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CLJ Bulletin, Issue 2016, Vol 26
30 June 2016


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New This Week

1. Case(s) of the Week

  1. TIRTHADEVA SIVAN PREMKUMAR v. PENGERUSI LEMBAGA PENCEGAHAN JENAYAH MALAYSIA & ORS [2016] 5 CLJ 1007

2. Latest Cases

  1. Legal Network Series

  2. CLJ 2016 Volume 5 (Part 6)

3. Articles

  1. LNS Article(s)

4. Legislation Highlights

  1. Principal Acts

  2. Amending Acts

  3. PU(A)

  4. PU(B)

  5. Legislation Alert

Search Guide No. 3
A Single EXACT PHRASE

Finds cases with an exact match with what you type in the Search Term column.

Searching a single exact phrase can be done by either one of the following TWO methods.

Method 1.
In the Search Term column, key in the phrase to be searched.
Then under the Proximity option, click Exact Phrase.
Next, click Search.

Method 2.
In the Search Term column, key in the phrase to be searched.
Add quotation marks "xx" before and after the phrase.
Click Search.

Example 1 : Method 1
Key in absolute assignment select Proximity option, Exact Phrase. Will find all the cases containing exactly the word "absolute assignment".

Example 2 : Method 2
Key in "vacant possession" select Proximity option, Exact Phrase or use default as Anywhere. This search will find all the cases containing exactly the word "vacant possession".



CASE(S) OF THE WEEK

TIRTHADEVA SIVAN PREMKUMAR v.
PENGERUSI LEMBAGA PENCEGAHAN JENAYAH MALAYSIA & ORS
[2016] 5 CLJ 1007
HIGH COURT MALAYA, ALOR SETAR
CHOO KAH SING JC
[CRIMINAL APPLICATION NO: 44-25-11-2015]
15 APRIL 2016

PREVENTIVE DETENTION: Detention order - Validity of - Habeas corpus - Application for - Findings of inquiry officer - Whether a positive finding made pursuant to s. 10(2) of the Prevention of Crime Act 1959 ('the Act') - Prevention of Crime Board ('Board') confirmed inquiry officer's positive finding under s. 11(2)(a) - Whether mandatory requirement to serve copy of Board's decision to applicant under s. 10(4) relevant - Whether applicant deprived of right to request Board to review decision under s. 10(3)(b) - Whether there was miscarriage of justice - Whether Prevention of Crime (Advisory Board Procedure) Regulations 2014 made within powers conferred by the Act - Whether enactment of s. 19A(4) strengthens Minister's powers to make regulations - Federal Constitution, art. 151


LATEST CASES

Legal Network Series

[2015] 1 LNS 351

MUHAMAD SANI lwn. PP

PROSEDUR JENAYAH: Semakan - Permohonan untuk - Pengenepian sabitan - Pengakuan salah - Permohonan semakan terhadap sabitan atas alasan tertuduh tidak memahami pertuduhan dengan jelas - Sama ada tertuduh memahami sifat serta akibat pengakuan - Sama ada tertuduh telah dijelaskan dan memahami hukuman yang akan dijatuhkan atas pengakuan bersalah

PROSEDUR JENAYAH: Rayuan - Hukuman - Kesalahan rogol statutori - Kesalahan yang dilakukan oleh bapa tiri - Perbuatan yang kejam - Hukuman penjara 15 tahun dan 15 kali sebatan rotan - Kepentingan awam dan pengajaran - Keadilan kepada mangsa - Sama ada hukuman yang telah dijatuhkan adalah setimpal - Sama ada hukuman yang telah dijatuhkan memberi keadilan kepada mangsa - Sama ada hukuman yang telah dijatuhkan wajar diganggu

[2015] 1 LNS 354

PP lwn. SALEH AMER

UNDANG-UNDANG JENAYAH: Bunuh - Niat - Niat untuk membunuh - Bencana tubuh yang mengakibatkan kematian - Insiden yang berlaku secara kebetulan dan tidak dijangkakan - Simati tercedera di mata ditusuk oleh kayu snuker yang dibaling oleh tertuduh - Sama ada timbul keraguan munasabah dalam kes pendakwaan - Sama ada elemen niat telah dibuktikan

[2015] 1 LNS 863

NASSER ALI AZAYEZ MAKTOUM AL SHERAIFI & ORS v. AFFINITY HEIGHTS SDN BHD & ORS

LEGAL PROFESSION: Practice of law - Practice and etiquette - Application by plaintiffs to recuse solicitors acting for defendants - Counsel acting as witness - Counsel as potential witness to testify on interpretation of a consent order - Whether a lawyer can simultaneously serve as counsel and witness - Whether application for recusal of counsel should be allowed - Whether counsel would be put in an embarrassing position if asked in court regarding interpretation of a consent order which was drafted, negotiated and finalized by them

[2015] 1 LNS 864

MOHD YUSOF RUBAI v. PP

CIVIL PROCEDURE: Appeal - Appeal against conviction and sentence - Appellate interference - 10 years imprisonment and 3 strokes whipping for offence of armed gang robbery and 12 months imprisonment for offence of impersonating a police officer - Whether sentence passed by trial judge was adequate - Whether impersonating a police officer a serious crime that warranted a deterrent sentence

[2015] 1 LNS 865

DATO' ONG JYH JONG & ORS v. VALENCIA DEVELOPMENT SDN BHD

CONTRACT: Sale and purchase of property - Specific performance - Option to sell - Option given by interested purchasers to developer to exercise option to sell - Payment of consideration by interested purchasers to their solicitors as stakeholders - Whether option enforceable by interested purchaser - Whether option to sell vests with interested purchaser or developer

EVIDENCE: Without prejudice communications - Admissibility - Whether documents issued on 'without prejudice' basis admissible

LAND LAW: Sale of land - Sale and purchase of property - Option to sell - Determination of option-holder - Option given by interested purchasers to developer to exercise option to sell - Specific performance - Whether interested purchasers or developer was the option-holder - Whether payment of consideration determines option-holder - Whether merely being a party furnishing consideration automatically makes that party an option-holder


CLJ 2016 Volume 5 (Part 6)

COURT OF APPEAL

Utusan Melayu (Malaysia) Bhd v. Dato' Sri Diraja Hj Adnan Hj Yaakob
Rohana Yusuf, Idrus Harun JJCA, Mary Lim J
(Tort; Civil Procedure - Action - Capacity to sue - Defamation action) [2016] 5 CLJ 857 [CA]

HIGH COURT

Econpile (M) Sdn Bhd v. Irdk Ventures Sdn Bhd & Another Case
Lee Swee Seng J
(Construction Law - Adjudication - Setting aside - Claim for works done) [2016] 5 CLJ 882 [HC]

Homewest Sdn Bhd v. Vision Returns Sdn Bhd
Wong Kian Kheong JC
(Company Law - Winding up - Inability to pay debts - Failure to make payment despite being served with statutory demand) [2016] 5 CLJ 922 [HC]

Jasmine Food Corporation Sdn Bhd v. Leong Wai Choon & Anor
Azizah Nawawi J
(Civil Procedure; Intellectual Property - Copyright - Infringement of) [2016] 5 CLJ 953 [HC]

Stealth Infra Sdn Bhd v. Sr Alias Marjoh
Lau Bee Lan J
(Contract - Breach - Termination - Letter of award to develop land) [2016] 5 CLJ 978 [HC]

Tirthadeva Sivan Premkumar v. Pengerusi Lembaga Pencegahan Jenayah Malaysia & Ors
Choo Kah Sing JC
(Preventive Detention - Detention order - Validity of - Habeas corpus) [2016] 5 CLJ 1007 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Action - Capacity to sue - Defamation action - Whether Menteri Besar had locus standi to initiate suit for defamation in official capacity - Public interest considerations - Whether public officials should be open to criticism - Whether public officials could denounce criticisms by suing their critics - Whether right of freedom of speech and expression would be stifled - Federal Constitution, art. 10(1)(a)
Utusan Melayu (Malaysia) Bhd v. Dato' Sri Diraja Hj Adnan Hj Yaakob
(Rohana Yusuf, Idrus Harun JJCA, Mary Lim J) [2016] 5 CLJ 857 [CA]

Striking out - Action - Defamation action - Whether Menteri Besar had locus standi to initiate action for defamation in official capacity - Public interest considerations - Whether public officials should be open to criticism - Whether public officials could denounce criticisms by suing their critics - Whether right of freedom of speech and expression would be stifled - Whether suit ought to be struck out - Rules of Court 2012, O. 18 r. 19(1)(b) & (d)
Utusan Melayu (Malaysia) Bhd v. Dato' Sri Diraja Hj Adnan Hj Yaakob
(Rohana Yusuf, Idrus Harun JJCA, Mary Lim J) [2016] 5 CLJ 857 [CA]

Summary judgment - Application for - Copyright and trade mark infringements - Whether defendants raised bona fide defence or triable issues warranting trial - Whether summary judgment ought to be allowed
Jasmine Food Corporation Sdn Bhd v. Leong Wai Choon & Anor
(Azizah Nawawi J) [2016] 5 CLJ 953 [HC]

COMPANY LAW

Winding up - Inability to pay debts - Failure to make payment despite being served with statutory demand - Whether company commercially insolvent - Whether adverse effect of winding up order relevant in deciding petition - Companies Act 1965, ss. 218(1)(a) & (e)
Homewest Sdn Bhd v. Vision Returns Sdn Bhd
(Wong Kian Kheong JC) [2016] 5 CLJ 922 [HC]

Winding up - Stay of proceedings - Pending disposal of appeal - Whether there were exceptional circumstances warranting exercise of discretion to grant short adjournment - Whether short adjournment could be allowed with condition that demanded sum should be paid into court - Whether adjournment would cause prejudice to petitioner - Companies Act 1965, ss. 221(1), 222 & 243(1)
Homewest Sdn Bhd v. Vision Returns Sdn Bhd
(Wong Kian Kheong JC) [2016] 5 CLJ 922 [HC]

CONSTRUCTION LAW

Adjudication - Setting aside - Claim for works done - Application to set aside decision of adjudicator - Dispute in payment claims - Termination of contract - Whether respondent bound to make further payments until final account determined upon completion of works - Whether adjudicator had authority to withhold release of decision on account of non-payment of Goods and Service Tax (`GST') - Whether withholding of decision for non-payment of GST rendered adjudication decision void - Granting of interest in absence of submission by either parties - Whether amounted to breach of natural justice - Construction Industry Payment And Adjudication Act 2012, ss. 5, 6
Econpile (M) Sdn Bhd v. Irdk Ventures Sdn Bhd & Another Case
(Lee Swee Seng J) [2016] 5 CLJ 882 [HC]

CONTRACT

Breach - Termination - Letter of award to develop land - Termination of letter of award - Claim for specific performance or damages for loss of profits in lieu of specific performance - Whether issuance of letter of award authorised - Whether letter of award in compliance with the law - Whether committee members had knowledge of letter of award - Applicability of Turquand's rule - Whether there was lack of consideration - Whether letter of award amounted to conditional/contingent award
Stealth Infra Sdn Bhd v. Sr Alias Marjoh
(Lau Bee Lan J) [2016] 5 CLJ 978 [HC]

INTELLECTUAL PROPERTY

Copyright - Infringement of - Claim for copyright in relation to graphical work in rice product packaging - Whether plaintiff owned copyright to rice product packaging - Whether defendants infringed plaintiff's copyright - Similarity of graphical work - Whether established
Jasmine Food Corporation Sdn Bhd v. Leong Wai Choon & Anor
(Azizah Nawawi J) [2016] 5 CLJ 953 [HC]

Trade marks - Registered trade mark - Passing off - Claim for copyright in relation to graphical work in rice product packaging - Whether plaintiff acquired goodwill and reputation of trade mark - Whether plaintiff had sufficient reputation in goods or services offered to public - Whether there was misrepresentation by defendants that led public to believe that rice products sold were plaintiff's goods - Whether plaintiff suffered damages or injury to business or goodwill due to defendant's misrepresentation
Jasmine Food Corporation Sdn Bhd v. Leong Wai Choon & Anor
(Azizah Nawawi J) [2016] 5 CLJ 953 [HC]

PREVENTIVE DETENTION

Detention order - Validity of - Habeas corpus - Application for - Findings of inquiry officer - Whether a positive finding made pursuant to s. 10(2) of the Prevention of Crime Act 1959 (`the Act') - Prevention of Crime Board (`Board') confirmed inquiry officer's positive finding under s. 11(2)(a) - Whether mandatory requirement to serve copy of Board's decision to applicant under s. 10(4) relevant - Whether applicant deprived of right to request Board to review decision under s. 10(3)(b) - Whether there was miscarriage of justice - Whether Prevention of Crime (Advisory Board Procedure) Regulations 2014 made within powers conferred by the Act - Whether enactment of s. 19A(4) strengthens Minister's powers to make regulations - Federal Constitution, art. 151
Tirthadeva Sivan Premkumar v. Pengerusi Lembaga Pencegahan Jenayah Malaysia & Ors
(Choo Kah Sing JC) [2016] 5 CLJ 1007 [HC]

TORT

Defamation - Libel - Article published in mainstream newspaper - Contents of article revolved around Menteri Besar Pahang and perceived weaknesses of his administration - Whether article concerned Menteri Besar in his personal capacity or maligned him personally - Whether Menteri Besar had locus standi to file defamation suit in official capacity - Whether public officials should be open to criticism - Whether public officials could denounce criticisms by suing their critics - Whether right of freedom of speech and expression would be stifled - Federal Constitution, art. 10(1)(a)
Utusan Melayu (Malaysia) Bhd v. Dato' Sri Diraja Hj Adnan Hj Yaakob
(Rohana Yusuf, Idrus Harun JJCA, Mary Lim J) [2016] 5 CLJ 857 [CA]


ARTICLES

LNS Article(s)

  1. PROTECTING YOUR INTELLECTUAL PROPERTY FROM MISAPPROPRIATION AND LOSS BY EMPLOYEES AND COMPETITORS* [Read excerpt]
    by: TENG WEI REN [2016] 1 LNS(A) lv

  2. [2016] 1 LNS(A) lv
    logo
    MALAYSIA

    PROTECTING YOUR INTELLECTUAL PROPERTY FROM MISAPPROPRIATION AND
    LOSS BY EMPLOYEES AND COMPETITORS*

    by
    TENG WEI REN

    IN THIS ARTICLE, TENG WEI REN RECOMMENDS THE IMPLEMENTATION OF A ROBUST INTELLECTUAL PROPERTY POLICY TO PROTECT INTELLECTUAL PROPERTY ASSETS FROM FALLING INTO THE HANDS OF COMPETITORS THROUGH ACTIONS OF ROGUE EMPLOYEES

    Introduction

    Today’s knowledge-based economy has given rise to new sources of competition. The development and acquisition of new ideas and innovation have become the core competence for a successful corporation; perhaps over and above the control of markets and raw materials. Strategic management of intellectual property (“IP”) will ensure market dominance and continuing profitability.

    Employees are the wellspring of a corporation’s IP. Inventions, trademarks, designs, technology, know-how and trade secrets are fairly obvious IP.

    However, even seemingly trivial work done by employees, such as compilation of databases or creation of marketing brochures, may also produce IP of significant value.

    . . .

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


    Please subscribe to cljlaw or login for the full article.
LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 776 National Security Council Act 2016 Not Yet In Force -
ACT 775 Traditional and Complementary Medicine Act 2016 Not Yet In Force -
ACT 774 Allied Health Professions Act 2016 Not Yet In Force -
ACT 773 Finance Act 2015 The Income Tax Act 1967 [Act 53] see s 3; The Petroleum (Income Tax) Act 1967 [Act 543] see s 33; The Real Property Gains Tax Act 1976 [Act 169] see s 39; The Labuan Business Activity Tax Act 1990 [Act 445] see s 44; The Goods and Services Tax Act 2014 [Act 762] see s 47; The Promotion of Investments Act 1986 [Act 327] see s 57 -
ACT 772 Animal Welfare Act 2015 Not Yet In Force -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1509 Legal Profession (Amendment) Act 2016 10 June 2016 ACT 166
ACT A1508 Employees' Social Security (Amendment) Act 2016 1 June 2016 [PU(B) 261/2016] ACT 4
ACT A1507 Supplementary Supply (2015) Act 2016 27 May 2016  
ACT A1506 Tabung Angkatan Tentera (Amendment) Act 2016 8 March 2016 except s 2, para 4(c), ss 5 and 6, para 7(a) and ss 9 and 11; 1 January 2016 - s 2, para 4(c), ss 5 and 6, para 7(a) and ss 9 and 11 ACT 101
ACT A1505 Malaysia Deposit Insurance Corporation (Amendment) Act 2016 8 March 2016 ACT 720

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 184/2016 Co-Operative Societies (Assumption of Control) (Appointment) Order 2016 28 June 2016 29 June 2016 ACT 502
PU(A) 183/2016 National Speed Limit (Temporary Cessation) (No. 2) Order 2016 28 June 2016 29 June 2016 to 13 July 2016 ACT 333
PU(A) 182/2016 Local Speed Limit (Federal Roads) (Specified Time Prohibition) (No. 2) Order 2016 28 June 2016 29 June 2016 to 13 July 2016 ACT 333
PU(A) 180/2016 Price Control and Anti-Profiteering (Mechanism To Determine Unreasonably High Profit) (Net Profit Margin) (Amendment) Regulations 2016 24 June 2016 25 June 2016 PU(A) 347/2014
PU(A) 179/2016 International Transfer of Prisoners Regulations 2016 24 June 2016 30 June 2016 ACT 754

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 301/2016 Notification of Registration of New Plant Variety and Grant of Breeder's Right - Corrigendum 27 June 2016 28 June 2016 PU(B) 79/2016
PU(B) 300/2016 Appointment of Document Examiner 27 June 2016 1 June 2015 ACT 593
PU(B) 299/2016 Results of Contested Election and Statements of The Poll After The Official Addition of Votes For The By-Election of P. 093 Sungai Besar 23 June 2016 24 June 2016 PU(A) 386/1981
PU(B) 298/2016 Results of Contested Election and Statement of The Poll After The Official Addition of Votes For The By-Election of P. 067 Kuala Kangsar 23 June 2016 24 June 2016 PU(A) 386/1981
PU(B) 297/2016 Notification of Values of Palm Kernel Under Section 12 23 June 2016 1 July 2016 to 31 July 2016 ACT 235

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 166 Legal Profession Act 1976 ACT A1509 10 June 2016 Section 103E
PU(A) 46/2016 Passports (Visa to Tourist From the People'S Republic of China) (Exemption) Order 2016 PU(A) 147/2016 1 June 2016 until 31 December 2016 Paragraph 2
PU(A) 437/1985 Food Regulations 1985 PU(A) 145/2016 1 December 2017;1 December 2016 - Regulation 2 Regulation 82, 361, 386A, Schedules Twentieth B and Twentieth C
PU(A) 95/2009 Food Hygiene Regulations 2009 PU(A) 146/2016 1 December 2016 Regulation 51
ACT 4 Employees' Social Security Act 1969 ACT A1508 1 June 2016 [PU(B) 261/2016] Section 5, 58, 71, 72A, 74A, 75A, 95A, 105, First Schedule, Third Schedule and Fourth Schedule

 

Revoked

 

Act/Principal No. Title Revoked by In force from
PU(B) 168/2013 Polling Districts, Polling Centres and Polling Hours (Amendment) (No. 15) PU(B) 197/2016 30 April 2016
PU(B) 167/2013 Polling Districts, Polling Centres and Polling Hours (Amendment) (No. 14) PU(B) 197/2016 30 April 2016
PU(B) 164/2013 Polling Districts, Polling Centres and Polling Hours (Amendment) (No. 11) PU(B) 197/2016 30 April 2016
PU(B) 163/2013 Polling Districts, Polling Centres and Polling Hours (Amendment) (No. 10) PU(B) 197/2016 30 April 2016
PU(B) 162/2013 Polling Districts, Polling Centres and Polling Hours (Amendment) (No. 9) PU(B) 197/2016 30 April 2016