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LEMBAGA MINYAK SAWIT MALAYSIA v. CONSTITUTIONAL LAW: Legislation - Validity of impugned legislation - Minister of Plantation, Industries and Commodities issued Malaysian Palm Oil Board (CESS) (Oil Palm Fruit) Order 2007 (2007 Order) under s. 35 of Malaysian Palm Oil Board Act 1998 ('Act') - Collection of cess via 2007 Order - Respondents challenged validity of 2007 Order - Whether 2007 Order was ultra vires Federal Constitution - Whether s. 35 was valid tax statute - Whether s. 35 empowered Minister to impose cess via subsidiary legislation - Whether s. 35 contravened art. 96 of Federal Constitution - Whether imposition of cess on class of parties was a form of discrimination - Whether there was nexus between basis of classification and object of law - Whether collection of cess for purposes of subsidising price of cooking oil was within purpose of Act
TEO CHENG HUA v. KER MIN CHOO & ORS [2015] 7 CLJ 328 CIVIL PROCEDURE: Contempt of court - Interference with due administration of justice - Filing of second Form 75 under s. 281 Companies Act 1965 and second statutory declaration by liquidator - Whether contents of first Form 75 altered - Whether credible explanation furnished for alterations - Whether amounted to tampering with documentary evidence - Whether actions connected to litigation against liquidator - Whether interference with proper administration of justice - Whether constituted contempt of court |
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Legal Network Series
CLJ 2015 Volume 7 (Part 2) COURT FEDERAL COURT Lembaga Minyak Sawit Malaysia v. Arunamari Plantations Sdn Bhd & Ors And Another Appeal COURT OF APPEAL Dr Syed Azman Syed Ahmad Nawawi & Ors v. Dato' Seri Hj Ahmad Said Kempas Edible Oil Sdn Bhd v. Prabdhial Singh Dardara Singh Lynawati Abdullah v. Abang Sukori Abang Hj Gobil & Anor Profil Saujana (M) Sdn Bhd v. Azabar Holdings HIGH COURT JJ Raj v. Dato' Edward John Lawrence & Ors Plastech Industries System Sdn Bhd v. N & C Resources Sdn Bhd & Ors PP v. Induk Harapan Sdn Bhd & Ors PP v. Yeoh Oon Theam SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Certiorari - Application for - Native customary rights land - Land acquired by State Government of Sarawak - Dispute over ownership of land and compensation - Native Court of Appeal held that applicant was not rightful owner of land - Application for judicial review to quash decision of Native Court of Appeal - Whether decision of Native Court of Appeal amenable to judicial review by High Court - Rules of Court 2012, O. 53 Judicial review - Certiorari - High Court allowed order of certiorari to quash award by Industrial Court - Appeal against - Whether Industrial Court acted within scope of its jurisdiction - Whether Industrial Court bound by a Sessions Court decision in acquitting respondent from any corrupt offences - Whether proceedings before Sessions Court relevant to proceedings before Industrial Court - Whether High Court erred and departed from established principles of law - Whether approach taken by Industrial Court consistent with exercise of its functions - Industrial Relations Act 1967, s. 30(5) CIVIL PROCEDURE Action - Capacity to sue - First defendant diagnosed with dementia - Commencement of legal proceedings against first defendant - First defendant declared as 'mentally disordered person', 'patient' and 'person under disability' under O. 76 of Rules of Court 2012 (ROC) - Litigation representative - Leave to maintain and continue proceedings against first defendant through first defendant's litigation representative pursuant to O. 76 r. 1A ROC - Grounds of application - Whether same guiding principles for leave application under O. 53 ROC ought to be adopted Appeal - Appellate interference - Trial court misdirecting itself and applying wrong principles of law - Whether appellate interference justified Contempt of court - Committal proceedings - Discrepancies in documents attached to affidavits of compliance of judgment - Whether documents were suppressed - Whether there was interference in administration of justice - Whether amounted to contempt of court - Whether warranted committal order - Rules of Court 2012, O. 52 Judicial review - High Court - Powers of High Court - Dispute over ownership of land and compensation - Native Court of Appeal held that applicant was not rightful owner of land - Application for judicial review to quash decision of Native Court of Appeal - Whether decision of Native Court of Appeal amenable to judicial review by High Court - Rules of Court 2012, O. 53 Pleadings - Pleading material facts - Whether sufficient particulars of malice pleaded to displace the defence of qualified privilege in defamation suit CONSTITUTIONAL LAW Legislation - Validity of impugned legislation - Minister of Plantation, Industries and Commodities issued Malaysian Palm Oil Board (CESS) (Oil Palm Fruit) Order 2007 (2007 Order) under s. 35 of Malaysian Palm Oil Board Act 1998 ('Act') - Collection of cess via 2007 Order - Respondents challenged validity of 2007 Order - Whether 2007 Order was ultra vires Federal Constitution - Whether s. 35 was valid tax statute - Whether s. 35 empowered Minister to impose cess via subsidiary legislation - Whether s. 35 contravened art. 96 of Federal Constitution - Whether imposition of cess on class of parties was a form of discrimination - Whether there was nexus between basis of classification and object of law - Whether collection of cess for purposes of subsidising price of cooking oil was within purpose of Act CONTRACT Sale and purchase of land - Agreement - Validity of - Dispute as to payment of purchase price - Whether usual conveyancing practice that vendor would only release original title deeds and original copy of memorandum of transfer to purchaser on full settlement of purchase price - Whether vendor completed necessary acts to divest itself of beneficial interest in land CRIMINAL LAW Giving false evidence - Penal Code - Section 199 - Accused affirming false affidavit and statutory declaration - Elements to be proved - Whether accused had reasons to believe that contents were untrue - Whether failure to attach exhibits in charge fatal to prosecution's case - Whether statutory declaration was defective and fell outside ambit of s. 199 of Penal Code - Considerations for sentencing for offence under s. 199 of Penal Code Money laundering - Offences of money laundering - Anti-Money Laundering and Terrorist Financing Act 2001, s. 4(1) ('Act') - Evading customs duties - Monies obtained as result of money laundering - Application by public prosecutor to forfeit monies seized under Act - 12-month period prescribed in s. 56(1) of Act - Whether compliance of time period mandatory CRIMINAL PROCEDURE Sentencing - Concurrent or consecutive - Offence of giving false evidence - Offences committed on different times, dates and for different purposes - Offences not committed in same transaction - Whether consecutive sentences should be imposed Sentencing - Principles - Offence of giving false evidence - Whether public interest demands custodial sentence CUSTOMS AND EXCISE Forfeiture - Forfeiture of monies seized - Application for - Monies obtained as result of money laundering - Whether application for forfeiture filed outside the 12-month period required - Whether there was no application for extension of time - Whether application competent - Anti-Money Laundering and Anti-Terrorism Financing Act 2001, s. 56(1) LABOUR LAW Industrial court - Dispute over wrongful dismissal - Whether Industrial Court failed to take into account relevant matters - Whether Industrial Court acted within scope of its jurisdiction - Whether Industrial Court bound by Sessions Court decision in acquitting respondent from any corrupt offences - Whether proceedings before Sessions Court irrelevant to the proceedings before the Industrial Court - Whether High Court had erred and departed from established principles of law - Whether approach taken by Industrial Court consistent with exercise of its functions - Industrial Relations Act 1967, s. 30(5) TORT Defamation - Defences - Qualified privilege - Whether malice proven to displace defence - Whether sufficient particulars of malice pleaded - Whether compliance with O. 78 r. 3(3) of the Rules of Court 2012 mandatory - Whether actual or express malice established CLJ 2015 Volume 7 (Part 3) COURT COURT OF APPEAL CIMB Bank Bhd v. Veeran Ayasamy (Wakil Diri Kepada Letchimi Muthusamy, Si Mati) Datuk Bandar Kuala Lumpur v. Badan Peguam Malaysia Everise Sprint (M) Sdn Bhd v. Minister Of Finance, Malaysia & Anor Muthiah Meenakshi v. Tan Chu Eng & Ors Teo Cheng Hua v. Ker Min Choo & Ors HIGH COURT Bellajade Sdn Bhd v. CME Group Bhd & Anor Majlis Perbandaran Seberang Perai v. Pengurusan Danaharta Nasional Berhad; Ascort Frontier Sdn Bhd (Third Party) PP v. Boon Fui Yan Suraya Amdah v. Ketua Setiausaha Kementerian Kesihatan Malaysia & Anor SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - Certiorari - Application for - Applicant terminated from pursuing nursing course due to allegation of misconduct - Challenging decision of Disciplinary Committee and Appeal Committee - Whether there was any breach of natural justice and procedural unfairness - Composition of Disciplinary Committee and Appeal Committee - Whether there was any danger of biasness - Whether applicant came within definition of 'public servant' - Whether could claim protection under s. 135(2) Federal Constitution CIVIL PROCEDURE Contempt of court - Interference with due administration of justice - Filing of second Form 75 under s. 281 Companies Act 1965 and second statutory declaration by liquidator - Whether contents of first Form 75 altered - Whether credible explanation furnished for alterations - Whether amounted to tampering with documentary evidence - Whether actions connected to litigation against liquidator - Whether interference with proper administration of justice - Whether constituted contempt of court Fraud - Conspiracy to defraud - Allegations of - Sale of land and house - Purchaser paid full purchase price but land not transferred - Allegation that issue document of title destroyed in fire - Discovery that land transferred to another - Land charged to bank as security for loan - Allegations of fraud and/or conspiracy by bank - Whether particulars of fraud and/or conspiracy against bank pleaded - Whether fraud and/or conspiracy proved - National Land Code, s. 340(2) CONTRACT Tenancy agreement - Rent - Default in payment - Claim to recover arrears in rental - Tenancy agreement provided that premise could be used for commercial purpose - Discovery of express condition of title for lands on which property was located to be used only as residential purpose during land search - Assignment of benefit under tenancy agreement to bank - Default of rental by tenant - Whether owner of property had locus to commence claim - Whether tenancy agreement contravened express condition of title - Whether tenancy agreement illegal and void ab initio - Whether guarantor liable under guarantee agreement for arrears in rental under tenancy agreement - Whether tenant entitled to recover payments of rental previously - Contracts Act 1950, s. 66 CRIMINAL LAW Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Section 12 - Accused charged and convicted for trafficking in persons for purpose of exploitation by way of forced labour - Appeal against conviction and sentence - Prima facie case - Whether established - Whether accused involved in movement and conveyance of the trafficked persons into Malaysia - Whether there was need to prove coercion - Whether there was misapplication of s. 16 of Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Whether trial judge erred by misdirecting himself on ingredients of offence - Failure to take into account evidence showing victims willingly agreed to work for accused - Whether there was miscarriage of justice - Credibility of witnesses - Whether trial judge had accepted allegations of victims without first evaluating credibility of witnesses - Failure to call co-workers - Presumption under s. 114(g) of the Evidence Act 1950 - Whether invoked - Whether trial judge properly exercised maximum evaluation of prosecution's evidence - Whether trial judge failed to appreciate defence of accused - Whether accused created reasonable doubt in prosecution's case CRIMINAL PROCEDURE Appeal - Conviction and sentence, against - Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007, s. 12 - Accused charged for trafficking in persons for purpose of exploitation by way of forced labour - Prima facie case - Whether established - Whether accused involved in movement and conveyance of the trafficked persons into Malaysia - Whether there was need to prove coercion - Whether there was misapplication of s. 16 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Whether trial judge erred by misdirecting himself on ingredients of offence - Failure to take into account evidence showing victims willingly agreed to work for accused - Whether there was miscarriage of justice - Credibility of witnesses - Whether trial judge had accepted allegations of victims without first evaluating credibility of witnesses - Failure to call co-workers - Presumption under s. 114(g) of Evidence Act 1950 - Whether invoked - Whether trial judge properly exercised maximum evaluation of prosecution's evidence - Whether trial judge failed to appreciate defence of accused - Whether accused created reasonable doubt in prosecution's case LAND LAW Transfer - Fraud - Sale of land and house - Purchaser paid full purchase price but land not transferred - Allegation that issue document of title destroyed in fire - Discovery that land transferred to another - Land charged to bank as security for loan - Allegations of fraud and/or conspiracy by bank - Whether transfer of land and subsequent execution of charge defeasible - Whether allegations of fraud and/or conspiracy proved - National Land Code, s. 340(2) Transfer - Void instruments - Power of attorney - Whether land fraudulently transferred by deceased's purported power of attorney - Indian citizen holding power of attorney - Whether s. 433F of National Land Code permits a foreign national holding power of attorney to transfer landed property in Malaysia - Requirements of s. 68 Evidence Act 1950 and s. 3 Power of Attorneys Act 1949 - Whether established - Whether transfer void for breach of s. 433F LOCAL GOVERNMENT Legislation - By-Law - Removal of banners at respondent's premises - Whether banners for commercial purpose - Whether license required to put up banners - Interpretation of By-Laws - Whether Advertisements (Federal Territory) By-Laws 1982 applied both to commercial and non-commercial advertisements - Whether definition of 'advertisement' in By-Laws included banners - Whether By-Laws worded ambiguously - Whether ambiguity encouraged selective enforcement by appellants Rates - Arrears of assessment - Claim for - Whether plaintiff could recover arrears in assessment from defendant pursuant to ss. 146 and 147 of Local Government Act 1976 ('LGA') - Whether defendant registered proprietor of property - Whether plaintiff could rely on ss. 156 and 160(5) of LGA to establish its claim for arrears in assessment against defendant - Whether defendant liable to pay arrears under LGA - Whether a disclosed claim under s. 14(3) of Pengurusan Danaharta Nasional Berhad Act 1998 - Whether defendant's right to claim against third party arose - Whether third party liable to indemnify defendant against payment of any arrears REVENUE LAW Sales tax - Remission of - Application for remission of import duties and taxes - Demand on appellant and another company for same short-paid taxes - Whether absurd and unjust to impose liability on two parties at the same time - Whether appellant was 'importer' - Whether decision of respondents tainted with illegality - Customs Act 1967, s. 14A - Sales Tax Act 1972, s. 33 STATUTORY INTERPRETATION Taxing statute - Strict construction - Demand on two parties for same short-paid taxes - Whether created ambiguity and serious doubt as to liability under law - Whether absurd and unjust to impose liability on both parties at the same time |
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