CASE(S) HIGHLIGHT

ABDUL RAZAK JUNDAR KHAN & ORS v. MUSTAPHA MOHAMMED & ORS
COURT OF APPEAL, PUTRAJAYA
AHMADI ASNAWI JCA; AB KARIM AB JALIL JCA; SURAYA OTHMAN JCA
[CIVIL APPEAL NO: W-02(NCC)(W)-1929-09-2018]
19 SEPTEMBER 2019

The basic principle of construction of contracts is that effect must be given to the intention of the parties. This requires an objective test and not a subjective approach, and the solution to be found should be reasonable and realistic.

To ascertain the intention of the parties, the court must read the terms of the contract as a whole including the recital to the agreement if any, must not take a simplistic approach to the issues at hand, and must not fixate on one particular word or phrase or clause to the neglect of the overall purpose of the document.

Judgment

MARIA ELVIRA PINTO EXPOSTO v. PP [2020] 5 CLJ 1
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; AZAHAR MOHAMED CJ (MALAYA); MOHD ZAWAWI SALLEH FCJ;
IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ
[CRIMINAL APPEAL NO: 05(M)-142-06-2018(B)]
26 MARCH 2020

In a trial for drug trafficking under s. 39B(1) of the Dangerous Drugs Act 1952 (DDA), it is procedurally proper and lawful for the trial judge, after making a finding of presumed knowledge of the drugs against the accused under s. 37(d) of the DDA at the prosecution stage, to have again visited the issue on the element of knowledge at the defence stage. Such an approach, far from being misguided or perverse, is in harmony with s. 182A of the Criminal Procedure Code which calls for the court to consider all the evidence adduced at the close of the trial. This said, where the defence of innocent carrier premised upon the assertion that the accused was a victim of an internet romance scheme is proffered, and such defence was disclosed contemporaneously with the discovery of the drugs, and supported not only by an uncontroverted evidence of an expert witness but by an explanation as to how the accused came to possess the drugs as well as a duly served 'Alcontara Notice', the appropriate order for the court to make is to record an acquittal of the accused. To record a conviction in the given circumstances is utterly erroneous, as the evidence cannot warrant the application of the doctrine of blind wilfulness, and because the statutory presumption has clearly been diluted and rebutted. What more if such conviction is fixated upon the generalised view that 'the accused's case was just one of the mundane cases involving drug mules'.

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GREAT EASTERN LIFE ASSURANCE (MALAYSIA) BHD v. PRAKASA RAO SAMACHULU [2020] 5 CLJ 57
COURT OF APPEAL, PUTRAJAYA
AHMADI ASNAWI JCA; AB KARIM AB JALIL JCA; SURAYA OTHMAN JCA
[CIVIL APPEAL NO: W-04(NCC)(W)-212-05-2018]
26 JULY 2019

The issue of whether an insured mechanic plaintiff who has been incapacitated from going back to his former occupation on account of a neck injury suffered by him in an accident is suffering from a Total Permanent Disability (TPD), and therefore entitled to be paid the compensation in the policy, would depend on the definition of the term TPD as so employed by the policy purchased. A policy that defines TPD as a state of incapacity "to ever sufficiently do or engage in any work, occupation or profession to earn compensation, wages or profit" cannot be said to have envisaged or anticipated an incapacity to engage in any kind of work, but must instead be understood in the context of the actual business or occupation of the plaintiff. It follows that if the evidence suggests that the plaintiff could no longer work as a mechanic after the accident, he must necessarily be taken to have suffered from TPD in accordance with the provisions of the policy. The fact that he could still do supervisory or administrative work is of no consequence. It cannot vitiate or adversely affect his claims against the insurer.

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