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PATHMANABHAN NALLIANNEN v. PP & OTHER APPEALS [2016] 1 CLJ 377 CRIMINAL LAW: Penal Code - Section 302 - Murder - Common intention - Whether established - Whether trial judge had correctly called for defence - Whether combination of direct and circumstantial evidence established guilt of accused persons - Whether inferences from fact and circumstances led to conclusion that appellants were perpetrators of murders EVIDENCE: Exhibit - Admissibility - Previous inconsistent statement - Whether evidence of prior conviction admissible in separate criminal proceedings - Whether statement admissible under s. 35 of Evidence Act 1950 - Whether regarded as judicial records - Whether availability of witnesses negated admissibility of exhibits - Whether exhibits correctly admitted - Evidence Act 1950, ss. 11(b), 17, 33 & 74 EVIDENCE: Information leading to facts discovered - Information leading to discovery - Whether discovery was a consequence of information given by accused persons - Whether police had prior knowledge of locations where discoveries were made - Whether discoveries would not have been made if not for information by accused persons - Whether joint statement by one or more accused persons ought to be excluded - Evidence Act 1920, s. 27 EVIDENCE: Credibility - Assessment of - Witness under witness protection programme - Whether reason to reject evidence - Whether evidence of witness supported in material particulars by other direct and circumstantial evidence
ANINA SAADUDIN v. DATUK SERI TENGKU ADNAN TENGKU MANSOR & ANOR [2016] 1 CLJ 266 CIVIL PROCEDURE: Striking out - Action - Application for - Plaintiff expelled from being member of United Malays National Organisation ('UMNO') pursuant to clause in Constitution of UMNO - Dispute pertaining to plaintiff's expulsion or cessation of membership in UMNO - Whether plaintiff's membership automatically invalidated upon filing of legal action relating to party - Whether courts had jurisdiction to hear matters relating to disputes in political parties - Whether court had jurisdiction to hear dispute concerning plaintiff's expulsion or cessation as member of UMNO - Societies Act 1966, s. 18C - Applicability |
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Legal Network Series
CLJ 2016 Volume 1 (Part 2) FEDERAL COURT SPM Membrane Switch Sdn Bhd v. Kerajaan Negeri Selangor COURT OF APPEAL Chain Cycle Sdn Bhd v. Kerajaan Malaysia FLH ICT Services Sdn Bhd & Anor v. Malaysian Debt Ventures Bhd I&P Seriemas Sdn Bhd & Anor v. Tenaga Nasional Bhd & Ors HIGH COURT Anina Saadudin v. Datuk Seri Tengku Adnan Tengku Mansor & Anor Kluang Health Care Sdn Bhd v. Lee Yong Beng & Another Case PP v. Kamal Hisham Ja'afar Xin Guan Premier Sdn Bhd v. Tenaga Nasional Bhd Yu Sheng Meng (Suing Through Next Of Kin, Yu Meng Queng) v. Ketua Pengarah Pendaftaran Negara & Ors SUBJECT INDEX ARBITRATION Award - Question of law - Reference under s. 42 of Arbitration Act 2005 - Contract for construction of solid waste treatment plant - Whether commercial contract - Whether Absalom exception applicable to delimit scope of references on questions of law - Determination of what amounted to 'question of law' - Test for determining whether judge should intervene with findings of arbitrator - Whether judge erred in varying arbitrator's decision on damages Award - Setting aside - Application for - Disputes arising from building contract - Claims for supply of materials, structural and architectural works - Counterclaim for back charges for works done by third party and for liquidated and ascertained damages - Whether award made by arbitrator against Malaysian public policy - Whether contained decision on matters beyond scope of submission to arbitration - Whether arbitrator exceeded jurisdiction and acted outside scope of arbitral authority - Whether application to set aside arbitration award filed within time - Arbitration Act 2005, ss. 37 & 42 BANKING Banking facility - Islamic financing - Bai' al-inah - Asset sale agreement and asset purchase agreement - Recovery of money due and payable - Failure to state asset used in transaction - Whether bai' al-inah contract in compliance with Syariah principle of financing CIVIL PROCEDURE Appeal - Appeal against judgment of High Court - Banking facility - Islamic financing - Bai' al-inah - Asset sale agreement and asset purchase agreement - Recovery of money due and payable - Failure to state asset used in transaction - Whether bai' al-inah contract in compliance with Syariah principle of financing Courts - Jurisdiction - Originating summons for declaration that plaintiff was Malaysian citizen under Federal Constitution - Whether only Federal Government has sole discretion to grant citizenship by way of registration under art. 15A of Federal Constitution - Whether relief sought under art. 15A of Federal Constitution non-justiciable - Granting of citizenship based on policies of Federal Government - Whether court has jurisdiction to assess policy considerations Injunction - Application for - Injunction to restrain disconnection of electricity supply - Discovery of meter-tampering - Meter replaced with new one - Notice of disconnection issued three months after discovery and rectification - Whether electricity could be disconnected after remedial work had been carried out - Whether offence continuous - Electricity Supply Act 1990, s. 38(1) Judicial review - Application for - Appeal against judicial review by High Court - Acquisition of land for purpose of upgrading transmission line - Landowners dissatisfied over compensation awarded by District Land Officer - Landowners appealed to State Authority against decision of District Land Officer - State Authority ordered acquisition of lands under Land Acquisition Act 1960 and refused to review amount of compensation awarded - Whether State Authority exceeded its jurisdiction in making order of acquisition under s. 13 of Electricity Supply Act 1990 - Whether Statutory Authority permitted to make such order under law Striking out - Action - Application for - Plaintiff expelled from being member of United Malays National Organisation ('UMNO') pursuant to clause in Constitution of UMNO - Dispute pertaining to plaintiff's expulsion or cessation of membership in UMNO - Whether plaintiff's membership automatically invalidated upon filing of legal action relating to party - Whether courts had jurisdiction to hear matters relating to disputes in political parties - Whether court had jurisdiction to hear dispute concerning plaintiff's expulsion or cessation as member of UMNO - Societies Act 1966, s. 18C - Applicability Striking out - Application for - Originating summons - Whether arts. 14(1)(b) and 15(2) of Federal Constitution could be invoked by plaintiff to claim citizenship by operation of law - Whether only Federal Government has sole discretion to grant citizenship by way of registration under art. 15A of Federal Constitution - Whether order applied for by plaintiff frivolous and vexatious - Whether court should exercise its power under O. 18 r. 19 of Rules of Court 2012 CONSTITUTIONAL LAW Citizenship - Citizenship by operation of law - Plaintiff born to Malaysian father and Indonesian mother registered as non-citizen in birth certificate - Plaintiff adopted by adopter - Originating summons for declaration that plaintiff was Malaysian citizen under Federal Constitution - Requirements under art. 14(1)(b) of Federal Constitution - Whether fulfilled - Whether adoption order had implication on citizenship of adopted child - Adopter not lawful parent within meaning of art. 14 of Federal Constitution - Plaintiff's biological parents not legally married - Whether plaintiff illegitimate person under law - Legitimacy Act 1961, s. 3 - Whether plaintiff's citizen status could be considered under art. 15(2) of Federal Constitution - Whether plaintiff's application for declarations unsustainable CONTRACT Construction of terms of contract - Approach to question of construction - Termination of contract - Grounds of termination - 'Unable to perform its services as provided under the agreement' - Whether includes 'unsatisfactory performance' - Whether 'unable' meant failure to perform or 'incapacity' - Whether unsatisfactory performance wider than inability to perform services Damages - Breach - Loss of profit - Assessment of - Aggrieved party to be put in same position as if contract had been properly performed - Whether calculation provided reflected principles of compensation for loss of profits - Contracts Act 1950, s. 74 Termination - Notice of termination - Acceptance of termination - Failure to provide reasons for termination - Purported 'graceful acceptance' of notice of termination - Whether rendered notice of reasons to be superfluous and unnecessary - Whether extinguished legal rights Termination - Validity - Notice of termination by respondent - Whether particularised reasons provided - Clause in agreement providing procedure to 'remedy unsatisfactory situation' in 30 days - Whether appellant given opportunity to remedy unsatisfactory performance - Whether respondent could terminate unilaterally - Whether notice of termination valid CRIMINAL PROCEDURE Bail - Granting of - Invocation of revisionary powers to examine correctness and legality of grant of bail - Whether non-bailable offence - Entitlement of bail as of right - Whether discretion to grant bail exercised judiciously - Whether record of proceedings and exhibits supported revocation of grant of bail Revision - Revisionary powers of High Court Judge - Invocation of revisionary powers to examine correctness and legality of grant of bail - Whether powers of High Court in revision wider than powers on appeal - Whether exercised to correct miscarriage of justice - Whether non-bailable offence - Whether record of proceedings and exhibits supported revocation of grant of bail - Criminal Procedure Code, ss. 323 & 325 LAND LAW Acquisition of land - Compensation - Land acquisition for purpose of upgrading transmission line - Appeal by landowners to State Authority against compensation awarded by District Land Officer - State Authority ordered acquisition of lands under Land Acquisition Act 1960 and refused to review amount of compensation awarded - Whether State Authority exceeded its jurisdiction in making order of acquisition under s. 13 of Electricity Supply Act 1990 - Whether Statutory Authority permitted to make such order under law - Whether project entailed installation of new lines over lands or mere upgrading - Electricity Supply Act 1990, ss. 2, 11, 13, 16 & 19 LIMITATION Arbitration - Awards - Application to set aside arbitration award - Disputes arising from building contract - Claims for supply of materials, structural and architectural works - Counterclaim for back charges for works done by third party and for liquidated and ascertained damages - Whether application to set aside arbitration award filed within time - Whether court had jurisdiction to extend time - Arbitration Act 2005, ss. 37 & 42 STATUTORY INTERPRETATION Construction - Powers given by Act - Interpretation of s. 38(1) of Electricity Supply Act 1990 - Notice of disconnection of electricity supply issued three months after discovery and rectification - Whether offence continuous - Whether defendant could invoke power to disconnect where there was no longer tampering or theft of electricity UTILITIES Electricity - Disconnection - Discovery of meter-tampering - Meter replaced with new one - Notice of disconnection of electricity supply issued three months after discovery and rectification - Whether there was urgent need to disconnect electricity supply - Whether offence continuous - Whether electricity could be disconnected after remedial work had been carried out - Electricity Supply Act 1990, s. 38(1) WORDS & PHRASES 'Unable to perform its services as provided under the agreement' - Whether includes 'unsatisfactory performance' - Whether 'unable' meant failure to perform or 'incapacity' - Whether unsatisfactory performance wider than inability to perform services CLJ 2016 Volume 1 (Part 3) FEDERAL COURT Munuswamy Sundar Raj v. PP COURT OF APPEAL Nguyen Quoc Viet v. PP Pathmanabhan Nalliannen v. PP & Other Appeals Zen Courts Sdn Bhd v. Bukit Jalil Development Sdn Bhd & Ors And Another Appeal HIGH COURT Aidiladha Sulaiman v. Mahkamah Perusahaan Malaysia & Anor Dato' Capt Mohd Najib Abdullah v. Natarjaya Sdn Bhd & Ors Kejuruteraan Letrik Man Hoe Sdn Bhd v. Max-Benefit Sdn Bhd; Metroplex Equity Holdings Sdn Bhd (Applicant) Sarawak Forestry Department v. Sin Lee Lee Timber (1979) Co Silver Bird Group Bhd & Ors v. Dato' Tan Han Kook & Ors The Bank Of Nova Scotia Bhd v. Saunah Kasni & Ors SUBJECT INDEX ADMINISTRATIVE LAW Judicial review - High Court - Certiorari - Findings of Industrial Court - Failure of Industrial Court to properly consider totality of evidence and relevant facts - Whether decision reasonable - Whether Industrial Court committed errors of law warranting intervention CIVIL PROCEDURE Contempt of court - Order of committal, application for - Statement made by appointed liquidator in affidavit - Whether intended to be false and misleading - Failure to appreciate meaning of word 'potentially' in statement - Whether mens rea proven against liquidator - Whether there was interference with administration of justice - Whether application allowed Striking out - Application for - Doctrine of res judicata - Whether applicable - Failure of applicant to take contempt proceedings against liquidator in earlier proceeding when impugned statement had been alluded to - Whether against principle of res judicata - Whether application allowed Trial - Recall of witness after close of case - Recalling of witnesses for purpose of tendering documents - Discretion of court COMPANY LAW Shares - Sale of shares - Allegation of minority oppression in affairs and management of company - Order for buy-out of shares - Appointment of independent valuer to determine price of shares - Application by minority shareholder seeking representations be made on valuation report - Determination of final value by court - Whether order of court precluded parties from challenging valuation report - Whether independent valuer gave sufficient regard to valuation done by another valuer - Companies Act 1965, s. 181 Shares - Valuation - Sale of Shares - Allegation of minority oppression - Order for buy-out of shares - Appointment of independent valuer to determine price of shares - Determination of final value by court - Whether order of court precluded parties from challenging valuation report - Whether independent valuer gave sufficient regard to valuation done by another valuer CRIMINAL LAW Dangerous Drugs Act 1952 - Section 39B(1)(a) - Accused person convicted for offence of trafficking dangerous drugs and sentenced to death - Drugs found in bag - Whether accused person had knowledge of drugs found in bag - Whether ingredient of trafficking proved - Whether conviction and sentence safe Penal Code - Section 302 - Murder - Common intention - Whether established - Whether trial judge had correctly called for defence - Whether combination of direct and circumstantial evidence established guilt of accused persons - Whether inferences from fact and circumstances led to conclusion that appellants were perpetrators of murders CRIMINAL PROCEDURE Appeal - Appeal against conviction and sentence - Accused person convicted for murder and sentenced to death - Penal Code, s. 302 - Whether accused person had motive to murder deceased - Whether defence bare denial and afterthought - Whether defence cast reasonable doubt on prosecution's case - Whether conviction and sentence safe Appeal - Appeal against conviction and sentence - Accused person convicted for offence of trafficking dangerous drugs and sentenced to death - Dangerous Drugs Act 1952, s. 39B(1)(a) - Drugs found in bag - Whether accused person had knowledge of drugs found in bag - Whether ingredient of trafficking proved - Defence of innocent carrier - Whether substantiated - Whether Dangerous Drugs Act 1952 caters for defence of innocent carrier - Whether defence known to law EMPLOYMENT Contract of employment - Misconduct - Demotion of employee - Whether reduction in position must not be lower than from which employee was last promoted EVIDENCE Adverse inference - Non-calling of material witness - Failure of prosecution to call material witness - Accused person convicted for murder and sentenced to death - Five people were present at crime scene but none were called to testify - Whether adverse inference ought to be invoked - Evidence Act 1950, s. 114(g) Circumstantial evidence - Murder - Accused person convicted for murder and sentenced to death - Accused person was wearing t-shirt with blood stains on collar when arrested - Knife found near deceased's body - Whether circumstantial evidence could link accused person to murder - Whether sufficient to sustain finding that accused person committed offence Credibility - Assessment of - Witness under witness protection programme - Whether reason to reject evidence - Whether evidence of witness supported in material particulars by other direct and circumstantial evidence Exhibit - Admissibility - Previous inconsistent statement - Whether evidence of prior conviction admissible in separate criminal proceedings - Whether statement admissible under s. 35 of Evidence Act 1950 - Whether regarded as judicial records - Whether availability of witnesses negated admissibility of exhibits - Whether exhibits correctly admitted - Evidence Act 1950, ss. 11(b), 17, 33 & 74 Information leading to facts discovered - Information leading to discovery - Whether discovery was a consequence of information given by accused persons - Whether police had prior knowledge of locations where discoveries were made - Whether discoveries would not have been made if not for information by accused persons - Whether joint statement by one or more accused persons ought to be excluded - Evidence Act 1920, s. 27 Statement - Unsworn statement from dock - Accused person convicted for murder and sentenced to death - Penal Code, s. 302 - Accused person gave unsworn statement in defence - Whether unsworn statement carried weight Witness - Recalling of - Recalling of witnesses for purpose of tendering documents - Decision of Audit Oversight Board ('AOB proceedings') - Whether findings of AOB proceedings were judgments, orders and decrees - Whether fell within ambit of s. 43 of Evidence Act 1950 - Whether findings of AOB proceedings disciplinary in nature - Whether admissible - Whether plaintiffs took necessary steps or due diligence in obtaining documents FORESTRY Seizure - Seizure of lorries - Lorries seized by Sarawak Forestry Department - Application by owner for release and return of lorries made under s. 407 of Criminal Procedure Code - Whether provision correctly applied - Whether lorries can be released pursuant to s. 407(2) of Criminal Procedure Code when there is specific provision under s. 74(1) of Forestry Ordinance (Cap 126) (Sarawak) LABOUR LAW Employment - Constructive dismissal - Demotion of employee - Employee received cash as token of appreciation for what was supposed to be free event - Issuance of unofficial receipt - Absence of policy guidelines on issuance of receipts - Whether employee's acts amounted to misconduct - Whether punishment of demotion proportionate to misconduct LAND LAW Indefeasibility of title and interests - Forged transfer - Whether transfer of property by first defendant to second defendant defeasible - Whether discharge of charge defeasible - Whether fourth defendant's charge impugned - Whether transfer of property procured by fraud and/or forgery - Whether fourth defendant bona fide chargee for valuable consideration - National Land Code, s. 340(2), (3) Indefeasibility of title and interests - Fraud - Property purchased from developer - Developer sold property to third party for second time after issuance of strata titles - Third party registered as proprietor - Lodgment of caveat on property - Subsequent sale by third party - Plaintiff never registered as proprietor of property - Whether plaintiff beneficial owner of property - Whether developer held property under trust for plaintiff - Applicability of s. 340 of National Land Code - Whether only former registered proprietor could challenge title of subsequent registered owner - Whether third party was bona fide purchaser PUBLIC AUTHORITIES Registrar of Land Titles - Breach of statutory duty - Negligence - Whether Registrar of Land Titles negligent in issuing various versions of issue document of title - Whether Registrar of Land Titles breached duty of care - Whether plaintiff suffered loss and damage |
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