Back to Top

Print this page

Issue #19/2017 11 May 2017

New This Week Case(s) of the Week DATIN PADUKA PHANG OI CHOO v. TAN SRI DATUK G GNANALINGAM & OTHER APPEALS [2017] 5 CLJ 1 Latest Cases Legal Network Series CLJ 2017 Volume 5 (Part 1) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

DATIN PADUKA PHANG OI CHOO v.
TAN SRI DATUK G GNANALINGAM & OTHER APPEALS [2017] 5 CLJ 1
COURT OF APPEAL, PUTRAJAYA
ABANG ISKANDAR JCA, ZAMANI A RAHIM JCA, ZALEHA YUSOF JCA
[CIVIL APPEALS NO: B-02(IM)-760-04-2016, B-02(IM)-761-04-2016, B-02(IM)-762-04-2016 & B-02(IM)-763-04-2016]
17 FEBRUARY 2017

CIVIL PROCEDURE: Striking out - Appeal against - Third party proceedings - Action premised on breach of fiduciary duties of Board member in relation to project - Board member initiated third party proceedings against other Board members - Whether third parties owed duty of care and collectively responsible for all decisions and activities undertaken - High Court struck out third party notice upon applications for striking out by third parties - Whether there were triable issues - Rules of Court 2012, O. 18 r. 19(1)(a), (b), (c) & (d)

TORT: Joint tortfeasors - Contribution - Action premised on breach of fiduciary duties of Board member in relation to project - Board member initiated third party proceedings against other Board members - Whether third parties owed duty of care and collectively responsible for all decisions and activities undertaken - Whether third parties joint tortfeasors

---

Legal Network Series

[2016] 1 LNS 539	GAN JIN SIM @ GAN GIM SIM lwn. GAN CHON TAT & SATU LAGI	PROSEDUR SIVIL: Tindakan - Tuntutan berasaskan perintah - Dakwaan kegagalan mematuhi perintah - Perintah berkenaan pengembalian tanah diperoleh melalui penghakiman ingkar - Tanah tiada dalam pegangan defendan pada masa perintah diperolehi - Sama ada defendan telah mematuhi perintah PROSEDUR SIVIL: Pihak-pihak - Pertikaian pindah milik tanah dan ketuanpunyaan - Tindakan hanya dimulakan terhadap pihak yang telah memindah milik sahaja - Sama ada pemilik berdaftar yang baru harus dijadikan pihak dalam tindakan PERWARISAN: Pentadbir - Tuntutan terhadap pentadbir harta pusaka - Tanggungjawab pentadbir untuk tindakan simati - Tuntutan gantirugi terhadap pentadbir untuk tindakan simati yang telah memindah milik tanah ketika hayatnya - Pindah milik tanah adalah sah - Sama ada pentadbir wajar dihukum untuk tindakan yang dilakukan oleh simati ketika hayatnya
[2016] 1 LNS 550	PP lwn. RUP BAHADUR RANA MAGAR UTTAR BAHADUR	PROSEDUR JENAYAH: Pembelaan - Penafian - Tertuduh menafikan mengakibatkan kematian simati - Keraguan munasabah - Pertuduhan bunuh di bawah s. 302 Kanun Keseksaan - Tertuduh dituduh berdasarkan keterangan ikut keadaan - Tertuduh merupakan warga asing - Pihak penyiasat menggunakan penterjemah yang tidak bertauliah untuk mendapatkan keterangan daripada tertuduh - Identiti penterjemah tidak diketahui - Kegagalan menawarkan saksi penting kepada pembelaan - Sama ada terdapat keraguan yang munasabah ke atas kes pendakwaan - Sama ada tertuduh wajar dilepaskan dan dibebaskan daripada pertuduhan
[2016] 1 LNS 675	SUBRAMANIAM VALLAN & ANOR v. DR S SIVASUNDARAM & ORS	TRUSTS: Trustees - Breach of trust - Removal of trustees - Misfeasance - Management, maintenance and administration of temple - Allegation of misappropriation of temple funds and assets - Whether funds of temple was managed properly, openly and transparently - Whether real property acquired properly held on trust for temple - Whether temple accounts properly audited and managed - Whether there was mismanagement in administration of affairs of temple by trustees - Whether there was accountability in respect of financial affairs of temple in hands of trustees and management committee - Whether there was misconduct warranting removal of trustees TRUSTS: Trustees - Appointment - Number of trustees - Trustees of religious purpose - Whether limitations imposed on number of trustees by s. 39(1)(b) of Trustees Act 1949 applicable UNINCORPORATED ASSOCIATIONS: Societies - Registration - Public Charitable Trusts - Trustee managed temple under express trust constituted for religious purposes - Temple situated on its own land - Existence of trust deed - Whether there was necessity for registration with Registrar of Societies
[2016] 1 LNS 679	PP v. NG CHEW TIT	CRIMINAL LAW: Dangerous drugs - Trafficking - Incriminating drugs were found in boot of vehicle - Vehicle did not belong to accused - Whether ingredients under s. 39B(1)(a) of Dangerous Drugs Act 1952 satisfied - Whether accused had custody over incriminating drugs CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Testimony of prosecution's witness in contradiction - Prosecution's evidence open to two or more inferences - Offence relating to trafficking of dangerous drugs - Contradicting evidence in relation to actual person who opened boot of vehicle - Challenge as to identity of main exhibit - Arresting officer was unable to remember administering cautioned statement - Whether prosecution was able to prove accused had custody over incriminating drugs - Whether prima facie case was made out
[2016] 1 LNS 728	SALURAN PROJEK SDN BHD & ANOR v. BADAN PENGURUSAN BERSAMA KRYSTAL POINT	CONTRACT: Sale and purchase of property - Terms - Ownership of car parking bays - Whether determination of ownership of car parking bays dependent upon true construction of sale and purchase agreement and deed of mutual covenants between purchasers and developer - Whether car parking bays belonged to developer or purchasers - Whether car parking bays could be treated as common property LAND LAW: Strata title - Joint management body ('JMB') - Lawfulness of constitution - Invalidation of first meeting - Notification of intended meeting was served by placing them in purchasers' post boxes - Whether constitution of JMB could be affected if first meeting was subsequently invalidated - Whether JMB was lawfully constituted - Building And Common Property (Maintenance and Management) Act 2007, s. 7(3)

---

CLJ 2017 Volume 5 (Part 1)

COURT OF APPEAL

Datin Paduka Phang Oi Choo v. Tan Sri Datuk G Gnanalingam & Other Appeals
Abang Iskandar, Zamani A Rahim, Zaleha Yusof JJCA
(Civil Procedure; Tort - Third party proceedings - Whether there were triable issues - Joint tortfeasors - Whether third parties owed duty of care and collectively responsible for all decisions and activities) [2017] 5 CLJ 1 [CA]

Hor Chin Ser & Anor v. Villa Genting Development Sdn Bhd & Ors And Other Appeals
Abang Iskandar, Zamani A Rahim, Zaleha Yusof JJCA
(Land Law; Company Law - Transfer - Void instruments - Sale and transfer of properties - Validity of) [2017] 5 CLJ 17 [CA]

Mary George Unazi v. PP
Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA, Harmindar Singh Dhaliwal J)
(Criminal Law; Criminal Procedure; Evidence - Trafficking in dangerous drugs - Whether defence probable - Non-calling of witness - Whether adverse inference ought to be invoked) [2017] 5 CLJ 34 [CA]

Mohd Yasser Shaik Mahmad v. PP
Mohd Zawawi Salleh, Abang Iskandar, Abdul Rahman Sebli JJCA
(Criminal Law; Criminal Procedure - Murder - Whether injuries intended by accused - Whether death imminent - Whether death natural consequence of injuries inflicted) [2017] 5 CLJ 44 [CA]

Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd
David Wong Dak Wah, Kamardin Hashim, Harmindar Singh Dhaliwal JJCA
(Contract - Agreement - Breach - Conditions precedent - Effect and consequence - Whether contract valid) [2017] 5 CLJ 58 [CA]

HIGH COURT

Ahmad Ziyad Elias & Ors v. Suruhanjaya Sekuriti Malaysia & Anor
Hanipah Farikullah J
(Administrative Law - Judicial review - Decision of Securities Commission Malaysia - Whether amenable to judicial review) [2017] 5 CLJ 71 [HC]

Selvi Narayan & Anor (Administrators Of Estate Of Chandran Perumal; Deceased) v. Koperal Zainal Mohd Ali & Ors
S Nantha Balan J
(Police; Tort - Duties of police - Breach of statutory duty - Remand prisoner found dead in cell - Whether breach of Lock-up Rules 1953 established - Damages - Exemplary damages - Public misfeasance) [2017] 5 CLJ 84 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Proceedings - Application for leave to quash decision of Securities Commission Malaysia ('SC') - Whether decision complained of not a decision amenable to judicial review - Whether applicants had locus standi to bring proceedings against SC - Whether applicants had direct financial interest - Whether applicants ought to have resorted to statutory mechanism under s. 364 of Capital Markets and Services Act 2007 - Whether applicants should only seek judicial review after exhaustion of all domestic remedy - Whether application ought to be dismissed
Ahmad Ziyad Elias & Ors v. Suruhanjaya Sekuriti Malaysia & Anor
(Hanipah Farikullah J) [2017] 5 CLJ 71 [HC]

CIVIL PROCEDURE

Striking out - Appeal against - Third party proceedings - Action premised on breach of fiduciary duties of Board member in relation to project - Board member initiated third party proceedings against other Board members - Whether third parties owed duty of care and collectively responsible for all decisions and activities undertaken - High Court struck out third party notice upon applications for striking out by third parties - Whether there were triable issues - Rules of Court 2012, O. 18 r. 19(1)(a), (b), (c) & (d)
Datin Paduka Phang Oi Choo v. Tan Sri Datuk G Gnanalingam & Other Appeals
(Abang Iskandar, Zamani A Rahim, Zaleha Yusof JJCA) [2017] 5 CLJ 1 [CA]

COMPANY LAW

Winding up - Liquidators - Developer company wound up - Liquidator for developer company could not conduct verification exercise to ascertain ownership of properties - Liquidator obtained vesting order and resold properties to new purchasers - Whether properties were assets of developer company - Whether liquidator right to put properties into his custody and control and in applying for vesting order - Whether sale and transfer of properties to new purchasers bona fide and valid - Whether vesting order valid - Companies Act 1965, ss. 233 & 236
Hor Chin Ser & Anor v. Villa Genting Development Sdn Bhd & Ors And Other Appeals
(Abang Iskandar, Zamani A Rahim, Zaleha Yusof JJCA) [2017] 5 CLJ 17 [CA]

CONTRACT

Agreement - Breach - Conditions precedent that approval for conversion of land must be obtained within specific time - Whether compliance mandatory for contract to remain valid and binding - Delay in obtaining approval for conversion of land - Whether there was breach of agreement due to conduct of parties - Whether failure to fulfil conditions precedent would render contract automatically terminated - Whether contract valid
Nor Azlina Abdul Aziz v. Expert Project Management Sdn Bhd
(David Wong Dak Wah, Kamardin Hashim, Harmindar Singh Dhaliwal JJCA) [2017] 5 CLJ 58 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Sections 39A(2) & 39B(1)(a) - Trafficking in 765.9g of methamphetamine - Conviction and sentence - Appeal against - Drugs found hidden in secret compartment of bag - Allegation that accused person brought bag for husband's friend - Whether defence probable - Whether accused person had knowledge of drugs - Non-calling of material witness - Whether adverse inference ought to be invoked - Evidence Act 1950, s. 114(g) - Whether conviction and sentence safe
Mary George Unazi v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA, Harmindar Singh Dhaliwal J) [2017] 5 CLJ 34 [CA]

Murder - Appeal - Conviction under s. 302 of Penal Code - Accused hit deceased on head with helmet - Deceased succumbed to severe injury - Whether accused intended injuries inflicted by him on deceased - Whether injury suffered by deceased ipso facto fatal - Whether injury sufficient in ordinary course of nature to cause death - Whether death an imminent natural consequence of injury inflicted - Lack of medical evidence to establish element of s. 300(c) of Penal Code - Whether murder charge ought to be reduced to one of culpable homicide not amounting to murder under s. 304(a) of Penal Code
Mohd Yasser Shaik Mahmad v. PP
(Mohd Zawawi Salleh, Abang Iskandar, Abdul Rahman Sebli JJCA) [2017] 5 CLJ 44 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Drugs found hidden in secret compartment of bag - Accused person convicted for offence of trafficking drugs and sentenced to death - Allegation that accused person brought bag for husband's friend - Whether defence probable - Whether accused person had knowledge of drugs - Whether conviction and sentence safe - Dangerous Drugs Act 1952, ss. 39A(2) & 39B(1)(a)
Mary George Unazi v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA, Harmindar Singh Dhaliwal J) [2017] 5 CLJ 34

Appeal - Appeal against conviction and sentence - Murder - Penal Code, s. 302 - Accused hit deceased on head with helmet - Deceased succumbed to severe injury - Whether accused intended injuries inflicted by him on deceased - Whether injury suffered by deceased ipso facto fatal - Whether injury sufficient in ordinary course of nature to cause death - Whether death an imminent natural consequence of injury inflicted - Lack of medical evidence to establish element of s. 300(c) of Penal Code - Whether murder charge ought to be reduced to one of culpable homicide not amounting to murder under s. 304(a) of Penal Code
Mohd Yasser Shaik Mahmad v. PP
(Mohd Zawawi Salleh, Abang Iskandar, Abdul Rahman Sebli JJCA) [2017] 5 CLJ 44 [CA]

EVIDENCE

Witness - Non-calling of witness - Drugs found hidden in secret compartment of bag - Accused person convicted for offence of trafficking drugs and sentenced to death - Allegation that accused person brought bag for husband's friend - Accused person gave phone number for police to contact - Phone number traced to certain address and led to discovery of man - Man not called to testify in court - Whether conviction and sentence safe - Whether adverse inference ought to be invoked - Evidence Act 1950, s. 114(g)
Mary George Unazi v. PP
(Mohtarudin Baki, Tengku Maimun Tuan Mat JJCA, Harmindar Singh Dhaliwal J) [2017] 5 CLJ 34 [CA]

LAND LAW

Transfer - Void instruments - Sale and transfer of properties - Developer company wound up - Liquidator for developer company could not conduct verification exercise to ascertain ownership of properties - Liquidator obtained vesting order for properties - Properties resold to new purchasers - Whether properties were assets of developer company - Whether sale and transfer of properties to new purchasers bona fide and valid - National Land Code, s. 340
Hor Chin Ser & Anor v. Villa Genting Development Sdn Bhd & Ors And Other Appeals
(Abang Iskandar, Zamani A Rahim, Zaleha Yusof JJCA) [2017] 5 CLJ 17 [CA]

POLICE

Duties of police - Breach of statutory duty - Whether police owed duty of care to ensure detainees not harmed - Remand prisoner found dead in cell - Failure to provide medical attention to deceased during period of incarceration - Whether deceased denied of constitutional right - Inquest held to investigate deceased's death found that death of deceased caused by negligence of police - Whether breach of Lock-up Rules 1953 established
Selvi Narayan & Anor (Administrators Of Estate Of Chandran Perumal; Deceased) v. Koperal Zainal Mohd Ali & Ors
(S Nantha Balan J) [2017] 5 CLJ 84 [HC]

TORT

Damages - Exemplary damages - Breach of constitutional right by public authority - Remand prisoner found dead in cell - Whether police breached duty of care to deceased - Whether exemplary damages may be awarded - Civil Law Act 1956, s. 8(2) - Case of Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallathamby & Anor – Applicability
Selvi Narayan & Anor (Administrators Of Estate Of Chandran Perumal; Deceased) v. Koperal Zainal Mohd Ali & Ors
(S Nantha Balan J) [2017] 5 CLJ 84 [HC]

Joint tortfeasors - Contribution - Action premised on breach of fiduciary duties of Board member in relation to project - Board member initiated third party proceedings against other Board members - Whether third parties owed duty of care and collectively responsible for all decisions and activities undertaken - Whether third parties joint tortfeasors
Datin Paduka Phang Oi Choo v. Tan Sri Datuk G Gnanalingam & Other Appeals
(Abang Iskandar, Zamani A Rahim, Zaleha Yusof JJCA) [2017] 5 CLJ 1 [CA]

Public misfeasance - Elements to be proven - Public officers exercising powers wrongly resulting in death - Remand prisoner found dead in cell - Whether estate of deceased could claim for exemplary damages
Selvi Narayan & Anor (Administrators Of Estate Of Chandran Perumal; Deceased) v. Koperal Zainal Mohd Ali & Ors
(S Nantha Balan J) [2017] 5 CLJ 84 [HC]

---

LNS Article(s)

1. RESERVATIONS BY ISLAMIC COUNTRIES TO INTERNATIONAL HUMAN RIGHTS DOCUMENTS: JUSTIFICATION AND CRITICISM ^{[Read excerpt]}
   DR. A.A. OWOADE* [2017] 1 LNS(A) xxxvii

[2017] 1 LNS(A) xxxvii



NIGERIA

---

RESERVATIONS BY ISLAMIC COUNTRIES TO INTERNATIONAL HUMAN RIGHTS DOCUMENTS:
JUSTIFICATION AND CRITICISM

DR. A.A. OWOADE*

ABSTRACT

Protection of children and women rights are one of the most important debates in the field of international human rights due to the discrimination and other perceived human rights violations against them. Thus, after the second world war, there was the concerted effort by government and non-governmental agencies to protect the rights of both women and children. This effort culminated in the enactments of the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). Painfully, these instruments remain by far the most reserved in the history of the United Nations, with Islamic countries entering a substantial part of the reservations to the documents. This has led to claims that Islamic countries or the religion of Islam generally are antithetical to the spirit of human rights. On the contrary, conservative Muslims, argue that western human rights as it affects both women's and children's rights, are largely irrelevant, confusing, and meaningless when applied to Islam and its laws. This paper brings to life the conflict between human rights as obtainable in the International environment and the concept of human rights as obtainable under the shariah by examining the reservations of Islamic countries to these human rights documents.

. . .

* Dept. of Islamic Law, Faculty of Law, University of Ilorin, Nigeria. Phone: 08034453656 / 08121487171. E-mail: mymission43@gmail.com

---

Please subscribe to cljlaw or login for the full article.

2. COMMERCIAL DISPUTES AND JURIDICAL SETTLEMENT IN EARLY ISLAM ^{[Read excerpt]}
   MOHAMAD SOFEE RAZAK* [2017] 1 LNS(A) xxxviii

[2017] 1 LNS(A) xxxviii



MALAYSIA

---

COMMERCIAL DISPUTES AND JURIDICAL SETTLEMENT IN EARLY ISLAM

MOHAMAD SOFEE RAZAK*

There was no historical evidence to show that the Prophet Muhammad (p.b.u.h.) or four righteous Caliphs from Abu Bakar, Umar, Othman and Ali had formed any financial institutions which accept deposits or grant loan to Muslims. The only known organised Islamic financial institution which originated during the time of the Prophet was called 'Baitul Mal', the exchequer of an Islamic state or public treasury as discussed by Lee Mei Pheng and Ivan Jeron Detta (2007).

As recorded in history, Baitul Mal had extended loans to Caliph Umar's sons Abdullah and Ubayd Allah, which were used for trading on their way back to Medina and consequently earned profit. Caliph Umar declared this as mudarabah or profit sharing and requested his sons to give half of the profits to Baitul Mal. Another trustworthy individual who provided deposit facilities to the public during the early years of Islam was Az Zubair bin Al Awwam who was the first to apply the Islamic principle of qard or loan in banking system. He preferred to accept deposits on the principle of qard rather than the principle of wadiah or trust.

. . .

* Advocate & Solicitor

---

Please subscribe to cljlaw or login for the full article.

Principal Acts

Amending Acts

PU(A)

PU(B)

Legislation Alert