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Issue #16/2017 20 April 2017

New This Week Case(s) of the Week MAJLIS PEGUAM MALAYSIA & ANOR v. JUDY BLACIOUS AF PEREIRA [2017] 4 CLJ 295 Latest Cases Legal Network Series CLJ 2017 Volume 4 (Part 3) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

MAJLIS PEGUAM MALAYSIA & ANOR v. JUDY BLACIOUS AF PEREIRA [2017] 4 CLJ 295
COURT OF APPEAL, PUTRAJAYA
DAVID WONG DAK WAH JCA, ABDUL RAHMAN SEBLI JCA, PRASAD SANDOSHAM ABRAHAM JCA
[CIVIL APPEAL NO: W-02(IM)-256-02-2015]
7 SEPTEMBER 2016

CIVIL PROCEDURE: Jurisdiction - High Court - Petition for admission as advocate and solicitor - Petition objected by Bar Council on allegation that petitioner not fit and proper person to be called to Bar - High Court dismissed notice of objection and caveat - Petitioner ordered to attend eight hours of any course, forums or programs conducted by Human Rights Committee of Malaysian Bar for three months - Petitioner to be called to Bar upon completion of programs - Appeal against conditional order - Whether High Court had jurisdiction to impose conditional order after dismissing Bar Council's objections - Legal Profession Act 1976, s. 10

LEGAL PROFESSION: Admission - Petition for admission - Objection by Bar Council - Allegation that petitioner not fit and proper person to be called to Bar - High Court dismissed notice of objection and caveat - Petitioner ordered to attend eight hours of any course, forums or programs conducted by Human Rights Committee of Malaysian Bar for three months - Petitioner to be called to Bar upon completion of programs - Appeal against conditional order - Whether High Court had jurisdiction to impose conditional order after dismissing Bar Council's objections - Legal Profession Act 1976, s. 10

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Legal Network Series

[2016] 1 LNS 390	SHAH REZA ZULKIFLI & YANG LAIN lwn. PP	PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Kesalahan merogol - Hakim bicara terkeliru hukuman maksima dibawah s. 376(1) Kanun Keseksaan adalah 30 tahun - Hakim bicara menerima masuk rekod jenayah lampau yang tidak lengkap - Tertuduh-tertuduh menerima hukuman yang berbeza walaupun tertuduh-tertuduh mempunyai faktor pemberatan dan peringanan yang hampir sama - Sama ada hukuman yang seragam adalah wajar - Sama ada rekod jenayah lampau wajar diterima sebagai keterangan dalam menjatuhkan hukuman - Sama ada hukuman terhadap tertuduh wajar diubah PROSEDUR JENAYAH: Rayuan - Rayuan terhadap sabitan - Kesalahan merogol - Mangsa dibawah umur - Mangsa dirogol bergilir-gilir oleh beberapa tertuduh - Mangsa aktif dalam aktiviti seksual - Sama ada kesalahan merogol yang dilakukan adalah berat walaupun mangsa memberikan kerelaan
[2016] 1 LNS 512	PP lwn. TAN TOH TENG	UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Dadah jenis cannabis seberat 593.46 g - Dadah dijumpai di dalam rumah berdekatan dengan tertuduh - Sama ada intipti kesalahan pengedaran dadah dibawah s. 39B(1)(a) Akta Dadah Berbahaya 1952 telah dibuktikan UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pemilikan - Dadah jenis Nimetazepam seberat 1.79 g - Dadah dijumpai di dalam rumah berdekatan dengan tertuduh - Sama ada intipti kesalahan pengedaran dadah dibawah s. 12(2) Akta Dadah Berbahaya 1952 telah dibuktikan
[2016] 1 LNS 546	SUSTAIN PRESENCE SDN BHD & ANOR v. POH KIM WAN	COMPANY LAW: Separate legal entity - Lifting of corporate veil - Action against manager - Manager conducted negotiation and signed agreement for company - Action arising from breach of agreement - Ascertaining liability - Whether manager had separate legal existence from company - Whether manager could be made personally liable for any liability of company - Whether corporate veil ought to be lifted CONTRACT: Privity - Existence - Agreement entered by company was executed by manager - Agreement did not refer to manager as a party - Agreement neither conferred rights nor imposed liabilities on manager - Whether manager was a contracting party to agreement - Whether manager could be held liable for action founded on a breach of contract
[2016] 1 LNS 549	REKA SETIA PLAYGROUND SDN BHD v. SIOW WEE HONG	CIVIL PROCEDURE: Default judgment - Default of defence - Total lack of defence - Claim concerning breaches by an employee using trade secrets and information of employer - Claim arising from infringement of copyrighted design - Plaintiff itemized and categorized infringement in affidavit - Failure to file defence or counterclaim in compliance with court's direction - Whether defendant had meritorious defence against plaintiff's claim INTELLECTUAL PROPERTY: Infringement - Copyright - Wrongful use, plagiarism and replication of copyrighted designs - Employee's usage of trade secrets and information of employer - Employee set up another sole proprietorship business by selling similar products of employer - Whether employer's copyright protected - Whether registration was a requisite for a proprietor to prove copyright over works and designs - Copyright Act 1987, s. 7(1)
[2016] 1 LNS 662	CHOW SIEW HON v. LEE TIAN HOCK & ANOR	CIVIL PROCEDURE: Transfer of action - From one High Court to another - Local jurisdiction - Forum conveniens - Defamation suit - Words were uttered in Seremban - Defendant and material witness resided in Seremban - Suit filed in Kuala Lumpur - Whether cause of action arose in Seremban - Whether proper test to be applied is where defendant resides or plaintiff resides - Whether appropriate court to hear case was Seremban High Court - Whether proceedings ought to be transferred to Seremban High Court in the interest of justice

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CLJ 2017 Volume 4 (Part 3)

FEDERAL COURT

Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Bank & Anor
Arifin Zakaria CJ, Suriyadi Halim Omar, Azahar Mohamed, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA
(Administrative Law; Labour Law; Statutory Interpretation - Trade union - Registration - Trade Unions Act 1959, s. 12 - Whether gives free hand to Director General of Trade Unions in exercise of discretion in registering an in-house union) [2017] 4 CLJ 265 [FC]

COURT OF APPEAL

Majlis Peguam Malaysia & Anor v. Judy Blacious AF Pereira
David Wong Dak Wah, Abdul Rahman Sebli, Prasad Sandosham Abraham JJCA
(Civil Procedure; Legal Profession - Petition for admission as advocate and solicitor objected by Bar Council - Whether High Court had jurisdiction to impose conditional order after dismissing Bar Council's objections) [2017] 4 CLJ 295 [CA]

Percetakan Kolombong Ria Sdn Bhd v. Wawasan Iktisas Sdn Bhd
Abdul Aziz Abdul Rahim, Idrus Harun, Abdul Rahman Sebli JJCA
(Contract - Breach - Whether concluded contract - Whether loss and damages proven) [2017] 4 CLJ 302 [CA]

Sivabalan Bathumalai v. PP
Mohd Zawawi Salleh, Ahmadi Asnawi, Kamardin Hashim JJCA
(Criminal Procedure; Evidence - Appeal against conviction and sentence - Contradiction in testimonies by prosecution's witnesses - Whether conviction and sentence safe) [2017] 4 CLJ 326 [CA]

Thomas Thomas v. Tenaga Nasional Bhd
Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA
(Utilities - Electricity - Consumption and usage - Whether registered owner of premises liable for loss of revenue to TNB) [2017] 4 CLJ 340 [CA]

HIGH COURT

Chin Hein Chong v. Tey Sin Sze & Anor
Hanipah Farikullah J
(Legal Profession - Disciplinary proceedings - Conflict of interest - Solicitor acted for both purchaser and financier in sale and purchase agreement) [2017] 4 CLJ 348 [HC]

Kamal Hisham Ja'afar v. PP
Collin Lawrence Sequerah JC
(Criminal Procedure - Discovery - Whether documents sought relevant and specific - Whether a fishing expedition) [2017] 4 CLJ 355 [HC]

Lim Guan Eng v. New Straits Times Press (M) Bhd
Rosilah Yop J
(Tort - Defamation - Newspaper article relating to consent judgment - Whether defamatory - Whether defences of qualified privilege and reportage available) [2017] 4 CLJ 369 [HC]

PP v. Wan Hasrul Nizam Wan Hizamuddin
Zulkifli Bakar J
(Criminal Procedure - Sentence - Adequacy - Whether sentence passed commensurate with crime committed - Mitigating factors) [2017] 4 CLJ 389 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application to challenge and quash decision of Director General of Trade Unions ('DG') in registering in-house union - Whether DG failed to afford opportunity to national union representing non-executive employees in banking industry to be heard before registering in-house union - Interpretation of s. 12 of Trade Unions Act 1959 ('TUA') - Whether DG given wide discretion to allow registration - Whether DG needs to consult with existing trade union representing same industry - Whether relevant parties should be afforded fair hearing - Whether provisions of s. 12 of TUA complied with - Trade Unions Act 1959, s. 71A
Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Bank & Anor
(Arifin Zakaria CJ, Suriyadi Halim Omar, Azahar Mohamed, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 4 CLJ 265 [FC]

CIVIL PROCEDURE

Jurisdiction - High Court - Petition for admission as advocate and solicitor - Petition objected by Bar Council on allegation that petitioner not fit and proper person to be called to Bar - High Court dismissed notice of objection and caveat - Petitioner ordered to attend eight hours of any course, forums or programs conducted by Human Rights Committee of Malaysian Bar for three months - Petitioner to be called to Bar upon completion of programs - Appeal against conditional order - Whether High Court had jurisdiction to impose conditional order after dismissing Bar Council's objections - Legal Profession Act 1976, s. 10
Majlis Peguam Malaysia & Anor v. Judy Blacious AF Pereira
(David Wong Dak Wah, Abdul Rahman Sebli, Prasad Sandosham Abraham JJCA) [2017] 4 CLJ 295 [CA]

CONTRACT

Agreement - Breach - Allegation of - Appellant incurred costs for printing and supply of scratch type parking coupons - Whether letter of quotation, letter of award and letter of acceptance agreed by parties constituted concluded contract - Whether respondent under contractual obligation to order or accept delivery of certain amount of coupons monthly - Whether respondent failed to honour its part of bargain - Whether appellant entitled to claim investment expenses - Whether appellant suffered loss and damages
Percetakan Kolombong Ria Sdn Bhd v. Wawasan Iktisas Sdn Bhd
(Abdul Aziz Abdul Rahim, Idrus Harun, Abdul Rahman Sebli JJCA) [2017] 4 CLJ 302 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Accused person convicted for offence of trafficking drugs and sentenced to death - Material contradiction in testimonies by prosecution's witnesses - Whether drugs were found on accused person - Failure of trial judge to adequately consider accused person's defence - Whether conviction and sentence safe - Dangerous Drugs Act 1952, ss. 37(da)(xvi) & 39B(1)(a)
Sivabalan Bathumalai v. PP
(Mohd Zawawi Salleh, Ahmadi Asnawi, Kamardin Hashim JJCA) [2017] 4 CLJ 326 [CA]

Disclosure of information - Discovery - Criminal Procedure Code, s. 51 ('CPC') - Application for production of original documents - Whether documents sought relevant and specific - Whether a fishing expedition - Whether documents "necessary or desirable" for purpose of trial - Whether s. 51 of CPC separate and distinct from s. 51A of CPC - Whether pre-requisites of s. 51 satisfied - Whether appeal null, void and nugatory
Kamal Hisham Ja'afar v. PP
(Collin Lawrence Sequerah JC) [2017] 4 CLJ 355 [HC]

Sentence - Adequacy - Possession of dangerous weapon without lawful excuse - Releasing accused on bond of good behaviour under s. 294(1) of Criminal Procedure Code - Whether sentence passed commensurate with crime committed - Public interest - Mitigating factors - Whether trial judge rightly considered rehabilitative potential of accused - Corrosive and Explosive Substances and Offensive Weapons Act 1958, s. 6(1)
PP v. Wan Hasrul Nizam Wan Hizamuddin
(Zulkifli Bakar J) [2017] 4 CLJ 389 [HC]

EVIDENCE

Witnesses - Prosecution's witnesses - Contradiction - Dangerous drugs - Material contradiction in testimonies by prosecution's witnesses - Whether drugs were found on accused person - Whether there was failure by trial judge to consider testimonies of prosecution's witnesses - Whether safe to convict accused person based on conflicting testimonies between prosecution's witnesses
Sivabalan Bathumalai v. PP
(Mohd Zawawi Salleh, Ahmadi Asnawi, Kamardin Hashim JJCA) [2017] 4 CLJ 326 [CA]

LEGAL PROFESSION

Admission - Petition for admission - Objection by Bar Council - Allegation that petitioner not fit and proper person to be called to Bar - High Court dismissed notice of objection and caveat - Petitioner ordered to attend eight hours of any course, forums or programs conducted by Human Rights Committee of Malaysian Bar for three months - Petitioner to be called to Bar upon completion of programs - Appeal against conditional order - Whether High Court had jurisdiction to impose conditional order after dismissing Bar Council's objections - Legal Profession Act 1976, s. 10
Majlis Peguam Malaysia & Anor v. Judy Blacious AF Pereira
(David Wong Dak Wah, Abdul Rahman Sebli, Prasad Sandosham Abraham JJCA) [2017] 4 CLJ 295 [CA]

Conflict of interest - Professional conduct - Solicitor acted for both purchaser and financier in sale and purchase agreement - Whether solicitor could maintain professional independence - Whether solicitor had put himself in conflict of interest situation - Legal Profession (Practice and Etiquette) Rules 1978, r. 5
Chin Hein Chong v. Tey Sin Sze & Anor
(Hanipah Farikullah J) [2017] 4 CLJ 348 [HC]

Disciplinary proceedings - Appeal against decision of Disciplinary Board - Solicitor acted for client in sale and purchase agreement with vendor - Allegation that solicitor caused delays to advise client's financier to draw down facility obtained by client to purchase property - Disciplinary Board found solicitor had acted in gross disregard of client's interest - Solicitor imposed with penalty of RM5,000 - Whether solicitor owed duty to communicate with client - Whether solicitor breached provisions of Legal Profession Act 1976 or Legal Profession (Practice and Etiquette) Rules 1978
Chin Hein Chong v. Tey Sin Sze & Anor
(Hanipah Farikullah J) [2017] 4 CLJ 348 [HC]

LABOUR LAW

Trade union - Registration - Director General of Trade Unions ('DG') registered in-house union - Whether DG failed to afford opportunity to national union representing non-executive employees in banking industry to be heard before registering in-house union - Interpretation of s. 12 of Trade Unions Act 1959 ('TUA') - Whether DG given wide discretion to allow registration - Whether DG needs to consult with existing trade union representing same industry - Whether relevant parties should be afforded fair hearing - Whether provisions of s. 12 of TUA complied with - Trade Unions Act 1959, s. 71A
Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Bank & Anor
(Arifin Zakaria CJ, Suriyadi Halim Omar, Azahar Mohamed, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 4 CLJ 265 [FC]

STATUTORY INTERPRETATION

Construction of statutes - Interpretation of - Trade Unions Act 1959, s. 12 - Whether gives free hand to Director General of Trade Unions ('DG') in exercise of discretion in registering an in-house union - Whether DG needs to consult relevant parties - Whether a fair and reasonable decision may only be given by affording relevant parties a fair hearing
Kesatuan Pekerja-pekerja Bukan Eksekutif Maybank Bhd v. Kesatuan Kebangsaan Pekerja-pekerja Bank & Anor
(Arifin Zakaria CJ, Suriyadi Halim Omar, Azahar Mohamed, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 4 CLJ 265 [FC]

TORT

Defamation - Libel - Article published in newspaper - Article relating to consent judgment recorded in court - Whether impugned statements in article defamatory - Whether impugned statements in article constituted fair and accurate report of judicial proceedings - Whether publication of impugned statements gave rise to connotations and/or imputations - Whether defences of qualified privilege and reportage available to defendant
Lim Guan Eng v. New Straits Times Press (M) Bhd
(Rosilah Yop J) [2017] 4 CLJ 369 [HC]

UTILITIES

Electricity - Consumption and usage - Claim for loss of revenue - Tampered meter premises rented out to third party - Whether registered owner of premises liable to Tenaga Nasional Bhd for loss of revenue suffered - Whether fact that premises rented out to a third party a defence - Agreement for supply of electricity - Whether involved any third party
Thomas Thomas v. Tenaga Nasional Bhd
(Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA) [2017] 4 CLJ 340 [CA]

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LNS Article(s)

1. TOBACCO LITIGATION* Panel presentation ^{[Read excerpt]}
   SUZANNE HOWARTH** [2017] 1 LNS(A) xxxi

[2017] 1 LNS(A) xxxi



AUSTRALIA

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TOBACCO LITIGATION*
Panel presentation

SUZANNE HOWARTH**

On 1 September 2016 the ACT Law Society's International Law Committee organised a panel discussion in relation to the Philip Morris Asia Limited (Hong Kong) v. the Commonwealth of Australia decision.


The participants in the panel discussion were John Atwood and Chloe Baldwin (Office of International Law, Commonwealth Attorney-General's Department) and Patricia Holmes (Trade and Investment Law Branch, Department of Foreign Affairs and Trade).

Background

In 2011, Australia became the first country to pass laws mandating the plain packaging of tobacco products. This public health measure was quickly challenged in the High Court of Australia (subsequently dismissed), and in two separate international jurisdictions.

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 242 December 2016.

** Lecturer, University of Canberra. Suzanne is a member of the International Lawyers' Committee of the ACT Law Society.

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2. LAWWORKS ANNUAL PRO BONO AWARDS LECTURE 2016* ^{[Read excerpt]}
   SIR TERENCE ETHERTON MASTER OF THE ROLLS [2017] 1 LNS(A) xxxii

[2017] 1 LNS(A) xxxii



UNITED KINGDOM

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LAWWORKS ANNUAL PRO BONO AWARDS LECTURE 2016*

SIR TERENCE ETHERTON
MASTER OF THE ROLLS

1. It is a real pleasure to have been asked to give this year's Law Works Annual Pro Bono Awards lecture. My subject is Access to Justice. I am not interested in it as a slogan. I am interested in it because access to justice lies at the heart of any society that aspires to call itself just, civilised, and committed to democracy and the rule of law. And by access to justice I mean effective access to high quality legal advice and representation so that people can understand their rights and obligations, as well as effective access to the civil courts.

2. We are all acutely aware that there are real pressures on access to justice at the present time; particularly where litigants of limited means are concerned. I want to focus this evening on a number of current and future initiatives that seek to improve access, before outlining a proposal that I hope could be further developed.

. . .

* Sir Terence Etherton, Master Of The Rolls, I am very grateful to John Sorabji for his assistance in the preparation of this lecture (5 December 2016). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary.gov.uk/wp-content/uploads/2016/12/law-works-lecture-mr-20161205.pdf

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