CLJ Bulletin, Issue 2012, Vol 17

CLJ Bulletin, Issue 2012, Vol 17

 
Introduction:

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New This Week

1. Case Of The Week

Tan Sri Musa Dato' Hj Hassan & Ors v. Uthayakumar Ponnusamy

2. Latest Cases

a) Legal Network Series

b) CLJ 2012 Volume 2 (Part 8)

3. Articles

a) Legal Network Series Articles

4. Legislation Highlights

a) Principal Acts

b) Amending Acts

c) PU(A)

d) PU(B)


CASE OF THE WEEK

TAN SRI MUSA DATO' HJ HASSAN & ORS v. UTHAYAKUMAR PONNUSAMY
COURT OF APPEAL, PUTRAJAYA
KN SEGARA JCA, HISHAMUDIN MOHD YUNUS JCA, ABDUL AZIZ RAHIM J
[CIVIL APPEAL NO: W-01(IM)-80-2009]
9 MARCH 2011

TORT: Defamation - Libel - Press statements made by Inspector General of Police Malaysia and Attorney-General of Malaysia - Statements made linking HINDRAF organisation to terrorist groups, local gangsters and inciting racial hatred - Whether statements directed at respondent as legal adviser to HINDRAF - Whether HINDRAF a registered body - Whether action for defamation by respondent sustainable on public policy grounds - Application to strike out action - Dismissal of - Whether dismissal justified

CIVIL PROCEDURE: Striking out - Action in libel - Dismissal of application to strike out - Appeal against dismissal - Press statements alleged defamatory - Whether directed at respondent as legal adviser of HINDRAF organisation - Whether HINDRAF a legal body - Whether leaders and members had locus standi to institute civil proceedings - Whether respondent's action for and on behalf of HINDRAF sustainable on public policy grounds

LATEST CASES

Legal Network Series

[2009] 1 LNS 1488 NGU HENG HWA @ JIMMY NGU & ORS v. SURIX HOLDINGS SDN BHD TORT: Damages - Closure of various units at condominium - Whether plaintiff responsible for closure of 19th defendant’s unit as it had complained to DBKK about 2nd defendant’s activities - Whether complaint led to termination of tenancy agreement between 19th defendant and 2nd defendant - Claim for loss of rental - Whether plaintiffs responsible for wrongful closure of unit - DBKK admitted mistake that closure order should not have included 19th defendant’s unit - Whether DBKK directly responsible for closure order - Whether 19th defendant’s counterclaim sustainable - Whether 19th defendant entitled to damages
[2009] 1 LNS 1491 AROWANA ONE ENTERPRISE SDN BHD v. TRACTORS PETROLEUM SERVICES SDN BHD CONTRACT: Agency - Liability of agent - Management agreement - Defendant appointed as manager of vessels owned by Mujatra Mewah Sdn Bhd (MMSB) - Plaintiff later entering into an Operational agreement with defendant and MMSB - No monies paid by MMSB to project account hence defendant stopped paying plaintiff - Whether defendant acted as agent of MMSB - Whether defendant liable for plaintiff's claims pursuant to Operational agreement - Whether plaintiff should look to MMSB to recover the monies allegedly due to it

CONTRACT: Indemnity - Scope of - Indemnity by defendant in favour of plaintiff stated in Operational agreement - Clause to be read as a whole - Whether indemnity extended to any losses incurred by plaintiff in connection with Operational agreement itself

[2009] 1 LNS 1492 LIM YAM CHANG & ORS v. LIM LAI KHAN SUCCESSION: Will - Validity - Will made 1 year 3 months after deceased’s marriage to defendant - No one having knowledge of will until testator’s death - Whether any suspicious circumstances surrounding making of will - Whether any extraneous or vitiating elements which might render will invalid

SUCCESSION: Will - Validity - Fraud - 1st, 2nd, 3rd, 4th and 8th plaintiffs asked to transfer their assets to company - Consideration for sale of shares not based on market value - Whether elements of fraud sufficiently proved

SUCCESSION: Will - Validity - Execution - Contention that signature of deceased not his usual signature - Whether deceased’s signature on will a forgery

[2011] 1 LNS 181 PP v. JAZRI BIN JOHARI CRIMINAL PROCEDURE: Prosecution - Prima facie case - Drug trafficking - s. 39B(1)(a) Dangerous Drugs Act 1952 - Whether prosecution had established all elements of offence - Whether prosecution had made out a prima facie case against accused

CRIMINAL PROCEDURE: Defence - Innocent carrier and no knowledge that black plastic bag contained drugs - Denial that drugs belonged to accused and that driver of car instructed accused to keep black plastic bag - Whether defence succeeded in casting a reasonable doubt on prosecution’s case - Whether prosecution failed to prove charge against accused beyond all reasonable doubt

EVIDENCE: Expunction of evidence - Expunged evidence - Accused sought to adduce same as critical to cast reasonable doubt on prosecution's case - Whether excluded evidence only admissible if adduced by accused through cross-examination of prosecution's witnesses - Whether court should reverse its earlier ruling

[2011] 1 LNS 201 AMFINANCE BERHAD v. VARUSAI MOHD ZAINAL ABIDIN BANKING: Banker and customer - Interest - Temporary Certificate of Fitness issued - Whether plaintiff entitled to charge defendant interest before issuance of Certificate of Fitness

TORT: Defamation - Information furnished by plaintiff lender on defendant's default to Bank Negara Malaysia (BNM) - Attempts by defendant to obtain loan and credit facilities rejected - Stand taken by plaintiff that defendant should start paying instalments once Temporary Certificate of Fitness issued - Whether plaintiff legally obliged to disclose conduct of defendant's loan account to BNM - Whether such release of information by plaintiff was defamatory - Whether any malice shown on plaintiff's part - Whether defence of qualified privilege applied to plaintiff

CLJ 2012 Volume 2 (Part 8)

COURT

FEDERAL COURT

Gnanasekaran Krishnasamy v. Suruhanjaya Perkhidmatan Awam, Malaysia & Ors
Richard Malanjum CJ (Sabah & Sarawak); Hashim Yusoff, James Foong FCJJ
(Administrative Law - Dismissal - Right to mitigate) [2012] 2 CLJ 985 [FC]

Hari Bahadur Ghale v. PP
Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA
(Criminal Law; Evidence - Dangerous Drugs Act 1952 - Agent provocateur - Corroboration - Failure of prosecution to call witness - Adverse inference) [2012] 2 CLJ 1006 [CA]

Lim Hean Chong v. PP
Hasan Lah, Mohamed Apandi Ali, Mohtarudin Baki JJCA
(Criminal Law; Criminal Procedure - Penal Code - Section 302 - Murder - Prosecution - Gap in evidence) [2012] 2 CLJ 1046 [CA]

PP v. Kuna Segaran Muniandy
KN Segara, Sulong Matjeraie, Azhar Ma'ah JJCA
(Criminal Procedure - Appeal - Findings of fact by trial judge - Statements - Failure to administer caution) [2012] 2 CLJ 1064 [CA]

Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors
Harmindar Singh Dhaliwal JC
(Contract; Tort - Breach - Conspiracy to injure) [2012] 2 CLJ 1076 [HC]

PP v. Lim Siew Poh
Sofian Abd Razak J
(Criminal Procedure - Charge) [2012] 2 CLJ 1094 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Rules of natural justice - Dismissal - Whether there is a right to mitigate before the imposition of punishment for disciplinary offence under the General Order - Appellant asserting that decision in Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v. Utra Badi K Perumal should not be sustained for failure to comply with rules of natural justice and against logic - Whether appellant's assertion justified - Appellant admitted to disciplinary offence and sought forgiveness - Appellant made his plea of mitigation - Whether Federal Court was right in its conclusion in Utra Badi case - Whether decision in Utra Badi should be reviewed
Gnanasekaran Krishnasamy v. Suruhanjaya Perkhidmatan Awam, Malaysia & Ors
(Richard Malanjum CJ (Sabah & Sarawak); Hashim Yusoff, James Foong FCJJ) [2012] 2 CLJ 985 [FC]

CONTRACT

Breach - Agreement - Civil Society to promote Malaysia in Europe - Memorandum of Understanding between defendant and second plaintiff to hold a summit - Whether cancellation of summit due to insufficient funding - Whether agreement became frustrated for fear of making losses - Whether second plaintiff entitled to claim
Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors
(Harmindar Singh Dhaliwal JC) [2012] 2 CLJ 1076 [HC]

Breach - Agreement - Civil Society to promote Malaysia in Europe - Whether there was an agreement to appoint first plaintiff as head of Brussels Secretariat - Whether there was a concluded contract - Decision of members to cancel setting up of Brussels Secretariat - Whether a breach of contract - Compensation - Assessment of
Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors
(Harmindar Singh Dhaliwal JC) [2012] 2 CLJ 1076 [HC]

Breach - Fiduciary duties - Whether first plaintiff breached obligations as trustee - Whether first defendant's counterclaim could not succeed
Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors
(Harmindar Singh Dhaliwal JC) [2012] 2 CLJ 1076 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Trafficking - Appeal against conviction and sentence - Whether there was direct evidence of trafficking - Whether prima facie case established against appellant
Hari Bahadur Ghale v. PP
(Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA) [2012] 2 CLJ 1006 [CA]

Dangerous Drugs Act 1952 - Trafficking - Proof of - Direct evidence - Whether evidence of agent provocateur alone sufficient - Whether evidence of agent provocateur supported by other evidence - Whether prosecution proved case beyond reasonable doubt - Whether evidence pointed to guilt of appellant
Hari Bahadur Ghale v. PP
(Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA) [2012] 2 CLJ 1006 [CA]

Penal Code - Section 302 - Murder - Appeal against conviction and sentence - Circumstantial evidence - Prosecution's case based solely on circumstantial evidence - Whether irresistibly pointed to guilt of appellant - Motive - Whether established - Whether there was possible involvement of third person in death of deceased - Whether prosecution proved case beyond reasonable doubt - Whether trial judge erred in not giving sufficient weight to evidence - Whether conviction to be quashed
Lim Hean Chong v. PP
(Hasan Lah, Mohamed Apandi Ali, Mohtarudin Baki JJCA) [2012] 2 CLJ 1046 [CA]

CRIMINAL PROCEDURE

Appeal - Findings of fact by trial judge - Accused convicted and sentenced on reduced charge of possession under s. 39A(2) Dangerous Drugs Act 1952 - Whether trial judge misdirected on facts and law - Whether prima facie case of possession established - Whether prima facie case of mens rea possession proved
PP v. Kuna Segaran Muniandy
(KN Segara, Sulong Matjeraie, Azhar Ma'ah JJCA) [2012] 2 CLJ 1064 [CA]

Charge - Defective charge - Accused charged with trafficking in five kinds of drugs under s. 39B(1)(a) Dangerous Drugs Act 1952 - Weights of four drugs below statutory limit of offence of trafficking - Whether charge wrong in law - Whether accused entitled to acquittal - Whether prosecution proved case of trafficking of remaining drug in charge beyond reasonable doubt - Evidence Act 1950, s. 134 - Criminal Procedure Code, ss. 180(1), 182A(1)
PP v. Lim Siew Poh
(Sofian Abd Razak J) [2012] 2 CLJ 1094 [HC]

Prosecution - Gap in evidence - Failure of prosecution to address salient issues - Circumstantial evidence - Whether irresistibly pointed to guilt of appellant - Whether deceased's death caused by or in consequence of appellant's act - Motive - Whether established - Whether prosecution established evidence eliminating possibility of third party involvement - Whether prosecution proved case beyond reasonable doubt
Lim Hean Chong v. PP
(Hasan Lah, Mohamed Apandi Ali, Mohtarudin Baki JJCA) [2012] 2 CLJ 1046 [CA]

Statements - Accused's statement to police - Failure to administer caution - Whether statements made to police rendered inadmissible - Dangerous Drugs Act 1952, s. 37A(1)
PP v. Kuna Segaran Muniandy
(KN Segara, Sulong Matjeraie, Azhar Ma'ah JJCA) [2012] 2 CLJ 1064 [CA]

EVIDENCE

Adverse inference - Failure of prosecution to call witness - Whether material witnesses - Whether witnesses essential to unfolding of narratives called by prosecution - Evidence Act 1950, s. 114(g)
Hari Bahadur Ghale v. PP
(Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA) [2012] 2 CLJ 1006 [CA]

Agent provocateur - Corroboration - Whether evidence of agent provocateur ought to be corroborated - Whether conviction based solely on evidence of agent provocateur safe
Hari Bahadur Ghale v. PP
(Hasan Lah, Abdul Malik Ishak, Ahmad Maarop JJCA) [2012] 2 CLJ 1006 [CA]

TORT

Conspiracy - Conspiracy to injure - Breach of agreement - Whether there were sinister motives in decisions and actions taken by defendants - Whether there was a predominant purpose of injuring plaintiffs - Whether claim clearly unsustainable
Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors
(Harmindar Singh Dhaliwal JC) [2012] 2 CLJ 1076 [HC]

Damages - Loss of reputation - Whether recoverable in action founded on breach of contract - Contracts Act 1950, s. 74
Milicent Rosalind Danker & Anor v. Malaysia-Europe Forum Bhd & Ors
(Harmindar Singh Dhaliwal JC) [2012] 2 CLJ 1076 [HC]

ARTICLE

Legal Network Series Articles

1. FIGHTING ECONOMIC AND FINANCIAL CRIMES FOR NATIONAL DEVELOPMENT: THE MALAYSIAN VISION 2020[Read excerpt]
    BY: YUSUF IBRAHIM AROWOSAIYE [2012] 1 LNS(A) xxix

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title Date coming into force Repealing
ACT 739 Perumahan Rakyat 1Malaysia Act 2012 Not Yet In Force -Nil-
ACT 740 Veterans Act 2012 Not Yet In Force -Nil-
ACT 741 Postal Services Act 2012 Not Yet In Force -Nil-
ACT 742 Finance Act 2012 See sections 3, 26, 30, 32 and 35 of Act 742 respectively -Nil-
ACT 743 Limited Liability Partnerships Act 2012 Not Yet In Force -Nil-

Amending Acts

Number Title Date coming into force Principal/Amending Act No
ACT A1421 Police (Amendment) Act 2012 23 April 2012 ACT 344
ACT A1422 Criminal Procedure Code (Amendment) Act 2010 (Amendment) Act 2012 Not Yet In Force ACT A1378
ACT A1423 Criminal Procedure Code (Amendment) Act 2012 Not Yet In Force ACT 593
ACT A1424 Evidence (Amendment) Act 2012 Not Yet In Force ACT 56
ACT A1425 Standards Of Malaysia (Amendment) Act 2012 15 April 2012 ACT 549

PU(A)

Number Title Date of Publication Date coming into force Principal/Amending Act No
PU(A) 097/2012 Customs (Values) (Crude Petroleum Oil) (No. 7) Order 2012 5 April 2012 5 April 2012 to
18 April 2012
ACT 235
PU(A) 098/2012 Customs (Values) (Palm Oil) (No. 15) Order 2012 9 April 2012 9 April 2012 to
15 April 2012
ACT 235
PU(A) 099/2012 Local Speed Limit (Federal Roads) (West Malaysia) (Amendment) Order 2012 13 April 2012 15 April 2012 ACT 333
PU(A) 100/2012 Motorcycles (Safety Helmets) (Amendment) Rules 2012 13 April 2012 1 September 2012 ACT 333
PU(A) 101/2012 Customs (Values) (Palm Oil) (No. 16) Order 2012 16 April 2012 16 April 2012 to
22 April 2012
ACT 235

PU(B)

Number Title Date of Publication Date coming into force Principal/Amending Act No
PU(B) 139/2012 Appointment Of Date Of Coming Into Operation Of The Standards Of Malaysia (Amendment) Act 2012 13 April 2012 15 April 2012 ACT A1425
PU(B) 140/2012 Reservation Of Land For Public Purpose For Lot 140 Precint 4 Town Of Putrajaya 13 April 2012 13 April 2012 ACT 56 of 1965
PU(B) 141/2012 Reservation Of Land For Public Purpose For Lot 649 Precint 15 Town Of Putrajaya - Corrigendum 13 April 2012 13 April 2012 ACT 56 of 1965
PU(B) 142/2012 Reservation Of Land For Public Purpose For Lot 669 Precint 15 Town Of Putrajaya - Corrigendum 13 April 2012 13 April 2012 ACT 56 of 1965
PU(B) 143/2012 Reservation Of Land For Public Purpose For Lot 747 Precint 15 Town Of Putrajaya - Corrigendum 13 April 2012 13 April 2012 ACT 56 of 1965
 
 


 
 
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