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CLJ Bulletin, Issue 2015, Vol 40
02 October 2015


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New This Week

1. Case(s) of the Week

  1. YAP YOU JEE v. PP & OTHER APPEALS [2015] 7 CLJ 897

  2. KINGSLEY OBI DIKE v. PP [2015] 7 CLJ 1039

2. Latest Cases

  1. Legal Network Series

  2. CLJ 2015 Volume 7 (Part 7)

  3. CLJ 2015 Volume 7 (Part 8)

3. Articles

  1. LNS 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

YAP YOU JEE v. PP & OTHER APPEALS [2015] 7 CLJ 897
COURT OF APPEAL, PUTRAJAYA
RAUS SHARIF PCA, MOHTARUDIN BAKI JCA, TENGKU MAIMUN TUAN MAT JCA
[CRIMINAL APPEALS NO: J-09-112-04-2012, J-09-111-04-2012 & J-09-117-04-2012]
15 JUNE 2015

CRIMINAL PROCEDURE: Charge - Amendment - Amendments to charges at close of prosecution's case - No grounds written justifying amendments - Whether amendments introduced different case against accused persons - Facts failing to establish prima facie case against accused persons on original charge preferred - Facts disclosing another offence for which accused persons not charged - Whether court ought to amend charge - Whether any prejudice occasioned to accused persons

CRIMINAL PROCEDURE: Judgment - Grounds of judgment - No grounds of judgment written by trial judge to justify amendments to charges at close of prosecution's case - No written grounds provided in respect of trial judge's findings that prima facie case established and defence ought to be called - Whether any prejudice occasioned to accused persons - Whether any statutory provision requiring trial judge to prepare grounds of judgment for finding prima facie case established

CRIMINAL PROCEDURE: Sentencing - Appeals - Approach of appellate court in sentencing - Whether ought to be slow to disturb sentences passed by trial court - Whether sentences ought to be concurrent or consecutive - Principles to assist appellate court

CRIMINAL PROCEDURE: Trial - Trial de novo - Change of judge during hearing - Whether previous judge retained jurisdiction in matter - Whether previous judge may continue and complete case that was partly heard - Whether succeeding judge has discretion to either hear case de novo or to continue from point where it had been left by previous judge - Whether directive given by Chief Judge to succeeding judge to continue part heard case purely an administrative directive - Whether directive could fetter discretion of succeeding judge - Whether directive had prejudiced accused persons - Whether in breach of s. 261 of Criminal Procedure Code

CRIMINAL PROCEDURE: Witness - Statement - Admissibility - Statement of witness admitted under s. 32 of Evidence Act 1950 - Witness absent and not called at trial - Whether incriminatory statement of witness ought to be admitted - Whether failure of police to make use of ss. 47, 49, 118 & 396 of Criminal Procedure Code rendered statement of witness inadmissible


KINGSLEY OBI DIKE v. PP [2015] 7 CLJ 1039
COURT OF APPEAL, PUTRAJAYA
MOHTARUDIN BAKI JCA, TENGKU MAIMUN TUAN MAT JCA, ZAKARIA SAM JCA
[CRIMINAL APPEAL NO: B-05-232-09-2013 (NGA)]
18 MAY 2015

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Trafficking in dangerous drugs - Statement by accused contradicted with cautioned statement - Whether trial judge properly appreciated defence case - Whether accused had custody and control of dangerous drugs - Whether conviction safe

CRIMINAL PROCEDURE: Police investigation - Cautioned statement - Whether investigating officer conducted thorough investigation - Whether accused furnished necessary information in cautioned statement

CRIMINAL PROCEDURE: Statements - Admissibility - Statement by chemist - Whether evidence may be proven by written statement - Whether consent of accused required before witness statement admissible as evidence - Criminal Procedure Code, ss. 172A(5), 172B(2)(vi), (6) & 402B

EVIDENCE: Expert evidence - Chemist's evidence - Admissibility - Statement by chemist - Whether evidence may be proven by written statement - Whether consent of accused required before witness statement admissible as evidence - Criminal Procedure Code, ss. 172A(5), 172B(2)(vi), (6) & 402B


LATEST CASES

Legal Network Series

[2014] 1 LNS 1151

SHARUNNAZRI ABDUL SAMAD lwn. PP

UNDANG-UNDANG JENAYAH: Rasuah - Permintaan wang suapan secara rasuah - Kes prima facie - Permintaan wang suapan oleh pegawai badan awam untuk tidak meneruskan pertuduhan - Sama ada elemen pertuduhan dibawah s. 10(a)(bb) Akta Pencegahan Rasuah 1997 telah dibuktikan - Sama ada terdapat permintaan suapan sebagai dorongan untuk melakukan suatu perbuatan yang ada kaitan dengan hal ehwal prinsipal sebagai pegawai badan awam - Sama ada anggapan statutori dibawah s. 42 Akta Pencegahan Rasuah 1997 terpakai

KETERANGAN: Saksi - Kredibiliti - Saksi perangkap - Kebolehterimaan keterangan pegawai perangkap - Sama ada keterangan saksi perangkap boleh diterima oleh mahkamah - Sama ada pegawai perangkap adalah saksi-saksi berkepentingan

[2014] 1 LNS 1159

KURNIA INSURANS (MALAYSIA) BERHAD lwn. LOKE HAU CHEN

PROSEDUR SIVIL: Tindakan - Kausa tindakan - Permohonan pra-matang - Permohonan oleh pihak insuran bagi suatu deklarasi untuk tidak menanggung tuntutan ganti rugi - Liabiliti pihak litigan belum ditentukan - Sama ada plaintif mempunyai kausa tindakan yang sempurna terhadap defendan - Sama ada permohonan plaintif adalah pra-matang, salah tanggapan dan merupakan penyalahgunaan proses mahkamah - Sama ada asas dan dasar permohonan plaintif telah wujud

[2014] 1 LNS 1172

MOHD FAIRUS MUSLIM v. PP

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Statutory rape - Imprisonment of 12 years and 3 strokes of rotan - Appellate interference - Whether findings of trial judge warrants appellate interference - Whether sentence imposed was excessive

CRIMINAL PROCEDURE: Police investigation - Police report - Reluctance of victim in lodging police report within 3 hours - Whether delay in lodging first information report is a ground to doubt prosecution's case

CRIMINAL LAW: Rape - Girl below statutory age of consent - Whether ingredients of offence of rape under s. 376 Penal Code satisfied - Penetration - Presence of semen - Whether presence of semen important to prove offence of rape - Whether ejaculation and complete penetration needed to be proved

EVIDENCE: Witness - Expert witness - Credibility - Sexual offence - Witness giving evidence for second time in cases relating to sexual offence - Witness's area of expertise was not in sexual cases - Whether evidence of witness admissible

EVIDENCE: Corroboration - Sexual offence - Rape - Testimony of expert on condition of hymen - Testimony of witness at scene of crime - Whether evidence of complainant must be corroborated - Whether evidence of expert witness consistent with testimony of victim - Whether testimony of witness at scene of crime on the day of incident can corroborate testimony of victim

EVIDENCE: Corroboration - Sexual offence - Rape - Testimony of expert on condition of hymen - Testimony of witness at scene of crime - Whether evidence of complainant must be corroborated - Whether evidence of expert witness consistent with testimony of victim - Whether testimony of witness at scene of crime on the day of incident can corroborate testimony of victim

[2014] 1 LNS 1193

ROSSINGTON CONSOLIDATED SDN BHD v. KAMAR ISMAIL

COMPANY LAW: Director - Breach of fiduciary duties - Misappropriation of funds - Whether director had breached his fiduciary duties by using company funds for his personal benefit - Whether director misused his position as a director and cheque signatory of company to effect transfer of company funds into his personal bank account

COMPANY LAW: Director - Remuneration - Entitlement to remuneration or perks by director - Whether mere holding of office of director entitled a director to remuneration

CIVIL PROCEDURE: Declaration - Application for - Restitution of monies paid and received by director and breach of fiduciary duties - Misappropriation of company funds - Action to recover monies from former director

[2014] 1 LNS 1196

FOO HIAP SIONG v. CHONG CHIN HSIANG

TORT: Defamation - Libel - Defamatory statement in social media - Allegation that a man disguised himself under a female name - Posting statement together with doctored coloured photograph - Whether statement made capable to lower plaintiff in estimation of right-thinking men - Whether statement exposed plaintiff to hatred, contempt or ridicule or caused him to be shunned or avoided - Whether statement in natural and ordinary meaning referred to plaintiff as a transgender - Whether defendant was malicious in posting and publishing defamatory statement

TORT: Defamation - Defence - Justification - Whether defence of justification available - Reliance on a joke in a private conversation - Whether defendant can utilize a private conversation to justify a defamatory publication - Defamation Act 1957, s. 8


CLJ 2015 Volume 7 (Part 7)

COURT

COURT OF APPEAL

Batu Kemas Industri Sdn Bhd v. Kerajaan Malaysia & Anor
(Tort; Utilities - Negligence - Damages - Electricity - Supply of) [2015] 7 CLJ 849 [CA]

CIMB Bank Bhd v. Sebang Gemilang Sdn Bhd & Anor
(Banking - Securities for advances - Loan) [2015] 7 CLJ 870 [CA]

Hossein Shahsavandi Ahmad v. PP
(Criminal Procedure - Appeal - Appeal against conviction and sentence - Accused person charged for trafficking drugs) [2015] 7 CLJ 882 [CA]

Yap You Jee v. PP & Other Appeals
(Criminal Procedure - Trial - Trial de novo - Change of judge during hearing) [2015] 7 CLJ 897 [CA]

HIGH COURT

Ahmad Zahri Mirza v. PricewaterhouseCoopers Capital Sdn Bhd & Ors
(Civil Procedure - Discovery - Pre-action) [2015] 7 CLJ 930 [HC]

Awang Ahmad Faisal Awang Sohor v. PP
(Criminal Procedure - Sentencing - Procedure - Previous conviction) [2015] 7 CLJ 955 [HC]

Dato' Seri Diraja Hj Adnan Hj Yaakob v. Utusan Melayu
(Civil Procedure - Locus standi - Action by elected representative - Striking out - Writ and statement of claim - Terms of 'Ketua Menteri' and 'Menteri Besar') [2015] 7 CLJ 960 [HC]

Liew Ka Ket v. Bigraise Telipok Sdn Bhd & Anor
(Contract; Limitation - Termination - Validity - Sale and purchase agreement) [2015] 7 CLJ 972 [HC]

Rasip Hamsudi & Ors v. Pacific & Orient Insurance Co Bhd & Ors
(Civil Procedure; Road Traffic - Insurance - Notice of proceedings - Negligence in vehicular collision) [2015] 7 CLJ 984 [HC]

SUBJECT INDEX

BANKING

Securities for advances - Loan - Loan facilities granted by appellant (bank) to second defendant to finance construction project - Sinking fund - Progress payment received by second defendant to be deducted into fixed deposit under lien to bank - Second respondent executed deed of assignment and power of attorney of loan facilities to first respondent to complete construction project - Bank closed sinking fund and credited fixed deposit monies to second respondent's account upon completion of project - Whether there was effective assignment in favour of first respondent - Whether deed of assignment made reference to sinking fund - Whether first respondent had right to monies in sinking fund - Whether bank had knowledge of assignment
CIMB Bank Bhd v. Sebang Gemilang Sdn Bhd & Anor
(Abdul Wahab Patail, Linton Albert, Mohd Zawawi Salleh JJCA) [2015] 7 CLJ 870 [CA]

CIVIL PROCEDURE

Declaratory judgment - Application to quash - Action for negligence in vehicular collision - Action commenced in Sessions Court - First defendant filed action in High Court pending Sessions Court suit - Claim for declaratory relief that policy insurance void and unenforceable in High Court - High Court allowed first defendant's claim while Sessions Court suit held in favour of plaintiffs - Application by plaintiffs to quash declaratory order and to declare policy valid
Rasip Hamsudi & Ors v. Pacific & Orient Insurance Co Bhd & Ors
(Vazeer Alam Mydin Meera J) [2015] 7 CLJ 984 [HC]

Discovery - Pre-action - Pre-action discovery against non-parties to an intended action - Rules governing discovery - Scope of O. 24 r. 7A Rules of Court 2012 ('ROC') - Whether pre-action discovery under O. 24 r. 7A of ROC only confined to parties likely to be a party to an intended action - Whether applicant must show defendants likely to be a party to an intended action - Whether saving of costs ought to be a factor in favour of allowing a pre-action discovery
Ahmad Zahri Mirza v. PricewaterhouseCoopers Capital Sdn Bhd & Ors
(Lee Swee Seng J) [2015] 7 CLJ 930 [HC]

Discovery - Relevancy of documents - Application to produce valuation report to ascertain actual purchase price per share sold - Valuation report prepared for public purpose - Whether documents sought in pre-action discovery necessary in assessment of plaintiff's claim - Whether application frivolous, speculative and intended for fishing expedition - Whether documents sought in pre-action discovery necessary to fill void and gaps in plaintiff's knowledge of his claim - Whether disclosure of valuation report would cause embarrassment and prejudice to defendants
Ahmad Zahri Mirza v. PricewaterhouseCoopers Capital Sdn Bhd & Ors
(Lee Swee Seng J) [2015] 7 CLJ 930 [HC]

Locus standi - Action by elected representative - Whether plaintiff suing in personal capacity or official capacity as Menteri Besar of Pahang - Whether plaintiff had locus standi to institute and maintain action
Dato' Seri Diraja Hj Adnan Hj Yaakob v. Utusan Melayu
(Yeoh Wee Siam J) [2015] 7 CLJ 960 [HC]

Striking out - Writ and statement of claim - Terms of 'Ketua Menteri' and 'Menteri Besar' inconsistently used in pleadings - Whether referred to position as Menteri Besar - Whether mere inconsistencies in terms used reasonable grounds to strike out claim - Rules of Court 2012, O. 18 r. 19(1)(b), (c) & O. 92 r. 4
Dato' Seri Diraja Hj Adnan Hj Yaakob v. Utusan Melayu
(Yeoh Wee Siam J) [2015] 7 CLJ 960 [HC]

CONTRACT

Termination - Validity - Sale and purchase agreement - Termination by receiver and manager on grounds of non-payment of purchase price - Whether purchase price settled through contra arrangement - Whether receipt of contra payment acknowledged by developer - Whether receiver and manager adopted SPA by conduct - Whether termination of SPA lawful
Liew Ka Ket v. Bigraise Telipok Sdn Bhd & Anor
(Ravinthran Paramaguru J) [2015] 7 CLJ 972 [HC]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Accused person charged for trafficking drugs - Drugs found concealed in inner cover of shoes - Allegation that accused was told by another person to market shoes - Whether a fictitious character - Defence of innocent carrier - Whether probable - Accused person convicted for offence and sentenced to death - Whether conviction and sentence safe - Whether defence judicially appreciated - Dangerous Drugs Act 1952, s. 39B(1)(a)
Hossein Shahsavandi Ahmad v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat, Abang Iskandar JJCA) [2015] 7 CLJ 882 [CA]

Charge - Amendment - Amendments to charges at close of prosecution's case - No grounds written justifying amendments - Whether amendments introduced different case against accused persons - Facts failing to establish prima facie case against accused persons on original charge preferred - Facts disclosing another offence for which accused persons not charged - Whether court ought to amend charge - Whether any prejudice occasioned to accused persons
Yap You Jee v. PP & Other Appeals
(Raus Sharif PCA, Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA) [2015] 7 CLJ 897 [CA]

Judgment - Grounds of judgment - No grounds of judgment written by trial judge to justify amendments to charges at close of prosecution's case - No written grounds provided in respect of trial judge's findings that prima facie case established and defence ought to be called - Whether any prejudice occasioned to accused persons - Whether any statutory provision requiring trial judge to prepare grounds of judgment for finding prima facie case established
Yap You Jee v. PP & Other Appeals
(Raus Sharif PCA, Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA) [2015] 7 CLJ 897 [CA]

Sentencing - Appeals - Approach of appellate court in sentencing - Whether ought to be slow to disturb sentences passed by trial court - Whether sentences ought to be concurrent or consecutive - Principles to assist appellate court
Yap You Jee v. PP & Other Appeals
(Raus Sharif PCA, Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA) [2015] 7 CLJ 897 [CA]

Sentencing - Procedure - Previous conviction - Taking into account accused's previous convictions in passing sentence - Duty of court - Whether must inform and explain previous convictions to accused - Whether must obtain accused's confirmation on convictions - Failure to abide by procedure - Whether improper - Whether sentence liable to be disturbed
Awang Ahmad Faisal Awang Sohor v. PP
(Alwi Abdul Wahab JC) [2015] 7 CLJ 955 [HC]

Trial - Trial de novo - Change of judge during hearing - Whether previous judge retained jurisdiction in matter - Whether previous judge may continue and complete case that was partly heard - Whether succeeding judge has discretion to either hear case de novo or to continue from point where it had been left by previous judge - Whether directive given by Chief Judge to succeeding judge to continue part heard case purely an administrative directive - Whether directive could fetter discretion of succeeding judge - Whether directive had prejudiced accused persons - Whether in breach of s. 261 of Criminal Procedure Code
Yap You Jee v. PP & Other Appeals
(Raus Sharif PCA, Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA) [2015] 7 CLJ 897 [CA]

Witness - Statement - Admissibility - Statement of witness admitted under s. 32 of Evidence Act 1950 - Witness absent and not called at trial - Whether incriminatory statement of witness ought to be admitted - Whether failure of police to make use of ss. 47, 49, 118 & 396 of Criminal Procedure Code rendered statement of witness inadmissible
Yap You Jee v. PP & Other Appeals
(Raus Sharif PCA, Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA) [2015] 7 CLJ 897 [CA]

LIMITATION

Specific performance - Sale and purchase agreement - Unlawful termination of agreement - Limitation period of three years - Whether specific performance barred by limitation - Whether purchaser entitled to damages in lieu of specific performance
Liew Ka Ket v. Bigraise Telipok Sdn Bhd & Anor
(Ravinthran Paramaguru J) [2015] 7 CLJ 972 [HC]

ROAD TRAFFIC

Insurance - Notice of proceedings - Negligence in vehicular collision - Action commenced in Sessions Court - First defendant filed action in High Court pending Sessions Court suit - Claim for declaratory relief that policy insurance void and unenforceable in High Court - High Court allowed first defendant's claim while Sessions Court suit held in favour of plaintiffs - Whether plaintiffs notified of High Court suit - Whether facts of claim in Sessions Court laid before High Court before obtaining declaratory order in High Court - Whether declaratory order enforceable - Road Transport Act 1987, s. 96
Rasip Hamsudi & Ors v. Pacific & Orient Insurance Co Bhd & Ors
(Vazeer Alam Mydin Meera J) [2015] 7 CLJ 984 [HC]

TORT

Negligence - Damages - Claim for - Contract for electricity supply between second defendant and plaintiff - Jabatan Kerja Raya embarked on constructing works and struck underground cable connected to plaintiff's factory - Interruption of supply of electricity to plaintiff's factory causing loss and damages - Whether damage foreseeable - Duty of care - Whether first defendant owed delegable duty of care - Government Proceedings Act 1956, s. 7(2), (3) - Whether cause of damage due to surge or under voltage - Evaluation of competing views from expert witnesses - Whether there was absolute contributory negligence on plaintiff's part - Whether second defendant under contractual obligation to ensure continuous and uninterrupted supply of electricity
Batu Kemas Industri Sdn Bhd v. Kerajaan Malaysia & Anor
(Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA) [2015] 7 CLJ 849 [CA]

UTILITIES

Electricity - Supply of - Contract for electricity supply between second defendant and plaintiff - Negligence - Claim for damages - Jabatan Kerja Raya embarked on constructing works and struck underground cable connected to plaintiff's factory - Interruption of supply of electricity to plaintiff's factory causing loss and damages - Whether damage foreseeable - Duty of care - Whether first defendant owed delegable duty of care - Government Proceedings Act 1956, s. 7(2), (3) - Whether cause of damage due to surge or under voltage - Evaluation of competing views from expert witnesses - Whether there was absolute contributory negligence on plaintiff's part - Whether second defendant under contractual obligation to ensure continuous and uninterrupted supply of electricity
Batu Kemas Industri Sdn Bhd v. Kerajaan Malaysia & Anor
(Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA) [2015] 7 CLJ 849 [CA]


CLJ 2015 Volume 7 (Part 8)

COURT

SC INDIA

Bairam Muralidhar v. State Of Andhra Pradesh
(Criminal Procedure - Criminal Procedure Code 1973, s. 321 - Withdrawal of prosecution - Role of prosecutor and duty of court in granting consent) [2015] 7 CLJ 993 [SC India]

FEDERAL COURT

Lok Kok Beng & Ors v. Loh Chiak Eong & Anor
(Tort; Contract - Building contract - Delay in completion of industrial buildings - Claim against third party for economic loss) [2015] 7 CLJ 1008 [FC]

COURT OF APPEAL

Kingsley Obi Dike v. PP
(Criminal Procedure; Evidence - Trafficking in dangerous drugs - Whether consent of accused required before witness statement admissible as evidence) [2015] 7 CLJ 1039 [CA]

Theresa Toyat & Anor v. KHL Sdn Bhd
(Contract - Share sale agreements - Termination) [2015] 7 CLJ 1051 [CA]

HIGH COURT

Pacific Bunkers Pte Ltd v. Owners Of The Ships Or Vessels "Geniki Sarawak" And "Geniki Johor" & Another Case (No 2)
(Civil Procedure - Summary judgment - Applications to amend - Whether doctrine of functus officio barred review of sealed judgments) [2015] 7 CLJ 1071 [HC]

The Bank Of Punjab v. Lee Kam Sun & Ors
(Land Law - Land auctioned and sold to third defendant - Whether bank had beneficial ownership of land) [2015] 7 CLJ 1114 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Summary judgment - Applications to amend - Contents of summary judgments disputed by both parties - Draft orders for summary judgment submitted for approval to Registrar by defendant - Sealed judgments extracted - Whether applications had been lawfully perfected - Whether doctrine of functus officio barred review of sealed judgments - Whether O. 42 r. 13 Rules of Court 2012 barred plaintiff's applications - Whether express prayer was required to set aside sealed judgments - Whether court had power to allow amendment
Pacific Bunkers Pte Ltd v. Owners Of The Ships Or Vessels "Geniki Sarawak" And "Geniki Johor" & Another Case (No 2)
(Wong Kian Kheong JC) [2015] 7 CLJ 1071 [HC]

CONTRACT

Breach - Share sale agreement - Sale and purchase agreements to purchase shares in company - Agreements would give purchaser control of company together with an agricultural land - Whether land should be free from encumbrances pursuant to agreements - Vendors failed to ensure lands free from encumbrances - Termination of agreements - Whether purchaser intended to purchase native customary rights land under guise of agreements - Whether purchaser guilty of anticipatory breach
Theresa Toyat & Anor v. KHL Sdn Bhd
(Balia Yusof Wahi, Abdul Aziz Abdul Rahim, Abang Iskandar JJCA) [2015] 7 CLJ 1051 [CA]

Building contract - Delay - Claim against third party for economic loss - Appellants claimed against respondents as project architects for consequential financial loss - Whether matters contributed to delay fell within professional work of respondents - Whether respondents owed duty of care to appellants apart from their duty in contract or tort to developer - Whether respondents able to foresee consequential financial loss suffered - Whether Federal Court should be final determiner of judicial policy on extensions of liability of architects to cover pure economic loss - Whether it was fair, just and reasonable to impose duty of care on respondents
Lok Kok Beng & Ors v. Loh Chiak Eong & Anor
(Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Suriyadi Halim Omar, Ahmad Maarop & Zainun Ali FCJJ) [2015] 7 CLJ 1008 [FC]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Trafficking in dangerous drugs - Statement by accused contradicted with cautioned statement - Whether trial judge properly appreciated defence case - Whether accused had custody and control of dangerous drugs - Whether conviction safe
Kingsley Obi Dike v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat, Zakaria Sam JJCA) [2015] 7 CLJ 1039 [CA]

Criminal Procedure Code, 1973 - S. 321 - Withdrawal from prosecution - Role of Prosecutor and duty of court granting consent - How to be exercised - Held, it is the obligation of the Public Prosecutor to state what material he has considered - It has to be set out in brief - Public Prosecutor cannot act like the post office on behalf of the State Government, he is required to act in good faith, peruse materials on record and form an independent opinion that withdrawal of the case would really subserve public interest - An order of the Government on the Public Prosecutor in this regard is not binding - A court while giving consent under S. 321 is required to exercise its judicial discretion, which is not to be exercised in a mechanical manner - Court must consider the material on record to see that the application had been filed in good faith and it is in interests of the public and justice
Bairam Muralidhar v. State Of Andhra Pradesh
(Dipak Misra, Pinaki Chandra Ghose JJ) [2015] 7 CLJ 993 [SC India]

Criminal Procedure Code, 1973 - S. 321 - Withdrawal of prosecution - Corruption case - Public Prosecutor seeking withdrawal of prosecution only on the ground that State Government has issued order to withdraw the prosecution - Non-application of independent mind by Public Prosecutor - Impermissibility - Held, Special Judge and High Court rightly declined to grant consent - Application must indicate perusal of the materials by stating what are the materials Prosecutor has perused, may be in brief, and whether such withdrawal of prosecution would serve public interest and how he has formed his independent opinion - Here Public Prosecutor has been totally guided by order of the Government and really not applied his mind to facts of the case - Noteworthy that State Government had granted sanction and anti-Corruption Bureau also found no justification for the withdrawal - Regard being had to gravity of the offence and the impact on public life apart from the nature of application filed by the Public Prosecutor, view expressed by trial Judge and High Court, upheld - Prevention of Corruption Act, 1988 - Ss. 7 and 13(1)(d) r/w S. 13(2)
Bairam Muralidhar v. State Of Andhra Pradesh
(Dipak Misra, Pinaki Chandra Ghose JJ) [2015] 7 CLJ 993 [SC India]

CRIMINAL PROCEDURE

Police investigation - Cautioned statement - Whether investigating officer conducted thorough investigation - Whether accused furnished necessary information in cautioned statement
Kingsley Obi Dike v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat, Zakaria Sam JJCA) [2015] 7 CLJ 1039 [CA]

Statements - Admissibility - Statement by chemist - Whether evidence may be proven by written statement - Whether consent of accused required before witness statement admissible as evidence - Criminal Procedure Code, ss. 172A(5), 172B(2)(vi), (6) & 402B
Kingsley Obi Dike v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat, Zakaria Sam JJCA) [2015] 7 CLJ 1039 [CA]

EVIDENCE

Expert evidence - Chemist's evidence - Admissibility - Statement by chemist - Whether evidence may be proven by written statement - Whether consent of accused required before witness statement admissible as evidence - Criminal Procedure Code, ss. 172A(5), 172B(2)(vi), (6) & 402B
Kingsley Obi Dike v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat, Zakaria Sam JJCA) [2015] 7 CLJ 1039 [CA]

LAND LAW

Ownership - Claim for - Application for various declarations, orders and consequential reliefs - Land frozen and seized by Royal Malaysian Police - Anti-Money Laundering and Anti-Terrorism Financing Act 2001, ss. 51 & 54 - Whether notice of seizure endorsed on document of title - Whether seizure still in force - Registrar's caveat lodged over land - Land auctioned and sold to third defendant - Whether bank had beneficial ownership of land - Whether bank had interests in land - Whether bank had indefeasible title of land
The Bank Of Punjab v. Lee Kam Sun & Ors
(Gunalan Muniandy JC) [2015] 7 CLJ 1114 [HC]

TORT

Negligence - Economic loss - Building contract - Dispute relating to delay in completion of industrial buildings purchased by appellants - Appellants claimed against respondents as project architects for consequential financial loss - Whether matters contributed to delay fell within professional work of respondents - Whether respondents owed duty of care to appellants apart from their duty in contract or tort to developer - Whether respondents able to foresee consequential financial loss suffered - Whether Federal Court should be final determiner of judicial policy on extensions of liability of architects to cover pure economic loss - Whether it was fair, just and reasonable to impose duty of care on respondents
Lok Kok Beng & Ors v. Loh Chiak Eong & Anor
(Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Suriyadi Halim Omar, Ahmad Maarop & Zainun Ali FCJJ) [2015] 7 CLJ 1008 [FC]


ARTICLES

LNS Article(s)

  1. EMPLOYEE SOCIAL SECURITY IN MALAYSIA - UNRAVELING THE ACT [Read excerpt]
    by: DR GURU DHILLON*
    DR ROBERT JEYAKUMAR**
    DEEPAK SUKARDHAN RAM***
    [2015] 1 LNS(A) lxxviii

  2. [2015] 1 LNS(A) lxxviii
    logo
    MALAYSIA

    EMPLOYEE SOCIAL SECURITY IN MALAYSIA - UNRAVELING THE ACT
    by
    DR GURU DHILLON*
    DR ROBERT JEYAKUMAR**
    DEEPAK SUKARDHAN RAM***

    Introduction

    There are a growing number of employees who are unaware that they are eligible to take employee insurance to cover and protect themselves should anything untoward happen to them at work. Under the Employees' Social Security Act 1969 (hereinafter referred to as 'ESSA'), both the Employer and the Employee are expected under the law to make monthly contributions based on their monthly earnings to the Board and in return, the Board undertakes to protect them financially if anything happens to them in the course of their employment. The authors, in this paper, explain this area to the layman so they can assert their rights and get what they rightfully deserve in the event of a calamity befalling them thereby rendering them unable to work either indefinitely or permanently.

    Compulsory Contributions

    Section 4[1] of the Act states that it is a requirement under this Act that any industry that falls within the subject matter of the Act shall be registered with the Social Security Organization (hereinafter referred to as ‘SOCSO’), and by virtue of s. 5[2] shall ensure that all its employees are insured in the manner provided by the Act. Other than that, the Act further elaborates that each employer shall be able to make contribution for their employees under a few types of categories that were introduced by SOCSO. Section 6[3] on the other hand, shows that the necessary contributions that are made according to the Act can be either one of these two groups - either the employer who acts on behalf of the employee or the employee who decides to act on his or her own.

    . . .

    * Senior Lecturer, Faculty of Law, Multimedia University, Malaysia.

    ** Senior Lecturer, Faculty of Business, Multimedia University, Malaysia.

    *** Researcher, Faculty of Business, Multimedia University, Malaysia.


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  3. EXPERT EVIDENCE THE FUTURE OF FORENSIC SCIENCE IN CRIMINAL TRIALS* [Read excerpt]
    by: THE RIGHT HON THE LORD THOMAS OF CWMGIEDD [2015] 1 LNS(A) lxxix

  4. [2015] 1 LNS(A) lxxix
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    UNITED KINGDOM

    EXPERT EVIDENCE
    THE FUTURE OF FORENSIC SCIENCE IN CRIMINAL TRIALS*

    by
    THE RIGHT HON THE LORD THOMAS OF CWMGIEDD

    Introduction

    1. With all of the problems and issues currently facing the criminal bar, some of you are no doubt wondering why I have decided to speak to you this evening about expert evidence and particularly forensic science. There are three reasons: first there is clearly the issue of social mobility and the profession; that is an acute issue and one which was central to the work of Michael Kalisher. The work of the Kalisher Trust has already done so much and the profession is now realistically facing up to the problems caused by the debts incurred by law students and the help that needs to go to those that choose a career in publicly funded work; radical solutions are needed, but it must be for the profession and the Inns first to formulate and publish their proposals. Second, the issue of remuneration for publicly funded work and the future of the independent bar in publicly funded work. This is also of fundamental importance, but it is not something I can say much new about at present. I have said as much as I can until there are more developments, particularly the report of Geoffrey Rivlin QC. Third, there is a risk for any profession that in focussing its attention primarily on issues that are central to its ability to function as a profession in fact open to all, however important, other longer term issues about which the profession ought to be concerned are overlooked.

    2.     Why is forensic science a relevant and topical subject for this evening’s lecture? First, as a brief view of the past shows, we have always faced problems. Second, there are current problems. Third, we have had excellent proposals for reform from the Law Commission which have been largely implemented in a novel way. Fourth, embedding the reforms and addressing other problems is important for overall public confidence in criminal justice. It will show the public why justice matters at a time when there is a risk that justice will be overlooked as there are so many other calls on the public purse.

    . . .

    * The Right Hon The Lord Thomas Of Cwmgiedd, Lord Chief Justice Of England And Wales, The 2014 Criminal Bar Association Kalisher Lecture (14 October 2014). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales https://www.judiciary.gov.uk/announcements/ 2014-kalisher-lecture-on-the-future-of-forensic-science-in-criminal-trials-by-the-lord-chief-justice/).


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 771 Malaysian Aviation Commission Act 2015 Not Yet In Force -
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 1 September 2015 [PU(B) 345/2015] -
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; 24 August 2015 [PU(B) 335/2015] - Parts V and VI -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1499 Capital Markets And Services (Amendment) Act 2015 15 September 2015 [PU(B) 369/2015] ACT 671
ACT A1498 Consumer Protection (Amendment) Act 2015 Not Yet In Force ACT 599
ACT A1497 Civil Aviation (Amendment) Act 2015 Not Yet In Force ACT 3
ACT A1496 Retirement Fund (Amendment) Act 2015 Not Yet In Force ACT 662
ACT A1495 Police (Amendment) Act 2015 Not Yet In Force ACT 344

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 219/2015 Highway Authority Malaysia (Incorporation) (Collection of Toll) (East Cost Expressway-Phase 2) (Amendment) Order 2015 30 September 2015 1 October 2015 PU(A) 136/2015
PU(A) 218/2015 Customs (Provisional Anti-Dumping Duties) Order 2015 23 September 2015 26 September 2015 to 23 January 2016 ACT 504; ACT 235
PU(A) 217/2015 Malaysia Co-Operative Societies Commission (Vesting Date) Order 2015 22 September 2015 1 January 2008 ACT 665
PU(A) 216/2015 Federal Roads (West Malaysia) (Amendment) (No. 5) Order 2015 22 September 2015 30 September 2015 PU(A) 401/1989
PU(A) 215/2015 Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 2) Order 2015 18 September 2015 19 September 2015 ACT 333

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 388/2015 Designation Under Paragraph 5(1)(b) 30 September 2015 1 June 2015 ACT 349
PU(B) 387/2015 Appointment of Members of The National Wages Consultative Council 30 September 2015 1 October 2015 to 30 September 2017 ACT 732
PU(B) 386/2015 Notice Regarding The Supplementary Electoral Roll For The Second Quarter of The Year 2015 That Has Been Certified 29 September 2015 29 September 2015 PU(A) 293/2002
PU(B) 385/2015 Exemption From Subsection 3(2) 29 September 2015 3 September 2015 to 30 September 2015 ACT 206
PU(B) 384/2015 Exemption From Paragraphs 5(1)(a), (b), (c), (d) and (e) 29 September 2015 3 September 2015 to 30 September 2015 ACT 206

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 136/2015 Highway Authority Malaysia (Incorporation) (Collection of Tolls) (East Coast Express Way-Phase 2) Order 2015 PU(A) 219/2015 1 October 2015 Paragraph 1; First Schedule
ACT 671 Capital Markets and Services Act 2007 PU(A) 212/2015 15 September 2015 Schedule 3
ACT 671 Capital Markets and Services Act 2007 ACT A1499 15 September 2015 [PU(B) 369/2015] Sections 2, 5, 7, 27, 30, Subdivision 5A of Division 2 of Part II, Subdivision 7 of Division 2 of Part II, 59A, 89, 92A, 94, 95, 139ZS, 160, 201, 216, 217, 218, 218A, 218B, 218C, 218D, 219, 220, 221, 222, 223, 248, 256, 256ZO, 256ZP, 273, 280A, 298, 319, 325, 354, 355, 356, 369, 371 and 379
ACT 498 Securities Commission Malaysia Act 1993 ACT A1489 15 September 2015 [PU(B) 368/2015] Sections 2, 2A, 2G, 4, 4A, 4B, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 17, 18, 18A, 20, 21, 22, 22A, 23, 24, 26, 29, 30, 31A, 31B, 31C, 31D, 31E, 31EA, 31L, 31N, 31O, 31P, 31Q, 31R, 31S, 31V, 31W, 31Y, 31Z, 31ZD, Part IIIB and IIIC, 126, 135, 148, 148A, 148B, 150, 150A, 151, 151A, 152A, 160, 160A and Schedule 1
ACT 537 Prison Act 1995 ACT A1486 1 September 2015 [PU(B) 346/2015] Section 7

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 479/2012 Capital Markets and Services (Prescription of Capital Market Product) (Islamic Capital Market Product) Order 2012 [Revoked By Act A1499] ACT A1499 15 September 2015 [PU(B) 369/2015]
PU(A) 478/2012 Capital Markets and Services (Prescription of Islamic Securities) Order 2012 [Revoked By Act A1499] ACT A1499 15 September 2015 [PU(B) 369/2015]
PU(B) 487/2014 Appointment and Revocation of Appointment of Registrar of Fishermen's Associations PU(B) 322/2015 Appointment - 18 May 2015; Revocation of Appointment - 4 April 2015
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