CLJ Bulletin, Issue 2010, Vol 40

15 October 2010

CLJ Law Malaysia

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New This Week 1. Legislation Highlights
  2. Articles
     a) Legal Network Series Articles
3. Latest Cases
    a) Legal Network Series
    b) CLJ Volume 7 (Part 8) 2010

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1. Legislation Highlights

Amending Acts

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL ACT NO

ACT A1381 Consumer Protection (Amendment) Act 2010 1 February 2011 [P.U. (B) 48/2011] ACT 599
ACT A1382 Subordinate Courts (Amendment) Act 2010 Not Yet In Force ACT 92
ACT A1383 Judicial Appointments Commission (Amendment) Act 2010 1 November 2010 [PU(B) 478/2010] ACT 695
ACT A1384 Hire-Purchase (Amendment) Act 2010 Not Yet In Force ACT 212
ACT A1385 Anti-Trafficking In Persons (Amendment) Act 2010 15 November 2010 [PU(B) 500/2010] ACT 670

PU(A)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL ACT NO

PU(A) 335/2010 Capital Markets And Services (Price Stabilization Mechanism) (Amendment) Regulations 2010 1 October 2010 ACT 671
PU(A) 336/2010 Securities Commission (Audit Oversight Board) (Fees) (No 2) Regulations 2010 1 October 2010 ACT 498
PU(A) 337/2010 Excise Duties (Amendment) Order 2010 1 October 2010 ACT 176
PU(A) 338/2010 Customs (Values) (Palm Kernel) (No 10) Order 2010 1 October 2010 ACT 235
PU(A) 339/2010 Customs (Values) (Palm Oil) (No 40) Order 2010 4 October 2010 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL ACT NO

PU(B) 408/2010 Notice To Third Parties 30 September 2010 ACT 613
PU(B) 409/2010 Reservation Of Land For Public Purpose (Amendment) (No 3) 2010 30 September 2010 ACT 56/1965
PU(B) 410/2010 Appointment Of Date Of Coming Into Operation 30 September 2010 ACT 712
PU(B) 411/2010 Notice To Third Parties 30 September 2010 ACT 613
PU(B) 412/2010 Revocation Of Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 30 September 2010 ACT 56/1965

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2. Articles

a) Legal Network Series Articles

1. Judicial Independence And Accountability: Pressures And Opportunities [Read excerpt]
By The Hon Sir Jack Beatson FBA*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT
[2010] 1 LNS 429 [HC] Sri Datai Engineering Sdn Bhd & Ors v. Hong Leong Finance Berhad

CIVIL PROCEDURE: Judgment - Judgment debt - Plaintiff/hirer defaulted in hire-purchase rentals - Defendant/owner terminated all hire purchase agreements and obtained summary judgment for liquidated sum - Waiver by conduct - Whether defendant waived enforcement of summary judgment - Whether defendant reinstated hirepurchase agreements post-judgment - Whether defendant estopped from denying reinstatement of hire-purchase agreements - Whether there was novation under s. 63 Contracts Act 1950 - Whether judgment debt restructured into new and performing hire-purchase agreements - Whether summary judgment satisfied

HIRE-PURCHASE: Breach of agreement - Plaintiff/hirer defaulted in hire-purchase rentals - Defendant/owner terminated all hire-purchase agreements and obtained summary judgment for liquidated sum - Whether defendant waived enforcement of summary judgment - Whether defendant reinstated hire-purchase agreements post-judgment - Whether defendant estopped from denying reinstatement of hirepurchase agreements - Whether judgment debt restructured into new and performing hire-purchase agreements

[2010] 1 LNS 444 [HC] Worldwide Rota Dies Sdn Bhd v. Ronald Ong Cheow Joon

CONTRACT : Employment contract - Breach - Terms on conflict of interest, confidentiality and restraint of trade - Employee divulged trade information to competitors, resigned to form new company, took company's clients and enticed other employee's to join him - Injunction obtained against employee - Breach and contempt proceedings - Contractual duty of fidelity - Action by company for damages

CONTRACT: Restraint of trade - Reasonableness of restriction - Restriction on similar trade - Three years - Exploitation of trade secrets - Whether restraint justifiable - Whether contrary to s. 28 Contracts Act 1950

TORT: Breach of confidence - Necessary quality of confidentiality

TORT: Unlawful interference with trade - Deliberate interference with plaintiff's business interests by unlawful means - Influencing plaintiff's employee's to leave - Failing to keep information learned or obtained in course of employment confidential - Divulging confidential information to plaintiff's competitor - Making misrepresentations to plaintiff's customers

[2010] 1 LNS 535 [HC] Khaeryll Benjamin Ibrahim v. Ketua Polis Negara & Ors

PREVENTIVE DETENTION: Dangerous drugs - Power to detain suspected persons - Applicant released on bail after being charged for possession under s. 12(2) & (3) Dangerous Drugs Act 1952 - Immediately re-arrested and detained under s. 3(1) Dangerous Drugs (Special Preventive Measures) Act 1985 - Whether requirements of ss. 3(1) & 6(1) satisfied for arrest and detention thereunder - 'Reason to believe' - 'Public order' - Whether contemptuous to re-arrest applicant - Grounds of arrest not given, whether violated art. 5(3) Federal Constitution - Denial of right to counsel - Mala fide

CRIMINAL PROCEDURE: Habeas corpus - Application for - Whether correct respondents cited in application - Whether respondents were parties detaining or having custody of applicant - Applicant detained under s. 3(1) Dangerous Drugs (Special Preventive Measures) Act 1985 - Cited Inspector General of Police, Minister of Home Affairs and Government of Malaysia as 1st, 2nd and 3rd respondents respectively - Whether correct parties - Criminal Procedure Code, s. 366

CRIMINAL PROCEDURE: Habeas corpus - Application for - Affidavit-in-support - Whether must be affirmed by applicant - Whether could be affirmed by applicant's mother and personal assistant - Whether applicant unable to affirm affidavit due to restraint, coercion or other sufficient cause - Criminal Procedure Code, s. 367

ADMINISTRATIVE LAW: Remedies - Habeas corpus - Application for - Detention under s. 3(1) Dangerous Drugs (Special Preventive Measures) Act 1985 - Propriety and lawfulness of arrest and detention - Punitive and preventing proceedings, distinction

CONSTITUTIONAL LAW: Fundamental liberties - Habeas corpus - Detention under s. 3(1) Dangerous Drugs (Special Preventive Measures) Act 1985 - Propriety and lawfulness of arrest and detention - Punitive and preventing proceedings, distinction - Grounds of arrest not given, whether violated art. 5(3) Federal Constitution - Denial or right to counsel - Mala fide

[2010] 1 LNS 804 [HC] Pemunya Kargo Atas Kapal "Istana VI" v. Pemilik Kapal Atau Vesel "Filma Satu"

SHIPPING: Action in rem - Cargo - Crude palm oil - Cargo discharged to wrong party - Action for delivery up of cargo or damages for loss - Action in tort for conversion or misdelivery - Whether plaintiff had title to cargo at the material time - Sale of Goods Act 1957, ss. 18, 23 & 25 - 'Ascertainment and appropriation' and segregation of goods - Action in contract as endorsee of bills of lading - Bills of Lading Act 1855 [UK], s. 1 - Whether property in cargo passed to plaintiff upon endorsement on bills of lading - Whether discharge of cargo into bonded shore tanks amounted to delivery - Whether there is a legal distinction between 'discharge' and 'delivery' - Whether delivery must always be made against production of original bills of lading - Discharge at behest of charterer - Whether plaintiff acquiesced to discharge of cargo into bonded shore tanks - False destination stated in bills of lading - Whether plaintiff's loss caused by defendant - Contract of bailment, whether defendant breached duty as bailee

SHIPPING: Carriage of goods - Wrongful delivery of goods - Cargo discharged to wrong party - Action for delivery up of cargo or damages for loss - Action in tort for conversion or misdelivery - Whether plaintiff had title to cargo at the material time - Sale of Goods Act 1957, ss. 18, 23 & 25 - 'Ascertainment and appropriation' and segregation of goods - Action in contract as endorsee of bills of lading - Bills of Lading Act 1855 [UK], s. 1 - Whether property in cargo passed to plaintiff upon endorsement on bills of lading - Whether discharge of cargo into bonded shore tanks amounted to delivery - Whether there is a legal distinction between 'discharge' and 'delivery' - Whether delivery must always be made against production of original bills of lading - Discharge at behest of charterer - Whether plaintiff acquiesced to discharge of cargo into bonded shore tanks - False destination stated in bills of lading - Whether plaintiff's loss caused by defendant - Contract of bailment, whether defendant breached duty as bailee

[2010] 1 LNS 824 [HC] Yuvarani Ravindra v. Percetakan Kum Sdn Bhd & Ors

TORT: Defamation - Libel - Action by actress for publication of false news in magazine - Whether words complained of accurately translated into language of court - Whether words had tendency of defamatory meaning - Ordinary and natural meaning - Innuendo - Defences - Publisher and distributor - Truth - Justification - Defamation Act 1957, s. 8 - Substantial truth - Whether established

TORT: Defamation - Libel - Damages - Considerations in assessment and award of - Plaintiff's standing in society - Nature and gravity of libel - Severity of damage to plaintiff's reputation and character - Mode and extent of publication - Number of copies and distribution - Apology, whether tendered - Aggravated and exemplary damages, whether warranted

TORT: Defamation - Libel - Defences - Defence of 'innocent dissemination' by printer - Contract printer - Subordinate distributors - Whether knew or ought to have known that material was defamatory or likely to be defamatory - Whether defence limited by s. 7 Defamation Act 1957 - Whether defence applies to printers in general - Policy considerations

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b. CLJ Volume 7 (Part 8) 2010

COURT

FEDERAL COURT

Chong Fook Sin v. Amanah Raya Bhd & Ors
(Parties - Intervention - Application to intervene in proceedings) [2010] 7 CLJ 917

COURT OF APPEAL

Datuk Dr Soon Choon Teck v. Datuk Robert Lau Hoi Chew & Ors
(Amendment - Statement of claim) [2010] 7 CLJ 931

Government Of The State Of Sabah v. Syarikat Raspand
(Civil Procedure - Action - Government proceedings) [2010] 7 CLJ 945

Kesatuan Pekerja-pekerja Malaysia Shipyard & Engineering Sdn Bhd v. Malaysia Shipyard & Engineering Sdn Bhd & Anor And Another Appeal
(Appeal - Reinstatement of - Application for) [2010] 7 CLJ 987

HIGH COURT

Choy Meng Heng & Anor v. Immediate Strategy Sdn Bhd & Anor
(Tort - Negligence - Duty of care) [2010] 7 CLJ 1000

Hong Leong Bank Bhd v. Sum-Projects (Brothers) Sdn Bhd
(Land Law - Assignment - Deed of Assignment) [2010] 7 CLJ 1010

In Re Maxisegar Sdn Bhd
(Company Law - Arrangements and reconstructions - Restraining order) [2010] 7 CLJ 1033

PP v. Paosi Arong & Anor
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a)) [2010] 7 CLJ 1049

SUBJECT INDEX

CIVIL PROCEDURE

Action - Government proceedings - Action in Tort against State Government - Failure to state government officer responsible for alleged tortious act as defendant - Whether officer should be made party and his liability established before government could be made vicariously liable - Government Proceedings Act 1956, ss. 5, 6
Government Of The State Of Sabah v. Syarikat Raspand
(Low Hop Bing, Hishamudin Mohd Yunus & Clement Skinner JJCA) [2010] 7 CLJ 945 [CA]

Amendment - Statement of claim - Defamation suit - Proposed amendment merely to show that words complained of referred to appellant - Amendment merely supplementing what had been earlier pleaded - Amendment allowed
Datuk Dr Soon Choon Teck v. Datuk Robert Lau Hoi Chew & Ors
(Mohd Ghazali Yusoff, James Foong & Sulaiman Daud JJCA) [2010] 7 CLJ 931 [CA]

Amendment - Statement of claim - Principles applicable - Exercise of courtís discretion - Amend possible at any stage of proceedings however late - Injustice to parties - Amendment after expiry of limitation period - Whether suit of one character turned into another - Whether lapse of eight to nine months constituted an ordinate delay - Whether proposed amendment necessary to do justice between parties
Datuk Dr Soon Choon Teck v. Datuk Robert Lau Hoi Chew & Ors
(Mohd Ghazali Yusoff, James Foong & Sulaiman Daud JJCA) [2010] 7 CLJ 931 [CA]

Appeal - Appeal to Court of Appeal - Memorandum of Appeal - Whether Court of Appeal in deciding appeal confined to grounds raised in Memorandum of Appeal - Rules of the Court of Appeal r. 18(1), (2)
Government Of The State Of Sabah v. Syarikat Raspand
(Low Hop Bing, Hishamudin Mohd Yunus & Clement Skinner JJCA) [2010] 7 CLJ 945 [CA]

Appeal - Reinstatement of - Application for - Whether applicant could require court to reinstate which had been struck out as of right - Whether court estopped from reviewing decision made by another panel - Whether there was sufficient material for court to enable its exercise in discretion in applicantís favour - Whether applications flawed and devoid of merit
Kesatuan Pekerja-pekerja Malaysia Shipyard & Engineering Sdn Bhd v. Malaysia Shipyard & Engineering Sdn Bhd & Anor And Another Appeal
(Zaleha Zahari, Abu Samah Nordin & Ramly Ali JJCA) [2010] 7 CLJ 987 [CA]

Parties - Intervention - Application to intervene in proceedings - Whether interveners have legal basis to intervene - Whether test for intervention into appellate proceedings the same as for intervention into High Court proceedings - Issue estoppel - Whether arose - Whether interveners bound by res judicata
Chong Fook Sin v. Amanah Raya Bhd & Ors
(Alauddin Mohd Sheriff PCA, Raus Sharif & Heliliah Mohd Yusof FCJJ) [2010] 7 CLJ 917 [FC]

COMPANY LAW

Arrangements and reconstructions - Restraining order - Extension of, application for - Whether ought to be granted - Companies Act 1965, s. 176
In Re Maxisegar Sdn Bhd
(Hamid Sultan Abu Backer J) [2010] 7 CLJ 1033 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Drugs found in compartment in boot of car - Whether proved to have been specially constructed for that purpose - Whether there was physical evidence to link the accused with offending exhibits - Failure to call crucial witness - Evidence Act 1950, s. 114(g) - Whether invoked - Whether s. 37(d) and (h) Dangerous Drugs Act 1952 inapplicable to the facts of the case - Prima facie case against the accused persons - Whether established
PP v. Paosi Arong & Anor
(Ho Mooi Ching JC) [2010] 7 CLJ 1049 [HC]

LAND LAW

Assignment - Deed of Assignment - Rights, titles and interests of the Sale and Purchase Agreement and the Property assigned to plaintiff - Obligations and liabilities under the Sale and Purchase Agreement not assigned to the plaintiff - Purchasers to continue to perform those obligations and liabilities under the Sale and Purchase Agreement - Whether defendantís consent required for the plaintiff to assign to the Successful Bidder all rights, title and interest in the Sale and Purchase Agreement and to the Property - Whether defendantís consent is required before the plaintiff can enforce its power of sale under the Deed of Assignment - Whether the plaintiff is bound by any liability or obligation arising under the Sale and Purchase Agreement - Whether the plaintiff is an equitable mortgagee of the Property
Hong Leong Bank Bhd v. Sum-Projects (Brothers) Sdn Bhd
(Vernon Ong Lam Kiat JC) [2010] 7 CLJ 1010 [HC]

Strata title - Payment - Payment of service charges under the Strata Titles Act 1985 & the Building and Common Property (Maintenance and Management) Act 2007 - Property without strata title - Transactions in question entered into prior to 2007 Act coming into force - Neither the 1985 Act nor the 2007 Act support defendantís contention that the plaintiff or a person taking an assignment from it would be liable to pay charges incurred by the Purchasers
Hong Leong Bank Bhd v. Sum-Projects (Brothers) Sdn Bhd
(Vernon Ong Lam Kiat JC) [2010] 7 CLJ 1010 [HC]

TORT

Negligence - Duty of care - Damages - Defects in shophouse purchased by plaintiffs - Failure to supervise structural works - Whether second and third defendants owed duty of care to plaintiffs - Whether breached
Choy Meng Heng & Anor v. Immediate Strategy Sdn Bhd & Anor
(Vernon Ong Lam Kiat JC) [2010] 7 CLJ 1000 [HC]

Vicarious liability - Liability of government - Failure to state government officer responsible for alleged tortious act as defendant - Whether officer should be made party and his liability established before government could be made vicariously liable - Government Proceedings Act 1956, ss. 5, 6
Government Of The State Of Sabah v. Syarikat Raspand
(Low Hop Bing, Hishamudin Mohd Yunus & Clement Skinner JJCA) [2010] 7 CLJ 945 [CA]

TRADE AND INDUSTRY

Forestry - Seizure of logs by Sabah Forestry Department - Whether seizure was made without reasonable or probable cause - Whether Sabah Forestry Department had jurisdiction or power to seize logs - Whether defendant could seek protection under Forest Enactment 1968 (Sabah) ss. 37A & 40 - Liability of defendant - Quantum of Damages - Whether plaintiff entitled to damage to extent of exact value of impugned logs seized - Burden of proof
Government Of The State Of Sabah v. Syarikat Raspand
(Low Hop Bing, Hishamudin Mohd Yunus & Clement Skinner JJCA) [2010] 7 CLJ 945 [CA]

WORDS AND PHRASES

Reasonable or probable cause - Meaning of - Forest Enactment 1968 (Sabah) s. 37A
Government Of The State Of Sabah v. Syarikat Raspand
(Low Hop Bing, Hishamudin Mohd Yunus & Clement Skinner JJCA) [2010] 7 CLJ 945 [CA]

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CASE OF THE WEEK

DATO' TAN HENG CHEW v. TAN KIM HOR & ANOTHER APPEAL

CIVIL PROCEDURE: Amendment - Writ of summons and statement of claim - Defamation suit - Case not set down for trial - Proposed amendments to set out with greater clarity defamatory nature of statements by way of innuendo other than in their natural and ordinary meaning - Amendment allowed

CIVIL PROCEDURE: Amendment - Writ of summons and statement of claim - Principles applicable - Whether prejudice suffered by defendant could be compensated by costs - Whether new facts and issues raised - Whether application for amendment one year and seven months after "Agreed Issues To Be Tried" constituted inordinate delay - Whether proposed amendments a tactical manoeuvre and abuse of process of court - Proposed amendments allowed so that true issues in controversy could be resolved - Far greater injustice if plaintiff's case was limited prematurely - Order 20 r. 5 Rules of the High Court 1980


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