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CASE(S) HIGHLIGHT
TETUAN KHANA & CO v. SALING LAU BEE CHIANG & ORS AND OTHER APPEALS; MALAYAN BANKING BHD (INTERVENER)
COURT OF APPEAL, PUTRAJAYA
IDRUS HARUN JCA; HASNAH MOHAMMED HASHIM JCA;
YEOH WEE SIAM JCA
[CIVIL APPEALS NO: J-02(W)-219-02-2017, J-02(W)-220-02-2017, J-02(W)-221-02-2017, J-02(W)-224-02-2017, J-02(W)-225-02-2017, J-02(W)-226-02-2017, J-02(W)-227-02-2017 & J-02(W)-228-02-2017]
22 JANUARY 2019
(Trusts; Civil Procedure - Duties - Fiduciary duty - Breach by trustees - Failure by trustees to account for losses - Whether trustees liable for losses suffered by Trust - Receiver and manager - Whether empowered to institute any legal proceedings - Judgments - Grounds of judgment - Whether decision based on evidence adequately found and on law - Application to impugn judgment by intervener - Whether judgment concerned intervener - Whether exemplary damages unconnected with substance of appeal - Whether fatally flawed)
Judgment
See also:
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TETUAN KHANA & CO v. SALING LAU BEE CHIANG & OTHER APPEALS [2019] 3 CLJ 1
- TETUAN KHANA & CO v. SALING LAU BEE CHIANG & ORS AND OTHER APPEALS [2019] 1 CLJ 501
CASE(S) OF THE WEEK
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ALMA NUDO ATENZA v. PP & ANOTHER APPEAL
[2019] 5 CLJ 780
FEDERAL COURT, PUTRAJAYA
RICHARD MALANJUM CJ, DAVID WONG DAK WAH CJ (SABAH & SARAWAK), RAMLY ALI FCJ, BALIA YUSOF WAHI FCJ, ALIZATUL KHAIR OSMAN FCJ, ROHANA YUSUF FCJ, TENGKU MAIMUN TUAN MAT FCJ, ABANG ISKANDAR FCJ, NALLINI PATHMANATHAN FCJ
[CRIMINAL APPEALS NO: 05-94-05-2017(B) & 05-193-08-2017(W)]
05 APRIL 2019
CRIMINAL LAW: Dangerous drugs – Trafficking – Presumption of – Constitutional validity of s. 37A of Dangerous Drugs Act 1952 ('DDA') with reference to arts. 5, 8 and 121 of Federal Constitution ('FC') – Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of DDA – Principle of separation of powers – Whether Parliament empowered only to make laws – Whether judicial power vested exclusively in courts – Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible – Whether s. 37A of DDA offended requirement of fairness under arts. 5 and 8 of FC – Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality – Whether statutory words 'deemed possession' under s. 37(d) of DDA could be equated to 'found possession' to invoke presumption of trafficking under s. 37(da) of DDA – Whether plain reading of s. 37(d) and (da) permit concurrent application of both presumptions in prosecution of drug trafficking offence – Whether s. 37A of DDA prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists – Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1) of FC – Whether convictions and sentences of accused persons quashed under s. 39B and substituted with convictions under s. 12(1) of DDA
CONSTITUTIONAL LAW: Presumptions – Dangerous drugs – Offences – Constitutional validity of s. 37A of Dangerous Drugs Act 1952 ('DDA') with reference to arts. 5, 8 and 121 of Federal Constitution ('FC') – Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of Dangerous Drugs Act 1952 – Principle of separation of powers – Whether Parliament empowered only to make laws – Whether judicial power vested exclusively in courts – Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible – Whether s. 37A of DDA offended requirement of fairness under arts. 5 and 8 of FC – Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality – Whether statutory words 'deemed possession' under s. 37(d) could be equated to 'found possession' to invoke presumption of trafficking under s. 37(da) – Whether plain reading of s. 37(d) and (da) permit concurrent application of both presumptions in prosecution of drug trafficking offence – Whether s. 37A prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists – Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1)
CONSTITUTIONAL LAW: Fundamental liberties – Presumption of innocence – Right to fair trial and presumption of innocence under art. 5 of Federal Constitution ('FC') – Offence of trafficking in dangerous drugs – Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of Dangerous Drugs Act 1952 ('DDA') – Constitutional validity of s. 37A of DDA with reference to arts. 5, 8 and 121 of FC – Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible – Whether s. 37A offended requirement of fairness under arts. 5 and 8 of FC – Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality – Whether plain reading of s. 37(d) and (da) of DDA permit concurrent application of both presumptions in prosecution of drug trafficking offence – Whether s. 37A prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists – Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1) of FC
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PCP CONSTRUCTION SDN BHD v. LEAP MODULATION SDN BHD; ASIAN INTERNATIONAL ARBITRATION CENTRE (INTERVENER)
[2019] 6 CLJ 1
FEDERAL COURT, PUTRAJAYA
RAMLY ALI FCJ, AZAHAR MOHAMED FCJ, ROHANA YUSUF FCJ, TENGKU MAIMUN TUAN MAT FCJ, NALLINI PATHMANATHAN FCJ
[CIVIL APPLICATION NO: 08(i)-394-07-2018(W)]
23 APRIL 2019
CIVIL PROCEDURE: Proceedings – Committal proceedings – Contempt of court – Scandalising contempt – Application by Attorney General against advocate and solicitor – Court of Appeal Judge made detrimental pronouncements in dissenting decision against party which was not party to litigation – Aggrieved party applied to intervene at Federal Court for expunction of portions of pronouncements made against it – Federal Court allowed intervention and expunction – Advocate and solicitor sent press release to online news portal – Press release contained statements pertaining to judicial conduct in hearing, disposal and decision of Federal Court in aggrieved party's application for intervention and expunction of parts of judgment – Online news portal published articles based on press release – Whether statements directed at Federal Court and Judiciary – Whether statements amounted to fair criticism – Whether press release sent by advocate and solicitor edited by online news portal – Whether statements calculated to bring administration of justice into disrepute and erode public confidence in Judiciary – Whether advocate and solicitor committed contempt – Rules of Court 2012, O. 52
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ARTICLE HIGHLIGHT
Employee was unfairly dismissed after announcing pregnancy three weeks into new job
UKEmployment
Expectant mum wins claims for unfair dismissal, pregnancy discrimination
A pregnant office worker whose dignity was “violated” as a result of a “hostile, humiliating and offensive” work environment has won tribunal claims for unfair dismissal and pregnancy discrimination.
The East London employment tribunal ruled that Eilise Walker was subjected to unfavourable treatment by her employer, Arco Environmental, and was made to feel “intimidated and degraded” because of the perceived inconvenience her pregnancy would cause the business.
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Uber drivers’ experience highlights the dead-end job prospects facing more Australian workers
AUSTRALIAEmployment
Uber may be a step up for some, but the law must cover non-standard workers
Across the world the proportion of people in “insecure” jobs is creeping upwards. Less than half of all Australian workers now have permanent full-time jobs.
As the “gig-economy” grows, casuals and contractors without protections such as paid leave and job security may become the new normal. So too may be the experiences of those who end up driving for Uber.
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RM2.5mil for unjust dismissal
EmploymentEx-COO/director of Konsortium Transnasional awarded RM2.5 million for unjust dismissal
A former chief operating officer and executive director of Konsortium Transnasional Bhd has been awarded nearly RM2.5mil for unjust dismissal.
The amount is believed to be one of the highest in recent times for backwages and compensation in lieu of reinstatement.
Apart from this sum, the company is to pay another RM442,000 for Employees Provident Fund contribution.
Industrial Court chairman Fredrick Indran XA Nicholas ordered that the amount be paid to Tengku Mohd Hasmadi Tengku Hashim within the next six weeks.
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Cafe ordered to pay $1,676 after deal with Instagram influencer ends in tears
AUSTRALIASocial mediaCafé ordered to pay Instagram influencer A$1,600
Businesses are being advised to draw up iron-clad contracts with Instagram influencers after a Melbourne-based cafe was ordered to pay $1,676 over a social media stoush.
In a case of our times, last week the Victorian Civil and Administrative Tribunal (VCAT) heard a dispute between Melbourne-based cafe Legacy and Instagram influencer Chloe Roberts over social media advertising.
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Uber drivers are contractors, not employees, U.S. labor agency says
USEMPLOYMENT
Uber drivers not employees under federal labour law
Drivers for ride-hailing company Uber Technologies Inc are independent contractors and not employees, the general counsel of a U.S. labor agency has concluded, in an advisory memo that is likely to carry significant weight in a pending case against the company and could prevent drivers from joining a union.
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