Bulletin_49

CLJ Bulletin, Issue 2010, Vol 49

17 December 2010

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 9 (Part 3) 2010

1. Legislation Highlights

Principal Acts

NUMBER TITLE DATE COMING INTO FORCE
REPEALING

ACT 712 Competition Act 2010 Not Yet In Force - Nil -

ACT 713 Competition Commission Act 2010 Not Yet In Force - Nil -

ACT 714 Suruhanjaya Pengangkutan Awam Darat Act 2010 3 June 2010 [PU(B) 262/2010] - Nil -

ACT 715 Land Public Transport Act 2010 Not Yet In Force - Nil -

ACT 716 Wildlife Conservation Act 2010 Not Yet In Force - Nil -

2. Articles

a) Legal Network Series Articles

1. Dicey Revisited: Separation Of Powers For The 21st Century ^{[Read
excerpt]}
By The RT Hon Lord Justice Leveson*

2. Costs Update For 2010 ^{[Read
excerpt]}
By Nicole Armitage, DG Thompson Costs Consultants & Lawyers*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 209 [HC] PP v. Abdul Aziz Adei

CRIMINAL PROCEDURE: Defence - Denial - Trafficking in a dangerous drug - Police arranged set-up to buy drugs from person named Karim - Accused claimed to be innocent carrier without knowledge of what was in his possession - Whether inherently improbable - Whether accused was the person with whom arrangement made - Whether prosecution's evidence credible

EVIDENCE: Identification evidence - Fingerprint - No attempts to lift fingerprints from an exhibit newspaper in which package was wrapped - Whether finding of possession affected

EVIDENCE: Prima facie evidence - Trafficking in a dangerous drug - Prima facie case established on the elements of physical possession, knowledge by inferential evidence and entrapment - Whether defence cast reasonable doubt on prosecution's case - Dangerous Drugs Act 1952 - Section 39B (1)(a)

[2009] 1 LNS 212 [HC] PP v. Phoon Wai Yee & Anor

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in a dangerous drug - Identity of drugs - Discrepancies in number of drugs and weight - Whether break in chain of evidence - Whether any doubts as to identity of the drugs exhibited - Whether prejudicial to accused

CRIMINAL PROCEDURE : Witness - Material witness - Failure of prosecution to call informer as witness - Whether gap in prosecution's case - Whether presumption under s. 114 (g) of Evidence Act 1950 to be invoked against prosecution

EVIDENCE: Adverse inference - Failure of prosecution to call informer as witness - Whether gap in prosecution's case - Whether presumption under s. 114 (g) of Evidence Act 1950 to be invoked against prosecution

EVIDENCE : Exhibit - Identity of exhibits - Discrepancies in number of drugs and weight - Whether break in chain of evidence - Whether prejudicial to accused - Whether any doubts as to identity of the drugs exhibited

[2009] 1 LNS 213 [HC] Tan Kok Hoe v. Kurnia Insurans (M) Berhad

CIVIL PROCEDURE : Interest - Commencement date for interest - Insurance claim for loss of car - Whether interest should be awarded on the compensation calculated with effect from the date of the originating summons or from the date of loss

CONTRACT : Terms - Incorporation - Motor insurance - Dispute as whether market value or insured sum payable as compensation for loss of car - Whether terms of 'Private Car Policy' incorporated into policy of car insurance taken up by plaintiff

INSURANCE : Motor insurance - Construction of policy - Dispute as to whether market value or insured sum payable as compensation for loss of car - Whether terms of 'Private Car Policy' incorporated into policy of car insurance taken up by plaintiff

[2009] 1 LNS 247 [HC] Re: Lim Lean Heng; Ex-Parte: Siow Cheng Lee

BANKRUPTCY: Receiving and adjudication order - Appeal against - Appeal by judgment debtor on ground that the 'affidavit of truth of statement' was not enclosed with the creditor's petition served on him - Whether ground properly pleaded in summons in chambers - Proper procedure to be followed

BANKRUPTCY: Petition - Service - Affidavit of service - Whether necessary to state that copy of the 'affidavit of truth of statements in petition' had been served on the judgment debtor - Whether complied with Form 14

CIVIL PROCEDURE: Appeal - New point raised on appeal - Appeal by judgment debtor on ground that the 'affidavit of truth of statement' was not enclosed with the creditor's petition served on him - Ground not stated in summons in chambers - Whether ground could be raised at appeal stage

CIVIL PROCEDURE: Pleadings - Issue not pleaded - Appeal by judgment debtor on ground that the 'affidavit of truth of statement' was not enclosed with the creditor's petition served on him - Ground not stated in summons in chambers - Whether ground could be raised at appeal stage

[2009] 1 LNS 249 [HC] Seoul Commtech Co Ltd v. Iscalar HT Technology Sdn Bhd

COMPANIES AND CORPORATIONS: Winding up - Proof of debt - Whether Accounts Receivable Request Confirmation reply constitutes proof of debt - Whether winding up order may be granted based on such document - Companies Act s. 218(1)(e)

CIVIL PROCEDURE: Pleadings - Acknowledgment of debt - Winding up petition under Companies Act s. 218(1)(e) - Whether Accounts Receivable Request Confirmation reply constitutes proof of debt - Whether winding up order may be granted based on such document

EVIDENCE: Proof of debt - Winding up petition under Companies Act s. 218(1)(e) - Whether Accounts Receivable Request Confirmation reply constitutes proof of debt - Whether winding up order may be granted based on such document

CITATION	TITLE	SUBJECT
[2009] 1 LNS 209 [HC]	PP v. Abdul Aziz Adei	CRIMINAL PROCEDURE: Defence - Denial - Trafficking in a dangerous drug - Police arranged set-up to buy drugs from person named Karim - Accused claimed to be innocent carrier without knowledge of what was in his possession - Whether inherently improbable - Whether accused was the person with whom arrangement made - Whether prosecution's evidence credible EVIDENCE: Identification evidence - Fingerprint - No attempts to lift fingerprints from an exhibit newspaper in which package was wrapped - Whether finding of possession affected EVIDENCE: Prima facie evidence - Trafficking in a dangerous drug - Prima facie case established on the elements of physical possession, knowledge by inferential evidence and entrapment - Whether defence cast reasonable doubt on prosecution's case - Dangerous Drugs Act 1952 - Section 39B (1)(a)
[2009] 1 LNS 212 [HC]	PP v. Phoon Wai Yee & Anor	CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in a dangerous drug - Identity of drugs - Discrepancies in number of drugs and weight - Whether break in chain of evidence - Whether any doubts as to identity of the drugs exhibited - Whether prejudicial to accused CRIMINAL PROCEDURE : Witness - Material witness - Failure of prosecution to call informer as witness - Whether gap in prosecution's case - Whether presumption under s. 114 (g) of Evidence Act 1950 to be invoked against prosecution EVIDENCE: Adverse inference - Failure of prosecution to call informer as witness - Whether gap in prosecution's case - Whether presumption under s. 114 (g) of Evidence Act 1950 to be invoked against prosecution EVIDENCE : Exhibit - Identity of exhibits - Discrepancies in number of drugs and weight - Whether break in chain of evidence - Whether prejudicial to accused - Whether any doubts as to identity of the drugs exhibited
[2009] 1 LNS 213 [HC]	Tan Kok Hoe v. Kurnia Insurans (M) Berhad	CIVIL PROCEDURE : Interest - Commencement date for interest - Insurance claim for loss of car - Whether interest should be awarded on the compensation calculated with effect from the date of the originating summons or from the date of loss CONTRACT : Terms - Incorporation - Motor insurance - Dispute as whether market value or insured sum payable as compensation for loss of car - Whether terms of 'Private Car Policy' incorporated into policy of car insurance taken up by plaintiff INSURANCE : Motor insurance - Construction of policy - Dispute as to whether market value or insured sum payable as compensation for loss of car - Whether terms of 'Private Car Policy' incorporated into policy of car insurance taken up by plaintiff
[2009] 1 LNS 247 [HC]	Re: Lim Lean Heng; Ex-Parte: Siow Cheng Lee	BANKRUPTCY: Receiving and adjudication order - Appeal against - Appeal by judgment debtor on ground that the 'affidavit of truth of statement' was not enclosed with the creditor's petition served on him - Whether ground properly pleaded in summons in chambers - Proper procedure to be followed BANKRUPTCY: Petition - Service - Affidavit of service - Whether necessary to state that copy of the 'affidavit of truth of statements in petition' had been served on the judgment debtor - Whether complied with Form 14 CIVIL PROCEDURE: Appeal - New point raised on appeal - Appeal by judgment debtor on ground that the 'affidavit of truth of statement' was not enclosed with the creditor's petition served on him - Ground not stated in summons in chambers - Whether ground could be raised at appeal stage CIVIL PROCEDURE: Pleadings - Issue not pleaded - Appeal by judgment debtor on ground that the 'affidavit of truth of statement' was not enclosed with the creditor's petition served on him - Ground not stated in summons in chambers - Whether ground could be raised at appeal stage
[2009] 1 LNS 249 [HC]	Seoul Commtech Co Ltd v. Iscalar HT Technology Sdn Bhd	COMPANIES AND CORPORATIONS: Winding up - Proof of debt - Whether Accounts Receivable Request Confirmation reply constitutes proof of debt - Whether winding up order may be granted based on such document - Companies Act s. 218(1)(e) CIVIL PROCEDURE: Pleadings - Acknowledgment of debt - Winding up petition under Companies Act s. 218(1)(e) - Whether Accounts Receivable Request Confirmation reply constitutes proof of debt - Whether winding up order may be granted based on such document EVIDENCE: Proof of debt - Winding up petition under Companies Act s. 218(1)(e) - Whether Accounts Receivable Request Confirmation reply constitutes proof of debt - Whether winding up order may be granted based on such document

b. CLJ Volume 9 (Part 3) 2010

COURT

COURT OF APPEAL

Fong Seng Fatt & Satu Lagi lwn. Syarikat Cekal Kasih Sdn Bhd
(Tort - Mendorong kemungkiran kontrak) [2010] 9 CLJ 253

Hamzah HM Saman & Ors v. Ronald Beadle
(Outstanding tax - Passport withheld for 5968 days - Whether claim for damages unsustainable) [2010] 9 CLJ 270

Witech Sdn Bhd & Ors v. BHR Group Ltd
(Default judgment obtained under O. 19 r. 2(1) RHC - Claim involved more than a liquidated demand claim - Whether claim not falling under O. 19 r. 2(1) RHC) [2010] 9 CLJ 288

HIGH COURT

Malayan Testing Laboratory Sdn Bhd v. Standard Chartered Bank Malaysia Bhd
(Banker and customer - Whether bank had knowingly or negligently facilitated unauthorised cheques) [2010] 9 CLJ 309

Re Teoh Heng Han; Ex p OCBC Bank (M) Bhd
(Hearing of creditor's petition in bankruptcy proceedings - Registrar's power to hear petition) [2010] 9 CLJ 328

Sashi Kumar Suppiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors
(Habeas corpus - Whether applicant denied right to be represented by counsel) [2010] 9 CLJ 349

Wong Teck Sern v. Menteri Dalam Negeri, Malaysia & Anor
(Habeas corpus - Arrest not followed by charge - Whether a procedural non-compliance) [2010] 9 CLJ 366

SUBJECT INDEX

ADMINISTRATIVE LAW

Exercise of administrative powers - Public officer - Tax officer issuing certificate under s. 104 Income Tax Act 1967 - Whether proper exercise of power by officer - Income Tax Act 1967, ss. 104, 106
Hamzah HM Saman & Ors v. Ronald Beadle
(KN Segara, Sulaiman Daud & Hishamudin Mohd Yunus JJCA) [2010] 9 CLJ 270 [CA]

BANKING

Banker and customer - Cheques - Whether bank knowingly or negligently facilitated unauthorised cheques drawn from customer's account - Whether customer contributory negligent
Malayan Testing Laboratory Sdn Bhd v. Standard Chartered Bank Malaysia Bhd
(Mohd Amin Firdaus JC) [2010] 9 CLJ 309 [HC]

BANKRUPTCY

Adjudication and receiving orders - Setting aside - Whether bankruptcy notice not in accordance with terms of amended judgment - Whether creditor's petition invalid for not stating person authorised under seal - Whether issues raised after time or opportunity to do so had passed
Re Teoh Heng Han; Ex p OCBC Bank (M) Bhd
(Hamid Sultan Abu Backer J) [2010] 9 CLJ 328 [HC]

CIVIL PROCEDURE

Damages - Claim for wrongful withholding of passport for non-payment of outstanding tax - Whether claim challenging exercise of statutory power by public officer under s. 104 Income Tax Act 1967 - Whether a judicial review matter - Whether damages claim sustainable
Hamzah HM Saman & Ors v. Ronald Beadle
(KN Segara, Sulaiman Daud & Hishamudin Mohd Yunus JJCA) [2010] 9 CLJ 270 [CA]

Default judgment - Judgment in default of defence - Judgment obtained under O. 19 r. 2(1) RHC - Claim involved more than a liquidated demand claim - Whether claim not falling under O. 19 r. 2(1) RHC - Whether judgment obtained contrary to O. 19 r. 7(1) and (3) RHC - Whether appeal against refusal to set aside allowed
Witech Sdn Bhd & Ors v. BHR Group Ltd
(Abdul Malik Ishak, KN Segara & Kang Hwee Gee JJCA) [2010] 9 CLJ 288 [CA]

Limitation - Cause of action - When accrued - Limitation Act 1953, s. 6
Malayan Testing Laboratory Sdn Bhd v. Standard Chartered Bank Malaysia Bhd
(Mohd Amin Firdaus JC) [2010] 9 CLJ 309 [HC]

CONSTITUTIONAL LAW

Courts - Judicial power - Hearing of creditor's petition in bankruptcy proceedings - Registrar's power to hear petition - Whether only a judge of High Court or Judicial Commissioner may hear petition - Whether s. 90 Bankruptcy Act 1967 and/or r. 5 of Bankruptcy Rules 1969 ultra vires Federal Constitution and Courts of Judicature Act 1964
Re Teoh Heng Han; Ex p OCBC Bank (M) Bhd
(Hamid Sultan Abu Backer J) [2010] 9 CLJ 328 [HC]

Fundamental liberties - Habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969, detention under s. 4(1) - Arrest not followed by charge - Whether a procedural non-compliance affecting validity of detention order - Defence of alibi not rebutted - Whether grounds for habeas corpus - Right to make representation - Whether denied to applicant - Federal Constitution, art. 5 - Emergency (Public Order and Prevention of Crime) Ordinance, s. 4(1), 7C, 7D
Wong Teck Sern v. Menteri Dalam Negeri, Malaysia & Anor
(Hassan Ab Rahman JC) [2010] 9 CLJ 366 [HC]

Fundamental liberties - Habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969, detention under s. 4(1) - Whether applicant denied right to be represented by counsel - Whether Board's refusal to call witnesses to be cross-examined by applicant violated art. 5(3) Federal Constitution - Whether applicant's challenge to appointment of Chairman and members of Board groundless
Sashi Kumar Suppiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors
(Sofian Abd Razak J) [2010] 9 CLJ 349 [HC]

CRIMINAL LAW

Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Section 4(1), detention under - Habeas corpus - Whether applicant denied right to be represented by counsel - Whether Board's refusal to call witnesses to be cross-examined by applicant violated art. 5(3) Federal Constitution - Whether applicant's challenge to appointment of Chairman and members of Board groundless
Sashi Kumar Suppiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors
(Sofian Abd Razak J) [2010] 9 CLJ 349 [HC]

Emergency (Public Order and Prevention of Crime) Ordinance - Section 4(1), detention under - Habeas corpus - Whether procedural requirements not followed affecting validity of detention order - Alibi defence not rebutted - Whether grounds for habeas corpus - Right to make representation - Whether denied to detainee - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 4(1), 7C, 7D
Wong Teck Sern v. Menteri Dalam Negeri, Malaysia & Anor
(Hassan Ab Rahman JC) [2010] 9 CLJ 366 [HC]

CRIMINAL PROCEDURE

Habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969, detention under s. 4(1) - Arrest not followed by charge - Whether a procedural non-compliance affecting validity of detention order - Defence of alibi not rebutted - Whether grounds for habeas corpus - Right to make representation - Whether denied to applicant - Emergency (Public Order and Prevention of Crime) Ordinance, ss. 4(1), 7C, 7D
Wong Teck Sern v. Menteri Dalam Negeri, Malaysia & Anor
(Hassan Ab Rahman JC) [2010] 9 CLJ 366 [HC]

Habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969, detention under s. 4(1) - Whether applicant denied right to be represented by counsel - Whether Board's refusal to call witnesses to be cross-examined by applicant violated art. 5(3) Federal Constitution - Whether applicant's challenge to appointment of Chairman and members of Board groundless
Sashi Kumar Suppiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors
(Sofian Abd Razak J) [2010] 9 CLJ 349 [HC]

LEGAL PROFESSION

Duty to client - Duty to make every effort to ensure appearance at day of hearing - Legal Profession (Practice and Etiquette Rules) 1978, rr. 6(a), 24(a)
Sashi Kumar Suppiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors
(Sofian Abd Razak J) [2010] 9 CLJ 349 [HC]

REVENUE LAW

Income tax - Outstanding tax - Issuance of certificate under s. 104 Income Tax Act 1967 - Passport withheld for 5968 days - Whether issuance of certificate lawful - Whether claim for damages unsustainable - Income Tax Act 1967, ss. 104, 106
Hamzah HM Saman & Ors v. Ronald Beadle
(KN Segara, Sulaiman Daud & Hishamudin Mohd Yunus JJCA) [2010] 9 CLJ 270 [CA]

TORT

Negligence - Duty of care - Banker and customer - Cheques - Whether bank had knowingly or negligently facilitated unauthorised cheques drawn from customer's account - Whether customer contributory negligent
Malayan Testing Laboratory Sdn Bhd v. Standard Chartered Bank Malaysia Bhd
(Mohd Amin Firdaus JC) [2010] 9 CLJ 309 [HC]

INDEKS PERKARA

TORT

Mendorong kemungkiran kontrak - Prinsip-prinsip terpakai - Elemen-elemen untuk dibuktikan - Sama ada defendan mempunyai pengetahuan tentang kewujudan kontrak - Sama ada niat hendak melakukan kemungkiran kontrak dibuktikan - Sama ada defendan telah campurtangan dalam hubungan kontrak pihak-pihak
Fong Seng Fatt & Satu Lagi lwn. Syarikat Cekal Kasih Sdn Bhd
(Low Hop Bing, Sulaiman Daud & T Selventhiranathan HHMR) [2010] 9 CLJ 253 [CA]

CASE OF THE WEEK

ROBIN TAN PANG HENG v. KETUA PENGARAH KESATUAN SEKERJA MALAYSIA & ANOR

ADMINISTRATIVE LAW: Judicial review - Registration of trade union - Appeal against trade union registration by employer - Whether employer obliged to follow specific procedure under s. 71A of Trade Unions Act 1959 to appeal - Whether specific procedure mandatory - Whether employer able to apply for declaratory relief by way of judicial review before exhausting specific appeal procedure - Trade Unions Act 1959, ss. 12(1), 71A

LABOUR LAW: Trade union - Registration - Appeal against trade union registration by employer - Whether provisions of Trade Unions Act 1959 applicable to employer - Whether employer obliged to follow specific procedure to appeal to Minister - Whether specific procedure mandatory - Whether employer able to apply for declaratory relief by way of judicial review before exhausting specific appeal procedure - Trade Unions Act 1959, ss. 12(1), 71A

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 712	Competition Act 2010	Not Yet In Force	- Nil -
ACT 713	Competition Commission Act 2010	Not Yet In Force	- Nil -
ACT 714	Suruhanjaya Pengangkutan Awam Darat Act 2010	3 June 2010 [PU(B) 262/2010]	- Nil -
ACT 715	Land Public Transport Act 2010	Not Yet In Force	- Nil -
ACT 716	Wildlife Conservation Act 2010	Not Yet In Force	- Nil -