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DEWAN UNDANGAN NEGERI SELANGOR & ORS v. MOHD HAFARIZAM HARUN [2016] 7 CLJ 143 CONSTITUTIONAL LAW: Legislature - State Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether parties had capacity to be impleaded in legal proceedings - Whether Legislative Assembly entitled to rely on immunity conferred under art. 72(1) of the Federal Constitution - Whether Assembly had power to punish acts of contempt committed beyond its walls - Powers of Assembly - Whether limited by Laws of the Constitution of Selangor 1959 CONSTITUTIONAL LAW: Legislature - State legislative powers - Privileges of Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether Assembly acted within its constitutional and legal powers before invoking protection under art. 72(1) of the Federal Constitution - Whether Assembly had power to punish acts of contempt committed beyond its walls CIVIL PROCEDURE: Parties - Proper parties to be sued - State Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether parties had capacity to be impleaded in legal proceedings
ALLIED PHYSICS SDN BHD v. TORT: Defamation - Libel - Auditor General published audit report and synopsis - Audit report and synopsis referred in articles by national newspapers - Allegation that report, synopsis and articles gave imputation that plaintiff had no licence and had committed criminal offence - Whether words complained of capable of bearing defamatory meaning - Whether words complained of defamatory |
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Legal Network Series
CLJ 2016 Volume 7 (Part 2) FEDERAL COURT Dewan Undangan Negeri Selangor & Ors v. Mohd Hafarizam Harun COURT OF APPEAL Mohd Azran Rahmat & Anor v. Mazlan Aliman Tenaga Gagah Sdn Bhd v. Saik Siw Lai & Ors And Another Appeal HIGH COURT Datuk Abdul Rashid Asari v. Lee Beng Seng (On Behalf Of Idaman Pelita Sdn Bhd); Majlis Peguam Malaysia (Intervener) Ketua Pengarah Hasil Dalam Negeri v. Thomson Reuters Global Resources Lei Lin Thai v. PP Mohd Rafizi Ramli & Anor v. PP & Other Appeals Norsham Abas v. Arif Medik Sdn Bhd & Anor Sulaiman Ahmad & Ors v. Jemain Mohamed & Ors Usahasama SPNB-LTAT Sdn Bhd v. ABI Construction Sdn Bhd SUBJECT INDEX ARBITRATION Arbitrator - Jurisdiction - Whether notice of arbitration premature - Terms in contract - Dispute to be referred to officer for decision before reference to arbitration - Whether a mandatory requirement - Whether requirement waived - Whether arbitrator had jurisdiction to hear reference CIVIL PROCEDURE Parties - Proper parties to be sued - State Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether parties had capacity to be impleaded in legal proceedings Striking out - Writ and statement of claim - Application for - Plaintiffs filed action against defendant claiming to be beneficiaries of land in deceased's estate - Plaintiffs sought declaration to declare transfer of land to defendant null and void - Failure to produce letters of administration or Sijil Faraid to establish their locus standi before commencement of action - Whether plaintiffs had locus standi to commence action against defendant - Whether striking out application a nullity COMPANY LAW Winding up - Petition - Filing of more than one petition - Whether a company could be wound up twice - Whether second winding up order ought to be set aside - Whether second order rendered nugatory and superfluous - Whether trial judge erred in application of s. 219(2) of Companies Act 1965 CONSTITUTIONAL LAW Legislature - State Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether parties had capacity to be impleaded in legal proceedings - Whether Legislative Assembly entitled to rely on immunity conferred under art. 72(1) of the Federal Constitution - Whether Assembly had power to punish acts of contempt committed beyond its walls - Powers of Assembly - Whether limited by Laws of the Constitution of Selangor 1959 Legislature - State legislative powers - Privileges of Legislative Assembly - Secretary of the Committee of Rights and Privileges ('Secretary') issued summons against solicitor for issuance of letter of demand against Speaker of Assembly - Letter of demand contained indecent and threatening words - Contempt of Assembly - Allegation against - Solicitor filed suit against State Legislative Assembly, Secretary and Committee of Rights and Privileges - Whether Assembly acted within its constitutional and legal powers before invoking protection under art. 72(1) of the Federal Constitution - Whether Assembly had power to punish acts of contempt committed beyond its walls CONTRACT Terms - Condition precedent - Dispute to be referred to officer for decision before reference to arbitration - Whether parties contractually agreed to pre-condition - Whether meetings and negotiations between parties tantamount to reference under contract - Whether requirement waived by silence Void contract - Restitution - Plaintiff provided financial assistance to defendants pursuant to agreement - Agreement void for illegality - Whether defendants could be allowed to take advantage of illegality of agreement after benefiting from funds - Whether plaintiff entitled to restitution - Whether court has discretion to sever unlawful part of contract - Contracts Act 1950, s. 66 CRIMINAL LAW Offences - Illegal assembly - Notification of assembly - Failure to give police ten days' notice - Applicants charged under s. 15(3) of Peaceful Assembly Act 2012 ('PAA') - Whether requirement to give notice reasonable - Whether requirement under s. 9(1) of PAA to give notice prior to assembly a 'restriction' within art. 10(2)(b) of Federal Constitution - Whether non-compliance to give notice warranted criminal sanction - Whether ss. 4(2)(b), 4(3), 9(1), 9(5), 10(c), 15(3) of PAA constitutional and valid - Whether court bound by decision in Nik Nazmi v. PP or PP v. Yuneswaran CRIMINAL PROCEDURE Charge - Defective charge - Application to strike out - Capital Markets and Services Act 2007, s. 188(2)(a) - 53 charges for offence of acquisition of shares while in possession of insider information - Whether provision under s. 188 more severe and drastic compared to s. 201 - Whether charges contravened art. 8(1) Federal Constitution - Whether defective and illegal in substance - Whether applicant charged in his capacity as principal or agent - Whether charges disclosed nexus between information and material effect on price or value of shares - Whether there were distinct offences warranting separate charges - Whether charges oppressive and abuse of court process - Whether contravened s. 163 Criminal Procedure Code - Whether applicant should have been charged under s. 188(2)(b) instead of s. 188(2)(a) - Whether validity of charges questionable Charge - Framing of particulars of - 53 charges for offence of acquisition of shares while in possession of insider information - Whether shares acquired on different time and dates - Whether there were distinct offences warranting separate charges - Whether charges complied with s. 163 Criminal Procedure Code - Capital Markets and Services Act 2007, s. 188(2)(a) LEGAL PROFESSION Professional discipline - Procedure - Appeal against suspension - Consent judgment by parties that report by first investigating tribunal ('IT') be set aside - Constitution of second IT - Whether Disciplinary Board ('DB') had jurisdiction to constitute second IT - Whether DB complied with ss. 99 & 100 of Legal Profession Act 1976 - Whether decision of DB pursuant to recommendation of Disciplinary Committee void ab initio - Whether function of Disciplinary Committee restricted to considering report of IT - Legal Profession Act 1976, ss. 103A(a), 103B(1), 103D & 103D(2) REVENUE LAW Income tax - Withholding tax - Claim for refund - Taxpayer was tax resident of Switzerland with no permanent establishment in Malaysia - Whether payment subject to withholding tax - Whether fell under definition of 'royalty' under Income Tax Act 1967 - Whether business profit of taxpayer TORT False imprisonment - Arrest without warrant - Complainant arrested for alleged criminal trespass - Penal Code, s. 441 - Whether complainant had consent to be in premises - Whether arrest legal and valid - Whether arrest made on reasonable suspicion that an offence had been committed - Criminal Procedure Code, s. 107 WORDS & PHRASES 'acquire' - Meaning of - Capital Markets and Services Act 2007, s. 188(2)(a) - Acquisition of shares - Whether includes anything obtained directly or indirectly - Whether wide enough to cover acquisition of shares through third party 'royalty' - Definition of - Income Tax Act 1967, s. 2 ('ITA') - Malaysia-Swiss Federal Council Double Taxation Agreement 1974, art. 12(4) ('DTA') - Whether definition in DTA prevails over definition under ITA CLJ 2016 Volume 7 (Part 3) FEDERAL COURT Goodness For Import And Export v. Phillip Morris Brands SARL Hong Leong Bank Bhd v. Khairulnizam Jamaludin COURT OF APPEAL Allied Physics Sdn Bhd v. Ketua Audit Negara (Malaysia) & Anor And Other Appeals Md Hilmi Md Noor & Anor v. Azman Ahmad & Ors Zaharen Hj Zakaria v. Redmax Sdn Bhd & Other Appeals HIGH COURT Chitharthan Kumar Jayakumar v. PP Kerajaan Malaysia (Kementerian Sumber Asli Dan Alam Sekitar) v. Kumpulan Sakata Sdn Bhd Knight Capital Sdn Bhd v. Run Education Sdn Bhd; Plush Dollar (M) Sdn Bhd (Applicant) Naza Italia Sdn Bhd v. Perfect Logistic Services Segaran Chellamuthu v. Pengerusi, Lembaga Pencegahan Jenayah & Ors Senga Engineering & Construction Sdn Bhd v. Richwin Holdings (M) Sdn Bhd SUBJECT INDEX ARBITRATION Award - Interest - Whether arbitrator had jurisdiction to award pre-award interest - Whether arbitrator erred in awarding pre and post award interest - Whether arbitrator committed error of law in awarding final award - Whether court bound by decision of Far East Holdings Bhd & Anor v. Majlis Ugama Islam dan Adat Resam Melayu Pahang & Another Appeal BANKRUPTCY Notice - Setting aside - Appeal against decision - Default in repayment of outstanding sums under hire purchase agreement - Recovery of debts - Commencement of bankruptcy action against social guarantor - Compliance with s. 5(3) of Bankruptcy Act 1967 - Failure to obtain leave of court prior to commencement of bankruptcy action - Whether valid ground to set aside bankruptcy notice - Whether creditor could satisfy court during hearing of creditor's petition that all avenues to recover debts owed by hirer had been exhausted - Whether sufficient for creditor to show by way of affidavit that requirement under s. 5(3) had been satisfied CIVIL PROCEDURE Judgment - Default of appearance - Defendant absent during trial - Whether judgment in default of appearance should be ordered against defendant Service - Out of jurisdiction - Writ and statement of claim - Foreign entity - Cigarettes imported into Malaysia seized by customs - Payment of compound - Infringement of trademark and passing off - Whether leave of court obtained to serve writ out of jurisdiction - Whether Malaysian court has jurisdiction to deal with action - Whether cause of action arose in Malaysia - Whether cigarettes were in transit or had been imported into Malaysia - Whether offence committed governed by Malaysian law - Whether s. 23(1) Courts of Judicature Act 1964 confers extra territorial jurisdiction to High Court in Malaysia - Whether s. 23(1) independent of O. 11 Rules of Court 2012 COMPANY LAW Directors - Breach of fiduciary duties - Siphoning of monies by director of company (first defendant) - Payments issued to third parties by director of finance (second defendant) - Whether defence of second defendant that payments approved based on instructions of first defendant could be sustained - Whether High Court Judge erred in accepting defence of second defendant - Whether evidence showed blatant breach of duty by both defendants Winding up - Stay of order - Application by majority shareholder - Whether applicant had locus - Whether respondent likely to be commercially solvent - Whether would be able to pay debt when debt become due and payable in future - Whether payment of creditors' debts meant that wound up company was solvent - Whether application for stay was against public interest and detrimental to commercial morality - Companies Act 1965, ss. 4(1), 243(1) CONTRACT Agency - Principle and agent - Theft of cars - Claim for loss of cars - Whether defendant appointed as logistic provider by plaintiff - Whether defendant's agent in possession of cars prior to theft - Whether defendant vicariously liable for acts of its agent - Whether defendant liable for loss of cars Building contract - Claim for works done - Construction of house carried out without approval of relevant authorities - House ordered to be demolished - Whether plaintiff or defendant's obligation to obtain written approval of relevant authorities - Whether house built in contravention of s. 70 of Street, Drainage and Building Act 1974 - Whether cause of action founded on illegal act could succeed - Whether both parties equally tainted - Whether court could assist either party which was part of illegality COURTS Jurisdiction - High Court - Foreign entity - Cigarettes imported into Malaysia seized by customs - Payment of compound - Infringement of trademark and passing off - Whether leave of court obtained to serve writ out of jurisdiction - Whether Malaysian court has jurisdiction to deal with action - Whether cause of action arose in Malaysia - Whether cigarettes were in transit or had been imported into Malaysia - Whether offence committed governed by Malaysian law - Whether s. 23(1) Courts of Judicature Act 1964 confers extra territorial jurisdiction to High Court in Malaysia - Whether s. 23(1) independent of O. 11 Rules of Court 2012 CRIMINAL LAW Possession of offensive weapon - Finding of fact - Ingredients of - Whether elements of possession proved - Whether there was evidence to connect accused to weapon - Failure to call material witnesses - Whether accused had knowledge of weapon - Whether there was possibility of anyone else having ownership and possession of weapon - Whether possession proved against accused - Whether accused acquitted and discharged - Corrosive and Explosive Substances and Offensive Weapons Act 1958, s. 6(1) CRIMINAL PROCEDURE Sentence - Appeal against conviction and sentence - Possession of offensive weapon - Finding of fact - Ingredients of - Whether elements of possession proved - Whether there was evidence to connect accused to weapon - Failure to call material witnesses - Whether accused had knowledge of weapon - Whether there was possibility of anyone else having ownership and possession of weapon - Whether possession proved against accused - Whether accused acquitted and discharged - Corrosive and Explosive Substances and Offensive Weapons Act 1958, s. 6(1) CUSTOMS AND EXCISE Uncustomed goods - Dealing with - Whether cigarettes were in transit or had been imported into Malaysia - Making false declaration - Whether payment of compound duly settled - Whether goods in transit shall not be deemed to be imported unless it becomes uncustomed goods - Customs Act 1967, s. 2 & 133(1)(a) EVIDENCE Standard of proof - Fraud - Forged power of attorney - Land sold to third party and charged to bank without authorisation by deceased owner or beneficiaries - Allegation of fraud or conspiracy to defraud - Applicable standard of proof in civil cases involving allegation of fraud - Whether on balance of probabilities PREVENTIVE DETENTION Detention order - Validity of - Habeas corpus - Application for - Whether detention order made without benefit of specific reports - Whether detention order defective - Failure to comply with procedural requirements - Whether rendered detention order invalid - Prevention of Crime Act 1959, s. 19A(1) STATUTORY INTERPRETATION Construction of statutes - Intention of Parliament - Bankruptcy Act 1967, s. 5(3) - Default in repayment of outstanding sums under hire purchase agreement - Recovery of debts - Commencement of bankruptcy action against social guarantor - Failure to obtain leave of court prior to commencement of bankruptcy action - Whether valid ground to set aside bankruptcy notice - Whether sufficient for creditor to show by way of affidavit that requirement under s. 5(3) had been satisfied - Whether words in s. 5(3) clear and unambiguous SUCCESSION Administration - Land - Administration of land belonging to deceased - Name of deceased spelled differently in Land Office's records - Whether deceased was the described name appearing in deed of indenture TORT Defamation - Libel - Auditor General published audit report and synopsis - Audit report and synopsis referred in articles by national newspapers - Allegation that report, synopsis and articles gave imputation that plaintiff had no licence and had committed criminal offence - Whether words complained of capable of bearing defamatory meaning - Whether words complained of defamatory Fraud - Conspiracy - Conspiracy to injure company by directors - Allegation of siphoning of company funds by director of company (first defendant) - Payments issued to third parties by director of finance (second defendant) - Defence of second defendant that payments approved based on instructions of first defendant - Whether sustainable - Whether second defendant an accomplice to first defendant - Whether payments to third parties justified - Whether evidence against first defendant overwhelming |
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