CLJ Bulletin, Issue 2011, Vol 40

14 October 2011

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 4) 2011

1. Legislation Highlights

Principal Acts

NUMBER

TITLE

DATE COMING INTO FORCE

REPEALING

ACT 728 Malaysian Quarantine And Inspection Services Act 2011 Not Yet In Force - Nil -
ACT 729 National Sports Institute Act 2011 16 September 2011 [PU(B) 503/2011] - Nil -
ACT 730 Trade Descriptions Act 2011 Not Yet In Force - Nil -
ACT 731 Money Services Business Act 2011 Not Yet In Force - Nil -
ACT 732 National Wages Consultative Council Act 2011 23 September 2011 [PU(B) 507/2011] - Nil -

Amending Acts

NUMBER

TITLE

DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

ACT A1403 Securities Commission (Amendment) Act 2011 Not Yet In Force ACT 498
ACT A1404 Valuers, Appraisers And Estate Agents (Amendment) Act 2011 Not Yet In Force ACT 242
ACT A1405 International Organizations (Privileges And Immunities) (Amendment) Act 2011 Not Yet In Force ACT 485
ACT A1406 Capital Markets And Services (Amendment) Act 2011 Not Yet In Force ACT 671
ACT A1407 Lembaga Pembangunan Industri Pembinaan Malaysia (Amendment) Act 2011 Not Yet In Force ACT 520

PU(A)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

PU(A) 335/2011 Workmens Compensation (Foreign Workers Compensation Scheme) (Insurance) (Amendment) (No 2) Order 2011 3 October 2011 ACT 273
PU(A) 336/2011 Capital Markets And Services (Amendment Of Schedules 1, 2, 3 And 4) Order 2011 4 October 2011 ACT 671
PU(A) 337/2011 Capital Markets And Services (Index Warrants) Order 2011 4 October 2011 ACT 671
PU(A) 338/2011 Dental (Amendment Of Second Schedule) Order 2011 5 October 2011 ACT 51
PU(A) 339/2011 Factories And Machinery (Exemption To CCM Chemicals Sdn Bhd, Pasir Gudang, Johor) Order 2011 5 October 2011 ACT 139

PU(B)

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

PU(B) 515/2011 Special Direction Of The Minister 29 September 2011 ACT 621
PU(B) 516/2011 Special Direction Of The Minister 29 September 2011 ACT 621
PU(B) 520/2011 Appointment Of Lock-Up To Be A Place Of Confinement 4 October 2011 ACT 537
PU(B) 521/2011 Notification Under Subsection 76(1) 5 October 2011 ACT 166
PU(B) 522/2011 Revocation Of General Insurance Licence 5 October 2011 ACT 553

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE

PRINCIPAL ACT NO

DR 25/2011 Kampong Bharu Development Corporation Bill 2011 - -
DR 26/2011 Postal Services Bill 2011 - -
DR 27/2011 Restricted Residence (Repeal) Bill 2011 - ACT 377
DR 28/2011 Banishment (Repeal) Bill 2011 - ACT 79
DR 29/2011 Supply Bill 2012 - -

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2. Articles

a) Legal Network Series Articles

1. Digital Library - Copyright Issues* [Read excerpt]
By Zinatul Ashiqin Zainol**

2. Privacy & Freedom Of Expression: A Delicate Balance* [Read excerpt]
By Lord Neuberger Of Abbotsbury, Master Of The Rolls

^^

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT
[2007] 1 LNS 694 [HC] Salleh Tiasi @ Tiaseh v. The Returning Officer Hj Hashim Sintol & Anor

ELECTION:

Petition - Application to strike out - Jurisdiction of election court to strike out - Whether such power available - Whether petition can be struck out for procedural defects - Whether election court must proceed to hear petition and decide - Election Offences Act 1954, s. 42(2) - Election Petition Rules 1954, r. 15(1)(a), (c) - Rules of the High Court 1980, O. 8, r. 3, O. 92, r. 4

ELECTION: Petition - Application to strike out - Service of 'notice of presentation' and 'petition' on respondent, whether defective - 'served by the petitioner on the respondent personally' - Interpretation of - Election Petition Rules 1954, r. 15(1)(a) - Whether personal service mandatory

ELECTION: Petition - Application to strike out - Alternative service, whether valid - Whether complies with r. 15(1)(c) Election Petition Rules 1954 - Omission to state "that a copy of the notice of presentation of the petition and a copy of the petition may be obtained by the respondent free of charge on application at the office of the registrar" - Whether requirement to state such words mandatory or directory - Whether resort could be had to O. 2 r. 3 and O. 1A Rules of the High Court 1980

[2009] 1 LNS 519 [HC] Syarikat Pertanian Emmal Sdn Bhd v. Tractors Malaysia [1982] Sdn Bhd

CONTRACT: Sale and purchase of land - Specific performance - Claim by plaintiff/purchaser - Whether defendant/vendor's acceptance of plaintiff's offer constituted a concluded and binding contract - Whether acceptance was unconditional - Whether there was an 'open contract' - Whether parties still in negotiations prior to date when plaintiff issued letter of intent and paid earnest deposit - Whether plaintiff's amendment of defendant's draft letter of intent constituted a counter-offer - Whether agreement was 'subject to contract' or subject to 'formal sale and purchase agreement' - Estoppel - Whether specific performance an appropriate remedy - Specific Relief Act 1950, s. 11

[2009] 1 LNS 555 [HC] Trade Ocean Exporters Sdn Bhd v. Arab-Malaysian Finance Berhad & Other Cases

CONTRACT:

Misrepresentation - Hire-purchase of vehicle - Whether motorcar new or used-import - Whether description 'new' refers to condition of vehicle or registration of ownership - Whether there was misrepresentation by owner and dealer - Whether hirer knew all along that motorcar was a used-import - Evidence and proof - Endorsements on registration card

HIRE-PURCHASE: Possession - Right of - Implied warranty as to enjoyment of quiet possession by hirer - Seizure of vehicle from hirer by customs - Consequence of - Whether owner liable - Hire-Purchase Act 1967, s. 7(1), (4)

HIRE-PURCHASE: Guarantor - Liability of guarantor exceeding sum due from hirer - Requirements of such an agreement to indemnify - Witnessed by magistrate, commissioner for oaths or notary public - Consequence of non-compliance - Relevant time, whether time of agreement or time of enforcement - Whether guarantee void - Hire-Purchase Act 1967, s. 22

[2009] 1 LNS 770 [HC] Lau Meng Hua v. Kong Sieng Kiing

CIVIL PROCEDURE: Affidavits - Striking out - Separate applications filed by plaintiff to strike out certain paragraphs of defendant's affidavit in support and defence - Paragraphs in affidavit a repetition of defendant's pleaded defence - Whether averments in affidavit were matters pleaded and thus relevant - Whether plaintiff's application premature and an abuse of process of the court

[2010] 1 LNS 229 [HC] Susannah Soo & Ors v. Superintendent Of Lands And Surveys Kuching Division

LAND LAW: Acquisition of land - Compensation - Objection to amount awarded by superintendent - Reference to High Court under s. 56 Land Code (Cap 81) (Sarawak) - Comparison method - Percentage adjustments - Suitability of quality point rating or weighted quality score method - Time factor, relevance to appreciation in value of land - Whether wrong to assume that price remained constant - Whether award of superintendent inadequate

^^

b. CLJ Volume 7 (Part 4) 2011

APPEAL UPDATE

Eddie Ho Toon Ngee v. Prince Flora (M) Sdn Bhd (Appeal Update) [2011] 7 CLJ a

COURT

FEDERAL COURT

Yong Teng Hing v. Walton International Ltd; Pendaftar Cap Dagang, Malaysia (Interested Party)
Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin, Ghazali Mohd Yusoff FCJJ
(Civil Procedure; Trade Marks - Appeal from decision of Registrar of Trade Marks - Whether High Court exercising original or appellate jurisdiction) [2011] 7 CLJ 401 [FC]

COURT OF APPEAL

Eddie Ho Toon Ngee v. Prince Flora (M) Sdn Bhd
Low Hop Bing, Hishamudin Mohd Yunus, Zaharah Ibrahim JJCA
(Land Law - Tenancy - Option to purchase by tenant - Exercise of - Whether solicitors not acting for landlord when receiving deposit from tenant) [2011] 7 CLJ 433 [CA]

Kejuruteraan Bintai Kindenko Sdn Bhd v. Nam Fatt Construction Sdn Bhd & Anor
Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA
(Contract - 'Unconscionability' - Whether a valid ground to prevent call on unconditional 'on demand' performance bond) [2011] 7 CLJ 442 [CA]

HIGH COURT

British American Tobacco (Malaysia) Bhd Employees Union v. Ketua Pengarah Kesatuan Sekerja, Malaysia & Ors
Mohd Zawawi Salleh J
(Labour Law; Words And Phrases - Director General of Trade Unions - Jurisdiction - Meaning of "establishment" - Trade Unions Act 1959) [2011] 7 CLJ 478 [HC]

Ng Hong Chai & Anor v. Public Bank Bhd; Khor Liang Khek & Anor (Third Parties)
Gunalan Muniandy JC
(Evidence; Tort - Defamation - Whether action for defamation could arise from discharge of a legal duty) [2011] 7 CLJ 498 [HC]

PP v. Vellertore Ponnusamy
Jeffrey Tan J
(Criminal Law; Criminal Procedure; Evidence - Murder - Whether intention to kill could be inferred from act of strangulation) [2011] 7 CLJ 518 [HC]

Yick Hoe Ferrous Steel Sdn Bhd v. Tribunal Rayuan Kastam & Ors
Aziah Ali J
(Administrative Law; Civil Procedure - Judicial review - Application not made by way of O. 53 RHC 1980 - Whether a fundamental defect) [2011] 7 CLJ 544 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial remedies - Judicial review - Application to quash decision of 1st respondent - 1st respondent dismissed applicant's appeal against 2nd respondent - Whether 1st respondent erred in law - Whether applicant required to pay short-paid tax before making said appeal - Customs (Appeal Tribunal) Regulations 2007, reg. 4(1) - Whether said provisions conferred discretion on 1st respondent to hear appeal - Whether court could intervene in the 1st respondent's decision
Yick Hoe Ferrous Steel Sdn Bhd v. Tribunal Rayuan Kastam & Ors
(Aziah Ali J) [2011] 7 CLJ 544 [HC]

Judicial review - Judicial review proceedings - Application not made by way of O. 53 Rules of the High Court 1980 - Whether such failure was a fundamental defect - Application for leave made in intitulement - Whether this is proper pleading for leave - Failure to obtain leave for judicial review application - Whether this rendered application for judicial review defective, irregular and an abuse of process - Whether failure resulted in court lacking jurisdiction to hear judicial review application
Yick Hoe Ferrous Steel Sdn Bhd v. Tribunal Rayuan Kastam & Ors
(Aziah Ali J) [2011] 7 CLJ 544 [HC]

CIVIL PROCEDURE

Appeal - Appeal to Federal Court - Application for leave to appeal against decision of Court of Appeal - Matter originating from decision of Registrar of Trade Marks - Whether High Court exercised original or appellate jurisdiction when it heard appeal - Whether application for leave within s. 96(a) Courts of Judicature Act 1964 - Propriety of decision in Koperasi Jimat Cermat dan Pinjaman Keretapi Bhd v. Kumar Gurusamy - Rules of the High Court 1980, O. 55 r. 13 - Trade Marks Act 1976, ss. 28(5), 83(4)
Yong Teng Hing v. Walton International Ltd; Pendaftar Cap Dagang, Malaysia (Interested Party)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin, Ghazali Mohd Yusoff FCJJ) [2011] 7 CLJ 401 [FC]

Judicial review - High Court - Application made by way of originating motion - Whether contravened O. 53 Rules of the High Court 1980 - Application for leave made in intitulement - Whether this was substitute for proper pleading for leave - Whether leave mandatory in judicial review application - Whether failure resulted in court lacking jurisdiction
Yick Hoe Ferrous Steel Sdn Bhd v. Tribunal Rayuan Kastam & Ors
(Aziah Ali J) [2011] 7 CLJ 544 [HC]

Jurisdiction - Federal Court - Appellate jurisdiction of Federal Court to hear appeal - Matter originating from decision of Registrar of Trade Marks - Whether High Court exercised original or appellate jurisdiction when it heard appeal - Whether application for leave to appeal to Federal Court within s. 96(a) Courts of Judicature Act 1964 - Propriety of decision in Koperasi Jimat Cermat dan Pinjaman Keretapi Bhd v. Kumar Gurusamy - Rules of the High Court 1980, O. 55 r. 13 - Trade Marks Act 1976, ss. 28(5), 83(4)
Yong Teng Hing v. Walton International Ltd; Pendaftar Cap Dagang, Malaysia (Interested Party)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin, Ghazali Mohd Yusoff FCJJ) [2011] 7 CLJ 401 [FC]

CONTRACT

Performance bond - Whether unconscionable for beneficiary to receive monies under performance bond - First respondent's call on performance bonds premature, invalid and mala fide - Whether unconscionability was ground for injunction to prevent call on unconditional 'on demand' performance bond - Standard of proof for unconscionability - Whether balance of convenience for grant of injunction favoured appellant
Kejuruteraan Bintai Kindenko Sdn Bhd v. Nam Fatt Construction Sdn Bhd & Anor
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2011] 7 CLJ 442 [CA]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Whether case proven beyond reasonable doubt - Accused charged with murdering his three children by strangulation - Whether intention to kill can be inferred from fact that the children were strangled - Whether there was likelihood that a third party could have been the perpetrator - Failure of defence to raise reasonable doubt in prosecution case
PP v. Vellertore Ponnusamy
(Jeffrey Tan J) [2011] 7 CLJ 518 [HC]

CRIMINAL PROCEDURE

Trial - Failure to cross-examine prosecution witness on crucial issue - Whether amounted to acceptance of witness's testimony
PP v. Vellertore Ponnusamy
(Jeffrey Tan J) [2011] 7 CLJ 518 [HC]

EVIDENCE

Cross-examination - Defence counsel's failure to cross-examine prosecution witness - Whether amounted to acceptance of witness's testimony
PP v. Vellertore Ponnusamy
(Jeffrey Tan J) [2011] 7 CLJ 518 [HC]

Statements - Defamation - Statements of witnesses not called to testify - Plaintiff relied on statements of witness not called to testify - Whether statements relied on was to prove element of publication - Whether reliance on said statements hearsay
Ng Hong Chai & Anor v. Public Bank Bhd; Khor Liang Khek & Anor (Third Parties)
(Gunalan Muniandy JC) [2011] 7 CLJ 498 [HC]

Witness - Credibility - Cross examination of 1st plaintiff as witness - Defamation arising from posting of proclamation of sale on property - First plaintiff testified he was alone when proclamation of sale was posted - Later testified he enquired about proclamation of sale from a crowd reading it - Whether doubts created on truth of statements
Ng Hong Chai & Anor v. Public Bank Bhd; Khor Liang Khek & Anor (Third Parties)
(Gunalan Muniandy JC) [2011] 7 CLJ 498 [HC]

LABOUR LAW

Trade Unions - Director General of Trade Unions - Jurisdiction - Whether competent to invoke s. 26(1A) of the Trade Unions Act 1959 and decide on a union's eligibility to represent employees - Trade Unions Act 1959, ss. 2, 26(1A)
British American Tobacco (Malaysia) Bhd Employees Union v. Ketua Pengarah Kesatuan Sekerja, Malaysia & Ors
(Mohd Zawawi Salleh J) [2011] 7 CLJ 478 {HC]

Trade Unions - Representation - Recognition and scope of representation of a trade union - British American Tobacco (Malaysia) Berhad Employees Union - Whether could represent all employees of the subsidiary companies of British American Tobacco (Malaysia) Berhad - Trade Unions Act 1959, ss. 2, 26(1A)
British American Tobacco (Malaysia) Bhd Employees Union v. Ketua Pengarah Kesatuan Sekerja, Malaysia & Ors
(Mohd Zawawi Salleh J) [2011] 7 CLJ 478 [HC]

LAND LAW

Tenancy - Option to purchase - Specific performance - Specific performance of option to purchase tenanted property - Deposit of purchase price paid to solicitors acting for both landlord and tenant in tenancy agreement - Whether solicitors only acting for tenant - Whether no longer acting for landlord in relation to exercise of option to purchase - Whether landlord entitled to vacant possession and double rentals
Eddie Ho Toon Ngee v. Prince Flora (M) Sdn Bhd
(Low Hop Bing, Hishamudin Mohd Yunus, Zaharah Ibrahim JJCA) [2011] 7 CLJ 433 [CA]

TORT

Defamation - Absolute privilege - Publication of proclamation of sale pursuant to court's direction - Whether action for defamation could arise from discharge of a legal duty
Ng Hong Chai & Anor v. Public Bank Bhd; Khor Liang Khek & Anor (Third Parties)
(Gunalan Muniandy JC) [2011] 7 CLJ 498 [HC]

Defamation - Judicial immunity - Third parties appointed by court to carry out auction sale obtained by defendant - Third parties afforded judicial immunity - Whether defendant could be held liable for defamation
Ng Hong Chai & Anor v. Public Bank Bhd; Khor Liang Khek & Anor (Third Parties)
(Gunalan Muniandy JC) [2011] 7 CLJ 498 [HC]

Defamation - Publication of proclamation of sale - Plaintiffs settled loan with defendant - Posting of proclamation of sale despite payment made - Whether defamatory of plaintiffs - Whether actual words shown and proved to have defamatory imputations - Persons who read proclamation of sale not called as witness - Whether warranting presumption of adverse inference - Proclamation of sale posted by third parties - Whether third parties agents of defendant - Whether defendant liable - Judicial immunity and absolute privilege - Whether defendant entitled to defences
Ng Hong Chai & Anor v. Public Bank Bhd; Khor Liang Khek & Anor (Third Parties)
(Gunalan Muniandy JC) [2011] 7 CLJ 498 [HC]

TRADE MARKS

Registration - Opposition - Decision of Registrar of Trade Marks dismissing opposition - Appeal dismissed by High Court but allowed on appeal to Court of Appeal - Appeal to Federal Court and jurisdiction of Federal Court to hear appeal as matter originated from decision of Registrar of Trade Marks - Propriety of decision in Koperasi Jimat Cermat dan Pinjaman Keretapi Bhd v. Kumar Gurusamy - Courts of Judicature Act 1964, s. 96(a) - Rules of the High Court 1980, O. 55 r. 13 - Trade Marks Act 1976, ss. 28(5), 83(4)
Yong Teng Hing v. Walton International Ltd; Pendaftar Cap Dagang, Malaysia (Interested Party)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin, Ghazali Mohd Yusoff FCJJ) [2011] 7 CLJ 401 [FC]

WORDS AND PHRASES

"Establishment" - Sections 2 and 26(1A) Trade Unions Act 1959 - Meaning of
British American Tobacco (Malaysia) Bhd Employees Union v. Ketua Pengarah Kesatuan Sekerja, Malaysia & Ors
(Mohd Zawawi Salleh J) [2011] 7 CLJ 478 [HC]

^^

CASE OF THE WEEK

CIMB ISLAMIC BANK BHD v. LCL CORPORATION BHD & ANOR

BANKING: Banks and banking business - Islamic banking - Summary judgment application for amount owed under Bai Bithaman Ajil Facility - Triable issues - Whether raised - Rules of High Court 1980, O. 14


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