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MOGAN PALANIANDY v. LEMBAGA PENCEGAHAN JENAYAH MALAYSIA & ORS [2017] 1 CLJ 342
HIGH COURT MALAYA, GEORGETOWN
COLLIN LAWRENCE SEQUERAH JC
[CRIMINAL APPLICATION NO: 44-01-01-2016]
19 AUGUST 2016

CRIMINAL PROCEDURE: Habeas corpus - Detention - Applicant arrested pursuant to s. 3(1) of Prevention of Crime Act 1959 - Applicant issued with detention order for two years - Whether procedure for detention regular and in order - Whether relevant laws and regulations complied with - Criminal Procedure Code, Chapter XXXVI - Prevention of Crime (Advisory Board Procedure) Regulations 2014

Legal Network Series

CLJ 2017 Volume 1 (Part 3)

COURT OF APPEAL

Dahan Cipta Sdn Bhd & Anor v. Yong Tshu Khin & Ors And Other Appeals
David Wong Dak Wah, Vernon Ong Lam Kiat, Zaleha Yusof JJC
(Contract; Arbitration - Sale and purchase of land - No formal sale and purchase agreement executed - Whether there was valid, concluded and binding contract) [2017] 1 CLJ 257 [CA]

Lee Hark Lam & Ors v. Kebun Rimau Sdn Bhd & Anor And Another Appeal
Rohana Yusuf, Idrus Harun, Zamani A Rahim JJCA
(Trusts; Limitation - Duties of fiduciaries - Breach of - Whether there was abuse of positions of trust and confidence by hijacking and diverting lands) [2017] 1 CLJ 277 [CA]

PP v. Abdul Rehman Abdul Hameed
Tengku Maimun Tuan Mat, Varghese George, Ab Karim Ab Jalil JJCA
(Criminal Procedure; Criminal Law; Evidence - Murder - Prosecution's case wholly-based on circumstantial evidence - Whether circumstantial evidence sufficient to prove accused's guilt) [2017] 1 CLJ 317 [CA]

Sungai Dinar Sdn Bhd v. Koperasi Pekebun Kecil Wilayah Johor Selatan Bhd
Rohana Yusuf, Idrus Harun, Mary Lim JJCA
(Civil Procedure - Res Judicata - Issues, similarity of - Whether cause of action in present suit same as first suit) [2017] 1 CLJ 333 [CA]

HIGH COURT

Mogan Palaniandy v. Lembaga Pencegahan Jenayah Malaysia & Ors
Collin Lawrence Sequerah JC
(Criminal Procedure - Habeas corpus - Detention - Whether procedure for detention regular and in order) [2017] 1 CLJ 342 [HC]

Resorts World At Sentosa Pte Ltd v. Lim Soo Kok
Hanipah Farikullah J
(Civil Procedure - Reciprocal enforcement of judgments - Setting aside registration of foreign judgment) [2017] 1 CLJ 363 [HC]

SUBJECT INDEX

ARBITRATION

Award - Validity - Whether there was any application to set aside arbitration award - Whether arbitration award which was not set aside akin to final judgment of court - Whether non-registration of arbitration award rendered arbitration award invalid
Dahan Cipta Sdn Bhd & Anor v. Yong Tshu Khin & Ors And Other Appeals
(David Wong Dak Wah, Vernon Ong Lam Kiat, Zaleha Yusof JJCA) [2017] 1 CLJ 257 [CA]

CIVIL PROCEDURE

Reciprocal enforcement of judgments - Setting aside registration of foreign judgment - Application for - Judgment creditor obtained judgment at Singapore High Court for gambling debt - Whether judgment for gambling debt contrary to public policy in Malaysia - Whether gaming transaction valid in Singapore - Whether suit was to enforce gaming debt - Whether judgment creditor was availing itself of right of reciprocity of registering registration of valid and lawful judgment of foreign court - Reciprocal Enforcement of Judgments Act 1958, s. 5(1)(a)(v)
Resorts World At Sentosa Pte Ltd v. Lim Soo Kok
(Hanipah Farikullah J) [2017] 1 CLJ 363 [HC]

Res Judicata - Issues, similarity of - Whether cause of action in present suit same as first suit - Whether issues had been adjudicated and decided on merits in first suit - Plaintiff chose not to appeal against decision in first suit - Whether estopped from litigating same issues - Whether present action barred by res judicata
Sungai Dinar Sdn Bhd v. Koperasi Pekebun Kecil Wilayah Johor Selatan Bhd
(Rohana Yusuf, Idrus Harun, Mary Lim JJCA) [2017] 1 CLJ 333 [CA]

CONTRACT

Illegality - Agreement - Sale and purchase agreement - Seller of land claimed to be beneficial owner of land through arbitration award - High Court ordered enforcement of arbitration award for sale of land to purchasers - Appeal against decision of High Court - Whether land held on trust - Whether there was breach of trust by registered proprietors of land - Whether arbitrator exceeded jurisdiction in making arbitration award
Dahan Cipta Sdn Bhd & Anor v. Yong Tshu Khin & Ors And Other Appeals
(David Wong Dak Wah, Vernon Ong Lam Kiat, Zaleha Yusof JJCA) [2017] 1 CLJ 257 [CA]

Sale and purchase of land - Agreement - Draft sale and purchase agreement - No formal sale and purchase agreement executed - Whether there was valid, concluded and binding contract
Dahan Cipta Sdn Bhd & Anor v. Yong Tshu Khin & Ors And Other Appeals
(David Wong Dak Wah, Vernon Ong Lam Kiat, Zaleha Yusof JJCA) [2017] 1 CLJ 257 [CA]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Prosecution's case wholly-based on circumstantial evidence - Whether circumstantial evidence sufficient to prove accused's guilt - Whether defence raised reasonable doubt on prosecution's case
PP v. Abdul Rehman Abdul Hameed
(Tengku Maimun Tuan Mat, Varghese George, Ab Karim Ab Jalil JJCA) [2017] 1 CLJ 317 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against acquittal and discharge - Appeal by prosecution - Accused charged for murder - Prosecution's case wholly-based on circumstantial evidence - Accused acquitted and discharged at close of trial - Whether circumstantial evidence sufficient to prove accused's guilt - Whether defence raised reasonable doubt on prosecution's case - Penal Code, s. 302
PP v. Abdul Rehman Abdul Hameed
(Tengku Maimun Tuan Mat, Varghese George, Ab Karim Ab Jalil JJCA) [2017] 1 CLJ 317 [CA]

Habeas corpus - Detention - Applicant arrested pursuant to s. 3(1) of Prevention of Crime Act 1959 - Applicant issued with detention order for two years - Whether procedure for detention regular and in order - Whether relevant laws and regulations complied with - Criminal Procedure Code, Chapter XXXVI - Prevention of Crime (Advisory Board Procedure) Regulations 2014
Mogan Palaniandy v. Lembaga Pencegahan Jenayah Malaysia & Ors
(Collin Lawrence Sequerah JC) [2017] 1 CLJ 342 [HC]

EVIDENCE

Circumstantial evidence - Murder - Penal Code, s. 302 - Prosecution's case wholly-based on circumstantial evidence - Accused's DNA found on deceased's cloths and fingernails and other items - Whether circumstantial evidence sufficient to prove accused's guilt
PP v. Abdul Rehman Abdul Hameed
(Tengku Maimun Tuan Mat, Varghese George, Ab Karim Ab Jalil JJCA) [2017] 1 CLJ 317 [CA]

LIMITATION

Trusts - Breach of trusts - Cause of action - Whether governed by item 97 of s. 3 of Limitation Ordinance Cap 72 - Right to sue - Accrual of - Commencement of date of limitation - Whether cause of action within limitation period of six years
Lee Hark Lam & Ors v. Kebun Rimau Sdn Bhd & Anor And Another Appeal
(Rohana Yusuf, Idrus Harun, Zamani A Rahim JJCA) [2017] 1 CLJ 277 [CA]

TRUSTS

Duties of fiduciaries - Breach of - Fiduciaries entrusted to purchase lands for first respondent - Whether there was abuse of positions of trust and confidence by hijacking and diverting lands - Recovery of sum and lands - Application for - Standard of proof - Whether on balance of probabilities - Whether first appellant clearly put himself in fiduciary relationship with first respondent - Whether first appellant duty-bound to protect first respondent's interest - Whether first appellant deliberately acted against first respondent's interest - Whether there was breach of fiduciary duties - Failure to give any consideration or value for acquiring properties - Whether appellants constructive trustees of land - Whether trial judge acted without due and proper enquiry when granting reliefs to respondents - Whether first appellant liable to compensate for loss suffered by first respondent
Lee Hark Lam & Ors v. Kebun Rimau Sdn Bhd & Anor And Another Appeal
(Rohana Yusuf, Idrus Harun, Zamani A Rahim JJCA) [2017] 1 CLJ 277 [CA]

LNS Article(s)

1. CONCURRENT EXPERT EVIDENCE - A GIFT FROM AUSTRALIA* ^{[Read excerpt]}
   LORD JUSTICE JACKSON [2017] 1 LNS(A) iii

[2017] 1 LNS(A) iii



AUSTRALIA

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CONCURRENT EXPERT EVIDENCE - A GIFT FROM AUSTRALIA*

LORD JUSTICE JACKSON

CONTENTS

1. Introduction

2. The Australian procedure

3. Introduction of the procedure in England and Wales

4. And how is it all going in practice?

APPENDIX: Paper by HH Judge Waksman QC summarising the Manchester pilot

1. INTRODUCTION

Australia since 1788. Modern Australian history begins with the arrival of Admiral Arthur Phillip and his establishment of a penal colony in New South Wales. However discreditable that policy may have been,^[1] at the time it seemed like a good idea and it resolved a pressing problem for British criminal justice.^[2] Since then, however, Australia's impact on the justice system has been very different. Australia has made major contributions to both civil and criminal justice across the common law world. The jurisprudence of Sir Owen Dixon is but one example. In particular (and this is the focus of the present conference session), Australia has always been innovative in the field of civil procedure.

My own visits to Australia in connection with civil justice reform. I have visited Australia twice in connection with civil justice reform. The first visit was in March/April 2009 during the course of the Review of Civil Litigation Costs. The second visit was in December 2011 during the course of the implementation of the reforms resulting from that review. Like many visitors, I was greatly impressed by your vibrant civil justice system and willingness to innovate. In many ways Britain now follows Australia's lead. For example, the Shorter and Flexible trials Pilot Scheme,^[3] recently established in our Rolls Building jurisdictions, has echoes of a similar scheme devised by the Australian Federal Court about ten years ago.^[4]

. . .

* Lord Justice Jackson, The London Conference Of The Commercial Bar Association Of Victoria (29th June 2016). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary. gov.uk/wp-content/uploads/2016/06/lj-jackson-concurrent-expert-evidence.pdf).

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2. JAMALUDIN BIN JAAFAR V. AFFIN BANK BERHAD
   (RAYUAN SIVIL NO.: K-02-2728-12 TAHUN 2013):
   IMPLIKASI UNDANG-UNDANG KEPADA INSTITUSI KEWANGAN DAN PERBANKAN DI KEDAH ^{[Read excerpt]}
   MOHAMAD SOFEE RAZAK* [2017] 1 LNS(A) iv

[2017] 1 LNS(A) iv



MALAYSIA

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JAMALUDIN BIN JAAFAR V. AFFIN BANK BERHAD
(RAYUAN SIVIL NO.: K-02-2728-12 TAHUN 2013):
IMPLIKASI UNDANG-UNDANG KEPADA INSTITUSI KEWANGAN DAN PERBANKAN DI KEDAH

MOHAMAD SOFEE RAZAK*

Berhubung kes terbaharu JAMALUDIN BIN JAAFAR V. AFFIN BANK BERHAD (RAYUAN SIVIL NO.: K-02-2728-12 TAHUN 2013) di mana Mahkamah Rayuan Malaysia melalui penghakiman bertarikh 30 September 2016 telah memutuskan bahawa gadaian atas tanah rezab Melayu kepada bank dan institusi kewangan yang tidak tersenarai sebagai “Melayu” di bawah Seksyen 2 (Jadual Kedua), Enakmen Tanah Rezab Melayu (No. 63) Negeri Kedah adalah “null and void”.

Mahkamah Rayuan dalam penghakimannya melalui Yang Arif Abdul Rahman Sebli HMR memutuskan: “The issue before His Lordship was a straightforward issue of whether any right or interest in any Malay reservation land could vest in a non-Malay. The answer to the question is self evident in section 6 itself, which we reproduce below for ease of reference:

“6. (1)      Save as hereinafter provided in this Enactment, where any Reservation land is held under a document of title by a Malay, no right or interest therein shall vest, whether by transfer, sale in execution of a decree, sale at the instance of a chargee or otherwise, in any person who is not a Malay and where any Reservation land is held under a document of title by a Siamese no right or interest therein shall vest, whether by transfer, sale in execution of a decree, sale at the instance of a chargee or otherwise, in any person who is not either a Malay or a Siamese.”

. . .

* Peguambela & Peguamcara.

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CLJ Article(s)

1. GLOBALISATION AND ITS EFFECTS ON HUMAN TRAFFICKING: A LEGAL PERSPECTIVE FROM ASIA* ^{[Read excerpt]}
   DR MANIQUE COORAY** [2017] 1 CLJ(A) i

[2017] 1 CLJ(A) i



MALAYSIA

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GLOBALISATION AND ITS EFFECTS ON HUMAN TRAFFICKING: A LEGAL PERSPECTIVE FROM ASIA*

DR MANIQUE COORAY**

Abstract

"Globalisation" is the "development of an increasingly integrated global economy marked especially by free trade, free flow of capital, and the tapping of cheap foreign labour markets that transcend nation-state boundaries."^[1] "Human Trafficking" on the other hand, is the "illicit and clandestine movement of persons across national and international borders, largely from developing to developed countries."^[2] As the results of globalisation transcends and surpasses all walks of life irrespective of culture and race, there is a high likelihood of the advantages of globalisation subjected to be misused and abused. Criminals are able to take advantage of the differences in legal provisions and the differences in various jurisdictions which allows them to organise criminal syndicates to exploit the lucrative trafficking industry. However, at the outset, it must be stated that human trafficking is not just an outcome of globalisation but is within a part of the globalisation process that involves a functional integration of dispersed economic activities.

In view of the numerous recent cases that have been highlighted on human trafficking in Asia, the first objective of the paper is to examine the correlation between globalisation and human trafficking, and secondly, to examine the existence or the absence of the legislative measures that facilitate the transfer of commodities, mainly, women and children.

Keywords: Human Rights; Women and Children; Trafficking; Globalisation

. . .

* Part of this paper has been presented at the 13th ASLI Conference 2016 at Peking University Law School, Beijing, China by the author.

** Ph.D (University of Malaya), Master in Comparative Law (University of Delhi), LLB (Hons) University of Wolverhampton, United Kingdom, Senior Lecturer Faculty of Law, Multimedia University.

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