CLJ Bulletin, Issue 2012, Vol 17

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

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]

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

Principal Acts

Amending Acts

PU(A)

PU(B)