Bulletin_49

CLJ Bulletin, Issue 2011, Vol 49

16 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 8) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 725 Renewable Energy Act 2011
1 December 2011, (except s. 17 & 18 state of Sarawak) & 31 December 2012, (except state of Sarawak) [PU(B) 589/2011]
- Nil -

ACT 728 Malaysian Quarantine And Inspection Services Act 2011
1 January 2012 [PU(B) 603/2011] in Peninsular Malaysia and Federal Territory of Labuan.
- Nil -

ACT 729 National Sports Institute Act 2011 16 September 2011 [PU(B) 503/2011] - Nil -

ACT 730 Trade Descriptions Act 2011 1 November 2011 [PU(B) 540/2011] - Nil -

ACT 731 Money Services Business Act 2011 1 December 2011 [PU(B) 590/2011] ACT 577

ACT 732 National Wages Consultative Council Act 2011 23 September 2011 [PU(B) 507/2011] - Nil -

Amending Acts

NUMBER
TITLE

DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

ACT A1403 Securities Commission (Amendment) Act 2011 3 October 2011 [PU(B) 517/2011] ACT 498

ACT A1404 Valuers, Appraisers And Estate Agents (Amendment) Act 2011 19 August 2011 ACT 242

ACT A1405 International Organizations (Privileges And Immunities) (Amendment) Act 2011 16 September 2011 ACT 485

ACT A1406 Capital Markets And Services (Amendment) Act 2011 3 October 2011 [PU(B) 518/2011] ACT 671

ACT A1407 Lembaga Pembangunan Industri Pembinaan Malaysia (Amendment) Act 2011 Not Yet In Force ACT 520

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(A) 400/2011 Kuala Lumpur Regional Centre For Arbitration (Privileges And Immunities) (Amendment) Regulations 2011 Not Yet In Force ACT 485

PU(A) 403/2011 Federal Roads (Indahpura Interchange) Order 2011 7 December 2011 ACT 376

PU(A) 404/2011 Speed Limit (Indahpura Interchange) Order 2011 8 December 2011 ACT 333

PU(A) 405/2011 Income Tax (Deduction For Implementation Of Rosettanet) (Revocation) Rules 2011 9 December 2011 ACT 53

PU(A) 406/2011 Customs (Values) (Palm Oil) (No 50) Order 2011 12 December 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(B) 594/2011 Revocation Of Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 8 December 2011 ACT 56/1965

PU(B) 595/2011 Revocation Of Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 8 December 2011 ACT 56/1965

PU(B) 596/2011 Declaration Of Vacations Of The High Court In Malaya 8 December 2011 ACT 91

PU(B) 597/2011 Temporary Exercise Of Ministerial Functions 8 December 2011 ACT 388

PU(B) 598/2011 Appointment Of Lock-Ups To Be Places Of Confinement 9 December 2011 ACT 537

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

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

DR 44/2011 Computing Professionals Bill 2011 - -

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. "Unchartered Waters" New Frontiers In Resolving Personal Injury Claim* ^{[Read
excerpt]}
By Silva Velu**

2. Globalisasi Dan Dilema Pengguna: Peranan Undang-Undang Perlindungan Pengguna Di Malaysia* ^{[Read
excerpt]}
By Ruzian Markom

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2003] 1 LNS 532 [HC] Sinnasamy Subbiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors

CRIMINAL PROCEDURE: Habeas corpus - Application for habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Whether Deputy Minister failing to fully consider grounds of detention and facts of case leading to applicant's detention - Whether application attempted to question sufficiency of Deputy Minister's satisfaction in issuing said detention order - Whether permissible for court to adjudicate on sufficiency of grounds on which detention order was made

[2006] 1 LNS 183 [HC] Ng Kon Yu v. Sakim Saiking And Another Cases

LAND LAW: Possession - Application for - Defendants gainfully reaping fruits of oil palm planted on land since mid-1980s - Draft titles to land issued in 1995 and 1996 to other competing applicants - Plaintiff becoming registered owner in 1998 - Defendants claiming licence and native customary rights - Whether the same could subsist upon issuance of titles to land in 1995 and 1996 - Whether plaintiff's title to land could be defeated by defendants' claim to or interest in it

[2009] 1 LNS 1234 [HC] Syed Mohamed Syed Alwi & Ors v. Shariffah Badariah Alwi Al-Attas & Ors & Another Cases

EVIDENCE: Proof of - Physical and mental condition - Plaintiffs claiming deceased physically and mentally incapacitated and under defendants' influence and dominion - Deceased suffered from hypertension, diabetes and a mild stroke from which he had recovered - Deceased able to exercise his judgment independently and gave instructions to do what he wanted - Whether deceased was physically and or mentally incapacitated from January 1998 onwards

TRUSTS AND TRUSTEES: Trust property - Cash withdrawals made by deceased by affixing his thumbprint on cash withdrawal forms - Transactions carried out in the normal course of business and in accordance with Lembaga Untuk Tabung Haji's policies - Whether the withdrawal of monies was made fraudulently using deceased's forged thumbprint

TRUSTS AND TRUSTEES: Breach of trust - Deceased transfering his shares to 1^st defendant - Contention that 2^nd defendant assisted 1^st defendant in this fraudulent and dishonest scheme to obtain shares - Whether transfer of shares a misappropriation as a result of breach of trust and breach of fiduciary duty by 1^st and 2^nd defendants

TRUSTS AND TRUSTEES: Trust property - Deceased making gift of his one-half share of landed properties to 1^st defendant and another - Whether the defendants deprived deceased of his one-half share of the properties in furtherance of a dishonest and fraudulent scheme

[2009] 1 LNS 1240 [HC] Lim Cheong Chuan v. Chan Kok Heng & Ors

COMPANIES AND CORPORATIONS: Foreign company - Application to strike out plaintiff's derivative action - Defendant asserting claim beyond the jurisdiction of court as 3^rd defendant not governed under the laws of Malaysia - Whether ss. 23(1) or 24(c) of the Courts of Judicature Act 1964 permitted the court to deal with matters and a wrong done to a foreign company - Whether the plaintiff's suit should be struck out for being frivolous, vexatious and/or an abuse of process of court

[2011] 1 LNS 8 [HC] Rubendra Ghanalingam v. Jared Lim Chiih Li

CONTRACT: Entire contract - Entire agreement clause - Whether Supplemental Investment Agreement superseded by four sale and purchase agreements by virtue of entire agreement clauses - Entire agreement clause in four agreements referred to parties' obligations in Supplemental Investment Agreement - Whether sale and purchase agreement not interdependent of Supplemental Investment Agreement or intertwined and vice versa - Whether defendant's obligation to pay defendant S$2,500,000.00 under Supplemental Investment Agreement still intact and enforceable against defendant and repayable on demand

CONTRACT: Unconscionable contract - Plaintiff invested S$2,500,000.00 with no benefit as assured by defendant - Defendant contending Supplemental Investment Agreement impossible to perform - Whether unconscionable and unjust to permit defendant to resile from his conduct in transaction - Whether defendant estopped from denying liability and plaintiff's entitlement to recover monies invested

CITATION	TITLE	SUBJECT
[2003] 1 LNS 532 [HC]	Sinnasamy Subbiah v. Timbalan Menteri Dalam Negeri Malaysia & Ors	CRIMINAL PROCEDURE: Habeas corpus - Application for habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Whether Deputy Minister failing to fully consider grounds of detention and facts of case leading to applicant's detention - Whether application attempted to question sufficiency of Deputy Minister's satisfaction in issuing said detention order - Whether permissible for court to adjudicate on sufficiency of grounds on which detention order was made
[2006] 1 LNS 183 [HC]	Ng Kon Yu v. Sakim Saiking And Another Cases	LAND LAW: Possession - Application for - Defendants gainfully reaping fruits of oil palm planted on land since mid-1980s - Draft titles to land issued in 1995 and 1996 to other competing applicants - Plaintiff becoming registered owner in 1998 - Defendants claiming licence and native customary rights - Whether the same could subsist upon issuance of titles to land in 1995 and 1996 - Whether plaintiff's title to land could be defeated by defendants' claim to or interest in it
[2009] 1 LNS 1234 [HC]	Syed Mohamed Syed Alwi & Ors v. Shariffah Badariah Alwi Al-Attas & Ors & Another Cases	EVIDENCE: Proof of - Physical and mental condition - Plaintiffs claiming deceased physically and mentally incapacitated and under defendants' influence and dominion - Deceased suffered from hypertension, diabetes and a mild stroke from which he had recovered - Deceased able to exercise his judgment independently and gave instructions to do what he wanted - Whether deceased was physically and or mentally incapacitated from January 1998 onwards TRUSTS AND TRUSTEES: Trust property - Cash withdrawals made by deceased by affixing his thumbprint on cash withdrawal forms - Transactions carried out in the normal course of business and in accordance with Lembaga Untuk Tabung Haji's policies - Whether the withdrawal of monies was made fraudulently using deceased's forged thumbprint TRUSTS AND TRUSTEES: Breach of trust - Deceased transfering his shares to 1^st defendant - Contention that 2^nd defendant assisted 1^st defendant in this fraudulent and dishonest scheme to obtain shares - Whether transfer of shares a misappropriation as a result of breach of trust and breach of fiduciary duty by 1^st and 2^nd defendants TRUSTS AND TRUSTEES: Trust property - Deceased making gift of his one-half share of landed properties to 1^st defendant and another - Whether the defendants deprived deceased of his one-half share of the properties in furtherance of a dishonest and fraudulent scheme
[2009] 1 LNS 1240 [HC]	Lim Cheong Chuan v. Chan Kok Heng & Ors	COMPANIES AND CORPORATIONS: Foreign company - Application to strike out plaintiff's derivative action - Defendant asserting claim beyond the jurisdiction of court as 3^rd defendant not governed under the laws of Malaysia - Whether ss. 23(1) or 24(c) of the Courts of Judicature Act 1964 permitted the court to deal with matters and a wrong done to a foreign company - Whether the plaintiff's suit should be struck out for being frivolous, vexatious and/or an abuse of process of court
[2011] 1 LNS 8 [HC]	Rubendra Ghanalingam v. Jared Lim Chiih Li	CONTRACT: Entire contract - Entire agreement clause - Whether Supplemental Investment Agreement superseded by four sale and purchase agreements by virtue of entire agreement clauses - Entire agreement clause in four agreements referred to parties' obligations in Supplemental Investment Agreement - Whether sale and purchase agreement not interdependent of Supplemental Investment Agreement or intertwined and vice versa - Whether defendant's obligation to pay defendant S$2,500,000.00 under Supplemental Investment Agreement still intact and enforceable against defendant and repayable on demand CONTRACT: Unconscionable contract - Plaintiff invested S$2,500,000.00 with no benefit as assured by defendant - Defendant contending Supplemental Investment Agreement impossible to perform - Whether unconscionable and unjust to permit defendant to resile from his conduct in transaction - Whether defendant estopped from denying liability and plaintiff's entitlement to recover monies invested

b. CLJ Volume 8 (Part 8) 2011

COURT

COURT OF APPEAL

PP v. Megat Shahrizat Megat Shahrur
Richard Malanjum CJ (Sabah & Sarawak), Zulkifli Makinuddin, Raus Shariff FCJJ
(Criminal Law - Penal Code - Sections 302, 304(a) - Reduction of charge) [2011] 8 CLJ 893 [FC]

PP lwn. Sui Hmong Lian
Zaleha Zahari, Sulaiman Daud, Balia Yusof Wahi HHMR
(Prosedur Jenayah; Undang-Undang Jenayah - Hukuman - Kesetimpalan - Kanun Keseksaan - Seksyen 304(a)) [2011] 8 CLJ 903 [CA]

Tsang Yee Kwan v. Majlis Perbandaran Batu Pahat
Abdul Malik Ishak, Kang Hwee Gee, Azhar Ma'ah JJCA
(Civil Procedure; Agency - Striking out - Action - Claim for trespass - Liability - Vicarious liability) [2011] 8 CLJ 913 [CA]

HIGH COURT

Chan Hua Eng & Anor v. Datuk Bandar Kuala Lumpur & Ors
Mohd Zawawi Salleh J
(Land Law - Planning permission) [2011] 8 CLJ 927 [HC]

CIMB Bank Bhd v. Muzlan Ariffin
Anantham Kasinather J
(Civil Procedure - Counterclaim - Striking out) [2011] 8 CLJ 945 [HC]

SESSIONS COURT

PP v. Gan Kiat Bend & Another Case
Jagjit Singh Bant Singh SJ
(Criminal Law - Money laundering - Offences of money laundering - Section 4(1) Anti-Money Laundering Act 2001 - Sentencing considerations) [2011] 8 CLJ 951 [SSC]

SUBJECT INDEX

AGENCY

Liability - Vicarious liability - Trespass - Appellant claiming trespass by respondent as principal for third party's alleged trespass onto lands - Third party entered land for respondent's purpose - Whether respondent vicariously liable - Whether respondent a party to agreement made between appellant and third party - Whether doctrine of privity applicable - Whether appellant had knowledge of third party's activities on lands - Whether agreement ratified by appellant
Tsang Yee Kwan v. Majlis Perbandaran Batu Pahat
(Abdul Malik Ishak, Kang Hwee Gee, Azhar Ma'ah JJCA) [2011] 8 CLJ 913 [CA]

CIVIL PROCEDURE

Counterclaim - Striking out - Application for - Whether defendant's counterclaim devoid of merit - Loan facility - Staff housing loan facility given to defendant by plaintiff bank - Whether defendant had fully settled the debt - Whether defendant still indebted to plaintiff bank - Conversion of housing loan to new account - Whether with defendant's consent - Whether defendant enjoyed benefit of loan over 20 years - Defence of time bar - Whether could be relied upon by defendant as foundation to mount a claim against plaintiff for recovery of security
CIMB Bank Bhd v. Muzlan Ariffin
(Anantham Kasinather J) [2011] 8 CLJ 945 [HC]

Striking out - Action - Claim for trespass - Entry into land with consent - Whether there was trespass - Whether appeal against striking out allowed
Tsang Yee Kwan v. Majlis Perbandaran Batu Pahat
(Abdul Malik Ishak, Kang Hwee Gee, Azhar Ma'ah JJCA) [2011] 8 CLJ 913 [CA]

Striking out - Application for - Application to strike out defendant's counterclaim - Loan facility - Staff housing loan facility given to defendant by plaintiff bank - Whether defendant had fully settled the debt - Whether defendant still indebted to plaintiff bank - Conversion of housing loan to new account - Whether with defendant's consent - Whether defendant enjoyed benefit of loan over 20 years - Defence of time bar - Whether could be relied upon by defendant as foundation to mount a claim against plaintiff for recovery of security - Whether counterclaim devoid of merit
CIMB Bank Bhd v. Muzlan Ariffin
(Anantham Kasinather J) [2011] 8 CLJ 945 [HC]

CRIMINAL LAW

Money laundering - Offences of money laundering - Section 4(1) Anti-Money Laundering Act 2001 - Wrongful gain from fraudulent sale and purchase of land - Whether accused received or used monies which were proceeds of unlawful activity - Whether there was commission of serious offences under ss. 465, 467, 471 and 420 Penal Code - Whether objective factual circumstance showed accused knew or had reason to believe monies were proceeds of unlawful activity - Whether elements of offence proved by prosecution - Whether defence failed to raise a reasonable doubt
PP v. Gan Kiat Bend & Another Case
(Jagjit Singh Bant Singh SJ) [2011] 8 CLJ 951 [SSC]

Money laundering - Sentence - Sentencing considerations - Mitigating factors - Anti-Money Laundering Act 2001, s. 4(1)
PP v. Gan Kiat Bend & Another Case
(Jagjit Singh Bant Singh SJ) [2011] 8 CLJ 951 [SSC]

Penal Code - Sections 302, 304(a) - Reduction of charge - Appeal against - Trial judge reduced charge to one of culpable homicide - Whether trial judge erred - Whether intention to cause bodily injuries likely to cause death - Whether death an imminent or likely result - Difference between ss. 299 & 300 Penal Code - Circumstantial evidence - Whether established - Whether appellate court interfered with finding of facts made by trial judge
PP v. Megat Shahrizat Megat Shahrur
(Richard Malanjum CJ (Sabah & Sarawak), Zulkifli Makinuddin, Raus Shariff FCJJ) [2011] 8 CLJ 893 [FC]

LAND LAW

Planning permission - Application for certiorari - Whether 1st respondent failed to take into account Draft Local Plan - Whether grant of planning permission proper - Statutory powers of the 1st respondent - Effect of - Federal Territory (Planning) Act 1982, ss. 16(1), 22(4) & 27
Chan Hua Eng & Anor v. Datuk Bandar Kuala Lumpur & Ors
(Mohd Zawawi Salleh J) [2011] 8 CLJ 927 [HC]

INDEKS PERKARA

PROSEDUR JENAYAH

Hukuman - Kesetimpalan - Mematikan orang yang tidak tergolong kepada kesalahan membunuh - Tiga mangsa yang berbeza - Mangsa-mangsa diserang dengan amat kejam dan ganas - Faktor-faktor mitigasi dipertimbangkan - Sama ada hukuman-hukuman bagi ketiga-tiga kesalahan berjalan serentak - Hukuman wajar - Kanun Keseksaan, s. 304(a)
PP lwn. Sui Hmong Lian
(Zaleha Zahari, Sulaiman Daud, Balia Yusof Wahi HHMR) [2011] 8 CLJ 903 [CA]

UNDANG-UNDANG JENAYAH

Kanun Keseksaan - Seksyen 304(a) - Mematikan orang yang tidak tergolong kepada kesalahan membunuh - Rayuan terhadap sabitan dan hukuman - Tiga mangsa yang berbeza - Mangsa-mangsa diserang dengan amat kejam dan ganas - Faktor-faktor mitigasi dipertimbangkan - Sama ada hukuman-hukuman bagi ketiga-tiga kesalahan berjalan serentak - Hukuman wajar
PP lwn. Sui Hmong Lian
(Zaleha Zahari, Sulaiman Daud, Balia Yusof Wahi HHMR) [2011] 8 CLJ 903 [CA]

CASE OF THE WEEK

MUHAMMAD HILMAN IDHAM & ORS v. KERAJAAN MALAYSIA & ORS

CONSTITUTIONAL LAW: Fundamental liberties - Freedom of speech and expression - Section 15(5)(a) Universities and University Colleges Act 1971 (UUCA) barring students from expressing support for or sympathy with or opposition to any political party - Whether s. 15(5)(a) UUCA restricting right to freedom of speech and expression - Whether infringing art. 10(1)(a) Federal Constitution - Whether restriction reasonable and permissible by virtue of art. 10(2)(a) Federal Constitution - Whether s. 15(5)(a) UUCA rendered unconstitutional and invalid

CONSTITUTIONAL LAW: Legislation - Validity of s. 15(5)(a) Universities and University Colleges Act 1971 (UUCA) - Section 15(5)(a) UUCA barring students from expressing support for or sympathy with or opposition to any political party - Whether s. 15(5)(a) UUCA restricting right to freedom of speech and expression - Whether infringing art. 10(1)(a) Federal Constitution - Whether restriction reasonable and permissible by virtue of art. 10(2)(a) Federal Constitution - Whether s. 15(5)(a) UUCA rendered unconstitutional and invalid

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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 725	Renewable Energy Act 2011	1 December 2011, (except s. 17 & 18 state of Sarawak) & 31 December 2012, (except state of Sarawak) [PU(B) 589/2011]	- Nil -
ACT 728	Malaysian Quarantine And Inspection Services Act 2011	1 January 2012 [PU(B) 603/2011] in Peninsular Malaysia and Federal Territory of Labuan.	- Nil -
ACT 729	National Sports Institute Act 2011	16 September 2011 [PU(B) 503/2011]	- Nil -
ACT 730	Trade Descriptions Act 2011	1 November 2011 [PU(B) 540/2011]	- Nil -
ACT 731	Money Services Business Act 2011	1 December 2011 [PU(B) 590/2011]	ACT 577
ACT 732	National Wages Consultative Council Act 2011	23 September 2011 [PU(B) 507/2011]	- Nil -