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CLJ Bulletin, Issue 2015, Vol 49
04 December 2015


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New This Week

1. Case(s) of the Week

  1. DATO' HAMZAH ABDUL MAJID v. OMEGA SECURITIES SDN BHD [2015] 9 CLJ 677

  2. AZMI OSMAN v. PP & ANOTHER APPEAL [2015] 9 CLJ 845

  3. MAMAT ADAM lwn. MOHD ABDULLAH MOHAMED [2015] 2 SMC 56

2. Latest Cases

  1. Legal Network Series

  2. CLJ 2015 Volume 9 (Part 6)

  3. CLJ 2015 Volume 9 (Part 7)

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

DATO' HAMZAH ABDUL MAJID v. OMEGA SECURITIES SDN BHD [2015] 9 CLJ 677
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP FCJ, JEFFREY TAN FCJ, ABU SAMAH NORDIN FCJ, ZAHARAH IBRAHIM FCJ
[CIVIL NO APPEAL: 02-68-09-2014]
4 NOVEMBER 2015

SECURITIES: Shares - Trading account - Margin trading facility - Claim for contra losses on transactions - Unpleaded defence - Defence that facility was a loan transaction raised during cross-examination - Whether a radical departure from pleaded case - Whether mere variation, modification or development - Whether trial judge rightly rejected defence of loan - Whether principle in Superintendent of Lands and Surveys (4th Div) & Anor v. Hamit bin Matusin & Ors applicable

CIVIL PROCEDURE: Appeal - Appeal to Federal Court - Questions of law - Claim for contra losses on share transactions - Unpleaded defence that facility was a loan transaction raised during cross-examination - Whether elements of loan existed - Whether defence of loan a radical departure from pleaded case - Whether court could reject evidence thereof on account that it was not pleaded - Whether principle in Superintendent of Lands and Surveys (4th Div) & Anor v. Hamit bin Matusin & Ors applicable


AZMI OSMAN v. PP & ANOTHER APPEAL [2015] 9 CLJ 845
COURT OF APPEAL, PUTRAJAYA
BALIA YUSOF WAHI JCA, ROHANA YUSUF JCA, ABANG ISKANDAR JCA
[CRIMINAL APPEALS NO: J-09-27-01-2014 & J-09-28-01-2014]
29 SEPTEMBER 2015

JURISDICTION: High Court - Coordinate jurisdiction - Whether one High Court Judge could overrule another High Court Judge - Whether High Court was carrying out appellate jurisdiction - Jurisdiction to correct error - Whether lies with Court of Appeal

CRIMINAL LAW: Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Section 4 - Offence of knowingly engaging in proceeds of unlawful activity - Monies in large amounts credited into account of accused - Whether accused took steps to ascertain whether monies were proceeds of unlawful activity - Whether accused ought to have reason to believe that monies were illegal proceeds - Anti-Money Laundering and Anti-Terrorism Financing Act 2001, ss. 3 & 4(1)(a)

CRIMINAL LAW: Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Section 55 - Forfeiture of property seized in connection with offence - Third party notice under s. 61 - Appeal against issuance of third party notice - Whether third party notice determined with finality - Fate of property seized - Whether appeal premature

CRIMINAL PROCEDURE: Trial - Close of prosecution's case - Whether judge expected to make firm finding of prima facie case or otherwise - Whether open for judge to delve into doubt by offering alternative views - Whether contravened s. 316 of Criminal Procedure Code

CRIMINAL PROCEDURE: Sentencing - Multiple charges - Whether facts relating to charges justified invocation of 'same transaction' principle - Whether proximity of time existed - Whether interest of public given paramount consideration


MAMAT ADAM lwn. MOHD ABDULLAH MOHAMED [2015] 2 SMC 56
MAHKAMAH MAJISTRET, TANAH MERAH
LUKMAN HAKIM ABU BAKAR SEDIK MJ
[KES SIVIL NO: 73-05-2010]
20 NOVEMBER 2014

PROSEDUR SIVIL: Penghakiman - Penghakiman ingkar - Pengenepian - Permohonan untuk - Sama ada penghakiman yang diperolehi teratur - Sama ada defendan mempunyai pembelaan bermerit - Sama ada jumlah penghakiman dipertikaikan - Sama ada defendan menerima penghakiman bermeterai - Sama ada terdapat kelewatan memfailkan permohonan ini - Kaedah-Kaedah Mahkamah 2012, A. 42 k. 13

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LATEST CASES

Legal Network Series

[2014] 1 LNS 1519

MAT NAPI SAAID & YANG LAIN lwn. LEMBAGA KEMAJUAN TANAH PERSEKUTUAN (FELDA) & SATU LAGI

PROSEDUR SIVIL: Pindaan - Pliding - Penyataan tuntutan - Permohonan untuk membetulkan kesilapan yang tidak disengaja dalam pliding - Kemasukan rujukan perundangan berkaitan batasan had masa tuntutan plaintif - Kelewatan dalam membuat permohonan pindaan - Sama ada pindaan yang dicadangkan berupaya mengubah sifat tindakan - Sama ada pindaan yang dicadangkan akan memprejudiskan dan mendatangkan ketidakadilan kepada defendan

PROSEDUR SIVIL: Afidavit - Deponen - Afidavit diikrarkan oleh peguam sendiri bagi pihak litigan - Penyataan fakta yang tidak dipertikaikan - Sama ada sesuatu penyataan fakta yang tidak dipertikaikan boleh dideposkan dalam afidavit oleh seorang peguam

[2014] 1 LNS 1521

BANK PERTANIAN MALAYSIA BERHAD lwn. CAHAYA PIRAMID (M) SDN BHD & YANG LAIN

PROSEDUR SIVIL: Penghakiman terus - Pinjaman - Tindakan untuk pembayaran balik hutang - Isu-isu untuk dibicarakan - Penstrukturan semula kemudahan pinjaman - Kewujudan penyelesaian - Pemanggilan peguam sebagai saksi - Sama ada pembelaan yang dibangkit oleh defendan terjumlah kepada isu-isu untuk dibicarakan

PROSEDUR SIVIL: Penghakiman terus - Pinjaman - Tindakan untuk pembayaran balik hutang - Kes yang jelas dan nyata - Penyandaran kepada sijil keterhutangan - Kegagalan untuk menjawab notis tuntutan - Sama ada sijil keterhutangan oleh bank boleh menyokong permohonan penghakiman terus - Sama ada kegagalan untuk menjawab notis tuntutan boleh menyokong permohonan penghakiman terus

PROSEDUR SIVIL: Penggantungan pelaksanaan penghakiman - Keadaan khas - Keupayaan kewangan responden untuk membayar kembali jumlah penghakiman jika rayuan perayu berjaya - Penghakiman bersifat kewangan - Sama ada penggantungan pelaksanaan penghakiman boleh dibenarkan jika responden berupaya secara kewangan untuk membayar kembali jumlah penghakiman kepada perayu jika rayuan berjaya

KETERANGAN: Perlindungan - Komunikasi - Pendedahkan komunikasi yang terlindung - Komunikasi antara anak guam dan peguam - Sama ada komunikasi antara anak guam dan peguam terlindung di sisi undang-undang - Sama ada komunikasi yang terlindung boleh dikemukakan sebagai keterangan

KETERANGAN: Klausa keterangan muktamad - Sijil keterhutangan - Sama ada sijil keterhutangan oleh bank adalah muktamad berkenaan dengan tanggungan peminjam - Sama ada sijil keterhutangan mengikat penjamin

PERBANKAN: Jaminan - Sekuriti yang berterusan - Tangunggan penjamin - Penjamin sebagai penghutang utama - Sama ada penjamin bertanggungan terhadap pemberi pinjaman sebagai penghutang utama

[2015] 1 LNS 122

TAN CHIN PENG & ANOR v. SADAQAT ALI & ORS

CIVIL PROCEDURE: Appeal - Road accident - Approach taken by trial judge in determining liability of parties - Existence of conflicting evidence - Trial judge combined more than one version in determining liability of parties - Whether trial judge had properly evaluated evidence adduced by parties - Whether combined version found by learned trial judge materially departed from pleaded cases

DAMAGES: Assessment - Loss of earnings - Road accident - Amputation of a leg - Claimant was not working with company designated in his work permit - Whether claimant was culpable for work permit predicament - Whether claimant was entitled for loss of earnings despite work permit predicament

[2015] 1 LNS 124

NANKING SEAWORLD SDN BHD v. TESCO STORES (M) SDN BHD

SALE OF GOODS: Goods sold and delivered - Action for - Claim for payment for goods sold and delivered - Recovery of wrongly deducted payment made by buyer - Whether seller's claim adequately explained - Whether seller had taken into account any rejection by buyer before issuing invoice - Whether buyer was justified in making deduction - Whether computation of deduction made by buyer was clearly explained - Whether seller entitled to recover payment for wrongly deducted claim by buyer

[2015] 1 LNS 126

ZUL ALI v. PLUS MALAYSIA

CIVIL PROCEDURE: Appeal - Leave - Application for leave for extension of time to file notice of appeal - Appeal against decision of director general of labour - Grounds for application - Unintentional mistake of counsel in presuming time limit to file notice of appeal was 30 days - Whether mistake of counsel on point of law itself could constitute sufficient ground for an extension of time to file notice of appeal - Whether prejudice caused to respondent - Whether there were cogent reasons given for court to exercise its discretion to extend time


CLJ 2015 Volume 9 (Part 6)

COURT

FEDERAL COURT

Dato' Hamzah Abdul Majid v. Omega Securities Sdn Bhd
(Securities; Civil Procedure - Shares - Trading account - Margin trading facility) [2015] 9 CLJ 677 [FC]

COURT OF APPEAL

Choong Howei v. Cheah Choo Eng & Ors And Another Appeal
(Civil Procedure; Company Law - Meetings - Extraordinary general meeting (EGM) - Appointment of new board of directors) [2015] 9 CLJ 689 [CA]

Ho Hup Construction Company Bhd v. Woo Thin Choy
(Civil Procedure; Evidence - Appeal - Facts, finding of - Interference by appellate court) [2015] 9 CLJ 706 [CA]

Ling Haw Cheun v. PP
(Criminal Law; Criminal Procedure - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking) [2015] 9 CLJ 731 [CA]

Parti Islam Se-Malaysia & Ors v. Tan Sri Dato' Seri Abdul Aziz Mohd Yusof & Ors
(Election; Civil Procedure - Conduct of election - Breach of constitutional duty to properly conduct elections - Allegation of conspiracy and fraud) [2015] 9 CLJ 749 [CA]

Sen Media Sdn Bhd v. Perunding Pakar Media Sdn Bhd & Ors
(Civil Procedure - Third party proceedings - Indemnity) [2015] 9 CLJ 772 [CA]

HIGH COURT

Ahmani Sdn Bhd v. Petronas Penapisan (Melaka) Sdn Bhd & Other Cases
(Arbitration - Award - Setting aside - Application for) [2015] 9 CLJ 782 [HC]

Guo Feng Ting v. Ta Yang Agricode Sdn Bhd
(Contract; Damages; Tort - Employment contract - Breach - Accident at work place) [2015] 9 CLJ 800 [HC]

SUBJECT INDEX

ARBITRATION

Award - Setting aside - Application for - Questions of law - Whether setting aside part of award could only be made under s. 37(1)(a)(v) of Arbitration Act 2005 - Award based on unpleaded and unclaimed matter - Whether tribunal could make its findings based on issue which was never presented or argued before it - Whether tribunal could award sum which was not claimed - Whether tribunal acted beyond its jurisdiction - Whether there was a breach of rules of natural justice - Whether intervention warranted
Ahmani Sdn Bhd v. Petronas Penapisan (Melaka) Sdn Bhd & Other Cases
(Mary Lim J) [2015] 9 CLJ 782 [HC]

CIVIL PROCEDURE

Appeal - Appeal to Federal Court - Questions of law - Claim for contra losses on share transactions - Unpleaded defence that facility was a loan transaction raised during cross-examination - Whether elements of loan existed - Whether defence of loan a radical departure from pleaded case - Whether court could reject evidence thereof on account that it was not pleaded - Whether principle in Superintendent of Lands and Surveys (4th Div) & Anor v. Hamit bin Matusin & Ors applicable
Dato' Hamzah Abdul Majid v. Omega Securities Sdn Bhd
(Ahmad Maarop, Jeffrey Tan, Abu Samah Nordin, Zaharah Ibrahim FCJJ) [2015] 9 CLJ 677 [FC]

Appeal - Facts, finding of - Interference by appellate court - Whether serious misdirection by trial judge in evaluating evidence - Whether trial judge had misread extent of authority given by plaintiff to defendant and its Deputy Executive Chairman - Whether trial judge had omitted to give sufficient weight to documentary evidence adduced by plaintiff - Trial judge's reliance on statement in the plaintiff's Annual Accounts for 2009 as binding or conclusive against plaintiff's further or continuing interest in missing monies - Whether wholly misplaced - Whether trial judge failed to appreciate and apply correct rules of evidence on burden and onus of proof - Whether appellate intervention necessary
Ho Hup Construction Company Bhd v. Woo Thin Choy
(Azahar Mohamed, Lim Yee Lan, Varghese George JJCA) [2015] 9 CLJ 706 [CA]

Judgments and orders - Setting aside - Allegation of failure to make full and frank disclosure of material facts in obtaining order - Whether order irregular or a nullity - Whether application to set aside order could be made through separate court action - Whether application to set aside order barred by laches
Choong Howei v. Cheah Choo Eng & Ors And Another Appeal
(Mohd Hishamudin Yunus JCA, Azahar Mohamed FCJ, Zakaria Sam JCA) [2015] 9 CLJ 689 [CA]

Jurisdiction - High Court - Election offences - Whether High Court had jurisdiction to question election by way of writ action - Whether High Court excluded from exercising jurisdiction over election matters - Whether jurisdiction vested solely with Election Court - Removal of members of Elections Commission - Whether jurisdiction vested with Yang Di Pertuan Agong acting on recommendation of Tribunal - Federal Constitution, arts. 114(3), 118 - Election Offences Act 1954, ss. 32, 33
Parti Islam Se-Malaysia & Ors v. Tan Sri Dato' Seri Abdul Aziz Mohd Yusof & Ors
(Alizatul Khair Osman, Rohana Yusuf, Prasad Sandosham Abraham JJCA) [2015] 9 CLJ 749 [CA]

Striking out - Appeal against - Appeal against High Court's decision in striking out plaintiffs' action against defendants for breach of constitutional duty to properly conduct elections - Jurisdiction - Whether High Court had jurisdiction to hear plaintiffs' suit - Whether action ought to be struck out for being vexatious, frivolous and abuse of court process - Rules of Court 2012, O. 18 r. 19(1)(b) or (d)
Parti Islam Se-Malaysia & Ors v. Tan Sri Dato' Seri Abdul Aziz Mohd Yusof & Ors
(Alizatul Khair Osman, Rohana Yusuf, Prasad Sandosham Abraham JJCA) [2015] 9 CLJ 749 [CA]

Third party proceedings - Indemnity - Appellant failed to pay first respondent due to non-payment of third party (statutory body) to appellant - Whether appellant entered into contract with statutory body for supply of services - Whether appellant should be indemnified by statutory body - Whether services rendered by first respondent benefited statutory body - Whether previous payments paid by statutory body to appellant in breach of treasury instructions - Whether there was a valid contract - Whether High Court Judge erred in dismissing appellant's claim against statutory body - Whether appellate intervention warranted
Sen Media Sdn Bhd v. Perunding Pakar Media Sdn Bhd & Ors
(Zaharah Ibrahim, Azahar Mohamed, Abdul Aziz Rahim JJCA) [2015] 9 CLJ 772 [CA]

COMPANY LAW

Meetings - Extraordinary general meeting (EGM) - Appointment of new board of directors - Company secretary refused to certify extract of EGM - Registration of new board of directors in Companies Commission of Malaysia rejected - Whether previous board of directors remained as directors of company
Choong Howei v. Cheah Choo Eng & Ors And Another Appeal
(Mohd Hishamudin Yunus JCA, Azahar Mohamed FCJ, Zakaria Sam JCA) [2015] 9 CLJ 689 [CA]

CONTRACT

Employment contract - Breach - Accident at work place - Employer's liability and duty of care - Employee met with accident at factory and suffered serious physical injuries - Claim for special and general damages - Employment contract contained clause discharging employer from liability and precluding employee from suing for damages - Whether clause in contravention of s. 24 of Contracts Act 1950 - Whether defeated law granting employee right to sue employer - Whether against public policy
Guo Feng Ting v. Ta Yang Agricode Sdn Bhd
(Teo Say Eng J) [2015] 9 CLJ 800 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Appeal against conviction and sentence - Whether actual possession proved - Defence of no knowledge - Whether there was failure to rebut presumption of knowledge - Failure to call material witness - Adverse inference - Whether ought to be invoked - Whether trial judge thoroughly considered defence explanation - Whether appeal dismissed - Dangerous Drugs Act 1952, s. 37(da)
Ling Haw Cheun v. PP
(Mohd Zawawi Salleh, Idrus Harun, Abdul Rahman Sebli JJCA) [2015] 9 CLJ 731 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Dangerous drugs - Trafficking - Whether actual possession proved - Defence of no knowledge - Whether there was failure to rebut presumption of knowledge - Failure to call material witness - Adverse inference - Whether ought to be invoked - Whether trial judge thoroughly considered defence explanation - Whether appeal dismissed - Dangerous Drugs Act 1952, s. 37(da)
Ling Haw Cheun v. PP
(Mohd Zawawi Salleh, Idrus Harun, Abdul Rahman Sebli JJCA) [2015] 9 CLJ 731 [CA]

DAMAGES

Quantum - Assessment - Accident at work with - Employee met accident at factory and suffered serious physical injuries - Claim for special and general damages
Guo Feng Ting v. Ta Yang Agricode Sdn Bhd
(Teo Say Eng J) [2015] 9 CLJ 800 [HC]

ELECTION

Conduct of election - Breach of constitutional duty to properly conduct elections - Allegation of conspiracy and fraud - Application for declaration that elections were null and void - Jurisdiction - Whether High Court had jurisdiction to question election by way of writ action - Whether High Court excluded from exercising jurisdiction over election matters - Federal Constitution, art. 118 - Whether jurisdiction vested solely with Election Court - Election Offences Act 1954, ss. 32, 33(1)
Parti Islam Se-Malaysia & Ors v. Tan Sri Dato' Seri Abdul Aziz Mohd Yusof & Ors
(Alizatul Khair Osman, Rohana Yusuf, Prasad Sandosham Abraham JJCA) [2015] 9 CLJ 749 [CA]

Conduct of election - Breach of constitutional duty to properly conduct elections - Allegation of conspiracy and fraud - Jurisdiction to remove members of Elections Commission - Whether High Court has jurisdiction to remove members of Elections Commission - Whether jurisdiction vested with Yang Di Pertuan Agong acting on recommendation of Tribunal - Federal Constitution, art. 114(3) - Election Offences Act 1954, ss. 32, 33(1)
Parti Islam Se-Malaysia & Ors v. Tan Sri Dato' Seri Abdul Aziz Mohd Yusof & Ors
(Alizatul Khair Osman, Rohana Yusuf, Prasad Sandosham Abraham JJCA) [2015] 9 CLJ 749 [CA]

EVIDENCE

Witness - Failure to call - Whether trial judge rightly invoked presumption of adverse inference against plaintiff - Whether evidence of witness material to defendant's case
Ho Hup Construction Company Bhd v. Woo Thin Choy
(Azahar Mohamed, Lim Yee Lan, Varghese George JJCA) [2015] 9 CLJ 706 [CA]

SECURITIES

Shares - Trading account - Margin trading facility - Claim for contra losses on transactions - Unpleaded defence - Defence that facility was a loan transaction raised during cross-examination - Whether a radical departure from pleaded case - Whether mere variation, modification or development - Whether trial judge rightly rejected defence of loan - Whether principle in Superintendent of Lands and Surveys (4th Div) & Anor v. Hamit bin Matusin & Ors applicable
Dato' Hamzah Abdul Majid v. Omega Securities Sdn Bhd
(Ahmad Maarop, Jeffrey Tan, Abu Samah Nordin, Zaharah Ibrahim FCJJ) [2015] 9 CLJ 677 [FC]

TORT

Breach of statutory duty - Accident at factory - Employee met with accident at factory and suffered serious physical injuries - Claim for special and general damages - Allegation that accident caused by employer's breach of statutory duties - Factories and Machinery Act 1967, s. 2 - Whether premises a factory under statutory provision when accident took place - Whether premises satisfied statutory requirements
Guo Feng Ting v. Ta Yang Agricode Sdn Bhd
(Teo Say Eng J) [2015] 9 CLJ 800 [HC]

Negligence - Accident at work place - Employer's liability and duty of care - Employee met with accident at factory and suffered serious physical injuries - Claim for special and general damages - Whether employer took reasonable care for safety of employees - Whether employer solely or vicariously liable - Whether employee lawfully at place of accident - Whether in line with terms and conditions of employment agreement - Apportionment of liability
Guo Feng Ting v. Ta Yang Agricode Sdn Bhd
(Teo Say Eng J) [2015] 9 CLJ 800 [HC]


CLJ 2015 Volume 9 (Part 7)

COURT

COURT OF APPEAL

Ahmad Nadzrin Abd Halim & Anor v. Allianz General Insurance Company (M) Bhd
(Insurance - Motor insurance - Damages - Change in ownership of insured vehicle - Declaration that insurance void and unenforceable) [2015] 9 CLJ 821 [CA]

Azmi Osman v. PP & Another Appeal
(Jurisdiction; Criminal Law; Criminal Procedure - Whether one High Court Judge could overrule another High Court Judge - Offence of knowingly engaging in proceeds of unlawful activity - Forfeiture of property seized) [2015] 9 CLJ 845 [CA]

PP v. Yuneswaran Ramaraj
(Constitutional Law; Criminal Law - Illegal assembly - Requirement to give ten days notice prior to assembly - Whether reasonable - Criminal sanction - Whether ultra vires the Federal Constitution - Peaceful Assembly Act 2012, s. 9(1) & 9(5)) [2015] 9 CLJ 873 [CA]

Sampo Materials (M) Sdn Bhd v. Tenaga Nasional Bhd
(Utilities; Limitation; Evidence - Electricity - Claim for undercharged bill due to defect in meter system - Accrual of cause of action - Documentary evidence - Admissibility of) [2015] 9 CLJ 902 [CA]

Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor
(Contract; Company Law - Sale and purchase agreement - Purchase price paid to wound up company - Whether an attempt to fraudulently exclude properties from being considered as part of assets) [2015] 9 CLJ 919 [CA]

HIGH COURT

Chu Boon Yeh & Anor v. Kerajaan Malaysia
(Customs And Excise - Taxable goods - Whether sale of goods should not be taxed) [2015] 9 CLJ 936 [HC]

SUBJECT INDEX

COMPANY LAW

Winding up - Proof of debts - Appointment of liquidator upon winding up of company - Discovery of sale and purchase agreements - Allegation that company had paid purchase price to wound up company under sale and purchase agreements - Whether allegations substantiated - Whether sales and purchase agreements valid - Whether s. 293 of Companies Act 1965 must be read with ss. 52 or 53 of Bankruptcy Act 1967
Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor
(Zaharah Ibrahim, Mohamad Ariff Yusof, Varghese George JJCA) [2015] 9 CLJ 919 [CA]

CONSTITUTIONAL LAW

Jurisdiction - High Court - Accused charged with offence under s. 9(1) Peaceful Assembly Act 2012 ('PAA') - Requirement to give ten days notice prior to assembly - Criminal sanction imposed under s. 9(5) of PAA - Whether s. 9(5) of PAA ultra vires art. 10(2)(b) of Federal Constitution - Whether court bound by decision in Nik Nazmi Ahmad v. PP
PP v. Yuneswaran Ramaraj

(Raus Sharif Pca, Mohd Zawawi Salleh, Zamani A Rahim JJCA) [2015] 9 CLJ 873 [CA]

CONTRACT

Agreement - Sale and purchase agreement - Allegation that company had paid purchase price to wound up company under sale and purchase agreements - Whether allegation backed by evidence - Whether sale and purchase agreements valid - Whether sale and purchase agreements a sham and an attempt to fraudulently exclude properties from being considered as part of assets - Whether burden to nullify sale and purchase agreements discharged
Silver Corridor Sdn Bhd v. Gallant Acres Sdn Bhd & Anor
(Zaharah Ibrahim, Mohamad Ariff Yusof, Varghese George JJCA) [2015] 9 CLJ 919 [CA]

CRIMINAL LAW

Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Section 4 - Offence of knowingly engaging in proceeds of unlawful activity - Monies in large amounts credited into account of accused - Whether accused took steps to ascertain whether monies were proceeds of unlawful activity - Whether accused ought to have reason to believe that monies were illegal proceeds - Anti-Money Laundering and Anti-Terrorism Financing Act 2001, ss. 3 & 4(1)(a)
Azmi Osman v. PP & Another Appeal
(Balia Yusof Wahi, Rohana Yusuf, Abang Iskandar JJCA) [2015] 9 CLJ 845 [CA]

Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Section 55 - Forfeiture of property seized in connection with offence - Third party notice under s. 61 - Appeal against issuance of third party notice - Whether third party notice determined with finality - Fate of property seized - Whether appeal premature
Azmi Osman v. PP & Another Appeal
(Balia Yusof Wahi, Rohana Yusuf, Abang Iskandar JJCA) [2015] 9 CLJ 845 [CA]

Offences - Illegal assembly - Notification of assembly - Requirement of giving ten days notice to police - Organiser failed to give police ten days notice - Whether respondent an organiser of assembly - Whether requirement to give notice reasonable - Whether requirement under s. 9(1) of Peaceful Assembly Act 2012 ('PAA') to give notice prior to assembly was a 'restriction' within art. 10(2)(b) of Federal Constitution - Whether non-compliance to give notice warranted criminal sanction under s. 9(5) of PAA - Whether s. 9(5) of PAA ultra vires art. 10(2)(b)
PP v. Yuneswaran Ramaraj
(Raus Sharif Pca, Mohd Zawawi Salleh, Zamani A Rahim JJCA) [2015] 9 CLJ 873 [CA]

CRIMINAL PROCEDURE

Sentencing - Multiple charges - Whether facts relating to charges justified invocation of 'same transaction' principle - Whether proximity of time existed - Whether interest of public given paramount consideration
Azmi Osman v. PP & Another Appeal
(Balia Yusof Wahi, Rohana Yusuf, Abang Iskandar JJCA) [2015] 9 CLJ 845 [CA]

Trial - Close of prosecution's case - Whether judge expected to make firm finding of prima facie case or otherwise - Whether open for judge to delve into doubt by offering alternative views - Whether contravened s. 316 of Criminal Procedure Code
Azmi Osman v. PP & Another Appeal
(Balia Yusof Wahi, Rohana Yusuf, Abang Iskandar JJCA) [2015] 9 CLJ 845 [CA]

CUSTOMS AND EXCISE

Export - Taxable goods - Failure to deliver return form within taxable period - Discovery of shortfall of sales tax revenue - Allegation that sale of relevant goods to another business entity said to be part of arrangement for goods to be on-sold to third party exporter - Whether sales for local market - Whether links between appellants and third party existed - Whether allegations proved - Whether sale of goods in question should not be taxed - Sales Tax Act 1972, ss. 6, 19(1)
Chu Boon Yeh & Anor v. Kerajaan Malaysia
(Mohd Nazlan Mohd Ghazali JC) [2015] 9 CLJ 936 [HC]

EVIDENCE

Documentary evidence - Admissibility of - Claim for undercharged electricity bill due to defect in meter system - Whether basis of calculations proven - Whether content of documents relied on to arrive at outstanding sum properly proven - Whether makers of documents called - Whether documents admissible - Evidence Act 1950, s. 73A
Sampo Materials (M) Sdn Bhd v. Tenaga Nasional Bhd
(Mohd Hishamudin Yunus, Alizatul Khair Osman, Mah Weng Kwai JJCA) [2015] 9 CLJ 902 [CA]

INSURANCE

Motor insurance - Liability - Personal injury damages suit brought by third party - Insurer sought for declaration that insurance policy issued was void and unenforceable - Application filed upon discovery of change in ownership of insured vehicle without due notice given to insurer - Whether application should have been filed before date of accident - 'if before the date the liability was incurred' under s. 96(3) of Road Transport Act 1987 - Interpretation of - Whether an insurer can commence action to repudiate policy issued in respect of insured vehicle before any judgment is obtained in proceedings commenced by third party
Ahmad Nadzrin Abd Halim & Anor v. Allianz General Insurance Company (M) Bhd
(Lim Yee Lan, Hamid Sultan Abu Backer, Prasad Sandosham Abraham JJCA) [2015] 9 CLJ 821 [CA]

JURISDICTION

High Court - Coordinate jurisdiction - Whether one High Court Judge could overrule another High Court Judge - Whether High Court was carrying out appellate jurisdiction - Jurisdiction to correct error - Whether lies with Court of Appeal
Azmi Osman v. PP & Another Appeal
(Balia Yusof Wahi, Rohana Yusuf, Abang Iskandar JJCA) [2015] 9 CLJ 845 [CA]

LIMITATION

Accrual of cause of action - Computation of limitation period - Claim for undercharged electricity bill due to defect in meter system - Claim founded on agreement - Time when shortfall first recovered - Whether when shortfall incurred - Whether claim barred by limitation - Limitation Act 1953, s. 6(1)(a)
Sampo Materials (M) Sdn Bhd v. Tenaga Nasional Bhd
(Mohd Hishamudin Yunus, Alizatul Khair Osman, Mah Weng Kwai JJCA) [2015] 9 CLJ 902 [CA]

UTILITIES

Electricity - Consumption and usage - Claim for undercharged bill due to defect in meter system - Whether claim time-barred - Whether claim proven - Whether basis of calculations proven - Whether plaintiff discharged burden of proving claim
Sampo Materials (M) Sdn Bhd v. Tenaga Nasional Bhd
(Mohd Hishamudin Yunus, Alizatul Khair Osman, Mah Weng Kwai JJCA) [2015] 9 CLJ 902 [CA]


ARTICLES

LNS Article(s)

  1. KEYNOTE LECTURE: MODERNISING JUSTICE THROUGH TECHNOLOGY* [Read excerpt]
    by: SIR BRIAN LEVESON [2015] 1 LNS(A) xcviii

  2. [2015] 1 LNS(A) xcviii
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    UNITED KINGDOM

    KEYNOTE LECTURE:
    MODERNISING JUSTICE THROUGH TECHNOLOGY*

    by
    SIR BRIAN LEVESON

    1. Can I start by expressing my thanks for being asked to take part in this conference? As the justice system is adapting to new ways of working, it is critical that we approach the benefits that new technology can provide not simply to build the use of IT into our present systems but rather to develop a new system which uses what technology can offer as the starting point for a fresh approach. In order to run the criminal justice system for less, this is not merely desirable but essential.

    2. I was called to the bar some 45 years ago. Life was then very different. Although copies of documents could then be printed on special paper, the photocopier as we now recognise it was still a novel idea. Letters, proofs and statements were typed on typewriters with carbon copies or, if required in multiple copies, on roneo blanks or other special paper which could be copied onto multiple sheets. Briefs to counsel and the papers held by solicitors were consequently smaller and the documents before judges were usually slender files - a few witness statements, an interview with the accused, summarised by the police officer, and the odd letter or report. Somehow we survived; indeed, it now feels like a lost paradise. The photocopier has changed all that.

    . . .

    * Sir Brian Leveson, The President Of The Queen's Bench Division (24 June 2015). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary.gov.uk/announcements/speech-by-president-of-the-queens-bench-division-modernising-justice-through-technology/).


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  3. IS LEAVE REQUIRED TO COMMENCE BANKRUPTY PROCEEDINGS ON A JUDGMENT THAT IS MORE THAN SIX YEARS OLD? [Read excerpt]
    by: DAVID TAN* [2015] 1 LNS(A) xcix

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

    IS LEAVE REQUIRED TO COMMENCE BANKRUPTY PROCEEDINGS
    ON A JUDGMENT THAT IS MORE THAN SIX YEARS OLD?

    by
    DAVID TAN*

    A commentary on Dr Shamsul Ban Abdul Kadir v. RHB Bank Berhad

    The Federal Court in its recent decision of Dr Shamsul Bahar Bin Abdul Kadir v. RHB Bank Berhad [2015] 4 CLJ 561 held that a judgment creditor (“JC”) who commences bankruptcy proceedings against a judgment debtor (“JD”) in respect of a debt under a judgment where six years or more have lapsed since the date of the judgment must obtain prior leave of the court pursuant to Order 46 Rule 2 of the Rules of the High Court 1980 (now Rules of Court 2012).

    At first blush, the Federal Court’s decision in Shamsul Bahar seems a peculiar decision since a fairly recent Federal Court decision of Ambank (M) Bhd v. Tan Tem Son [2013] 3 MLJ 179 had held that a bankruptcy proceeding was not a writ of execution within the meaning of Order 46 Rule 2. This article will examine the reasoning of the Federal Court in Shamsul Bahar.

    . . .

    * David is an Associate in the Dispute Resolution Division of SKRINE. He graduated from the University of Nottingham (UK) in 2010 and holds a Master of Laws from King’s College London. e-mail: david.tan@skrine.com


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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 A1502 Development Financial Institutions (Amendment) Act 2015 Not Yet In Force ACT 618
ACT A1501 Electricity Supply (Amendment) Act 2015 Not Yet In Force ACT 447
ACT A1500 Anti-Trafficking In Persons and Anti-Smuggling of Migrants (Amendment) Act 2015 18 November 2015 [PU(B) 460/2015] ACT 670
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

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 284/2015 Income Tax (Accelerated Capital Allowance) (Information and Communication Technology Equipment) (Amendment) Rules 2015 2 December 2015 Year of assessment 2014 PU(A) 217/2014
PU(A) 283/2015 Passport (Visa To Tourist From The People's Republic of China) (Exemption) (Amendment) Order 2015 1 December 2015 1 December 2015 until 31 March 2016 PU(A) 221/2015
PU(A) 282/2015 Environmental Quality (Control of Petrol and Diesel Properties) (Amendment) Regulations 2015 1 December 2015 2 December 2015 PU(A) 145/2007
PU(A) 281/2015 Pesticides (Exemption) (Revocation) Order 2015 1 December 2015 1 June 2016 ACT 149
PU(A) 280/2015 Passports (Visa To The Holder of The Passport For Public Affairs of The People's Republic of China) (Exemption) Order 2015 1 December 2015 1 December 2015 until 30 November 2016 ACT 150

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 477/2015 Evidence Act 1950 - Corrigendum 2 December 2015 2 December 2015 ACT 56
PU(B) 476/2015 Notice To Third Parties 2 December 2015 7 December 2015 ACT 613
PU(B) 475/2015 Notice of Extension of Time Period For Making Preliminary Determination 2 December 2015 10 December 2015 until 8 January 2016 PU(A) 386/2007
PU(B) 474/2015 Notice of Proposed Revocation of Reservation of Land For Public Purpose For Lot 11664 Mukim Ampang 2 December 2015 16 December 2015 ACT 56/1965
PU(B) 473/2015 Notice of Proposed Revocation of Reservation of Land For Public Purpose For Section 31 Town of Kuala Lumpur 2 December 2015 16 December 2015 ACT 56/1965

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 117 Architects Act 1967 (Revised 1973) ACT A1480 1 June 2015 - paragraphs 3(d) and (p) and section 23; 30 November 2015 except paragraphs 3(d) and (p) and section 23 [PU(B) 470/2015] Sections 2, 3, 4, 5, 6, 7, 7A, 7B, 8, 9, 10, 10A, 12, 13, 14, 15A, 16, 17, 18, 21, 22, 23, 24, 25, 26, 26A, 27, 27A, 27B, 27C, 27D, 27E, 27F, 27G, 27H, 27I, 27J, PART VB - 27K, 27L, 27M, 27N, 27O, 27P, 27Q, 27R, 27S, PART VC - 27T, 27U, 27V, 27W, 27X, 27Y, 27Z, 27ZA, 27ZB, 28, 33, 34A,34B and 35B
PU(A) 217/2014 Income Tax (Accelerated Capital Allowance) (Information and Communication Technology Equipment) Rules 2014 PU(A) 284/2015 Year of assessment 2014 Rule 7
PU(A) 221/2015 Passport (Visa to Tourist From the People's Republic of China) (Exemption) Order 2015 PU(A) 283/2015 1 December 2015 until 31 March 2016 Paragraph 2
PU(A) 145/2007 Environmental Quality (Control of Petrol and Diesel Properties) Regulations 2007 PU(A) 282/2015 2 December 2015 Regulation 4; First and Second Schedule
PU(A) 36/2014 Water Services Industry (Water Reticulation and Plumbing) Rules 2014 PU(A) 279/2015 1 December 2015 except subparagraph 2(a)(i); 30 November 2017 - subparagraph 2(a)(i) First Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 390/2001 Malaysian Rubber Board (Establishment of Corporation) (RRIM-Consult Corporation) Order 2001 PU(A) 266/2015 15 November 2015
PU(A) 436/2011 Statutory Bodies (Discipline and Surcharge) (Amendment of Second Schedule) Order 2011 PU(A) 253/2015 1 July 2015
PU(A) 479/2012 Capital Markets and Services (Prescription of Capital Market Product) (Islamic Capital Market Product) Order 2012 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