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YAP YOU JEE v. PP & OTHER APPEALS [2015] 7 CLJ 897 CRIMINAL PROCEDURE: Charge - Amendment - Amendments to charges at close of prosecution's case - No grounds written justifying amendments - Whether amendments introduced different case against accused persons - Facts failing to establish prima facie case against accused persons on original charge preferred - Facts disclosing another offence for which accused persons not charged - Whether court ought to amend charge - Whether any prejudice occasioned to accused persons CRIMINAL PROCEDURE: Judgment - Grounds of judgment - No grounds of judgment written by trial judge to justify amendments to charges at close of prosecution's case - No written grounds provided in respect of trial judge's findings that prima facie case established and defence ought to be called - Whether any prejudice occasioned to accused persons - Whether any statutory provision requiring trial judge to prepare grounds of judgment for finding prima facie case established CRIMINAL PROCEDURE: Sentencing - Appeals - Approach of appellate court in sentencing - Whether ought to be slow to disturb sentences passed by trial court - Whether sentences ought to be concurrent or consecutive - Principles to assist appellate court CRIMINAL PROCEDURE: Trial - Trial de novo - Change of judge during hearing - Whether previous judge retained jurisdiction in matter - Whether previous judge may continue and complete case that was partly heard - Whether succeeding judge has discretion to either hear case de novo or to continue from point where it had been left by previous judge - Whether directive given by Chief Judge to succeeding judge to continue part heard case purely an administrative directive - Whether directive could fetter discretion of succeeding judge - Whether directive had prejudiced accused persons - Whether in breach of s. 261 of Criminal Procedure Code CRIMINAL PROCEDURE: Witness - Statement - Admissibility - Statement of witness admitted under s. 32 of Evidence Act 1950 - Witness absent and not called at trial - Whether incriminatory statement of witness ought to be admitted - Whether failure of police to make use of ss. 47, 49, 118 & 396 of Criminal Procedure Code rendered statement of witness inadmissible
KINGSLEY OBI DIKE v. PP [2015] 7 CLJ 1039 CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Trafficking in dangerous drugs - Statement by accused contradicted with cautioned statement - Whether trial judge properly appreciated defence case - Whether accused had custody and control of dangerous drugs - Whether conviction safe CRIMINAL PROCEDURE: Police investigation - Cautioned statement - Whether investigating officer conducted thorough investigation - Whether accused furnished necessary information in cautioned statement CRIMINAL PROCEDURE: Statements - Admissibility - Statement by chemist - Whether evidence may be proven by written statement - Whether consent of accused required before witness statement admissible as evidence - Criminal Procedure Code, ss. 172A(5), 172B(2)(vi), (6) & 402B EVIDENCE: Expert evidence - Chemist's evidence - Admissibility - Statement by chemist - Whether evidence may be proven by written statement - Whether consent of accused required before witness statement admissible as evidence - Criminal Procedure Code, ss. 172A(5), 172B(2)(vi), (6) & 402B |
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LATEST CASES |
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Legal Network Series
CLJ 2015 Volume 7 (Part 7) COURT COURT OF APPEAL Batu Kemas Industri Sdn Bhd v. Kerajaan Malaysia & Anor CIMB Bank Bhd v. Sebang Gemilang Sdn Bhd & Anor Hossein Shahsavandi Ahmad v. PP Yap You Jee v. PP & Other Appeals HIGH COURT Ahmad Zahri Mirza v. PricewaterhouseCoopers Capital Sdn Bhd & Ors Awang Ahmad Faisal Awang Sohor v. PP Dato' Seri Diraja Hj Adnan Hj Yaakob v. Utusan Melayu Liew Ka Ket v. Bigraise Telipok Sdn Bhd & Anor Rasip Hamsudi & Ors v. Pacific & Orient Insurance Co Bhd & Ors SUBJECT INDEX BANKING Securities for advances - Loan - Loan facilities granted by appellant (bank) to second defendant to finance construction project - Sinking fund - Progress payment received by second defendant to be deducted into fixed deposit under lien to bank - Second respondent executed deed of assignment and power of attorney of loan facilities to first respondent to complete construction project - Bank closed sinking fund and credited fixed deposit monies to second respondent's account upon completion of project - Whether there was effective assignment in favour of first respondent - Whether deed of assignment made reference to sinking fund - Whether first respondent had right to monies in sinking fund - Whether bank had knowledge of assignment CIVIL PROCEDURE Declaratory judgment - Application to quash - Action for negligence in vehicular collision - Action commenced in Sessions Court - First defendant filed action in High Court pending Sessions Court suit - Claim for declaratory relief that policy insurance void and unenforceable in High Court - High Court allowed first defendant's claim while Sessions Court suit held in favour of plaintiffs - Application by plaintiffs to quash declaratory order and to declare policy valid Discovery - Pre-action - Pre-action discovery against non-parties to an intended action - Rules governing discovery - Scope of O. 24 r. 7A Rules of Court 2012 ('ROC') - Whether pre-action discovery under O. 24 r. 7A of ROC only confined to parties likely to be a party to an intended action - Whether applicant must show defendants likely to be a party to an intended action - Whether saving of costs ought to be a factor in favour of allowing a pre-action discovery Discovery - Relevancy of documents - Application to produce valuation report to ascertain actual purchase price per share sold - Valuation report prepared for public purpose - Whether documents sought in pre-action discovery necessary in assessment of plaintiff's claim - Whether application frivolous, speculative and intended for fishing expedition - Whether documents sought in pre-action discovery necessary to fill void and gaps in plaintiff's knowledge of his claim - Whether disclosure of valuation report would cause embarrassment and prejudice to defendants Locus standi - Action by elected representative - Whether plaintiff suing in personal capacity or official capacity as Menteri Besar of Pahang - Whether plaintiff had locus standi to institute and maintain action Striking out - Writ and statement of claim - Terms of 'Ketua Menteri' and 'Menteri Besar' inconsistently used in pleadings - Whether referred to position as Menteri Besar - Whether mere inconsistencies in terms used reasonable grounds to strike out claim - Rules of Court 2012, O. 18 r. 19(1)(b), (c) & O. 92 r. 4 CONTRACT Termination - Validity - Sale and purchase agreement - Termination by receiver and manager on grounds of non-payment of purchase price - Whether purchase price settled through contra arrangement - Whether receipt of contra payment acknowledged by developer - Whether receiver and manager adopted SPA by conduct - Whether termination of SPA lawful CRIMINAL PROCEDURE Appeal - Appeal against conviction and sentence - Accused person charged for trafficking drugs - Drugs found concealed in inner cover of shoes - Allegation that accused was told by another person to market shoes - Whether a fictitious character - Defence of innocent carrier - Whether probable - Accused person convicted for offence and sentenced to death - Whether conviction and sentence safe - Whether defence judicially appreciated - Dangerous Drugs Act 1952, s. 39B(1)(a) Charge - Amendment - Amendments to charges at close of prosecution's case - No grounds written justifying amendments - Whether amendments introduced different case against accused persons - Facts failing to establish prima facie case against accused persons on original charge preferred - Facts disclosing another offence for which accused persons not charged - Whether court ought to amend charge - Whether any prejudice occasioned to accused persons Judgment - Grounds of judgment - No grounds of judgment written by trial judge to justify amendments to charges at close of prosecution's case - No written grounds provided in respect of trial judge's findings that prima facie case established and defence ought to be called - Whether any prejudice occasioned to accused persons - Whether any statutory provision requiring trial judge to prepare grounds of judgment for finding prima facie case established Sentencing - Appeals - Approach of appellate court in sentencing - Whether ought to be slow to disturb sentences passed by trial court - Whether sentences ought to be concurrent or consecutive - Principles to assist appellate court Sentencing - Procedure - Previous conviction - Taking into account accused's previous convictions in passing sentence - Duty of court - Whether must inform and explain previous convictions to accused - Whether must obtain accused's confirmation on convictions - Failure to abide by procedure - Whether improper - Whether sentence liable to be disturbed Trial - Trial de novo - Change of judge during hearing - Whether previous judge retained jurisdiction in matter - Whether previous judge may continue and complete case that was partly heard - Whether succeeding judge has discretion to either hear case de novo or to continue from point where it had been left by previous judge - Whether directive given by Chief Judge to succeeding judge to continue part heard case purely an administrative directive - Whether directive could fetter discretion of succeeding judge - Whether directive had prejudiced accused persons - Whether in breach of s. 261 of Criminal Procedure Code Witness - Statement - Admissibility - Statement of witness admitted under s. 32 of Evidence Act 1950 - Witness absent and not called at trial - Whether incriminatory statement of witness ought to be admitted - Whether failure of police to make use of ss. 47, 49, 118 & 396 of Criminal Procedure Code rendered statement of witness inadmissible LIMITATION Specific performance - Sale and purchase agreement - Unlawful termination of agreement - Limitation period of three years - Whether specific performance barred by limitation - Whether purchaser entitled to damages in lieu of specific performance ROAD TRAFFIC Insurance - Notice of proceedings - Negligence in vehicular collision - Action commenced in Sessions Court - First defendant filed action in High Court pending Sessions Court suit - Claim for declaratory relief that policy insurance void and unenforceable in High Court - High Court allowed first defendant's claim while Sessions Court suit held in favour of plaintiffs - Whether plaintiffs notified of High Court suit - Whether facts of claim in Sessions Court laid before High Court before obtaining declaratory order in High Court - Whether declaratory order enforceable - Road Transport Act 1987, s. 96 TORT Negligence - Damages - Claim for - Contract for electricity supply between second defendant and plaintiff - Jabatan Kerja Raya embarked on constructing works and struck underground cable connected to plaintiff's factory - Interruption of supply of electricity to plaintiff's factory causing loss and damages - Whether damage foreseeable - Duty of care - Whether first defendant owed delegable duty of care - Government Proceedings Act 1956, s. 7(2), (3) - Whether cause of damage due to surge or under voltage - Evaluation of competing views from expert witnesses - Whether there was absolute contributory negligence on plaintiff's part - Whether second defendant under contractual obligation to ensure continuous and uninterrupted supply of electricity UTILITIES Electricity - Supply of - Contract for electricity supply between second defendant and plaintiff - Negligence - Claim for damages - Jabatan Kerja Raya embarked on constructing works and struck underground cable connected to plaintiff's factory - Interruption of supply of electricity to plaintiff's factory causing loss and damages - Whether damage foreseeable - Duty of care - Whether first defendant owed delegable duty of care - Government Proceedings Act 1956, s. 7(2), (3) - Whether cause of damage due to surge or under voltage - Evaluation of competing views from expert witnesses - Whether there was absolute contributory negligence on plaintiff's part - Whether second defendant under contractual obligation to ensure continuous and uninterrupted supply of electricity CLJ 2015 Volume 7 (Part 8) COURT SC INDIA Bairam Muralidhar v. State Of Andhra Pradesh FEDERAL COURT Lok Kok Beng & Ors v. Loh Chiak Eong & Anor COURT OF APPEAL Kingsley Obi Dike v. PP Theresa Toyat & Anor v. KHL Sdn Bhd HIGH COURT Pacific Bunkers Pte Ltd v. Owners Of The Ships Or Vessels "Geniki Sarawak" And "Geniki Johor" & Another Case (No 2) The Bank Of Punjab v. Lee Kam Sun & Ors SUBJECT INDEX CIVIL PROCEDURE Summary judgment - Applications to amend - Contents of summary judgments disputed by both parties - Draft orders for summary judgment submitted for approval to Registrar by defendant - Sealed judgments extracted - Whether applications had been lawfully perfected - Whether doctrine of functus officio barred review of sealed judgments - Whether O. 42 r. 13 Rules of Court 2012 barred plaintiff's applications - Whether express prayer was required to set aside sealed judgments - Whether court had power to allow amendment CONTRACT Breach - Share sale agreement - Sale and purchase agreements to purchase shares in company - Agreements would give purchaser control of company together with an agricultural land - Whether land should be free from encumbrances pursuant to agreements - Vendors failed to ensure lands free from encumbrances - Termination of agreements - Whether purchaser intended to purchase native customary rights land under guise of agreements - Whether purchaser guilty of anticipatory breach Building contract - Delay - Claim against third party for economic loss - Appellants claimed against respondents as project architects for consequential financial loss - Whether matters contributed to delay fell within professional work of respondents - Whether respondents owed duty of care to appellants apart from their duty in contract or tort to developer - Whether respondents able to foresee consequential financial loss suffered - Whether Federal Court should be final determiner of judicial policy on extensions of liability of architects to cover pure economic loss - Whether it was fair, just and reasonable to impose duty of care on respondents CRIMINAL PROCEDURE Appeal - Appeal against conviction and sentence - Trafficking in dangerous drugs - Statement by accused contradicted with cautioned statement - Whether trial judge properly appreciated defence case - Whether accused had custody and control of dangerous drugs - Whether conviction safe Criminal Procedure Code, 1973 - S. 321 - Withdrawal from prosecution - Role of Prosecutor and duty of court granting consent - How to be exercised - Held, it is the obligation of the Public Prosecutor to state what material he has considered - It has to be set out in brief - Public Prosecutor cannot act like the post office on behalf of the State Government, he is required to act in good faith, peruse materials on record and form an independent opinion that withdrawal of the case would really subserve public interest - An order of the Government on the Public Prosecutor in this regard is not binding - A court while giving consent under S. 321 is required to exercise its judicial discretion, which is not to be exercised in a mechanical manner - Court must consider the material on record to see that the application had been filed in good faith and it is in interests of the public and justice Criminal Procedure Code, 1973 - S. 321 - Withdrawal of prosecution - Corruption case - Public Prosecutor seeking withdrawal of prosecution only on the ground that State Government has issued order to withdraw the prosecution - Non-application of independent mind by Public Prosecutor - Impermissibility - Held, Special Judge and High Court rightly declined to grant consent - Application must indicate perusal of the materials by stating what are the materials Prosecutor has perused, may be in brief, and whether such withdrawal of prosecution would serve public interest and how he has formed his independent opinion - Here Public Prosecutor has been totally guided by order of the Government and really not applied his mind to facts of the case - Noteworthy that State Government had granted sanction and anti-Corruption Bureau also found no justification for the withdrawal - Regard being had to gravity of the offence and the impact on public life apart from the nature of application filed by the Public Prosecutor, view expressed by trial Judge and High Court, upheld - Prevention of Corruption Act, 1988 - Ss. 7 and 13(1)(d) r/w S. 13(2) CRIMINAL PROCEDURE Police investigation - Cautioned statement - Whether investigating officer conducted thorough investigation - Whether accused furnished necessary information in cautioned statement Statements - Admissibility - Statement by chemist - Whether evidence may be proven by written statement - Whether consent of accused required before witness statement admissible as evidence - Criminal Procedure Code, ss. 172A(5), 172B(2)(vi), (6) & 402B EVIDENCE Expert evidence - Chemist's evidence - Admissibility - Statement by chemist - Whether evidence may be proven by written statement - Whether consent of accused required before witness statement admissible as evidence - Criminal Procedure Code, ss. 172A(5), 172B(2)(vi), (6) & 402B LAND LAW Ownership - Claim for - Application for various declarations, orders and consequential reliefs - Land frozen and seized by Royal Malaysian Police - Anti-Money Laundering and Anti-Terrorism Financing Act 2001, ss. 51 & 54 - Whether notice of seizure endorsed on document of title - Whether seizure still in force - Registrar's caveat lodged over land - Land auctioned and sold to third defendant - Whether bank had beneficial ownership of land - Whether bank had interests in land - Whether bank had indefeasible title of land TORT Negligence - Economic loss - Building contract - Dispute relating to delay in completion of industrial buildings purchased by appellants - Appellants claimed against respondents as project architects for consequential financial loss - Whether matters contributed to delay fell within professional work of respondents - Whether respondents owed duty of care to appellants apart from their duty in contract or tort to developer - Whether respondents able to foresee consequential financial loss suffered - Whether Federal Court should be final determiner of judicial policy on extensions of liability of architects to cover pure economic loss - Whether it was fair, just and reasonable to impose duty of care on respondents |
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