstances and reasons for plaintiff's recruitment - Whether plaintiff was unable and lacked expertise to design the choke valves required of him - Whether plaintiff misrepresented his skills and expertise - Whether plaintiff failed to produce the work for which he was employed - Whether plaintiff properly terminated for poor performance - Whether termination letter issued by 1st defendant valid LABOUR LAW: Employment - Employer's duty - Whether 1st defendant owed a duty to ensure plaintiff's safety - Whether Employer's duty of care to ensure the security and safety of his Employee's limited to his workplace and for security risks as could be reasonably foreseen - Whether plaintiff assaulted by 2nd and 3rd defendants - Whether injury sustained by plaintiff as a result of his own doing
[2011] 1 LNS 967	RE: JOSEPH LEE HENN SHEN; EX-PARTE: SHEARN DELAMORE & CO AND DREW & NAPIER	CIVIL PROCEDURE: Affidavits - Affidavit in reply - Whether proper for Senior Assistant Registrar (SAR) to admit judgment creditor's Affidavit-in-Reply(2) after the filing of the judgment debtor's affidavit in reply - Whether O. 32 r. 13(2) only permitted three affidavits as of right namely; the affidavit in support, the affidavit in opposition and the affidavit in reply - Whether any other affidavit to be filed subsequent to affidavit in reply had to be with leave of the court and cogent reasons given for granting such leave - Whether SAR should have expunged the scandalous parts of judgment debtor's affidavit in reply from the record once they were brought to his attention

CLJ 2013 Volume 9 (Part 1)

COURT

SC INDIA

Nirmala J Jhala v. State Of Gujarat And Another
Dr B S Chauhan, F M Ibrahim Kalifulla JJ
(Courts; Administrative Law - Judiciary - Duty of Higher Judiciary) [2013] 9 CLJ 1 [SC India]

COURT OF APPEAL

Bank Pertanian Malaysia Bhd v. MCI Bio Tech Sdn Bhd
Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA
(Banking; Civil Procedure - Banker and customer - Loan agreement - Breach) [2013] 9 CLJ 29 [CA]

Edy S v. PP
Mohamed Apandi Ali, Anantham Kasinather JJCA, David Wong Dak Wah J
(Criminal Law; Criminal Procedure - Penal Code - Section 302 - Murder) [2013] 9 CLJ 48 [CA]

Norisam Akram Mullah v. PP & Another Appeal
Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA
(Criminal Law - Dangerous Drugs Act 1952 - Section 37(da) - Trafficking) [2013] 9 CLJ 69 [CA]

Ong Ching Kian v. PP
Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA
(Criminal Law; Criminal Procedure - Dangerous Drugs - Trafficking - Defence of personal consumption) [2013] 9 CLJ 91 [CA]

Saw Siew Tuan v. Omicrast Manufacturers Sdn Bhd
Ramly Ali, Aziah Ali, Mah Weng Kwai JJCA
(Contract; Land Law - Sale and purchase agreement - Specific performance) [2013] 9 CLJ 111 [CA]

HIGH COURT

JRI Resources Sdn Bhd v. Varia Tenggara Sdn Bhd
Mary Lim J
(Contract - Frustration - Impossibility - Test of) [2013] 9 CLJ 119 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Service Law - Departmental Enquiry - Enquiry procedure - Burden and Onus of proof - High Court wrongly placing onus on appellant delinquent to explain alleged incident of demand of illegal gratification, and holding that by simply disowning and denying such occurrence she had not discharged it - Held, burden of proof lay on Department and High Court erred in shifting onus upon appellant who was delinquent in enquiry - Evidence Act, 1872, ss. 101 and 102
Nirmala J Jhala v. State Of Gujarat And Another
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2013] 9 CLJ 1 [SC India]

Service Law - Departmental Enquiry - Enquiry procedure - Natural Justice - Preliminary enquiry - Reliance on - Extent to which permissible - Held, evidence recorded in preliminary enquiry cannot be used in regular enquiry as delinquent is not associated with it, and opportunity to cross-examine persons examined in preliminary enquiry is not given - Thus, using such evidence violates principles of natural justice since cross-examination is an integral part of natural justice - Preliminary enquiry may be useful only to take prima facie view, as to whether there is some substance in allegations made against employee which may warrant further enquiry - Besides, preliminary enquiry and its report loses significance/importance once regular enquiry is initiated by issuing chargesheet to delinquent - On facts held, in absence of anything to show that either preliminary enquiry report or statements recorded therein had been exhibited in regular inquiry, such report/statements could not be relied on against appellant - Enquiry officer as well as High Court on its administrative and judicial side erred in relying upon it for fastening guilt upon appellant and compulsorily retiring appellant - Punishment of compulsory retirement, set aside
Nirmala J Jhala v. State Of Gujarat And Another
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2013] 9 CLJ 1 [SC India]

Service Law - Departmental Enquiry - Nature and Standard of proof - Quasi-judicial and quasi-criminal proceedings - Principle of preponderance of probabilities is applicable, and not doctrine of proof beyond reasonable doubt - Finding of court that delinquent has committed misconduct should be based on evidence - Such conclusion must be reached on basis of what a prudent man would have done - In instant case, complainant (alleging misconduct in performance of judicial duties by appellant) was disbelieved by enquiry officer as well as High Court on various issues, particularly on point of complainant personally having heard conversation when alleged demand of Rs 20,000 was made by appellant judicial officer to complainant's counsel for passing order in complainant's favour - Further, allegation that appellant had threatened complainant to withdraw complaint was also found false - Allegation that appellant's husband was collecting bribe amounts on her behalf was also baseless since at that point of time, she was unmarried - Furthermore, there was nothing on record to show that appellant, whose defence was disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry - Hence, order of punishment imposed by High Court in compulsorily retiring appellant, set aside - However, as appellant had already reached age of superannuation, besides being exonerated honourably, granted costs quantified at Rs 5 lakhs - Constitution of India - Arts. 136 and 21 - Costs as compensation - When warranted
Nirmala J Jhala v. State Of Gujarat And Another
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2013] 9 CLJ 1 [SC India]

Service Law - Departmental Enquiry - Preliminary enquiry - Prima facie case - What amounts to - Held, prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the case were to be believed - While determining whether a prima facie case has been made out relevant consideration is whether on evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence - Words and Phrases - "Prima facie case"
Nirmala J Jhala v. State Of Gujarat And Another
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2013] 9 CLJ 1 [SC India]

Service Law - Penalty/Punishment - Proportionality - Offence of corruption - Punishment of dismissal, reiterated, is appropriate
Nirmala J Jhala v. State Of Gujarat And Another
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2013] 9 CLJ 1 [SC India]

BANKING

Banker and customer - Loan agreement - Breach - Bank refused last draw down of loan facility - Non-compliance of condition precedent - Whether bank waived rights in allowing previous draw downs - Whether bank's termination notice defective - Whether 14 days requisite time given to borrower to remedy breach - Whether mutual agreement to restore non-compliance necessary - Whether loss of profits and loss of value of company could be recovered
Bank Pertanian Malaysia Bhd v. MCI Bio Tech Sdn Bhd
(Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA) [2013] 9 CLJ 29 [CA]

CIVIL PROCEDURE

Appeal - Appeal against judgment of High Court - Whether assessment by High Court correct - Whether appellate jurisdiction to be exercised to remedy injustice arising from errors - Whether interference based solely because appellate judges had different views - Whether unwarranted - Whether assessment by High Court given due weight
Bank Pertanian Malaysia Bhd v. MCI Bio Tech Sdn Bhd
(Syed Ahmad Helmy, Abdul Wahab Patail, Abdul Aziz Rahim JJCA) [2013] 9 CLJ 29 [CA]

CONTRACT

Frustration - Impossibility - Whether pleaded specifically - Test of - Whether there was supervening event - Whether circumstances rendered performance radically different from that which was undertaken by contract - Extension of time - Whether plaintiff entitled to payment for extended period
JRI Resources Sdn Bhd v. Varia Tenggara Sdn Bhd
(Mary Lim J) [2013] 9 CLJ 119 [HC]

Sale and purchase agreement - Specific performance - Appeal against - Essential ingredient of SPA was for appellant to obtain approval from State Authority to alienate property - Whether alienation of state land shall only take effect upon registration of registered document of title - National Land Code, s. 78(3) - Whether appellant had interest or title in property at time of execution of SPA - Whether there was valid contract between parties - Whether SPA capable of specific performance - Whether SPA void for uncertainty - Contracts Act 1950, s. 30
Saw Siew Tuan v. Omicrast Manufacturers Sdn Bhd
(Ramly Ali, Aziah Ali, Mah Weng Kwai JJCA) [2013] 9 CLJ 111 [CA]

COURTS

Courts, Tribunals and Judiciary - Judiciary - Judicial independence and courage - Duty of Higher Judiciary to protect Subordinate Judicial Officers - Growing tendency of maligning reputation of judicial officers by disgruntled litigants who fail to secure order in their favour, strongly deprecated - Besides "Judge bashing", various other problems faced by subordinate judiciary at hands of unscrupulous litigants and lawyers, highlighted - For proper functioning of democracy, independent judiciary to dispense justice without fear and favour, is paramount - Duty of High Court to protect honest Subordinate Judicial Officers, emphasised - Constitution of India, Arts. 227 and 235
Nirmala J Jhala v. State Of Gujarat And Another
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2013] 9 CLJ 1 [SC India]

Courts, Tribunals and Judiciary - Judicial Review - Scope - Reiterated - Judicial review is not akin to adjudication on merits by reappreciating evidence as an appellate authority - Adequacy or reliability of evidence cannot be permitted to be canvassed before court in writ proceedings - Only consideration court/tribunal has in judicial review is to consider whether conclusions of appellate authority are based on evidence on record and supports findings - Judicial review jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice - Besides, even when some defect is found in decision making process, court must exercise its discretionary power with great caution keeping in mind larger public interest and only when it comes to conclusion that overwhelming public interest requires interference, should court intervene - Constitution of India - Arts. 226, 32 and 136 - Administrative Law - Judicial Review - Limits of Judicial Review
Nirmala J Jhala v. State Of Gujarat And Another
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2013] 9 CLJ 1 [SC India]

CRIMINAL LAW

Dangerous drugs - Trafficking - Conviction and sentence - Appeal against - Defence of personal consumption - Whether defence of personal consumption presupposed knowledge and possession - Whether presumption under s. 39(da)(iii) of Dangerous Drugs Act 1952 arose - Whether presumption of trafficking rebutted on balance of probabilities - Whether mens rea possession made out
Ong Ching Kian v. PP
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2013] 9 CLJ 91 [CA]

Dangerous Drugs Act 1952 - Section 37(da) - Trafficking in dangerous drugs - Conviction and sentence - Appeal against - Prima facie - Whether court relied on ss. 2 and 37(da) - Whether two different findings made - Whether higher burden placed on appellants - Whether amounted to misdirection - Whether
s. 37(da) presumption rebutted - Whether prejudicial to appellants - Common intention - Whether s. 34 Penal Code mentioned in grounds of judgment - Whether court invoked proviso to s. 60(1) Courts of Judicature Act 1964
Norisam Akram Mullah v. PP & Another Appeal
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2013] 9 CLJ 69 [CA]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Case solely premised on circumstantial and forensic evidence - Identification parade - Whether properly conducted - Whether conflicting evidence in identification of appellant - Absence of appellant's DNA at scene of crime - Whether gave rise to reasonable inference that appellant may not be culprit - Evidence of poor handling of exhibits in DNA analysis - Whether court undertaken maximum evaluation of prosecution evidence - Prima facie case - Whether established
Edy S v. PP
(Mohamed Apandi Ali, Anantham Kasinather JJCA, David Wong Dak Wah J) [2013] 9 CLJ 48 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Trafficking in dangerous drugs - Defence of personal consumption - Whether defence of personal consumption presupposed knowledge and possession - Whether presumption under s. 39(da)(iii) of Dangerous Drugs Act 1952 arose - Whether presumption of trafficking rebutted on balance of probabilities
Ong Ching Kian v. PP
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2013] 9 CLJ 91 [CA]

Defence - Evidence - Offence of trafficking in dangerous drugs - Defence of personal consumption - Whether appellant proven to be hardcore drug addict - Whether symptoms related to drug withdrawals shown - Whether defence put across to prosecution witness during trial - Whether defence was fabrication, concoction and afterthought - Whether defence demolished argument of passive possession - Whether mens rea possession made out
Ong Ching Kian v. PP
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2013] 9 CLJ 91 [CA]

Prosecution - Prima facie case - Whether established - Murder - Case solely premised on circumstantial and forensic evidence - Conflicting evidence in identification of appellant - Evidence of poor handling of exhibits in DNA analysis - Whether mandatory task of maximum evaluation of evidence complied with - Whether prosecution established prima facie case
Edy S v. PP
(Mohamed Apandi Ali, Anantham Kasinather JJCA, David Wong Dak Wah J) [2013] 9 CLJ 48 [CA]

LAND LAW

Sale and purchase of property - Sale and purchase agreement - Specific performance - Appeal against - Essential ingredient of SPA was for appellant to obtain approval from State Authority to alienate property - Whether alienation of state land shall only take effect upon registration of registered document of title - National Land Code, s. 78(3) - Whether appellant had interest or title in property at time of execution of SPA - Whether there was valid contract between parties - Whether SPA capable of specific performance - Whether SPA void for uncertainty - Contracts Act 1950, s. 30
Saw Siew Tuan v. Omicrast Manufacturers Sdn Bhd
(Ramly Ali, Aziah Ali, Mah Weng Kwai JJCA) [2013] 9 CLJ 111 [CA]

CLJ 2013 Volume 9 (Part 2)

COURT

FEDERAL COURT

Sharikat Galian Razak Sdn Bhd lwn. Magical Capital Sdn Bhd
Arifin Zakaria KHN, Raus Sharif PMR, Hashim Yusoff, Abdull Hamid Embong, Jeffrey Tan HHMP
(Bidang Kuasa - Mahkamah Persekutuan - Semakan kehakiman - Kuasa sedia ada) [2013] 9 CLJ 141 [FC]

Syed Hussain Syed Junid & Ors v. Pentadbir Tanah Negeri Perlis
Arifin Zakaria CJ, Raus Sharif PCA, Hashim Yusoff, Abdull Hamid Embong, Jeffrey Tan FCJJ
(Land Law; Civil Procedure - Acquisition of land - Award - Appeal to Federal Court - Leave to appeal) [2013] 9 CLJ 152 [FC]

COURT OF APPEAL

Director Of Lands & Surveys Sarawak v. TR Subing Anak Jamit Alias Langan (Suing For And On Behalf Of Himself & 25 Ors)
Abu Samah Nordin, Clement Skinner, Aziah Ali JJCA
(Native Law And Custom - Land dispute - Customary rights over land - Mode of commencement) [2013] 9 CLJ 162 [CA]

Formi Afta Ahmad & Anor v. PP
Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Criminal Law; Criminal Procedure - Trafficking in dangerous drugs - Evidence of government chemist - Whether defective) [2013] 9 CLJ 183 [CA]

HIGH COURT

Gemilang Mirza Sdn Bhd & Ors v. PP
Chew Soo Ho J
(Banking; Criminal Law; Criminal Procedure; Evidence - Banking offences - Seriousness of crime - Burden of proof) [2013] 9 CLJ 214 [HC]

Hj Hafifi Hj Hassan v. Norman Disney & Young Sdn Bhd & Ors; Norman Disney & Young (Intervener)
Abu Bakar Jais JC
(Company Law - Liquidators - Powers of liquidator - Payment of solicitor's bills from assets of company) [2013] 9 CLJ 229 [HC]

Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor
Amelia Tee Abdullah J
(Tort - Defamation - Libel - Sexual harassment at workplace - General damages) [2013] 9 CLJ 243 [HC]

SUBJECT INDEX

BANKING

Banking and Financial Institutions Act 1989 ('BAFIA') - Offences - Receiving deposits from public without valid license granted under s. 6 BAFIA - Whether an offence under s. 25 BAFIA - Business concept - Whether capital received from investors would be returned - Acquittal from charges under Anti-Money Laundering and Anti-Terrorism Financing Act 2001 ('AMLATFA') - Whether charges under AMLATFA must be proved before offence under s. 25(1) of BAFIA could be proved - Whether defence adequately considered - Seriousness of crime - Whether sentences manifestly excessive
Gemilang Mirza Sdn Bhd & Ors v. PP
(Chew Soo Ho J) [2013] 9 CLJ 214 [HC]

CIVIL PROCEDURE

Appeal - Leave to appeal - Acquisition of land - Award - Appeal to Federal Court - Whether leave to appeal must first be obtained - Land Acquisition Act 1960, s. 49(1)
Syed Hussain Syed Junid & Ors v. Pentadbir Tanah Negeri Perlis
(Arifin Zakaria CJ, Raus Sharif PCA, Hashim Yusoff, Abdull Hamid Embong, Jeffrey Tan FCJJ) [2013] 9 CLJ 152 [FC]

COMPANY LAW

Liquidators - Powers of liquidator - Payment of solicitor's bills from assets of company - Whether bills must be verified by committee of inspection - Liquidator's discretion - Whether governed by r. 165 Companies (Winding-Up) Rules 1972 - Whether solicitor's bills to be taxed when appointment of solicitors was to assist liquidators - Companies Act 1965, ss. 236(1)(e) & 236(2)(a)
Hj Hafifi Hj Hassan v. Norman Disney & Young Sdn Bhd & Ors; Norman Disney & Young (Intervener)
(Abu Bakar Jais JC) [2013] 9 CLJ 229 [HC]

CRIMINAL LAW

Banking offences - Company receiving deposits from public without valid licence - Banking and Financial Institutions Act 1989 ('BAFIA'), ss. 6 & 25(1) - Business concept - Whether capital received from investors would be returned - Acquittal from charges under Anti-Money Laundering and Anti-Terrorism Financing Act 2001 ('AMLATFA') - Whether charges under AMLATFA must be proved before offence under s. 25(1) of BAFIA could be proved - Whether defence adequately considered - Seriousness of crime - Whether sentences manifestly excessive
Gemilang Mirza Sdn Bhd & Ors v. PP
(Chew Soo Ho J) [2013] 9 CLJ 214 [HC]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Conviction and sentence - Appeal against - Prima facie case - Whether established - Evidence of government chemist - Whether defective - Whether expertise of government chemist established by prosecution - Element of possession - Whether proved - Whether first appellant sole user of vehicle where drugs were found - Whether second appellant, as passenger, had exclusive use of vehicle - Whether vehicle accessible to other parties - Whether custody and control of drugs established - Whether s. 114(g) Evidence Act 1950 invoked against prosecution - Common intention - Whether proved - Whether appellants acted in concert to traffic drugs - Whether appellants acquitted and discharged
Formi Afta Ahmad & Anor v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 9 CLJ 183 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Receiving deposits from public without valid licence - Whether prima facie case proved - Whether defence adequately considered - Whether conviction safe - Whether sentences manifestly excessive - Banking and Financial Institutions Act 1989, ss. 6 & 25(1)
Gemilang Mirza Sdn Bhd & Ors v. PP
(Chew Soo Ho J) [2013] 9 CLJ 214 [HC]

Appeal - Appeal against conviction and sentence - Trafficking in dangerous drugs - Prima facie case - Whether established - Whether evidence provided by chemist inadequate - Element of possession - Whether proved - Whether custody and control of drugs established - Common intention - Whether proved - Whether appellants acted in concert to traffic drugs - Whether High Court Judge failed to appreciate defence case and misdirected himself - Whether High Court Judge failed to subject evidence adduced to a maximum evaluation
Formi Afta Ahmad & Anor v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 9 CLJ 183 [CA]

EVIDENCE

Burden of proof - Beyond reasonable doubt - Company receiving deposits from public without valid licence - Whether burden placed on appellants to show that sums of money received or paid were bona fide - Whether prosecution must identify or diagnose mixed funds - Whether legal burden placed on prosecution - Evidence Act 1950, ss. 102 & 103
Gemilang Mirza Sdn Bhd & Ors v. PP
(Chew Soo Ho J) [2013] 9 CLJ 214 [HC]

LAND LAW

Acquisition of land - Award - Appeal to Federal Court - Appeal against amount of compensation awarded - Whether appealable - Whether ss. 40D & 49(1) Land Acquisition Act 1960 circumvented
Syed Hussain Syed Junid & Ors v. Pentadbir Tanah Negeri Perlis
(Arifin Zakaria CJ, Raus Sharif PCA, Hashim Yusoff, Abdull Hamid Embong, Jeffrey Tan FCJJ) [2013] 9 CLJ 152 [FC]

NATIVE LAW AND CUSTOM

Land dispute - Customary rights over land - Declaration granted by High Court - Appeal against - Whether respondents entitled to declarations sought - Whether Director of Lands and Surveys submitted written objection against Native Court's order within 21 days - Whether High Court had jurisdiction to determine validity of notice of objection - Mode of commencement - Whether respondents should have applied for judicial review instead of writ action
Director Of Lands & Surveys Sarawak v. TR Subing Anak Jamit Alias Langan (Suing For And On Behalf Of Himself & 25 Ors)
(Abu Samah Nordin, Clement Skinner, Aziah Ali JJCA) [2013] 9 CLJ 162 [CA]

TORT

Defamation - Libel - Defendant's false accusation against plaintiff - Sexual harassment at workplace - Letter of complaint sent to superior - Whether complaints untrue - Whether complaints affected plaintiff's employment prospects - Whether defendant had defamed plaintiff - Whether defendant's allegations proven - Corroboration of defendant's evidence - Whether admissible - Defendant's counterclaim - Whether defendant suffered from mental pain and suffering - Whether defendant awarded with general damages
Mohd Ridzwan Abdul Razak v. Asmah Hj Mohd Nor
(Amelia Tee Abdullah J) [2013] 9 CLJ 243 [HC]

INDEKS PERKARA

BIDANG KUASA

Mahkamah Persekutuan - Semakan kehakiman - Kuasa sedia ada - Permohonan semakan keputusan Mahkamah Rayuan - Sama ada k. 137 Kaedah-Kaedah Mahkamah Persekutuan 1995 terpakai - Sama ada Mahkamah Persekutuan boleh menyemak keputusan Mahkamah Rayuan - Sama ada satu penyalahgunaan proses mahkamah - Sama ada k. 137 boleh mengatasi pemakaian s. 96(a) Akta Mahkamah Kehakiman 1964
Sharikat Galian Razak Sdn Bhd lwn. Magical Capital Sdn Bhd
(Arifin Zakaria KHN, Raus Sharif PMR, Hashim Yusoff, Abdull Hamid Embong, Jeffrey Tan HHMP) [2013] 9 CLJ 141 [FC]