Back to Top

CLJ Bulletin, Issue 2016, Vol 31
04 August 2016


Print this page

Introduction:

To get the most out of this law bulletin join CLJ Law Online now - http://www.cljlaw.com/?page=subscription

Feel free to forward this to your colleagues. Get this bulletin as email by going to http://www.cljlaw.com/?page=bulletinsubscribe


New This Week

1. Case(s) of the Week

  1. AMFRASER SECURITIES PTE LTD v. POH GAIK LYE [2016] 6 CLJ 637

  2. TENAGA NASIONAL BHD lwn. RICHWISE SDN BHD [2016] 1 SMC 254

  3. GANESAN SUBRAMANIAM v. PP [2016] 6 CLJ 588 

2. Latest Cases

  1. Legal Network Series

  2. CLJ 2016 Volume 6 (Part 5)

3. Articles

  1. LNS Article(s)

  2. CLJ Article(s)

4. Legislation Highlights

  1. Principal Acts

  2. Amending Acts

  3. PU(A)

  4. PU(B)

  5. Legislation Alert

Search Guide No. 7
Combination of several sets of exact phrases and any other words/phrases.

Key in ONE exact phrase in the Search Term column. 

Add quotation marks " before and after the phrase. 
Key in the word(s) you wish to search for with each word separated by a space.
 

"Res ipsa" "Application of doctrine" "loss occurred" carriage wharf / Evidence
will find all the cases containing the exact phrases and the words carriage and either one or both the words wharf or Evidence. The exact phrase and words may not necessarily be next to each other.



CASE(S) OF THE WEEK

AMFRASER SECURITIES PTE LTD v. POH GAIK LYE [2016] 6 CLJ 637
FEDERAL COURT, PUTRAJAYA
MD RAUS SHARIF PCA, ZULKEFLI AHMAD MAKINUDIN CJ (MALAYA), AHMAD MAAROP FCJ, ZAINUN ALI FCJ
[CIVIL APPEAL NO: 03(i)-3-08-2013(B)]
20 APRIL 2016

BANKRUPTCY: Bankruptcy notice - Setting aside - Summary judgment - Notice issued more than six years after judgment without prior leave of court - Whether notice bad in law - Whether judgment creditor not `a person who is for the time being entitled to enforce a final judgment' - Whether leave imperative and must be applied for - Whether bankruptcy notice ought to be set aside - Rules of the High Court 1980, O. 46 r. 2(a) - Bankruptcy Act 1967, proviso to s. 3(1)

CIVIL PROCEDURE: Leave - Leave to issue bankruptcy notice - Issuance of notice six years after judgment - Whether must obtain leave of court - Whether judgment creditor not `a person who is for the time being entitled to enforce a final judgment' - Rules of the High Court 1980, O. 46 r. 2(a) - Bankruptcy Act 1967, proviso to s. 3(1)


TENAGA NASIONAL BHD lwn. RICHWISE SDN BHD [2016] 1 SMC 254
MAHKAMAH SESYEN, JOHOR BAHRU
NORAZLAN AHMAD HS
[GUAMAN SIVIL NO: B52NCVC-28-11-2013]
8 APRIL 2015

UTILITI-UTILITI: Elektrik - Usikan pada meter elektrik - Kegagalan merekodkan kegunaan elektrik yang sebenar - Sama ada pekerja plaintif kompeten untuk melakukan pemeriksaan terhadap meter elektrik - Sama ada defendan adalah pihak yang akan mendapat manfaat jika bacaan meter mencatat bacaan yang kurang - Sama ada pembelaan defendan bermerit - Sama ada jumlah pengiraan kerugian hasil menjadi keterangan prima facie - Sama ada defendan berjaya menunjukkan bahawa pengiraan yang dilakukan oleh plaintif adalah salah - Tenaga Nasional Bhd v. AWP Enterprise (M) Sdn Bhd

To view a sample of the Sessions and Magistrates' Cases journal, click here. For product enquiries, contact priority@cljlaw.com.


JUDICIAL QUOTES

GANESAN SUBRAMANIAM v. PP [2016] 6 CLJ 588 

[2] Issue: As to the circumstances in which Magistrates and Sessions Court judges could order a discharge not amounting to an acquittal or a discharge amounting to an acquittal, as the case may be, under s. 254 of the Criminal Procedure Code; and whether the learned Sessions Court judge herein was right in ordering a ‘discharge not amounting to an acquittal’ in circumstances where the complainant has withdrawn the police report against the accused and the accused has written a representation to the Attorney General for the withdrawal of the charge, but where the prosecution itself shows no certainty whether to proceed with the case in the future or not, or fails to give good grounds for requesting for a ‘discharge not amounting to an acquittal’.

“The learned Sessions Court judge had misconstrued himself by saying that he had limited rights and power to grant a full acquittal, when in fact it is otherwise.”

“There was justification to issue an order of discharge amounting to an acquittal in the circumstances of the case when: (a) there was no specific grounds or reasons or indications propounded by the prosecution that they are not pursuing the matter further; (b) the prosecution, having applied for an order of ‘discharge not amounting to an acquittal’, failed to give good grounds for having such an order; (c) there was nothing to show that the prosecution was able to proceed for the time being or proceed within a reasonable time; (d) it was unlikely that the case could be prosecuted expeditiously in the short future; and (e) it would not be right to leave an individual for an indefinite period with a charge hanging over him” – Per Mohamad Shariff Abu Samah JC

For more Judicial Quotes, please login and view under "References" or subscribe to CLJLaw.


LATEST CASES

Legal Network Series

[2015] 1 LNS 1105

WONG LING BIU v. TENG UNG WOO & ANOR

TORT: Defamation - Libel in newspaper - News report following press conference at compound of parliament - Name and status of plaintiff were clearly mentioned in report - Allegation of bribery in election - Whether publication of words were presumed - Whether identification of plaintiff as person defamed was proved - Whether words complained of capable of bearing a defamatory meaning - Whether there was necessity for a plaintiff to prove falsity of words complained of once they were found to be defamatory of plaintiff - Whether falsity was presumed by law - Whether words complained of carried strong imputation that plaintiff was dishonest and was guilty of committing corrupt practice of bribery in the election

TORT: Defamation - Joint tortfeasors - Joint and several liability - Liability of person who submitted materials during press conference and to publisher of newspaper report - Defamatory words contained in newspaper report - Whether person who submitted material during press conference should be jointly and severally liable with newspaper publisher who published materials - Whether an express authority or request to publish was necessary

TORT: Defamation - Defences - Absolute privilege - Defamatory statement contained in newspaper report - News report repeated and published words uttered to reporters at press conference - Whether defence of absolute privilege extended to newspaper report circulated to public at large - Defamation Act 1957, s. 11

TORT: Defamation - Defences - Qualified privilege - Publication in newspaper report - Whether publication complained of fell within categories mentioned in Part I and II of Schedule to Defamation Act 1957 - Whether public interest was served by publishing misinformation - Whether element of reciprocity of duty and interest available - Defamation Act 1957, s. 12

[2015] 1 LNS 1106

LAU PIN SIEN v. KONG CHUNG SNG

CONTRACT: Marriage - Breach of promise - Claim for damages arising from breach of promise to marry - Plaintiff was able, willing and ready to register a formal marriage with defendant - Plaintiff acted on defendant's promise to marry her, cohabited with defendant and expended substantial expenses - Defendant agreed to marry plaintiff after her husband's death - Existence of Surat Penerang Ari Tuai Rumah Pasai Tikah arranged by defendant - Whether defendant was in breach of promise to marry - Whether defendant had deceived plaintiff - Whether defendant should be permitted to rely upon his own wrong and discharge himself from promise to marry and later contend that plaintiff was a married woman

[2015] 1 LNS 1182

PP v. ABDUL AZIZ JAMMAL

CRIMINAL LAW: Dangerous drugs - Trafficking - Cannabis weighing 13,517g - Dangerous Drugs Act 1952 ('DDA'), s. 39B(1)(a) - Accused found holding bag containing drugs - Subsequent conduct of accused dropping bag and running away - Availability of direct evidence that accused was carrying and transporting bag containing impugned drugs by bus - Whether accused was presumed to be trafficking in drugs pursuant to s. 37(da)(vi) of DDA - Whether accused was deemed to have been in possession of drugs and to have known nature of drugs

CRIMINAL LAW: Dangerous drugs - Possession - Drugs found in trouser pocket of accused - Heroin weighing 0.23g and 0.19g - Dangerous Drugs Act 1952, s. 12(2) - Availability of direct evidence - Whether accused had possession of impugned drugs

CRIMINAL LAW: Dangerous drugs - Presumption - Presumption of possession - Applicability of presumption under s. 37(da) of Dangerous Drugs Act 1952 ('DDA') - Availability of direct evidence that accused was carrying and transporting bag containing impugned drugs by bus - Whether presumption under s. 37 DDA could be applied when direct evidence was available

CRIMINAL PROCEDURE: Defence - Denial - Offence relating to possession and trafficking of dangerous drugs - Denial of having in possession, custody, control and knowledge of bag and its contents - Allegation that exhibits had been mixed up with other arrest - Whether there was break in chain of exhibit - Whether evidence of accused was mere denial - Whether accused was able to cast reasonable doubt on prosecution's case - Whether accused was able to rebut presumption of trafficking

EVIDENCE: Admissibility - Conduct of accused - Mens rea possession of drugs - Conduct of accused dropping bag and subsequently running away as soon as police officers introduced themselves - Whether evidence of accused fleeing at scene showed that accused had knowledge of drugs he was carrying in bag - Evidence Act 1950, s. 8

EVIDENCE: Adverse inference - Adverse inference against prosecution - Inability to make available co-driver of bus to defence - Witness offered was traceable but could not come to Court due to health reasons - Whether adverse inference should be drawn against prosecution

[2015] 1 LNS 1184

YAP YONG HUAT & ANOR v. YAP YOKE BENG & ORS

COMPANY LAW: Oppression - Oppression on minority - Family companies - Concept of fairness - Whether concept of fairness in family companies may go beyond pure commercial gains

COMPANY LAW: Oppression - Oppression on minority - Complaint on managerial shortcomings - Complaint made after many years - Minority shareholder's lack of interest with regards to management of company for many years - Failure to protest about company practice from beginning - Whether complaint without merit - Whether plaintiff was estopped from complaining about accepted practices of companies - Whether plaintiff had in effect acquiesced and participated in company practice

COMPANY LAW: Oppression - Oppression on minority - Complaint on managerial shortcomings - Non-payment of dividends - Minutes of meeting prepared without any meeting - Whether managerial shortcomings constituted oppressive conduct - Whether non-payment of dividends resulted in any oppression - Whether plaintiff had any legitimate expectation to receive such dividend payments - Whether inefficiency or carelessness could amount to oppressive conduct

[2016] 1 LNS 1185

PP v. KANAGESWARAN SIWAPIRKASAM

CRIMINAL LAW: Murder - Section 302 Penal Code - Actus reus - Discrepancy in testimony of prosecution's witness in regard to sequence of events leading to death of deceased - Unexplained facts from evidence found at crime scene - Whether prosecution successfully established actus reus - Whether accused committed act of shooting deceased

CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Offence of murder under s. 302 of Penal Code - Discrepancy in testimony of prosecution's witness in regard to sequence of events leading to death of deceased - Variance in of narration as to what happened - Unexplained facts from evidence found at crime scene - Whether narration by prosecution's witness produced an illogical sequence of events as to when deceased was shot by accused - Whether prosecution made out a prima facie case as required under s. 180(3) of Criminal Procedure Code


CLJ 2016 Volume 6 (Part 5)

 

FEDERAL COURT

Amfraser Securities Pte Ltd v. Poh Gaik Lye
Md Raus Sharif PCA, Zulkefli Ahmad Makinudin CJ (Malaya), Ahmad Maarop, Zainun Ali FCJJ
(Bankruptcy; Civil Procedure - Bankruptcy notice - Setting aside - Summary judgment) [2016] 6 CLJ 637 [FC]

Gan Boon Aun v. PP
Zulkefli Ahmad Makinudin CJ (Malaya), Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ
(Criminal Procedure; Jurisdiction; Statutory Interpretation - High Court - Referral from subordinate court - Referral of question of law as to the effect of the provision of the Federal Constitution) [2016] 6 CLJ 647 [FC]

COURT OF APPEAL

Chin Chee Keong v. Toling Corporation (M) Sdn Bhd
Mohd Zawawi Salleh, Badariah Sahamid, Mary Lim JJCA
(Company Law; Evidence - Lifting of corporate veil - Liability of directors) [2016] 6 CLJ 666 [CA]

Foo Ah Kow & Anor v. Yeap Poh Lum & Ors
Zaharah Ibrahim, Anantham Kasinather, Umi Kalthum Abdul Majid JJCA
(Land Law - Title - Sale and purchase - Indefeasibility of title) [2016] 6 CLJ 686 [CA]

Foo Jong Wee & Ors v. Hj Afifi Hj Hassan
Alizatul Khair Osman, Aziah Ali, Mohd Zawawi Salleh JJCA
(Company Law - Winding up - Petition - Just and equitable grounds) [2016] 6 CLJ 696 [CA]

Sejati Education Sdn Bhd v. S3m Development (Sabah) Sdn Bhd
Balia Yusof Wahi, Hamid Sultan Abu Backer, Badariah Sahamid JJCA
(Contract - Specific performance - Claim for - Sale and purchase of property) [2016] 6 CLJ 710 [CA]

HIGH COURT

Growth Enterprise Sdn Bhd v. Rafaeh Mohamad Nor & Ors
Stephen Chung J
(Contract; Land Law - Transfer - Validity) [2016] 6 CLJ 718 [HC]

Ho Yee Chin v. Ho Min Hao & Ors
SM Komathy JC
(Company Law - Director - Fiduciary duties - Request for inspection of company's accounts) [2016] 6 CLJ 728 [HC]

Kerajaan Malaysia v. Tasja Sdn Bhd
Lee Swee Seng J
(Arbitration - Award - Interest - Whether arbitrator has discretion to award pre-award interest) [2016] 6 CLJ 738 [HC]

Liong Seow Keng & Ors v. Ho Soon Cheng
S Nantha Balan J
(Succession; Trusts; Civil Procedure - Will - Administration of estate) [2016] 6 CLJ 761 [HC]

Universiti Islam Antarabangsa Malaysia v. Nik Roskiman Abdul Samad & Anor
Azizul Azmi Adnan JC
(Administrative Law; Labour Law; Civil Procedure - Employment - Dismissal - Termination from employment) [2016] 6 CLJ 780 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application to quash award of Industrial Court - Employee's post as lecturer at university subjected to employee obtaining PhD - Failure to obtain PhD - Termination from employment - Whether university entitled to terminate employee - Industrial Court held that employee was dismissed without just cause or excuse - Whether findings of Industrial Court based on unpleaded issue - Whether Industrial Court ought not to consider issue not raised in pleadings - Whether award of Industrial Court ought to be quashed - Industrial Relations Act 1967, s. 20(1) - Industrial Court Rules, r. 9(3)
Universiti Islam Antarabangsa Malaysia v. Nik Roskiman Abdul Samad & Anor
(Azizul Azmi Adnan JC) [2016] 6 CLJ 780 [HC]

ARBITRATION

Award - Interest - Whether arbitrator has discretion to award pre-award interest - Whether arbitrator erred in awarding pre-award interest - Far East Holdings Bhd v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang - Applicability - Arbitration Act 2005, s. 33(6)
Kerajaan Malaysia v. Tasja Sdn Bhd
(Lee Swee Seng J) [2016] 6 CLJ 738 [HC]

BANKRUPTCY

Bankruptcy notice - Setting aside - Summary judgment - Notice issued more than six years after judgment without prior leave of court - Whether notice bad in law - Whether judgment creditor not 'a person who is for the time being entitled to enforce a final judgment' - Whether leave imperative and must be applied for - Whether bankruptcy notice ought to be set aside - Rules of the High Court 1980, O. 46 r. 2(a) - Bankruptcy Act 1967, proviso to s. 3(1)
Amfraser Securities Pte Ltd v. Poh Gaik Lye
(Md Raus Sharif PCA, Zulkefli Ahmad Makinudin Cj (Malaya), Ahmad Maarop, Zainun Ali FCJJ) [2016] 6 CLJ 637 [FC]

CIVIL PROCEDURE

Leave - Leave to issue bankruptcy notice - Issuance of notice six years after judgment - Whether must obtain leave of court - Whether judgment creditor not 'a person who is for the time being entitled to enforce a final judgment' - Rules of the High Court 1980, O. 46 r. 2(a) - Bankruptcy Act 1967, proviso to s. 3(1)
Amfraser Securities Pte Ltd v. Poh Gaik Lye
(Md Raus Sharif PCA, Zulkefli Ahmad Makinudin CJ (Malaya), Ahmad Maarop, Zainun Ali FCJJ) [2016] 6 CLJ 637 [FC]

Pleadings - Issue not pleaded - Whether parties bound by their pleadings - Whether Industrial Court could depart from pleadings - Factual basis for finding of unjust dismissal - Whether pleaded in statement of case
Universiti Islam Antarabangsa Malaysia v. Nik Roskiman Abdul Samad & Anor
(Azizul Azmi Adnan JC) [2016] 6 CLJ 780 [HC]

Stay of proceedings - Will - Administration of estate - Beneficiaries of will obtained order that trust for sale and conversion of properties in residuary estate be terminated and transferred in specie to beneficiaries instead of being sold - Trustee sought to obtain stay of order and applied for forensic handwriting to be conducted to determine genuineness of will - Whether there was inordinate delay on trustee's part in applying for stay of proceedings - Whether trustee sought to obtain stay order under two separate applications contradictory to each other - "approbating and reprobating" - Whether beneficiaries suffered extreme prejudice by trustee's reluctance to distribute assets - Balance of justice - Whether lay in favour of beneficiaries - Whether unjust, oppressive and unfair to beneficiaries if distribution withheld
Liong Seow Keng & Ors v. Ho Soon Cheng
(S Nantha Balan J) [2016] 6 CLJ 761 [HC]

COMPANY LAW

Director - Fiduciary duties - Request for inspection of company's accounts - Whether right to inspect connected to discharge of director's duties - Whether director obliged to provide reason for request - Director never took part in management of company - Whether still entitled to right to inspect - Whether request proven to be for ulterior or improper purpose - Companies Act 1965, s. 167(6)
Ho Yee Chin v. Ho Min Hao & Ors
(SM Komathy JC) [2016] 6 CLJ 728 [HC]

Lifting of corporate veil - Liability of directors - Whether directors could be held personally liable for debts of company - Whether directors were knowingly parties to fraudulent trading of company - Whether business had been carried out with intent to defraud - Whether company was not in position to pay creditors when debts fall due - Companies Act 1965, s. 304(1)
Chin Chee Keong v. Toling Corporation (M) Sdn Bhd
(Mohd Zawawi Salleh, Badariah Sahamid, Mary Lim JJCA) [2016] 6 CLJ 666 [CA]

Winding up - Petition - Just and equitable grounds - Restructuring of company to comply with statutory requirements - Majority of shares vested in Bumiputeras - Whether restructuring agreement intended to circumvent statute and illegal - Petitioner participated and benefited from illegal arrangement - Whether just and equitable for company to be wound up - Registration of Engineers Act 1967, ss. 7A(3), 10(4)
Foo Jong Wee & Ors v. Hj Afifi Hj Hassan
(Alizatul Khair Osman, Aziah Ali, Mohd Zawawi Salleh JJCA) [2016] 6 CLJ 696 [CA]

CONTRACT

Agreement - Land - Parties entered into separate agreements in respect of land - No consideration, compensation or payment or rental to be paid to landowners for use and occupation of land - Agreement made without consideration - Whether valid - Whether dealings affecting lands legal - Whether ought to be set aside - Sabah Land Ordinance, s. 17(1)
Growth Enterprise Sdn Bhd v. Rafaeh Mohamad Nor & Ors
(Stephen Chung J) [2016] 6 CLJ 718 [HC]

Specific performance - Claim for - Sale and purchase of property - Tenancy agreement containing option to purchase clause - Option to purchase duly exercised before expiry date - Matters relating to sale and purchase agreement transacted outside option period - Whether purchase of property must be concluded within option period notwithstanding absence of objection by other party to option notice - Whether there was a miscarriage of justice
Sejati Education Sdn Bhd v. S3m Development (Sabah) Sdn Bhd
(Balia Yusof Wahi, Hamid Sultan Abu Backer, Badariah Sahamid JJCA) [2016] 6 CLJ 710 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal to Federal Court - Appeal against decision of Court of Appeal hearing a criminal appeal from High Court - Whether decision of High Court not a decision in exercise of its original, appellate or revisionary jurisdiction - Whether Court of Appeal had no jurisdiction to hear appeal - Whether consequently not a competent appeal before the Federal Court - Courts of Judicature Act 1964 ss. 30, 50, 84 - Federal Constitution art. 128 - Rules of the Federal Court 1995 rr. 30-39
Gan Boon Aun v. PP
(Zulkefli Ahmad Makinudin CJ (Malaya), Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2016] 6 CLJ 647 [FC]

EVIDENCE

Standard of proof - Statutory claim - Claim under s. 304(1) of Companies Act 1965 - Whether term 'if it appears' indicates lower degree of proof - Whether proof on balance of probabilities sufficient
Chin Chee Keong v. Toling Corporation (M) Sdn Bhd
(Mohd Zawawi Salleh, Badariah Sahamid, Mary Lim JJCA) [2016] 6 CLJ 666 [CA]

JURISDICTION

High Court - Referral from subordinate court - Referral of question of law as to the effect of the provision of the Federal Constitution - Duty, power and jurisdiction of High Court Judge - Whether could decide on constitutionality of matter thus transmitted - Whether could enlarge jurisdiction as given by statutes - Whether could only stay proceeding, state question of law that had arisen in the form of a special case and transmit same to Federal Court - Courts of Judicature Act 1964 ss. 30, 50, 84 - Federal Constitution art. 128 - Rules of the Federal Court 1995 rr. 30-39
Gan Boon Aun v. PP
(Zulkefli Ahmad Makinudin CJ (Malaya), Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2016] 6 CLJ 647 [FC]

LABOUR LAW

Employment - Dismissal - Termination from employment - Employee's post as lecturer at university subjected to employee obtaining PhD - Failure to obtain PhD - Whether university entitled to terminate employee - Industrial Court held that employee was dismissed without just cause or excuse - Whether findings of Industrial Court based on unpleaded issue - Whether Industrial Court ought not to consider issue not raised in pleadings - Whether award of Industrial Court ought to be quashed - Industrial Relations Act 1967, s. 20(1) - Industrial Court Rules, r. 9(3)
Universiti Islam Antarabangsa Malaysia v. Nik Roskiman Abdul Samad & Anor
(Azizul Azmi Adnan JC) [2016] 6 CLJ 780 [HC]

LAND LAW

Title - Sale and purchase - Indefeasibility of title - Developer terminated sale and purchase agreement with defendants - Developer transferred strata title of apartment to plaintiffs after defendants obtained summary judgment for possession of apartment - Maxim nemo dat quod non habet - Whether applicable - Whether developer still had legal interest in apartment at point of transfer - Whether instrument of transfer executed by developer void - Whether plaintiffs registered proprietors of apartment - Whether plaintiffs' title or interest defeasible by virtue of s. 340(2)(b) of National Land Code
Foo Ah Kow & Anor v. Yeap Poh Lum & Ors
(Zaharah Ibrahim, Anantham Kasinather, Umi Kalthum Abdul Majid JJCA) [2016] 6 CLJ 686 [CA]

Transfer - Validity - Parties entered into separate agreements in respect of land - Special conditions in documents of title explicitly stated that transfer and sublease of land title is prohibited unless written permission is first obtained - Failure to obtain written permission - Whether non-compliance with special conditions rendered transfer and sublease void - Contracts Act 1950, ss. 24, 26
Growth Enterprise Sdn Bhd v. Rafaeh Mohamad Nor & Ors
(Stephen Chung J) [2016] 6 CLJ 718 [HC]

STATUTORY INTERPRETATION

Construction of statutes - Literal approach - Intention of Legislature - Sections 30 & 84 Courts of Judicature Act 1964 - Reference from subordinate court to High Court on question of law as to the effect of the provision of the Federal Constitution - Jurisdiction and power to decide on constitutionality of matter under reference - Whether with the High Court - Whether exclusively vested with the Federal Court - Courts of Judicature Act 1964 ss. 30, 50, 84 - Federal Constitution art. 128 - Rules of the Federal Court 1995 rr. 30-39
Gan Boon Aun v. PP
(Zulkefli Ahmad Makinudin CJ (Malaya), Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2016] 6 CLJ 647 [FC]

SUCCESSION

Will - Administration of estate - Beneficiaries of will obtained order that trust for sale and conversion of properties in residuary estate be terminated and transferred in specie to beneficiaries instead of being sold - Trustee sought to obtain stay of order and applied for forensic handwriting to be conducted to determine genuineness of will - Whether there was inordinate delay on trustee's part in applying for stay of proceedings - Whether trustee sought to obtain stay order under two separate applications contradictory to each other - "approbating and reprobating" - Whether beneficiaries suffered extreme prejudice by trustee's reluctance to distribute assets - Balance of justice - Whether lay in favour of beneficiaries - Whether unjust, oppressive and unfair to beneficiaries if distribution withheld
Liong Seow Keng & Ors v. Ho Soon Cheng
(S Nantha Balan J) [2016] 6 CLJ 761 [HC]

TRUSTS

Trustee - Will - Administration of justice - Beneficiaries of will obtained order that trust for sale and conversion of properties in residuary estate be terminated and transferred in specie to beneficiaries instead of being sold - Trustee sought to obtain stay of order and applied for forensic handwriting to be conducted to determine genuineness of will - Whether there was inordinate delay on trustee's part in applying for stay of proceedings - Whether trustee sought to obtain stay order under two separate applications contradictory to each other - "approbating and reprobating" - Whether beneficiaries suffered extreme prejudice by trustee's reluctance to distribute assets - Balance of justice - Whether lay in favour of beneficiaries - Whether unjust, oppressive and unfair to beneficiaries if distribution withheld
Liong Seow Keng & Ors v. Ho Soon Cheng
(S Nantha Balan J) [2016] 6 CLJ 761 [HC]


ARTICLES

LNS Article(s)

  1. THE CHANGING LANDSCAPE IN ASSISTED REPRODUCTIVE TECHNOLOGIES IN MALAYSIA: 3-PARENT IVF AND GENE THERAPY ON THE HORIZON [Read excerpt]
    by: DR. HANIWARDA YAAKOB* [2016] 1 LNS(A) lxv

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

    THE CHANGING LANDSCAPE IN ASSISTED REPRODUCTIVE TECHNOLOGIES IN MALAYSIA:
    3-PARENT IVF AND GENE THERAPY ON THE HORIZON

    by
    DR. HANIWARDA YAAKOB*

    ABSTRACT

    Assisted Reproductive Technology (ART) is rapidly advancing worldwide. Various technologies have emerged ranging from In Vitro Fertilisation (IVF), Preimplantation Genetic Diagnosis, 3-Parent IVF, Gene Therapy and many more. The advancement in ART does not leave Malaysia behind where this area is vastly growing in this country. While the advancement in reproductive technologies is applauded for the benefits they bring to society, their arrival is not free from legal, ethical and religious dilemmas. Individuals and society must, therefore, be protected from any untoward consequences arising from the use of these modern reproductive technologies. As the role of law is to protect society, a suitable legal mechanism must be put in place to regulate these technologies. In determining the appropriate legal framework that can be adopted in Malaysia, reference may be made to the notion of individual reproductive autonomy propounded by western scholars with appropriate modifications for application in Malaysia as a multi-racial society with Islam declared as the religion of the country under the Federal Constitution. This paper thus briefly identifies and explores the legal, ethical and moral concerns brought about by emerging reproductive technologies namely, 3-Parent IVF and Gene Therapy and argues for the adoption of the notion of individual reproductive autonomy subject to the limitations proposed herein.

    Keywords: Bioethics; Three-Parent IVF; Gene Therapy

    . . .

    * Faculty of Law Universiti Kebangsaan Malaysia. E-Mail: hani75@ukm.edu.my


    Please subscribe to cljlaw or login for the full article.
  3. SILENCING THE LAWYERS* [Read excerpt]
    by: CARLY SAEEDI** [2016] 1 LNS(A) lxvi

  4. [2016] 1 LNS(A) lxvi
    logo
    AUSTRALIA

    SILENCING THE LAWYERS*
    by
    CARLY SAEEDI**

    Ali came to me after narrowly escaping with his life from a regime determined to extinguish any opposition. He recounted the night he was arrested without charge, he was detained incommunicado, he was questioned without a lawyer, he was denied access to the evidence presented to the court against him and he had no right to appeal the decision in a court of law.

    I was a third year lawyer and saw my role in his case as integral to ensuring that if his life was at risk his application would be sufficiently argued to invoke Australia's protection obligations and he would be granted a visa.

    It was at this time that the successful Stop The Boats election campaign started, and I was relegated from advocacy to paperwork. Stopping the boats may have begun as a political slogan but it became a quest to be won at any cost. The government was determined to silence all opposition.

    . . .

    * Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 239 March 2016.

    ** Carly Saeedi was admitted as a lawyer in the ACT Supreme Court in 2008 and practised as an immigration lawyer in Canberra from 2011 to 2015. She holds an LLB (Hons) and LLM in International law.


    Please subscribe to cljlaw or login for the full article.

CLJ Article(s)

  1. PENGKOMPUTERAN AWAN DAN PERLINDUNGAN HAK CIPTA [Read excerpt]
    by: AHMAD SHAMSUL ABD AZIZ*
    NOR AZLINA MOHD NOOR**
    [2016] 6 CLJ xiii

  2. [2016] 6 CLJ xiii
    logo
    MALAYSIA

    PENGKOMPUTERAN AWAN DAN PERLINDUNGAN HAK CIPTA
    by
    AHMAD SHAMSUL ABD AZIZ*
    NOR AZLINA MOHD NOOR**

    Pengenalan

    Pengkomputeran awan (computing cloud) merupakan pembangunan teknologi komputer berasaskan Internet yang merupakan pusat data yang sangat berkuasa.[1] Ia merupakan suatu proses di mana pengguna menggunakan Internet sebagai tempat untuk menyimpan atau storan segala data peribadi seperti dokumen, gambar, video dan sebagainya yang sebahagian besarnya merupakan bahan-bahan berhak cipta. Pengkomputeran awan akan memuat alih data-data milik pengguna laman sesawang dan kemudiannya data yang disimpan tersebut boleh dicapai di mana-mana sahaja asalkan adanya kemudahan Internet di kawasan tersebut.[2] Pengkomputeran awan ini hakikatnya adalah sangat kompleks dan suatu bidang yang bergerak terlalu pantas di dalam undang-undang.[3] Pengkomputeran awan membolehkan seseorang berkongsi data, bekerjasama dan berhubung dengan pihak-pihak di seluruh dunia yang kita tidak mampu bayangkan sedekad yang lalu.[4] Ia boleh digunakan secara individu atau dalam kelompok yang ramai. Kemudahan capaian melalui langganan ini terbahagi kepada:[5]

    (i) Infrastuktur sebagai sebuah perkhidmatan (IaaS)

    Aras pengkomputeran awan yang paling rendah di mana pra-bentuk perkakasan didapati menerusi bersemuka secara maya. Pengguna hanya membayar perkhidmatan yang digunakan sahaja.[6]

    (ii) Pelantar sebagai sebuah perkhidmatan (PaaS)

    Pembekal menyediakan pelantar penempatan pembekal dengan baik. Suatu sistem operasi dan perkhidmatan permohonan membenarkan pelanggan untuk membangun dan menggunakan aplikasi perisian.[7]

    (iii) Perisian sebagai sebuah Perkhidmatan (SaaS)

    Tiada lesen diperlukan kerana perisian hanya berjalan di mesin pembekal. Pihak pembekal akan membekalkan infrastruktur perkakasan serta produk perisian dan akan berinteraksi dengan pengguna melalui Front End Portal. Contoh perkhidmatan ini adalah e-mel dan persidangan sesawang.

    . . .

    * Pensyarah Kanan, Pusat Pengajian Undang-Undang, UUM COLGIS, Universiti Utara Malaysia.

    ** Pensyarah, Pusat Pengajian Undang-Undang, UUM COLGIS, Universiti Utara Malaysia.


    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 1 August 2016 [PU(B) 310/2016] -
ACT 775 Traditional and Complementary Medicine Act 2016 1 August 2016 [PU(B) 325/2016] - sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 , 16, 17, 20, 42, 43, 44, 45, 46, 47, 60 and 61 and subsections 63(1) and (3) -
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 A1511 Child (Amendment) Act 2016 Not Yet In Force ACT 611
ACT A1510 Dangerous Drugs (Special Preventive Measures) (Amendment) Act 2016 15 July 2016 ACT 316
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 -

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 219/2016 Customs (Prohibition of Imports) (Amendment) (No. 2) Order 2016 1 August 2016 1 September 2016 PU(A) 490/2012
PU(A) 218/2016 Customs (Prohibition of Exports) (Amendment) (No. 2) Order 2016 1 August 2016 1 September 2016 PU(A) 491/2012
PU(A) 217/2016 National Skills Development (Waiver of Fee To Trainee At Montfort Youth Centre, Malacca) Regulations 2016 29 July 2016 1 August 2016 ACT 652
PU(A) 216/2016 Employees Provident Fund (Simpanan Shariah Account) Rules 2016 29 July 2016 1 August 2016 ACT 452
PU(A) 214/2016 Customs (Amendment) (No. 4) Regulations 2016 29 July 2016 1 August 2016 PU(A) 162/1977

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 339/2016 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Pahang 1 August 2016 2 August 2016 PU(A) 293/2002
PU(B) 338/2016 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Perak 1 August 2016 2 August 2016 PU(A) 293/2002
PU(B) 337/2016 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Pulau Pinang 1 August 2016 2 August 2016 PU(A) 293/2002
PU(B) 336/2016 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Terengganu 1 August 2016 2 August 2016 PU(A) 293/2002
PU(B) 335/2016 Notice of Completion of Revision and Inspection of Supplementary Electoral Rolls - Kelantan 1 August 2016 2 August 2016 PU(A) 293/2002

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 347/2014 Price Control and Anti-Profiteering (Mechanism to Determine Unreasonably High Profit) (Net Profit Margin) Regulations 2014 PU(A) 180/2016 25 June 2016 Regulations 2 and Schedule
ACT 316 Dangerous Drugs (Special Preventive Measures) Act 1985 ACT A1510 15 July 2016 Section 1, 4, 5, 5A and 6
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

 

Revoked

 

Act/Principal No. Title Revoked by In force from
PU(A) 379/2012 Pensions Adjustment (Lowest Pension) Order 2012 PU(A) 188/2016 1 July 2016
PU(A) 136/2015 Highway Authority Malaysia (Incorporation) (Collection of Tolls) (East Coast Express Way-Phase 2) Order 2015 PU(A) 193/2016 15 July 2016
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