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CLJ Bulletin, Issue 2016, Vol 34
25 August 2016


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New This Week

1. Case(s) of the Week

  1. DEWAN UNDANGAN NEGERI SELANGOR & ORS v. MOHD HAFARIZAM HARUN [2016] 7 CLJ 143

  2. ALLIED PHYSICS SDN BHD v. KETUA AUDIT NEGARA (MALAYSIA) & ANOR AND OTHER APPEALS [2016] 7 CLJ 347 

2. Latest Cases

  1. Legal Network Series

  2. CLJ 2016 Volume 7 (Part 2)

  3. CLJ 2016 Volume 7 (Part 3)

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

DEWAN UNDANGAN NEGERI SELANGOR & ORS v. MOHD HAFARIZAM HARUN [2016] 7 CLJ 143
FEDERAL COURT, PUTRAJAYA
ZULKEFLI AHMAD MAKINUDIN CJ (MALAYA), SURIYADI HALIM OMAR FCJ, HASAN LAH FCJ, ZAINUN ALI FCJ, AZIAH ALI FCJ
[CIVIL APPEAL NO: 02-83-11-2014 (B)]
14 JULY 2016

CONSTITUTIONAL LAW: Legislature - State Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether parties had capacity to be impleaded in legal proceedings - Whether Legislative Assembly entitled to rely on immunity conferred under art. 72(1) of the Federal Constitution - Whether Assembly had power to punish acts of contempt committed beyond its walls - Powers of Assembly - Whether limited by Laws of the Constitution of Selangor 1959

CONSTITUTIONAL LAW: Legislature - State legislative powers - Privileges of Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether Assembly acted within its constitutional and legal powers before invoking protection under art. 72(1) of the Federal Constitution - Whether Assembly had power to punish acts of contempt committed beyond its walls

CIVIL PROCEDURE: Parties - Proper parties to be sued - State Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether parties had capacity to be impleaded in legal proceedings


ALLIED PHYSICS SDN BHD v.
KETUA AUDIT NEGARA (MALAYSIA) & ANOR AND OTHER APPEALS
[2016] 7 CLJ 347 
COURT OF APPEAL, PUTRAJAYA
BALIA YUSOF WAHI JCA, HAMID SULTAN ABU BACKER JCA, VERNON ONG LAM KIAT JCA
[CIVIL APPEALS NO: W-01-146-05-2014, W-02-810-05-2014, W-02-811-05-2014, W-02-812-05-2014 & W-02-813-05-2014]
20 OCTOBER 2015

TORT: Defamation - Libel - Auditor General published audit report and synopsis - Audit report and synopsis referred in articles by national newspapers - Allegation that report, synopsis and articles gave imputation that plaintiff had no licence and had committed criminal offence - Whether words complained of capable of bearing defamatory meaning - Whether words complained of defamatory


LATEST CASES

Legal Network Series

[2015] 1 LNS 445

TUAN MAT TUAN WIL & YANG LAIN lwn. KERAJAAN NEGERI KELANTAN DARUL NAIM

PROSEDUR SIVIL: Bidangkuasa - Bantahan terhadap bidangkuasa dan prosedur - Cabaran berkenaan kesahan undang-undang negeri difailkan di Mahkamah Tinggi - Sama ada Mahkamah Tinggi mempunyai bidangkuasa untuk menentukan kesahihan undang-undang yang telah digubal oleh parlimen - Sama ada kebenaran Mahkamah Persekutuan harus diperolehi terlebih dahulu sebelum membawa sebarang cabaran keatas kesahan undang-undang negeri

PROSEDUR SIVIL: Pemindahan prosiding - Bidangkuasa - Cabaran kesahan undang-undang negeri - Persoalan perlembagaan dirujuk - Sama ada Mahkamah Tinggi mempunyai kuasa untuk memindahkan kes yang telah difailkan di Mahkamah Tinggi ke Mahkamah Persekutuan

[2015] 1 LNS 447

NG CHOON CHAN lwn. WONG KHAM THYE

LALULINTAS JALAN: Kecuaian - Kemalangan jalan raya - Kecuaian sumbangan - Perlanggaran antara motorsikal dengan motorsikal - Kemalangan berlaku di permukaan simpang jalan - Motorsikal plaintif keluar ke jalan utama dan terhenti agak jauh ke hadapan dari garisan putih tanda berhenti - Sama ada pengguna jalan raya yang keluar ke jalan utama mempunyai tugas untuk berhati-hati dan mengawasi keselamatan diri sendiri - Sama ada peratusan liabiliti yang lebih besar sewajarnya dikenakan keatas plaintif

KETERANGAN: Beban pembuktian - Kecuaian - Kemalangan jalan raya - Sama ada beban pembuktian kecuaian adalah pada plaintif - Sama ada beban pembuktian boleh dikenakan kepada pembelaan untuk membuktikan ia tidak cuai - Akta Keterangan 1950, s. 101

KETERANGAN: Beban pembuktian - Ganti rugi - Ganti rugi khas - Tuntutan kos rawatan - Sama ada ganti rugi khas perlu dibuktikan secara ketat - Sama ada bukti pembayaran rawatan perlu dikemukakan untuk menuntut ganti rugi khas kos rawatan - Sama ada ganti rugi secara umum wajar diberikan bagi tuntutan ganti rugi khas

[2016] 1 LNS 152

PACIFIC & ORIENT INSURANCE CO BERHAD v. KHOR TEIK WAN; HAMEED JAGUBAR SYED AHMAD (INTERVENER)

CONTRACT: Privity - Insurance - Attempt by a non-party to an insurance policy to dispute terms of insurance policy between insurer and insured - Whether a non-party to an insurance policy could question acceptance or rejection of risk by insurer under insurance contract

INSURANCE: Motor insurance - Policy - Validity - Fraud claims - Application pursuant to ss. 96(3) and (5) of Road Transport Act 1987 to declare insurance policy certificate as void and unenforceable - Insurance policy bought on same date but after accident had occurred - Absence of insurance cover at time of accident - Whether there was intention to defraud insurer - Whether application was made within time

INSURANCE: Motor insurance - Liability - Liability of insurer - Insurance policy bought on same date but after accident had occurred - Absence of insurance cover at time of accident - Whether insurer could be held liable for an accident which occurred prior to issuance of policy - Whether claim against insured had to be made in his personal capacity

[2016] 1 LNS 161

ABDUL MUTALIB MOHAMAD GANI v. DR KULADEVA RATNAM & ANOR

EVIDENCE: Burden of proof - Negligence - Professional medical negligence - Proof of breach of duty of care - Credible medical evidence - Whether onus is on plaintiff to establish by recourse to credible medical evidence

TORT: Negligence - Medical negligence - Damages - Treatment and management of patient - Duty to provide advice and information - Action against doctor and hospital - Deceased succumbed to burns suffered - Allegation of lack of sufficient personnel and facilities to treat burn cases and omission to refer to an appropriate hospital - Whether there was breach of duty of care - Whether plaintiff had proved elements of negligence through credible medical evidence

[2016] 1 LNS 172

BANK KERJASAMA RAKYAT MALAYSIA BERHAD v. BIGPHASE REALTY SDN BHD

LAND LAW: Charge - Order for sale - Cause to the contrary - Chargee's ad rem rights - Allegation that property identified in Form 16A charge was different from letter of offer - Statement from bar that certificate of indebtedness had incorporated excessive profit - Allegation that principal debt was still being disputed between plaintiff and borrower - Whether matters concerning terms of financing transactions between parties including validity of the same had any consequence to application for order for sale - Whether allegation by chargor on a breach of agreement by chargee per se was sufficient to defeat ad rem rights of chargee to an order for sale - Whether defendant was able to show any manifest error in certificate of indebtedness


CLJ 2016 Volume 7 (Part 2)

FEDERAL COURT

Dewan Undangan Negeri Selangor & Ors v. Mohd Hafarizam Harun
Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Hasan Lah, Zainun Ali, Aziah Ali FCJJ
(Constitutional Law; Civil Procedure - Legislature - State legislative powers - Privileges of Legislative Assembly) [2016] 7 CLJ 143 [FC]

COURT OF APPEAL

Mohd Azran Rahmat & Anor v. Mazlan Aliman
Abdul Wahab Patail, Hamid Sultan Abu Backer, Umi Kalthum Abdul Majid JJCA
(Tort - False imprisonment - Arrest without warrant) [2016] 7 CLJ 163 [CA]

Tenaga Gagah Sdn Bhd v. Saik Siw Lai & Ors And Another Appeal
Rohana Yusuf, Hamid Sultan Abu Backer, Nallini Pathmanathan JJCA
(Company Law - Winding up - Petition - Filing of more than one petition) [2016] 7 CLJ 182 [CA]

HIGH COURT

Datuk Abdul Rashid Asari v. Lee Beng Seng (On Behalf Of Idaman Pelita Sdn Bhd); Majlis Peguam Malaysia (Intervener)
Asmabi Mohamad J
(Legal Profession - Professional discipline - Procedure - Appeal against suspension) [2016] 7 CLJ 193 [HC]

Ketua Pengarah Hasil Dalam Negeri v. Thomson Reuters Global Resources
Abu Bakar Jais J
(Revenue Law; Words & Phrases - Income tax - Withholding tax - Claim for refund) [2016] 7 CLJ 210 [HC]

Lei Lin Thai v. PP
Nordin Hassan JC
(Criminal Procedure; Words & Phrases - Charge - Defective charge - Application to strike out) [2016] 7 CLJ 222 [HC]

Mohd Rafizi Ramli & Anor v. PP & Other Appeals
Amelia Tee Abdullah J
(Criminal Law - Offences - Illegal assembly - Notification of assembly) [2016] 7 CLJ 246 [HC]

Norsham Abas v. Arif Medik Sdn Bhd & Anor
Noorin Badaruddin JC
(Contract - Void contract - Restitution) [2016] 7 CLJ 255 [HC]

Sulaiman Ahmad & Ors v. Jemain Mohamed & Ors
Sabirin Ja'afar JC
(Civil Procedure - Striking out - Writ and statement of claim - Application for) [2016] 7 CLJ 265 [HC]

Usahasama SPNB-LTAT Sdn Bhd v. ABI Construction Sdn Bhd
Lee Swee Seng J
(Arbitration; Contract - Arbitrator - Jurisdiction - Whether notice of arbitration premature) [2016] 7 CLJ 275 [HC]

SUBJECT INDEX

ARBITRATION

Arbitrator - Jurisdiction - Whether notice of arbitration premature - Terms in contract - Dispute to be referred to officer for decision before reference to arbitration - Whether a mandatory requirement - Whether requirement waived - Whether arbitrator had jurisdiction to hear reference
Usahasama SPNB-LTAT Sdn Bhd v. ABI Construction Sdn Bhd
(Lee Swee Seng J) [2016] 7 CLJ 275 [HC]

CIVIL PROCEDURE

Parties - Proper parties to be sued - State Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether parties had capacity to be impleaded in legal proceedings
Dewan Undangan Negeri Selangor & Ors v. Mohd Hafarizam Harun
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Hasan Lah, Zainun Ali, Aziah Ali FCJJ) [2016] 7 CLJ 143 [FC]

Striking out - Writ and statement of claim - Application for - Plaintiffs filed action against defendant claiming to be beneficiaries of land in deceased's estate - Plaintiffs sought declaration to declare transfer of land to defendant null and void - Failure to produce letters of administration or Sijil Faraid to establish their locus standi before commencement of action - Whether plaintiffs had locus standi to commence action against defendant - Whether striking out application a nullity
Sulaiman Ahmad & Ors v. Jemain Mohamed & Ors
(Sabirin Ja'afar JC) [2016] 7 CLJ 265 [HC]

COMPANY LAW

Winding up - Petition - Filing of more than one petition - Whether a company could be wound up twice - Whether second winding up order ought to be set aside - Whether second order rendered nugatory and superfluous - Whether trial judge erred in application of s. 219(2) of Companies Act 1965
Tenaga Gagah Sdn Bhd v. Saik Siw Lai & Ors And Another Appeal
(Rohana Yusuf, Hamid Sultan Abu Backer, Nallini Pathmanathan JJCA) [2016] 7 CLJ 182 [CA]

CONSTITUTIONAL LAW

Legislature - State Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether parties had capacity to be impleaded in legal proceedings - Whether Legislative Assembly entitled to rely on immunity conferred under art. 72(1) of the Federal Constitution - Whether Assembly had power to punish acts of contempt committed beyond its walls - Powers of Assembly - Whether limited by Laws of the Constitution of Selangor 1959
Dewan Undangan Negeri Selangor & Ors v. Mohd Hafarizam Harun
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Hasan Lah, Zainun Ali, Aziah Ali FCJJ) [2016] 7 CLJ 143 [FC]

Legislature - State legislative powers - Privileges of Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether Assembly acted within its constitutional and legal powers before invoking protection under art. 72(1) of the Federal Constitution - Whether Assembly had power to punish acts of contempt committed beyond its walls
Dewan Undangan Negeri Selangor & Ors v. Mohd Hafarizam Harun
(Zulkefli Ahmad Makinudin CJ (Malaya), Suriyadi Halim Omar, Hasan Lah, Zainun Ali, Aziah Ali FCJJ) [2016] 7 CLJ 143 [FC]

CONTRACT

Terms - Condition precedent - Dispute to be referred to officer for decision before reference to arbitration - Whether parties contractually agreed to pre-condition - Whether meetings and negotiations between parties tantamount to reference under contract - Whether requirement waived by silence
Usahasama SPNB-LTAT Sdn Bhd v. ABI Construction Sdn Bhd
(Lee Swee Seng J) [2016] 7 CLJ 275 [HC]

Void contract - Restitution - Plaintiff provided financial assistance to defendants pursuant to agreement - Agreement void for illegality - Whether defendants could be allowed to take advantage of illegality of agreement after benefiting from funds - Whether plaintiff entitled to restitution - Whether court has discretion to sever unlawful part of contract - Contracts Act 1950, s. 66
Norsham Abas v. Arif Medik Sdn Bhd & Anor
(Noorin Badaruddin JC) [2016] 7 CLJ 255 [HC]

CRIMINAL LAW

Offences - Illegal assembly - Notification of assembly - Failure to give police ten days' notice - Applicants charged under s. 15(3) of Peaceful Assembly Act 2012 ('PAA') - Whether requirement to give notice reasonable - Whether requirement under s. 9(1) of PAA to give notice prior to assembly a 'restriction' within art. 10(2)(b) of Federal Constitution - Whether non-compliance to give notice warranted criminal sanction - Whether ss. 4(2)(b), 4(3), 9(1), 9(5), 10(c), 15(3) of PAA constitutional and valid - Whether court bound by decision in Nik Nazmi v. PP or PP v. Yuneswaran
Mohd Rafizi Ramli & Anor v. PP & Other Appeals
(Amelia Tee Abdullah J) [2016] 7 CLJ 246 [HC]

CRIMINAL PROCEDURE

Charge - Defective charge - Application to strike out - Capital Markets and Services Act 2007, s. 188(2)(a) - 53 charges for offence of acquisition of shares while in possession of insider information - Whether provision under s. 188 more severe and drastic compared to s. 201 - Whether charges contravened art. 8(1) Federal Constitution - Whether defective and illegal in substance - Whether applicant charged in his capacity as principal or agent - Whether charges disclosed nexus between information and material effect on price or value of shares - Whether there were distinct offences warranting separate charges - Whether charges oppressive and abuse of court process - Whether contravened s. 163 Criminal Procedure Code - Whether applicant should have been charged under s. 188(2)(b) instead of s. 188(2)(a) - Whether validity of charges questionable
Lei Lin Thai v. PP
(Nordin Hassan JC) [2016] 7 CLJ 222 [HC]

Charge - Framing of particulars of - 53 charges for offence of acquisition of shares while in possession of insider information - Whether shares acquired on different time and dates - Whether there were distinct offences warranting separate charges - Whether charges complied with s. 163 Criminal Procedure Code - Capital Markets and Services Act 2007, s. 188(2)(a)
Lei Lin Thai v. PP
(Nordin Hassan JC) [2016] 7 CLJ 222 [HC]

LEGAL PROFESSION

Professional discipline - Procedure - Appeal against suspension - Consent judgment by parties that report by first investigating tribunal ('IT') be set aside - Constitution of second IT - Whether Disciplinary Board ('DB') had jurisdiction to constitute second IT - Whether DB complied with ss. 99 & 100 of Legal Profession Act 1976 - Whether decision of DB pursuant to recommendation of Disciplinary Committee void ab initio - Whether function of Disciplinary Committee restricted to considering report of IT - Legal Profession Act 1976, ss. 103A(a), 103B(1), 103D & 103D(2)
Datuk Abdul Rashid Asari v. Lee Beng Seng (On Behalf Of Idaman Pelita Sdn Bhd); Majlis Peguam Malaysia (Intervener)
(Asmabi Mohamad J) [2016] 7 CLJ 193 [HC]

REVENUE LAW

Income tax - Withholding tax - Claim for refund - Taxpayer was tax resident of Switzerland with no permanent establishment in Malaysia - Whether payment subject to withholding tax - Whether fell under definition of 'royalty' under Income Tax Act 1967 - Whether business profit of taxpayer
Ketua Pengarah Hasil Dalam Negeri v. Thomson Reuters Global Resources
(Abu Bakar Jais J) [2016] 7 CLJ 210 [HC]

TORT

False imprisonment - Arrest without warrant - Complainant arrested for alleged criminal trespass - Penal Code, s. 441 - Whether complainant had consent to be in premises - Whether arrest legal and valid - Whether arrest made on reasonable suspicion that an offence had been committed - Criminal Procedure Code, s. 107
Mohd Azran Rahmat & Anor v. Mazlan Aliman
(Abdul Wahab Patail, Hamid Sultan Abu Backer, Umi Kalthum Abdul Majid JJCA) [2016] 7 CLJ 163 [CA]

WORDS & PHRASES

'acquire' - Meaning of - Capital Markets and Services Act 2007, s. 188(2)(a) - Acquisition of shares - Whether includes anything obtained directly or indirectly - Whether wide enough to cover acquisition of shares through third party
Lei Lin Thai v. PP
(Nordin Hassan JC) [2016] 7 CLJ 222 [HC]

'royalty' - Definition of - Income Tax Act 1967, s. 2 ('ITA') - Malaysia-Swiss Federal Council Double Taxation Agreement 1974, art. 12(4) ('DTA') - Whether definition in DTA prevails over definition under ITA
Ketua Pengarah Hasil Dalam Negeri v. Thomson Reuters Global Resources
(Abu Bakar Jais J) [2016] 7 CLJ 210 [HC]


CLJ 2016 Volume 7 (Part 3)

FEDERAL COURT

Goodness For Import And Export v. Phillip Morris Brands SARL
Richard Malanjum CJ (Sabah & Sarawak), Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali FCJJ
(Civil Procedure; Courts; Customs And Excise - Service - Out of jurisdiction - Writ and statement of claim) [2016] 7 CLJ 303 [FC]

Hong Leong Bank Bhd v. Khairulnizam Jamaludin
Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali, Zaharah Ibrahim FCJJ
(Bankruptcy; Statutory Interpretation - Failure to obtain leave of court prior to commencement of bankruptcy action) [2016] 7 CLJ 335 [FC]

COURT OF APPEAL

Allied Physics Sdn Bhd v. Ketua Audit Negara (Malaysia) & Anor And Other Appeals
Balia Yusof Wahi, Hamid Sultan Abu Backer, Vernon Ong Lam Kiat JJCA
(Tort - Defamation - Libel - Auditor General published audit report and synopsis - Whether words complained of defamatory) [2016] 7 CLJ 347 [CA]

Md Hilmi Md Noor & Anor v. Azman Ahmad & Ors
Alizatul Khair Osman, Abang Iskandar, Zamani A Rahim JJCA
(Civil Procedure; Evidence; Succession - Standard of proof - Fraud - Forged power of attorney) [2016] 7 CLJ 360 [CA]

Zaharen Hj Zakaria v. Redmax Sdn Bhd & Other Appeals
Abang Iskandar, Idrus Harun, Badariah Sahamid JJCA
(Company Law; Tort - Fraud - Conspiracy to injure company by directors) [2016] 7 CLJ 380 [CA]

HIGH COURT

Chitharthan Kumar Jayakumar v. PP
Wong Teck Meng JC
(Criminal Law; Criminal Procedure - Possession of offensive weapon - Whether elements of possession proved) [2016] 7 CLJ 401 [HC]

Kerajaan Malaysia (Kementerian Sumber Asli Dan Alam Sekitar) v. Kumpulan Sakata Sdn Bhd
Lee Swee Seng J
(Arbitration - Award - Interest - Whether arbitrator had jurisdiction to award pre-award interest) [2016] 7 CLJ 412 [HC]

Knight Capital Sdn Bhd v. Run Education Sdn Bhd; Plush Dollar (M) Sdn Bhd (Applicant)
Khadijah Idris JC
(Company Law - Winding up - Stay of order - Whether applicant had locus) [2016] 7 CLJ 426 [HC]

Naza Italia Sdn Bhd v. Perfect Logistic Services
Suraya Othman J
(Contract - Agency - Principle and agent - Theft of cars - Claim for loss of cars) [2016] 7 CLJ 444 [HC]

Segaran Chellamuthu v. Pengerusi, Lembaga Pencegahan Jenayah & Ors
SM Komathy JC
(Preventive Detention - Detention order - Validity of - Habeas corpus) [2016] 7 CLJ 455 [HC]

Senga Engineering & Construction Sdn Bhd v. Richwin Holdings (M) Sdn Bhd
Mohd Firuz Jaffril JC
(Contract - Building contract - Claim for works done) [2016] 7 CLJ 463 [HC]

SUBJECT INDEX

ARBITRATION

Award - Interest - Whether arbitrator had jurisdiction to award pre-award interest - Whether arbitrator erred in awarding pre and post award interest - Whether arbitrator committed error of law in awarding final award - Whether court bound by decision of Far East Holdings Bhd & Anor v. Majlis Ugama Islam dan Adat Resam Melayu Pahang & Another Appeal
Kerajaan Malaysia (Kementerian Sumber Asli Dan Alam Sekitar) v. Kumpulan Sakata Sdn Bhd

(Lee Swee Seng J) [2016] 7 CLJ 412 [HC]

BANKRUPTCY

Notice - Setting aside - Appeal against decision - Default in repayment of outstanding sums under hire purchase agreement - Recovery of debts - Commencement of bankruptcy action against social guarantor - Compliance with s. 5(3) of Bankruptcy Act 1967 - Failure to obtain leave of court prior to commencement of bankruptcy action - Whether valid ground to set aside bankruptcy notice - Whether creditor could satisfy court during hearing of creditor's petition that all avenues to recover debts owed by hirer had been exhausted - Whether sufficient for creditor to show by way of affidavit that requirement under s. 5(3) had been satisfied
Hong Leong Bank Bhd v. Khairulnizam Jamaludin
(Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali, Zaharah Ibrahim FCJJ) [2016] 7 CLJ 335 [FC]

CIVIL PROCEDURE

Judgment - Default of appearance - Defendant absent during trial - Whether judgment in default of appearance should be ordered against defendant
Md Hilmi Md Noor & Anor v. Azman Ahmad & Ors
(Alizatul Khair Osman, Abang Iskandar, Zamani A Rahim JJCA) [2016] 7 CLJ 360 [CA]

Service - Out of jurisdiction - Writ and statement of claim - Foreign entity - Cigarettes imported into Malaysia seized by customs - Payment of compound - Infringement of trademark and passing off - Whether leave of court obtained to serve writ out of jurisdiction - Whether Malaysian court has jurisdiction to deal with action - Whether cause of action arose in Malaysia - Whether cigarettes were in transit or had been imported into Malaysia - Whether offence committed governed by Malaysian law - Whether s. 23(1) Courts of Judicature Act 1964 confers extra territorial jurisdiction to High Court in Malaysia - Whether s. 23(1) independent of O. 11 Rules of Court 2012
Goodness For Import And Export v. Phillip Morris Brands SARL
(Richard Malanjum CJ (Sabah & Sarawak), Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali FCJJ) [2016] 7 CLJ 303 [FC]

COMPANY LAW

Directors - Breach of fiduciary duties - Siphoning of monies by director of company (first defendant) - Payments issued to third parties by director of finance (second defendant) - Whether defence of second defendant that payments approved based on instructions of first defendant could be sustained - Whether High Court Judge erred in accepting defence of second defendant - Whether evidence showed blatant breach of duty by both defendants
Zaharen Hj Zakaria v. Redmax Sdn Bhd & Other Appeals
(Abang Iskandar, Idrus Harun, Badariah Sahamid JJCA) [2016] 7 CLJ 380 [CA]

Winding up - Stay of order - Application by majority shareholder - Whether applicant had locus - Whether respondent likely to be commercially solvent - Whether would be able to pay debt when debt become due and payable in future - Whether payment of creditors' debts meant that wound up company was solvent - Whether application for stay was against public interest and detrimental to commercial morality - Companies Act 1965, ss. 4(1), 243(1)
Knight Capital Sdn Bhd v. Run Education Sdn Bhd; Plush Dollar (M) Sdn Bhd (Applicant)
(Khadijah Idris JC) [2016] 7 CLJ 426 [HC]

CONTRACT

Agency - Principle and agent - Theft of cars - Claim for loss of cars - Whether defendant appointed as logistic provider by plaintiff - Whether defendant's agent in possession of cars prior to theft - Whether defendant vicariously liable for acts of its agent - Whether defendant liable for loss of cars
Naza Italia Sdn Bhd v. Perfect Logistic Services
(Suraya Othman J) [2016] 7 CLJ 444 [HC]

Building contract - Claim for works done - Construction of house carried out without approval of relevant authorities - House ordered to be demolished - Whether plaintiff or defendant's obligation to obtain written approval of relevant authorities - Whether house built in contravention of s. 70 of Street, Drainage and Building Act 1974 - Whether cause of action founded on illegal act could succeed - Whether both parties equally tainted - Whether court could assist either party which was part of illegality
Senga Engineering & Construction Sdn Bhd v. Richwin Holdings (M) Sdn Bhd
(Mohd Firuz Jaffril JC) [2016] 7 CLJ 463 [HC]

COURTS

Jurisdiction - High Court - Foreign entity - Cigarettes imported into Malaysia seized by customs - Payment of compound - Infringement of trademark and passing off - Whether leave of court obtained to serve writ out of jurisdiction - Whether Malaysian court has jurisdiction to deal with action - Whether cause of action arose in Malaysia - Whether cigarettes were in transit or had been imported into Malaysia - Whether offence committed governed by Malaysian law - Whether s. 23(1) Courts of Judicature Act 1964 confers extra territorial jurisdiction to High Court in Malaysia - Whether s. 23(1) independent of O. 11 Rules of Court 2012
Goodness For Import And Export v. Phillip Morris Brands SARL
(Richard Malanjum CJ (Sabah & Sarawak), Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali FCJJ) [2016] 7 CLJ 303 [FC]

CRIMINAL LAW

Possession of offensive weapon - Finding of fact - Ingredients of - Whether elements of possession proved - Whether there was evidence to connect accused to weapon - Failure to call material witnesses - Whether accused had knowledge of weapon - Whether there was possibility of anyone else having ownership and possession of weapon - Whether possession proved against accused - Whether accused acquitted and discharged - Corrosive and Explosive Substances and Offensive Weapons Act 1958, s. 6(1)
Chitharthan Kumar Jayakumar v. PP
(Wong Teck Meng JC) [2016] 7 CLJ 401 [HC]

CRIMINAL PROCEDURE

Sentence - Appeal against conviction and sentence - Possession of offensive weapon - Finding of fact - Ingredients of - Whether elements of possession proved - Whether there was evidence to connect accused to weapon - Failure to call material witnesses - Whether accused had knowledge of weapon - Whether there was possibility of anyone else having ownership and possession of weapon - Whether possession proved against accused - Whether accused acquitted and discharged - Corrosive and Explosive Substances and Offensive Weapons Act 1958, s. 6(1)
Chitharthan Kumar Jayakumar v. PP
(Wong Teck Meng JC) [2016] 7 CLJ 401 [HC]

CUSTOMS AND EXCISE

Uncustomed goods - Dealing with - Whether cigarettes were in transit or had been imported into Malaysia - Making false declaration - Whether payment of compound duly settled - Whether goods in transit shall not be deemed to be imported unless it becomes uncustomed goods - Customs Act 1967, s. 2 & 133(1)(a)
Goodness For Import And Export v. Phillip Morris Brands SARL
(Richard Malanjum CJ (Sabah & Sarawak), Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali FCJJ) [2016] 7 CLJ 303 [FC]

EVIDENCE

Standard of proof - Fraud - Forged power of attorney - Land sold to third party and charged to bank without authorisation by deceased owner or beneficiaries - Allegation of fraud or conspiracy to defraud - Applicable standard of proof in civil cases involving allegation of fraud - Whether on balance of probabilities
Md Hilmi Md Noor & Anor v. Azman Ahmad & Ors
(Alizatul Khair Osman, Abang Iskandar, Zamani A Rahim JJCA) [2016] 7 CLJ 360 [CA]

PREVENTIVE DETENTION

Detention order - Validity of - Habeas corpus - Application for - Whether detention order made without benefit of specific reports - Whether detention order defective - Failure to comply with procedural requirements - Whether rendered detention order invalid - Prevention of Crime Act 1959, s. 19A(1)
Segaran Chellamuthu v. Pengerusi, Lembaga Pencegahan Jenayah & Ors
(SM Komathy JC) [2016] 7 CLJ 455 [HC]

STATUTORY INTERPRETATION

Construction of statutes - Intention of Parliament - Bankruptcy Act 1967, s. 5(3) - Default in repayment of outstanding sums under hire purchase agreement - Recovery of debts - Commencement of bankruptcy action against social guarantor - Failure to obtain leave of court prior to commencement of bankruptcy action - Whether valid ground to set aside bankruptcy notice - Whether sufficient for creditor to show by way of affidavit that requirement under s. 5(3) had been satisfied - Whether words in s. 5(3) clear and unambiguous
Hong Leong Bank Bhd v. Khairulnizam Jamaludin
(Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali, Zaharah Ibrahim FCJJ) [2016] 7 CLJ 335 [FC]

SUCCESSION

Administration - Land - Administration of land belonging to deceased - Name of deceased spelled differently in Land Office's records - Whether deceased was the described name appearing in deed of indenture
Md Hilmi Md Noor & Anor v. Azman Ahmad & Ors
(Alizatul Khair Osman, Abang Iskandar, Zamani A Rahim JJCA) [2016] 7 CLJ 360 [CA]

TORT

Defamation - Libel - Auditor General published audit report and synopsis - Audit report and synopsis referred in articles by national newspapers - Allegation that report, synopsis and articles gave imputation that plaintiff had no licence and had committed criminal offence - Whether words complained of capable of bearing defamatory meaning - Whether words complained of defamatory
Allied Physics Sdn Bhd v. Ketua Audit Negara (Malaysia) & Anor And Other Appeals
(Balia Yusof Wahi, Hamid Sultan Abu Backer, Vernon Ong Lam Kiat JJCA) [2016] 7 CLJ 347 [CA]

Fraud - Conspiracy - Conspiracy to injure company by directors - Allegation of siphoning of company funds by director of company (first defendant) - Payments issued to third parties by director of finance (second defendant) - Defence of second defendant that payments approved based on instructions of first defendant - Whether sustainable - Whether second defendant an accomplice to first defendant - Whether payments to third parties justified - Whether evidence against first defendant overwhelming
Zaharen Hj Zakaria v. Redmax Sdn Bhd & Other Appeals
(Abang Iskandar, Idrus Harun, Badariah Sahamid JJCA) [2016] 7 CLJ 380 [CA]


ARTICLES

LNS Article(s)

  1. PERMITS FOR EMAILS? THE NEW WORLD OF EXPORT CONTROLS* [Read excerpt]
    by: ALISTAIR BRIDGES** [2016] 1 LNS(A) lxxi

  2. [2016] 1 LNS(A) lxxi
    logo
    AUSTRALIA

    PERMITS FOR EMAILS?
    THE NEW WORLD OF EXPORT CONTROLS*

    by
    ALISTAIR BRIDGES**

    Enforcement of Australia’s key military and dual-use goods export legislation will commence in April 2016. Businesses and researchers should get acquainted with Australia’s new, US-inspired export control system, to ensure they don’t run afoul of its broad-reaching licensing requirements. Alistair Bridges of Moulis Legal discusses what’s new, and why now, more than ever, you must be careful when sending emails.


    On 2 April 2016 the Defence Trade Controls Act 2012 (“DTCA”) will come into operation.

    Among other things, the DTCA will endeavour to regulate certain cross-border intangible transfers of controlled technology — meaning that emails, faxes, and other “nonphysical” transfers of information concerning certain goods sent outside of Australia may, for the first time, require a permit.

    Failure to meet the permit requirements will be a criminal offence. This will have significant regulatory implications for cross-border research and business activities.

    Plugging the holes in Australia’s export control regime

    The DTCA was created for two primary purposes. Firstly, the DTCA is Australia’s domestic implementation of the Treaty Between the Government of Australia and the Government of the United States of America concerning Defense Trade Cooperation.

    . . .

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

    **Moulis Legal advises Australian and multinational corporations on cross-border matters including trade in goods and services, investment and export/import controls.

     


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  3. FINDING THE RIGHT PERSONAL REPRESENTATIVE TO THE DECEASED IN ESTATE ADMINISTRATION: EXPOUNDING THE MALAYSIAN LEGAL CONSIDERATIONS [Read excerpt]
    by: NOR AZLINA MOHD NOOR*
    ASSOC. PROF DR. AKMAL HIDAYAH HALIM**
    [2016] 1 LNS(A) lxxii

  4. [2016] 1 LNS(A) lxxii
    logo
    MALAYSIA

    FINDING THE RIGHT PERSONAL REPRESENTATIVE TO THE DECEASED IN ESTATE ADMINISTRATION:
    EXPOUNDING THE MALAYSIAN LEGAL CONSIDERATIONS

    by
    NOR AZLINA MOHD NOOR*
    ASSOC. PROF DR. AKMAL HIDAYAH HALIM**

    Introduction

    Administration of a deceased estate in Malaysia is governed by three different administrative bodies. They are the Civil High Court, Small Estates Distribution Section under the Department of the Director General of Lands and Mines, and the Public Trust Corporation known as Amanah Raya Berhad (ARB). Despite the organizational differences, each and every body draws its mandate from the appointment of a personal representative. Personal representation is the noblest obligation in the deceased’s estate administration as he/she is entrusted with the highest degree of trust and honesty in honouring his legal obligations. The need is manifested by the legal requirement to produce a declaration under oath before the letter of representation is granted by the High Court.

    Appointment of Personal Representative

    The word ‘personal representative’ is broadly used by the Probate and Administration Act 1959 (PAA) to include both executor and administrator. The principal statute governing the estate administration in Malaysia provides that ‘personal representative means the executor, original or by representation, or administrator for the time being of a deceased person, and as regards any liability for the payment of death duties includes any person who takes possession of or intermeddles with the property of a deceased person without the authority of the personal representatives or the Court’.[1] A widely accepted notion is that the two categories of personal representative can be distinguished based on the nature of their appointment.[2] “Executor” is normally appointed by the testator in the event of testacy by naming a person in his last will to administer the deceased estate and be granted with a grant of probate.[3] “Administrator” on the other hand, is a person appointed by the Court in the event of intestacy where the deceased died without leaving any will and is granted with letters of administration.[4]

    . . .

    * Lecturer, School of Law, College of Law, Government & International Studies, Universiti Utara Malaysia, Email: norazlyna@uum.edu.my.

    ** Associate Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, Email: akmalh@iium.edu.my.


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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 A1514 National Anti-Drugs Agency (Amendment) Act 2016 18 August 2016 ACT 638
ACT A1513 Civil Defence (Amendment) Act 2016 Not yet in force ACT 221
ACT A1512 Road Transport (Amendment) Act 2016 Not yet in force ACT 333
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

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 226/2016 Customs (Import Licence Fee For Motor Vehicle) (Amendment) (No. 2) Regulations 2016 24 August 2016 25 August 2016 PU(A) 491/2009
PU(A) 225/2016 Customs Duties (Exemption) (Amendment) (No. 2) Order 2016 19 August 2016 22 August 2016 PU(A) 371/2013
PU(A) 224/2016 Loans Guarantee (Bodies Corporate) (Remission of Tax and Stamp Duty) (No. 4) Order 2016 19 August 2016 22 August 2016 ACT 96
PU(A) 223/2016 Workmen's Compensation (Foreign Workers' Compensation Scheme) (Insurance) (Amendment) Order 2016 18 August 2016 15 July 2015 - subsubparagraph 2(a); 5 May 2014 - subsubparagraph 2(b); 22 April 2015 - subsubparagraph 2(c) PU(A) 45/2005
PU(A) 222/2016 Farmers' Organization (Amendment) (No. 2) Regulations 2016 12 August 2016 29 January 2016 PU(A) 303/1983

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 366/2016 Notice of Polling Districts and Polling Centres For The Federal and State Constituencies of The States of Malaya - Corrigendum 22 August 2016 23 August 2016 PU(B) 197/2016
PU(B) 365/2016 Determination of Spectrum Assignment 2016 19 August 2016 20 August 2016 ACT 588
PU(B) 364/2016 Notice To Third Parties 19 August 2016 20 August 2016 ACT 613
PU(B) 363/2016 Notice Under Subsection 70(2) 19 August 2016 15 September 2016 until 31 December 2021 ACT 333
PU(B) 362/2016 Notification of Values of Crude Palm Oil Under Section 12 19 August 2016 1 September 2016 to 30 September 2016 ACT 235

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 491/2009 Customs (Import Licence Fee for Motor Vehicle) Regulations 2009 PU(A) 226/2016 25 August 2016 Schedule
PU(A) 371/2013 Customs Duties (Exemption) Order 2013 PU(A) 225/2016 22 August 2016 Schedule
PU(A) 483/2012 Capital Markets and Services (Fees) Regulations 2012 PU(A) 221/2016 15 August 2016 Regulation 2 and Schedule 2
PU(A) 303/1983 Farmers' Organization Regulations 1983 PU(A) 222/2016 29 January 2016 Regulation 35
PU(A) 45/2005 Workmen's Compensation (Foreign Workers' Compensation Scheme) (Insurance) Order 2005 PU(A) 223/2016 15 July 2015 - subsubparagraph 2(a); 5 May 2014 - subsubparagraph 2(b); 22 April 2015 - subsubparagraph 2(c) Schedule

 

Revoked

 

Act/Principal No. Title Revoked by In force from
PU(B) 538/2010 Malaysian Code on Take-Overs and Mergers 2010 PU(B) 356/2016 15 August 2016
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