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Issue #34/2015
21 August 2015

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New This Week

  1. Case(s) of the Week

    1. PORAVIAPPAN ARUNASALAM PILLAY (SEBAGAI PENTADBIR HARTA PESAKA NADARAJAH SITHAMBARAM PILLAI) v. PERIASAMY SITHAMBARAM PILLAI & ANOR [2015] 6 CLJ 857

    2. PP lwn. DATO' DR AHMAD RAMZI AHMAD ZUBIR [2015] 6 CLJ 1028

  2. Latest Cases

    1. Legal Network Series

    2. CLJ 2015 Volume 6 (Part 7)

    3. CLJ 2015 Volume 6 (Part 8)

  3. Articles

    1. LNS Article(s)

    2. CLJ Article(s)

  4. Legislation Highlights

    1. Principal Acts

    2. Amending Acts

    3. PU(A)

    4. PU(B)

    5. Legislation Alert

CASE(S) OF THE WEEK

PORAVIAPPAN ARUNASALAM PILLAY (SEBAGAI PENTADBIR HARTA PESAKA NADARAJAH SITHAMBARAM PILLAI) v.
PERIASAMY SITHAMBARAM PILLAI & ANOR
[2015] 6 CLJ 857
FEDERAL COURT, PUTRAJAYA
RAUS SHARIF PCA, ABDULL HAMID EMBONG FCJ, AHMAD MAAROP FCJ, HASAN LAH FCJ, RAMLY ALI FCJ
[CIVIL APPEAL NO: 02(F)-6-02-2013(A)]
17 JUNE 2015

CIVIL PROCEDURE: Interpleader - Stakeholder's interpleader - Pre-condition to be fulfilled in commencing interpleader proceeding - Whether applicant was being sued or expected to be sued by persons making adverse claims - Whether fulfilled criteria under O. 17 r. 1(a) of Rules of the High Court 1980

CIVIL PROCEDURE: Parties - Action against estate of deceased - Appointment of person to represent deceased estate in court proceedings - Whether person appointed as representative had authority to enter into consent order binding upon estate of deceased - Rules of the High Court 1980, O. 15 r. 6A(4)(a)

CIVIL PROCEDURE: Pleadings - Parties bound by pleadings - Failure to plead material facts - Whether plaintiff allowed to succeed and obtain judgment on unpleaded issues


PP lwn. DATO' DR AHMAD RAMZI AHMAD ZUBIR [2015] 6 CLJ 1028
COURT OF APPEAL, PUTRAJAYA
RAUS SHARIF PMR, MOHD HISHAMUDIN YUNUS HMR, MOHTARUDIN BAKI HMR
[RAYUAN JENAYAH NO: T-09-15-01-2014]
25 NOVEMBER 2014

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap pembebasan dan pelepasan - Rayuan oleh pendakwaan - Responden dipertuduh menghantar SMS ugutan jenayah dengan menyembunyikan identitinya - Responden dijatuhkan hukuman penjara tiga bulan berjalan secara berturut-turut oleh Mahkamah Sesyen - Mahkamah Tinggi membenarkan rayuan dan membebaskan dan melepaskan responden - Rayuan terhadap keputusan Mahkamah Tinggi - Sama ada Hakim Mahkamah Tinggi terkhilaf - Sama ada pihak pendakwaan berjaya membuktikan kes melampaui keraguan munasabah - Sama ada elemen-elemen pertuduhan dibuktikan - Kanun Keseksaan, ss. 500 & 507


LATEST CASES

Legal Network Series

[2011] 1 LNS 1181

AmBANK (M) BERHAD v. TRUELIGHT ELECTRICAL ENGINEERING & ORS

BANKING: Banker and customer - Overdraft facility - Termination of facility - Whether 1st defendant obliged to service monthly interest - No review done before plaintiff recalled facility - Whether termination wrongful

[2011] 1 LNS 1183

TKM PROPERTY SDN BHD v. SYARIKAT KMZ SDN BHD & ANOR

CONTRACT: Building contract - Performance Bond – 1st defendant required to provide a performance bond in form of a Banker's Guarantee to Employer - Corresponding second performance bond provided by 2nd defendant to 1st defendant as principal - Plaintiff subcontractor deposited RM1,200,000 with 1st defendant who duly deposited said sum to 2nd defendant for said performance bond – 1st defendant made demand on bond on 31.1.2005 during extension of time period granted to 1st defendant by Employer to complete project – 1st defendant's notice of termination of plaintiff was on 15.3.2005 - Whether call on the bond by 1st defendant premature - Whether 2nd defendant should pay 1st defendant amount demanded under the Performance Bond - Whether 2nd defendant must return the RM1,200,000 under the Performance Bond to plaintiff

[2011] 1 LNS 1184

YAYASAN MELAKA v. PHOTRAN CORPORATION SDN BHD & ANOR

CIVIL PROCEDURE: Judgments and orders - Judgment in default - Setting aside - 7 year delay in applying to set aside - Whether delay fatal - Whether sufficiently explained - Dereliction of duties by the board of D1 who by design allowed JID to be entered against it - Further allowed a winding-up petition to proceed by default to its eventual winding-up for a sum of RM1,505.00 - Whether oppressive to DI to allow JID to stand - Whether intervention by the court warranted

CIVIL PROCEDURE: Judgments and orders - Judgment in default - Setting aside - Whether the JID entered was regular - Plaintiff by its overpowering presence controlled the board of D1 and silenced it to inaction - JID entered because board of D1 allowed no appearance to be entered - Whether D1 entitled to have JID set aside ex debito justitiae - Even if JID was a regular judgment, whether D1 had a Defence on the merits - Whether D1's failure to enclose a copy of his proposed Defence to its affidavit was fatal - Whether sufficient that affidavit in support of application to set aside the JID disclosed Defences that D1 was relying on - Whether there were issues that should go for trial - Whether D1 should be shut out in limine

[2014] 1 LNS 106

MOHD HAFIZ AHMAD lwn. MENTERI DALAM NEGERI, MALAYSIA & YANG LAIN

PENAHANAN PENCEGAHAN: Perintah tahanan - Penahanan dibawah Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 - Sama ada perintah penahanan sah - Sama ada orang yang ditahan telah diberi hak untuk membuat representasi dan diwakili oleh peguam di hadapan lembaga penasihat - Sama ada ketiadaan dadah jenis 'ganja' dalam Jadual Pertama Bahagian I, II & III Akta Dadah Berbahaya 1952 menjadikan perintah tahanan menjadi defektif - Sama ada ketidakaturan yang berlaku semasa siasatan sebelum perintah tahanan dikeluarkan releven untuk dipertimbangkan

PENTAFSIRAN BERKANUN: Definisi - Maksud 'ganja' - Sama ada ganja disenaraikan dalam Jadual Pertama Bahagian I, II & III Akta Dadah Berbahaya 1952 - Sama ada dadah jenis 'cannabis' dan 'ganja' yang disenaraikan di dalam Jadual Pertama Bahagian I & II Akta Dadah Berbahaya 1952 merujuk kepada dadah berbahaya yang sama

[2015] 1 LNS 162

PP lwn. CHE NORHAFIZIE CHE RAMLE

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap pelepasan - Rayuan oleh pihak pendakwaan - Tertuduh dilepaskan dan dibebaskan daripada pertuduhan - Pertuduhan merogol statutori - Kes prima facie kesalahan s. 376 Kanun Keseksaan telah dibuktikan - Sama ada tertuduh wajar dilepaskan dan dibebaskan setelah pihak pendakwaan berjaya membuktikan kes prima facie dibawah s. 376 Kanun Keseksaan

PROSEDUR JENAYAH: Pendakwaan - Kes pihak pendakwaan - Kegagalan mengemukakan laporan DNA - Sama ada kes pendakwaan terjejas setelah pihak pendakwaan gagal mengemukakan laporan DNA - Sama ada laporan DNA merupakan keperluan undang-undang bagi kes dibawah s. 376(1)

PROSEDUR JENAYAH: Pelepasan atau pembebasan - Pelepasan tertuduh - Kesalahan merogol statutori - Kewujudan kerelaan mangsa - Sama ada kewujudan kerelaan mangsa bawah 16 tahun boleh melepaskan tertuduh daripada pertuduhan merogol

PROSEDUR JENAYAH: Mitigasi - Kesalahan pertama - Faktor usia tertuduh yang masih muda - Keuntungan kepada masyarakat - Sama ada tempoh hukuman penjara yang panjang dapat memberi keuntungan kepada masyarakat


CLJ 2015 Volume 6 (Part 7)

COURT

FEDERAL COURT

Poraviappan Arunasalam Pillay (Sebagai Pentadbir Harta Pesaka Nadarajah Sithambaram Pillai) v. Periasamy Sithambaram Pillai & Anor
(Civil Procedure - Stakeholder's interpleader - Pre-condition to be fulfilled in commencing interpleader proceeding - Action against estate of deceased) [2015] 6 CLJ 857 [FC]

COURT OF APPEAL

CIMB Islamic Bank Bhd v. Mohd Saufi Taib & Ors
(Tort - Negligence - Banker and customer - Delay in clearing of cheques - Defamation - Remarks 'refer to drawer' on cheque) [2015] 6 CLJ 897 [CA]

Samuel Naik Siang Ting & Ors v. Public Bank Bhd
(Civil Procedure; Land Law - Application for issues arising out of dispute to be determined based on pleadings and construction of documents - Whether action suitable to be disposed by way of O. 14A of the Rules of the High Court 1980) [2015] 6 CLJ 914 [CA]

HIGH COURT

Re Subramaniam Palani; ex p Tharenpalan Subramaniam
(Bankruptcy - Substituted service - Whether bankruptcy notice wrong when it included pre-judgment interest that was already time barred) [2015] 6 CLJ 928 [HC]

Samsu Abas v. Mohamed Meenudeen Saheed
(Civil Procedure - Appeal - Leave of court to enlarge or abridge time to file notice of appeal) [2015] 6 CLJ 945 [HC]

Teak Paradise Sdn Bhd & Anor v. Kina-Juara Sdn Bhd
(Land Law - Caveat - Removal of - Whether occupation and cultivation of state land conferred on defendant caveatable interest) [2015] 6 CLJ 954 [HC]

Teras Kimia Sdn Bhd v. Government Of Malaysia
(Civil Procedure; Statutory Interpretation - Notice of application for certificate to be issued under s. 33(1) of Government Proceedings Act 1956 - Whether notice of application duly served on Attorney General's Chambers - Time requirement to serve notice of application - Construction of statutes - Definitions of 'Weekly holiday' - Whether included Saturday - Rules of Court 2012, O. 3 r. 2(5)) [2015] 6 CLJ 972 [HC]

SUBJECT INDEX

BANKRUPTCY

Receiving and adjudication orders - Power of court to annul - Grounds for annulment - Creditor's petition and bankruptcy notice - Whether creditor's petition filed out of time - Substituted service of bankruptcy cause papers - Whether defective - Whether judgment debtor reasonably notified of bankruptcy proceedings - Whether bankruptcy proceedings advertised in local newspaper - Whether bankruptcy notice wrong when it included pre-judgment interest that was already time barred - Whether merger principle automatically applied to all pre-judgment interest - Whether statutory threshold of RM30,000 to justify commencement of bankruptcy proceedings complied with - Bankruptcy Rules 1969, rr. 97, 109, 110 & 276 - Rules of Court 2012, O. 62 r. 5 - Civil Law Act 1956, s. 11
Re Subramaniam Palani; ex p Tharenpalan Subramaniam
(Lim Chong Fong JC) [2015] 6 CLJ 928 [HC]

CIVIL PROCEDURE

Affidavits - Rules of the High Court 1980, O. 14A - Application for - Land matters - Assignment of rights, titles and interests in land - Caveatable interests of parties - Defeasibility of titles - Application for issues arising out of dispute to be determined based on pleadings and construction of documents - Whether action suitable to be disposed by way of O. 14A of the Rules of the High Court 1980 - Whether there was fraud - Whether action comprised matters of facts which could only be decided at trial
Samuel Naik Siang Ting & Ors v. Public Bank Bhd
(Sulaiman Daud, Mohamed Apandi Ali, Mohtarudin Baki JJCA) [2015] 6 CLJ 914 [CA]

Appeal - Notice of appeal - Leave of court to enlarge or abridge time to file notice of appeal - Whether High Court had discretion to extend time to file notice of appeal - Whether there would be prejudice and injustice if extension of time was granted - Whether there was sufficient reasons to allow extension of time - Rules of the High Court 1980, O. 3 r. 5(1)
Samsu Abas v. Mohamed Meenudeen Saheed
(Choo Kah Sing JC) [2015] 6 CLJ 945 [HC]

Functus officio - Application to set aside - Notice of application for certificate to be issued under s. 33(1) of GPA - Whether O. 32 r. 5(3) ROC a statutory exception to functus officio doctrine - Whether court conferred power to re-hear notice of application
Teras Kimia Sdn Bhd v. Government Of Malaysia
(Wong Kian Kheong JC) [2015] 6 CLJ 972 [HC]

Government proceedings - Monetary judgment against government - Notice of application for certificate to be issued under s. 33(1) of Government Proceedings Act 1956 (GPA) - Whether notice of application duly served on Attorney General's Chambers - Hearing of application in absence of Federal Counsel - Order in terms granted by court - Whether order in terms (court order) regularly obtained - Whether court order constituted a judgment in default - Whether O. 73 r. 7(1) Rules of Court 2012 (ROC) could be relied on to set aside court order
Teras Kimia Sdn Bhd v. Government Of Malaysia
(Wong Kian Kheong JC) [2015] 6 CLJ 972 [HC]

Interpleader - Stakeholder's interpleader - Pre-condition to be fulfilled in commencing interpleader proceeding - Whether applicant was being sued or expected to be sued by persons making adverse claims - Whether fulfilled criteria under O. 17 r. 1(a) of Rules of the High Court 1980
Poraviappan Arunasalam Pillay (Sebagai Pentadbir Harta Pesaka Nadarajah Sithambaram Pillai) v. Periasamy Sithambaram Pillai & Anor
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Ramly Ali FCJ) [2015] 6 CLJ 857 [FC]

Parties - Action against estate of deceased - Appointment of person to represent deceased estate in court proceedings - Whether person appointed as representative had authority to enter into consent order binding upon estate of deceased - Rules of the High Court 1980, O. 15 r. 6A(4)(a)
Poraviappan Arunasalam Pillay (Sebagai Pentadbir Harta Pesaka Nadarajah Sithambaram Pillai) v. Periasamy Sithambaram Pillai & Anor
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Ramly Ali FCJ) [2015] 6 CLJ 857 [FC]

Pleadings - Parties bound by pleadings - Failure to plead material facts - Whether plaintiff allowed to succeed and obtain judgment on unpleaded issues
Poraviappan Arunasalam Pillay (Sebagai Pentadbir Harta Pesaka Nadarajah Sithambaram Pillai) v. Periasamy Sithambaram Pillai & Anor
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Ramly Ali FCJ) [2015] 6 CLJ 857 [FC]

Time - Computation of - Notice of application for certificate to be issued under s. 33(1) of GPA - Time requirement to serve notice of application - Reckoning of two clear days time period as specified in O. 32 r. 3 of ROC - Whether should be construed in accordance with O. 3 r. 2 of ROC - Whether s. 54(1) Interpretation Acts 1948 and 1967 ('IA') applicable
Teras Kimia Sdn Bhd v. Government Of Malaysia
(Wong Kian Kheong JC) [2015] 6 CLJ 972 [HC]

LAND LAW

Caveats - Caveatable interest - Whether defendant had beneficial interest in land - Whether occupation and cultivation of state land conferred on defendant caveatable interest - Whether ss. 10(1), 44 & 209(1) of Sarawak Land Code made it unlawful for any occupation of state land - Whether pending suit against plaintiff claiming declaratory relief clothed defendant with caveatable interest - Whether interest should be existing interest to entitle defendant to maintain caveat - Whether there was inordinate and inexcusable delay in filing suit - Whether caveat should be removed
Teak Paradise Sdn Bhd & Anor v. Kina-Juara Sdn Bhd
(Mairin Idang JC) [2015] 6 CLJ 954 [HC]

Caveat - Removal of - Application for - Whether second plaintiff registered proprietor of land - Whether occupation and cultivation of state land conferred on defendant caveatable interest - Whether ss. 10(1), 44 & 209(1) of Sarawak Land Code made it unlawful for any occupation of state land - Department of Land and Survey issued Provisional Land to plaintiffs - Whether land was no longer available for application by defendant - Whether caveat should be removed
Teak Paradise Sdn Bhd & Anor v. Kina-Juara Sdn Bhd
(Mairin Idang JC) [2015] 6 CLJ 954 [HC]

Interest in property - Assignment of rights, titles and interests in land - Caveatable interests of parties - Defeasibility of titles - Allegation of error - Bank sought recovery of borrowers' interest over land - Application for issues arising out of dispute to be determined based on pleadings and construction of documents _Whether action suitable to be disposed by way of O. 14A Rules of the High Court 1980 - Whether there was fraud - Whether action comprised matters of facts which could only be decided at trial
Samuel Naik Siang Ting & Ors v. Public Bank Bhd
(Sulaiman Daud, Mohamed Apandi Ali, Mohtarudin Baki JJCA) [2015] 6 CLJ 914 [CA]

STATUTORY INTERPRETATION

Construction of statutes - Ambiguity - Purposive interpretation - Reckoning of time period of seven days or less - Exclusion of Saturdays - Whether O. 3 r. 2(5) ROC excluded Saturday in reckoning period of seven days or less
Teras Kimia Sdn Bhd v. Government Of Malaysia
(Wong Kian Kheong JC) [2015] 6 CLJ 972 [HC]

Definitions - 'Weekly holiday' - Whether weekly holidays included Saturday under O. 3 r. 2(5) ROC
Teras Kimia Sdn Bhd v. Government Of Malaysia
(Wong Kian Kheong JC) [2015] 6 CLJ 972 [HC]

TORT

Negligence - Banker and customer - Delay in clearing of cheques - Subsequent cheques dishonoured - Whether bank owed duty of care to manage customer's account reasonably and diligently - Delay in clearing of cheques - Whether an act of negligence and breach of duty
CIMB Islamic Bank Bhd v. Mohd Saufi Taib & Ors
(Abdul Wahab Patail, Linton Albert, Mohd Zawawi Salleh JJCA) [2015] 6 CLJ 897 [CA]

TORT

Defamation - Defence - Qualified privilege - Remarks 'refer to drawer' on cheque - Whether amounted to libel - Whether bank had duty to publish remarks - Whether customer had interest in receiving communication - Whether bank entitled to rely on defence of qualified privilege - Whether delay in clearing cheque showed malice that negated defence
CIMB Islamic Bank Bhd v. Mohd Saufi Taib & Ors
(Abdul Wahab Patail, Linton Albert, Mohd Zawawi Salleh JJCA) [2015] 6 CLJ 897 [CA]


CLJ 2015 Volume 6 (Part 8)

COURT

SC INDIA

State Of Madhya Pradesh v. Deepak & Ors
(Criminal Procedure - Criminal Procedure Code, 1973 - Sections 482 and 320 - Quashment of offence on basis of compromise) [2015] 6 CLJ 997 [SC India]

COURT OF APPEAL

Hooman Khanloo v. PP
(Criminal Law; Evidence - Presumption - Drug trafficking - Presumption of trafficking triggered by evidence of possession) [2015] 6 CLJ 1005 [CA]

PP lwn. Dato' Dr Ahmad Ramzi Ahmad Zubir
(Prosedur Jenayah - Rayuan - Rayuan terhadap pembebasan dan pelepasan - Responden dipertuduh menghantar SMS ugutan jenayah) [2015] 6 CLJ 1028 [CA]

Tan Sri Norian Mai & Ors v. Chua Tian Chang & Ors
(Tort - False imprisonment - Arrest and detention under Internal Security Act 1960) [2015] 6 CLJ 1045 [CA]

HIGH COURT

Ayob Salleh v. AmGeneral Insurance Bhd & Anor
(Insurance; Limitation - Construction of policy - Exemption clause - Claim under insurance policy for theft) [2015] 6 CLJ 1070 [HC]

Diman Hassan v. Pentadbir Tanah & Daerah Hulu Langat & Ors
(Land Law; Civil Procedure - Priorities - Land title) [2015] 6 CLJ 1094 [HC]

Dinesh Kanavaji Kanawagi & Anor v. Virgin Properties Sdn Bhd & Anor
(Civil Procedure; Company Law - Directors - Allotment of shares - Whether plaintiffs as directors of company used their position to gain benefits in lodgement of Form 24 of the Companies Act 1965) [2015] 6 CLJ 1104 [HC]

In Re Judy Blacious Af Pereira; Petitioner
(Legal Profession; Civil Procedure; Equity; Words And Phrases - Admission - Petition for admission - Objection to admission) [2015] 6 CLJ 1127 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Injunction - Interim injunction - Application for injunction to be granted to estop a regulatory body from proceeding with criminal charge against plaintiffs - Whether interim injunction would interfere with public element of second defendant's role and obligation as regulatory body
Dinesh Kanavaji Kanawagi & Anor v. Virgin Properties Sdn Bhd & Anor
(Lau Bee Lan J) [2015] 6 CLJ 1104 [HC]

Originating summons - Application for - Declaratory relief - Plaintiffs sought for declaration that they did not use their position as directors to gain benefits in lodgement of Form 24 of Companies Act 1965 - Plaintiffs charged under s. 132(2) (c) of Companies Act 1965 by second defendant - Whether provisions of Companies Act 1965 breached - Applicability of s. 355 of Companies Act 1965 - Whether relevant - Companies Act 1965, s. 354 - Whether only applies to civil proceedings - Whether afforded relief to directors as against proceedings by company only - Whether plaintiffs could not be afforded relief as against proceedings brought by a regulatory body
Dinesh Kanavaji Kanawagi & Anor v. Virgin Properties Sdn Bhd & Anor
(Lau Bee Lan J) [2015] 6 CLJ 1104 [HC]

Summary disposal of order - Rules of Court 2012, O. 14A - Disposal of case on point of law - Application for - Priorities - Land title - Two lands adjacent to each other and land overlap of 10,000 square feet between them - Plaintiff first to be registered as proprietor - Whether should be accorded priority - Whether issues could be determined without full trial
Diman Hassan v. Pentadbir Tanah & Daerah Hulu Langat & Ors
(Lim Chong Fong JC) [2015] 6 CLJ 1094 [HC]

Time - Shortening of - Whether court could allow shortening of time for filing of notice of objection under s. 16(2) Legal Profession Act 1976
In Re Judy Blacious Af Pereira; Petitioner
(Lee Swee Seng J) [2015] 6 CLJ 1127 [HC]

Waiver - Statutory right - Whether statutory right can be waived or abandoned
In Re Judy Blacious Af Pereira; Petitioner
(Lee Swee Seng J) [2015] 6 CLJ 1127 [HC]

COMPANY LAW

Directors - Allotment of shares - Whether plaintiffs as directors of company used their position to gain benefits in lodgement of Form 24 of the Companies Act 1965 - Plaintiffs charged under s. 132(2) (c) of the Companies Act 1965 - Plaintiffs sought for declaration that they did not breach provisions of Companies Act 1965 - Applicability of s. 355 of the Companies Act 1965 - Whether relevant - Companies Act 1965, s. 354 - Whether only applies to civil proceedings - Whether plaintiffs could not be afforded relief as against proceedings brought by a regulatory body - Whether an interim injunction would interfere with public element of second defendant's role and obligation as regulatory body
Dinesh Kanavaji Kanawagi & Anor v. Virgin Properties Sdn Bhd & Anor
(Lau Bee Lan J) [2015] 6 CLJ 1104 [HC]

CRIMINAL LAW

Dangerous drugs - Section 39B(1)(a) - Trafficking - Trafficking in 61.74g methamphetamine - Appeal against conviction and sentence - Appellant arrested in hotel room with drugs inside a drawer - Possession established - Presumption of trafficking invoked - Whether court compelled to invoke presumption of possession and knowledge once custody or control is established - Whether prosecution must prove exclusive use of room by appellant - Whether contradiction between prosecution's opening address and evidence fatal to prosecution case - Defence of bare denial - Evidence Act 1950, ss. 9, 102 - Dangerous Drugs Act 1952, ss. 37(d), 37(da) & 39B(1)(a)
Hooman Khanloo v. PP
(Mohtarudin Baki, Ahmadi Asnawi, Abdul Rahman Sebli JJCA) [2015] 6 CLJ 1005 [CA]

EQUITY

Estoppel - Statute - Whether estoppel may apply against a statute
In Re Judy Blacious Af Pereira; Petitioner
(Lee Swee Seng J) [2015] 6 CLJ 1127 [HC]

EVIDENCE

Presumption - Drug trafficking - Presumption of trafficking triggered by evidence of possession - Whether court must invoke presumption of knowledge under s. 37(d) of the Dangerous Drugs Act 1952 once custody or control is established - Legal burden of proof on accused to rebut presumptions of knowledge and trafficking - Presumptions to apply independently of each other - Dangerous Drugs Act 1952, ss. 37(d) & 37(da)
Hooman Khanloo v. PP
(Mohtarudin Baki, Ahmadi Asnawi, Abdul Rahman Sebli JJCA) [2015] 6 CLJ 1005 [CA]

CRIMINAL PROCEDURE

Criminal Procedure Code, 1973 - Sections 482 and 320 - Noncompoundable offence under s. 307 IPC - Quashment of proceedings on basis of compromise, in present case, held, improper - Offence under s. 307 is not a private dispute between parties inter se but is a crime against society - In instant case, injuries inflicted on complainant with sword on forehead, ear, back side of head as well as on left arm were very serious in nature - Complainant was attacked five times by sword out of which two blows were struck on his head - But for timely arrival of his saviours, attack could have continued - High Court not justified in quashing proceedings on basis of compromise arrived at between parties - Impugned judgment set aside - Penal Code, 1860 - S. 307 r/w s. 34 - Quashment of offence under based on compromise - Propriety
State Of Madhya Pradesh v. Deepak & Ors
(Jasti Chelameswar, Dr AK Sikri JJ) [2015] 6 CLJ 997 [SC India]

INSURANCE

Claims - Lapse of time - Letter of repudiation - Whether insured entitled to commence action against insurers upon receipt of letter of repudiation - Whether insured's action time barred - Limitation Act 1953, s. 6
Ayob Salleh v. AmGeneral Insurance Bhd & Anor
(S Nantha Balan JC) [2015] 6 CLJ 1070 [HC]

Construction of policy - Exemption clause - Claim under motor insurance policy for theft ('policy') - Elements of cheating/breach of trust - Whether insurers cheated by insured - Whether insured voluntarily handed over keys of vehicle to thieves - Whether insured 'victim' of cheating - Whether claim fell under exception of policy - Whether insurers absolved from liability under exception clause of policy - Whether contra proferentem rule applied against insurers
Ayob Salleh v. AmGeneral Insurance Bhd & Anor
(S Nantha Balan JC) [2015] 6 CLJ 1070 [HC]

Construction of policy - Meaning of 'theft' - Whether loss of vehicle due to theft or cheating by impersonation
Ayob Salleh v. AmGeneral Insurance Bhd & Anor
(S Nantha Balan JC) [2015] 6 CLJ 1070 [HC]

LAND LAW

Priorities - Land title - Two lands adjacent to each other and land overlap of 10,000 square feet between them - Plaintiff first to be registered as proprietor - Whether should be accorded priority - Whether first title in time must prevail
Diman Hassan v. Pentadbir Tanah & Daerah Hulu Langat & Ors
(Lim Chong Fong JC) [2015] 6 CLJ 1094 [HC]

LEGAL PROFESSION

Admission - Petition for admission - Objection to admission - Bar Council objecting to call on grounds that petitioner not a fit and proper person - Whether petitioner's breach of human rights as a former police officer rendered him not fit and proper to be enrolled - Meaning of "good character" - Whether notice of objection filed out of time - Whether petitioner prejudiced - Whether Bar Council had waived objections by not objecting to petitioner's short call - Legal Profession Act 1976, s. 16(2)
In Re Judy Blacious Af Pereira; Petitioner
(Lee Swee Seng J) [2015] 6 CLJ 1127 [HC]

LIMITATION

Commencement of time - When action commenced - Letter of repudiation - Whether insured entitled to commence action against insurers upon receipt of letter of repudiation - Whether insured's action time barred - Limitation Act 1953, s. 6
Ayob Salleh v. AmGeneral Insurance Bhd & Anor
(S Nantha Balan JC) [2015] 6 CLJ 1070 [HC]

TORT

Defamation - Damages, quantum - Arrest and detention - Arrest and detention of persons involved in political activities under Internal Security Act 1960 - Press statement by Inspector General of Police - Press statement falsely alluding to militant activities prejudicial to security of Malaysia - Whether defamatory - Damages - Whether quantum awarded fair and warranting no appellate intervention
Tan Sri Norian Mai & Ors v. Chua Tian Chang & Ors
(Abdul Wahab Patail, Rohana Yusuf, Umi Kalthum Abdul Majid JJCA) [2015] 6 CLJ 1045 [CA]

Defamation - Defences - Qualified privilege - Arrest and detention - Arrest and detention of persons involved in political activities under Internal Security Act 1960 - Press statement by Inspector General of Police - Press statement falsely alluding to militant activities prejudicial to security of Malaysia - Whether statement reckless - Whether protection of qualified privilege thereby lost
Tan Sri Norian Mai & Ors v. Chua Tian Chang & Ors
(Abdul Wahab Patail, Rohana Yusuf, Umi Kalthum Abdul Majid JJCA) [2015] 6 CLJ 1045 [CA]

False imprisonment - Damages, quantum - Arrest and detention - Arrest and detention under Internal Security Act 1960 - Arrest and detention of persons involved in political activities - Arrest and detention unlawful and without basis - Whether striking at very heart of democracy - Whether a serious assault on personal liberty - Appropriate quantum to be awarded
Tan Sri Norian Mai & Ors v. Chua Tian Chang & Ors
(Abdul Wahab Patail, Rohana Yusuf, Umi Kalthum Abdul Majid JJCA) [2015] 6 CLJ 1045 [CA]

WORDS AND PHRASES

Meaning of word "clear days" - Interval of time excluding date of commencement and date when act is done - Legal Profession Act 1976, s. 16(2)
In Re Judy Blacious Af Pereira; Petitioner
(Lee Swee Seng J) [2015] 6 CLJ 1127 [HC]

INDEKS PERKARA

PROSEDUR JENAYAH

Rayuan - Rayuan terhadap pembebasan dan pelepasan - Rayuan oleh pendakwaan - Responden dipertuduh menghantar SMS ugutan jenayah dengan menyembunyikan identitinya - Responden dijatuhkan hukuman penjara tiga bulan berjalan secara berturut-turut oleh Mahkamah Sesyen - Mahkamah Tinggi membenarkan rayuan dan membebaskan dan melepaskan responden - Rayuan terhadap keputusan Mahkamah Tinggi - Sama ada Hakim Mahkamah Tinggi terkhilaf - Sama ada pihak pendakwaan berjaya membuktikan kes melampaui keraguan munasabah - Sama ada elemen-elemen pertuduhan dibuktikan - Kanun Keseksaan, ss. 500 & 507
PP lwn. Dato' Dr Ahmad Ramzi Ahmad Zubir
(Raus Sharif PMR, Mohd Hishamudin Yunus, Mohtarudin Baki HHMR) [2015] 6 CLJ 1028 [CA]


ARTICLES

LNS Article(s)

  1. THE FUTURE OF DIGITAL LOCKERS* [Read excerpt]
    by: WARREN B CHIK** [2015] 1 LNS(A) lxvi

  2. [2015] 1 LNS(A) lxvi
    logo
    SINGAPORE

    THE FUTURE OF DIGITAL LOCKERS*
    by
    WARREN B CHIK**

    Disputes have constantly arisen between technology and copyright interests since the internet became popularized as the preferred medium for modern day communication. This has been occurring with greater frequency in various jurisdictions including the US and Singapore, where both statutory and Judge made laws have been developing in tandem with the evolution of IT in order to formulate and update copyright laws to better balance the rights and interests of all the stakeholders concerned. One line of disputes relates to the invention and use of technologies for the delivery of digital content. In the US, the earlier battle has been taken against Peer-to-Peer ("P2P") networks even as different models of P2P technology evolved through changes in their technical operations.[1] Even the Singapore Court of Appeal had the opportunity to consider the subject in the recent case of RecordTV Pte Ltd v. MediaCorp TV Singapore Pte Ltd[2] that considered the legal status of digital video recorders, which is another form of digital sharing facility (albeit through "streaming" as opposed to "downloading" of content as in the P2P cases).

    A recent dispute that has arisen in the US continues this trend of disputes and illustrates the difficulties of any form of resolution even as technology embraces, but copyright owners (by-and-large) resist, such changes. This article lays out the parties, facts and issues relating to the disputes between Universal Music Group Inc., the US government (and other jurisdictions) on the one hand and Megaupload Ltd. (and its executives) on the other (the "Megaupload Dispute").[3] In the process, some observations and suggestions will be made on how the dispute can be resolved through legislation, which can also be useful consideration for the parties to achieve private settlement or as a compromise between the industries concerned.

    . . .

    * This article was originally published in the (April/2012) issue of the Singapore Law Gazette (www.lawgazette.com.sg), the official publication of the Law Society of Singapore, published by LexisNexis. Reproduced with permission.

    ** Assistant Professor of Law Singapore Management University. E-mail: warrenchik@smu.edu.sg.


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  3. FINANCIAL SERVICES TRADE REPORTING FOR OVER-THE-COUNTER DERIVATIVES* [Read excerpt]
    by: ISABELLA NG [2015] 1 LNS(A) lxvii

  4. [2015] 1 LNS(A) lxvii
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    MALAYSIA

    FINANCIAL SERVICES
    TRADE REPORTING FOR OVER-THE-COUNTER DERIVATIVES*

    by
    ISABELLA NG

    IN THIS ARTICLE, ISABELLA NG EXAMINES THE CURRENT REGULATORY FRAMEWORK FOR THE REPORTING OF OVER-THE-COUNTER ("OTC") DERIVATIVES IN MALAYSIA.

    Applicable legal provisions

    Subdivision 4 of Division 3 of Part III ("OTC derivatives") of the Capital Markets and Services Act 2007 ("CMSA") provides for the setting up of a trade repository and the reporting requirements for OTC derivatives as introduced by the Capital Markets and Services (Amendment) Act 2011 ("2011 Amendment"). The 2011 Amendment came into force on 3 October 2011[1] and provided that Subdivision 4 of Division 3 of Part III shall come into operation at the expiration of two years or a further period not exceeding one year as the Minister may determine from the date of the coming into operation of the 2011 Amendment.[2] Therefore, the provisions of the CMSA relating to the setting up of a trade repository and the reporting obligations for OTC derivatives only came into force on 3 October 2014.[3]

    Trade repository

    Section 107B of the CMSA provides that the Securities Commission of Malaysia ("SC") may in writing approve any body corporate to be a trade repository[4] provided it is satisfied with the following conditions:

    . . .

    * Published with kind permission of M/s Shearn Delamore & Co.


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CLJ Article(s)

  1. THIRD VOICE IN A CRIMINAL JUSTICE SYSTEM: THE VOICE OF THE VICTIM THROUGH VICTIM IMPACT STATEMENT [Read excerpt]
    by: DATUK BALJIT SINGH SIDHU* & MOHD AKRAM SHAIR MOHAMED** [2015] 6 CLJ(A) i

  2. [2015] 6 CLJ(A) i
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    MALAYSIA

    THIRD VOICE IN A CRIMINAL JUSTICE SYSTEM: THE VOICE OF THE VICTIM THROUGH VICTIM IMPACT STATEMENT
    by
    DATUK BALJIT SINGH SIDHU* & MOHD AKRAM SHAIR MOHAMED**

    Abstract

    Only two voices are heard in a criminal justice system: that of the State and that of the accused person. The victim's voice is only an accessory in order to secure a conviction against the accused. Victim Impact Statements ('VISs') were introduced in Malaysia vide the Criminal Procedure Code (Amendment) Act 2010 and are intended to allow victims or a member of his family to express how a particular crime has affected them. VISs could encompass various aspects such as physical or psychological damage, financial costs as well as opinions on the appropriate sentencing that should be given to the offender. Whilst VISs are surely welcomed to the Malaysian legal scene, are they fulfilling their intended purposes in light of the obvious failings in their implementation, including the lack of guidelines as well as the failure to bring the Child Act 2001 in line with the introduction of VISs only through the general procedural law ie, the CPC?

    Introduction

    Hitherto only two voices are heard in a criminal justice system: that of the state and the other that of the accused person. The victim's voice is only accessory in order to secure a conviction against the accused. Developments have since taken place where voices of the victims are given prominence especially during the sentencing process.

    . . .

    * LLB (Hons) (Lond), LLM (Malaya), DSLP (IIUM); Advocate & Solicitor (Malaya), Mediator; Adjunct Professor, University Sultan Zainal Abidin and Universiti Sains Islam Malaysia.


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 770 Special Measures Against Terrorism In Foreign Countries Act 2015 15 June 2015 [PU(B) 250/2015] -
ACT 769 Prevention of Terrorism Act 2015 Not Yet In Force -
ACT 768 Technologists and Technicians Act 2015 1 August 2015 [PU(B) 286/2015] -
ACT 767 Public Sector Home Financing Board Act 2015 1 July 2015 [PU(B) 265/2015] except Parts IV, V, VI and VIII -
ACT 766 Netting of Financial Agreements Act 2015 30 March 2015 [PU(B) 131/2015] -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1491 Members of Parliament (Remuneration) (Amendment) Act 2015 1 January 2015 ACT 237
ACT A1490 Education (Amendment) Act 2015 1 January 2012 ACT 550
ACT A1489 Securities Commission (Amendment) Act 2015 Not Yet In Force ACT 498
ACT A1488 Industrial Relations (Amendment) Act 2015 1 July 2015 [PU(B) 262/2015] ACT 177
ACT A1487 Security Offences (Special Measures) (Amendment) Act 2015 15 June 2015 [PU(B) 251/2015] ACT 747

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 187/2015 Customs (Prohibition of Imports) (Amendment) (No. 4) Order 2015 - Corrigendum 20 August 2015 20 August 2015 PU(A) 137/2015
PU(A) 186/2015 Printing Presses and Publications (Control of Undesirable Publications) (No. 21) Order 2015 17 August 2015 18 August 2015 ACT 301
PU(A) 185/2015 Printing Presses and Publications (Control of Undesirable Publications) (No. 20) Order 2015 17 August 2015 18 August 2015 ACT 301
PU(A) 184/2015 Printing Presses and Publications (Control of Undesirable Publications) (No. 19) Order 2015 17 August 2015 18 August 2015 ACT 301
PU(A) 183/2015 Income Tax (Deduction For Pre-Commencement Expenses In Relation To Refinery and Petrochemical Integrated Development) (Amendment) Rules 2015 13 August 2015 Year of assessment 2010 PU(A) 43/2013

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 311/2015 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Sarawak 3 August 2015 4 August 2015 up to and including 17 August 2015 PU(A) 293/2002
PU(B) 310/2015 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Sabah 3 August 2015 4 August 2015 up to and including 17 August 2015 PU(A) 293/2002
PU(B) 309/2015 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Federal Territory of Labuan 3 August 2015 4 August 2015 up to and including 17 August 2015 PU(A) 293/2002
PU(B) 308/2015 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Johore 3 August 2015 4 August 2015 up to and including 17 August 2015 PU(A) 293/2002
PU(B) 307/2015 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Melaka 3 August 2015 4 August 2015 up to and including 17 August 2015 PU(A) 293/2002

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 490/2012 Customs (Prohibition of Imports) Order 2012 PU(A) 187/2015 20 August 2015 Fourth Schedule
PU(A) 43/2013 Income Tax (Deduction For Pre-Commencement Expenses in Relation to Refinery and Petrochemical Integrated Development) Rules 2013 PU(A) 183/2015 Year of assessment 2010 Rule 3
PU(A) 268/2004 Skim Simpanan Pendidikan Nasional Regulations 2004 PU(A) 182/2015 13 August 2015 Regulation 6C
PU(A) 45/2005 Workmen'S Compensation (Foreign Workers' Compensation Scheme) (Insurance) Order 2005 PU(A) 180/2015 7 August 2015 Schedule
PU(A) 12/2007 Federal Roads (Private Management) (Collection of Tolls) (Butterworth Outer Ring Road) Order 2007 PU(A) 176/2015 1 August 2015 First Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 13/2015 Federal Roads (East Coast Expressway-Phase 2) Order 2015 PU(A) 157/2015 14 July 2015
PU(B) 319/1999 Designation of Immigration Depot PU(B) 249/2015 15 June 2015
PU(A) 292/2005 Malaysian National Archives (Fees) Regulations 2005 PU(A) 84/2015 11 May 2015
PU(B) 48/2015 Notification Under Paragraph 3(1)(e) PU(B) 153/2015 9 April 2015
PU(A) 243/2009 Immigration And Passport (Wang Kelian Free Flow Zone) (Exemption) Order 2009 PU(A) 66/2015 1 April 2015