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MAT SHUHAIMI SHAFIEI v. KERAJAAN MALAYSIA [2017] 1 CLJ 404
COURT OF APPEAL, PUTRAJAYA
LIM YEE LAN JCA, VARGHESE GEORGE JCA, HARMINDAR SINGH DHALIWAL JCA
[CIVIL APPEAL NO: W-01(A)-115-04-2015]
25 NOVEMBER 2016
[2016] CLJ (JT13)

CIVIL PROCEDURE: Res judicata - Principles - Whether court could decline application if application leads to unjust result - Whether discretionary in nature - Whether same issues challenged in earlier proceedings

CONSTITUTIONAL LAW: Legislature - Constitutionality of statute - Sedition Act 1948 (`Act 15') - Application for declaration that s. 3 of Act 15 violated art. 10 of Federal Constitution - Exclusion of requirement to prove `intention' - Whether disproportionate inroad into fundamental right - Whether exclusion of requirement to prove intention was a deviation from norm with regards to criminal prosecutions - Whether s. 3(3) of Act 15 breached guarantee of equality under Federal Constitution - Whether s. 3(3) of Act 15 contravened art. 10 of Federal Constitution

CONSTITUTIONAL LAW: Fundamental liberties - Freedom of speech and expression - Sedition Act 1948 (`Act 15'), s. 3(3) - Application for declaration that s. 3(3) of Act 15 violated art. 10 of Federal Constitution - Whether violated citizen's right to freedom of speech and expression - Exclusion of requirement to prove `intention' - Whether s. 3(3) satisfied test of proportionality - Whether s. 3(3) in violation of constitutional rights of a citizen to be treated and protected equally before law

Legal Network Series

CLJ 2017 Volume 1 (Part 4)

COURT OF APPEAL

Kamdar Sdn Bhd v. Bipinchandra Balvantrai & Ors
Alizatul Khair Osman, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA
(Contract; Civil Procedure - Breach - Duties - Failure to consider pleaded case - Whether plaintiff accorded reasonable opportunity to be heard) [2017] 1 CLJ 369 [CA]

Mat Shuhaimi Shafiei v. Kerajaan Malaysia
Lim Yee Lan, Varghese George, Harmindar Singh Dhaliwal JJCA
(Civil Procedure; Constitutional Law - Res judicata - Whether same issues challenged in earlier proceedings - Legislature - Constitutionality of statute - Whether s. 3(3) of Sedition Act 1948 contravenes art. 10 of Federal Constitution - Fundamental liberties) [2017] 1 CLJ 404 [CA]

Saied Safarigharigh lwn. PP
Rohana Yusuf, Ahmadi Asnawi, Abdul Rahman Sebli HHMR
(Mahkamah - Mahkamah Rayuan - Rayuan terhadap pembebasan - Bidang kuasa Mahkamah Rayuan) [2017] 1 CLJ 426 [CA]

TTDI Jaya Sdn Bhd v. Yew Hong Teng & Anor
Hamid Sultan Abu Backer, Prasad Sandosham Abraham, Asmabi Mohamad JJCA
(Contract - Sale and purchase agreement - Whether vacant possession delivered - Whether there was total failure of consideration - Whether rescission of sale and purchase agreement appropriate remedy) [2017] 1 CLJ 436 [CA]

HIGH COURT

Danh Coi & Ors v. PP
Lee Heng Cheong J
(Criminal Law; Criminal Procedure; Fisheries - Convictions under s. 15(1)(a) of Fisheries Act 1985 - Guilty plea - Appeal against conviction and sentence - Whether convicted person could appeal against conviction after pleading guilty - Whether vessels and other appurtenances liable to forfeiture - Powers of Malaysian Maritime Enforcement Agency) [2017] 1 CLJ 464 [HC]

Liew Ju Min v. Choo Wee Poh & Anor
Lim Chong Fong JC
(Civil Procedure - Striking out - Originating summons - Whether prematurely filed) [2017] 1 CLJ 474 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Action - Cause of action - Breach of fiduciary duties - Misappropriation of monies - Allegation of - Failure to consider pleaded case - Whether affected trial judge's approach to case before considering evidential record - Whether monies unlawfully utilised - Whether undue weight placed on hearsay ledger entries - Failure to refer or evaluate underlying documents - Whether there was examination on element of breach of trust, fiduciary duty or directors' duties - Whether doctrine of laches applied - Whether plaintiff accorded reasonable opportunity to be heard in full - Whether there was breach of natural justice in hearing of suit
Kamdar Sdn Bhd v. Bipinchandra Balvantrai & Ors
(Alizatul Khair Osman, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA) [2017] 1 CLJ 369 [CA]

Res judicata - Principles - Whether court could decline application if application leads to unjust result - Whether discretionary in nature - Whether same issues challenged in earlier proceedings
Mat Shuhaimi Shafiei v. Kerajaan Malaysia
(Lim Yee Lan, Varghese George, Harmindar Singh Dhaliwal JJCA) [2017] 1 CLJ 369 [CA]

Striking out - Originating summons ('OS') - Non compos mentis - Mental Health Act 2001 - Appointment committee of person and estate of person - Application to strike out OS - Grounds to strike out - Whether leave of court obtained pursuant to O. 76 Rules of Court 2012 ('ROC') prior to filing of OS - Whether defendants wrongly named in OS - Whether OS prematurely filed without prior inquiry under s. 53(1) of Mental Health Act 2001 - Whether persons under disability and mentally disordered parties to OS - Whether OS ought to be struck out
Liew Ju Min v. Choo Wee Poh & Anor
(Lim Chong Fong JC) [2017] 1 CLJ 474 [HC]

CONSTITUTIONAL LAW

Fundamental liberties - Freedom of speech and expression - Sedition Act 1948 ('Act 15'), s. 3(3) - Application for declaration that s. 3(3) of Act 15 violated art. 10 of Federal Constitution - Whether violated citizen's right to freedom of speech and expression - Exclusion of requirement to prove 'intention' - Whether s. 3(3) satisfied test of proportionality - Whether s. 3(3) in violation of constitutional rights of a citizen to be treated and protected equally before law
Mat Shuhaimi Shafiei v. Kerajaan Malaysia
(Lim Yee Lan, Varghese George, Harmindar Singh Dhaliwal JJCA) [2017] 1 CLJ 404 [CA]

Legislature - Constitutionality of statute - Sedition Act 1948 ('Act 15') - Application for declaration that s. 3 of Act 15 violated art. 10 of Federal Constitution - Exclusion of requirement to prove 'intention' - Whether disproportionate inroad into fundamental right - Whether exclusion of requirement to prove intention was a deviation from norm with regards to criminal prosecutions - Whether s. 3(3) of Act 15 breached guarantee of equality under Federal Constitution - Whether s. 3(3) of Act 15 contravened art. 10 of Federal Constitution
Mat Shuhaimi Shafiei v. Kerajaan Malaysia
(Lim Yee Lan, Varghese George, Harmindar Singh Dhaliwal JJCA) [2017] 1 CLJ 404 [CA]

CONTRACT

Agreement - Sale and purchase agreement - Vacant possession - Purchasers accepted vacant possession despite defects found on property - Purchasers submitted complaint form in response to notice of delivery of vacant possession issued by developer - Purchasers claimed for rescission of sale and purchase agreement five years later based on allegation that developer failed to complete and deliver vacant possession - Whether claim supported by evidence - Whether vacant possession delivered - Whether there was total failure of consideration - Whether rescission of sale and purchase agreement appropriate remedy
TTDI Jaya Sdn Bhd v. Yew Hong Teng & Anor
(Hamid Sultan Abu Backer, Prasad Sandosham Abraham, Asmabi Mohamad JJCA) [2017] 1 CLJ 436 [CA]

Breach - Duties - Misappropriation of monies - Failure to consider pleaded case - Whether affected trial judge's approach to case before considering evidential record - Whether monies unlawfully utilised - Whether undue weight placed on hearsay ledger entries - Failure to refer or evaluate underlying documents - Whether there was examination on element of breach of trust, fiduciary duty or directors' duties - Whether doctrine of laches applied - Whether plaintiff accorded reasonable opportunity to be heard in full - Whether there was breach of natural justice in hearing of suit
Kamdar Sdn Bhd v. Bipinchandra Balvantrai & Ors
(Alizatul Khair Osman, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA) [2017] 1 CLJ 369 [CA]

CRIMINAL LAW

Offences - Fisheries - Convictions under s. 15(1)(a) of Fisheries Act 1985 - Guilty plea - Whether accused persons understood charges and consequences of pleading guilty - Whether convictions and sentences passed by trial judge proper - Whether within ambit of s. 25 of Fisheries Act 1985 - Criminal Procedure Code, s. 173(a) & (b)
Danh Coi & Ors v. PP
(Lee Heng Cheong J) [2017] 1 CLJ 464 [HC]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction - Guilty plea - Whether convicted person could appeal against conviction after pleading guilty - Whether appeal limited to extent or legality of sentence - Whether appeal against conviction was incompetent - Criminal Procedure Code, s. 305
Danh Coi & Ors v. PP
(Lee Heng Cheong J) [2017] 1 CLJ 464 [HC]

Appeal - Appeal against conviction and sentence - Convictions under s. 15(1)(a) of Fisheries Act 1985 - Guilty plea - Whether accused persons understood charges and consequences of pleading guilty - Whether trial judge complied with s. 173(a) and (b) of Criminal Procedure Code - Whether convictions and sentences passed by trial judge proper - Whether within ambit of s. 25 of Fisheries Act 1985
Danh Coi & Ors v. PP
(Lee Heng Cheong J) [2017] 1 CLJ 464 [HC]

Forfeiture - Fisheries offence - Order of forfeiture and disposal of vessels and exhibits - Appeal against order - Whether vessels used in commission of offences under s. 15(1)(a) of Fisheries Act 1985 - Whether vessels and other appurtenances liable to forfeiture under s. 52 - Whether forfeiture order proper
Danh Coi & Ors v. PP
(Lee Heng Cheong J) [2017] 1 CLJ 464 [HC]

FISHERIES

Enforcement - Procedure - Powers of Malaysian Maritime Enforcement Agency ('MMEA') - Whether MMEA has all powers which relevant agency may exercise under any Federal Law in Malaysian Maritime Zone - Whether ranks of MMEA equivalent with Federal Authorities specified in or under any other written law - Whether MMEA empowered to investigate cases and offences under Fisheries Act 1985 - Malaysian Maritime Enforcement Agency Act 2004, ss. 2, 3, 5, 6(1), 7(1), (2) & (3)
Danh Coi & Ors v. PP
(Lee Heng Cheong J) [2017] 1 CLJ 464 [HC]

INDEKS PERKARA

MAHKAMAH

Mahkamah Rayuan - Rayuan terhadap pembebasan - Bidang kuasa Mahkamah Rayuan - Sama ada Mahkamah Rayuan boleh mengeluarkan waran mengarahkan tertuduh direman sementara menunggu pelupusan rayuan - Tertuduh warganegara asing - Sama ada tertuduh berpeluang menghilangkan diri jika dibebaskan dengan ikat jamin - Sama ada integriti rayuan pihak pendakwaan terjejas jika pemohon dilepaskan - Akta Mahkamah Kehakiman 1964, s. 56A
Saied Safarigharigh lwn. PP
(Rohana Yusuf, Ahmadi Asnawi, Abdul Rahman Sebli HHMR) [2017] 1 CLJ 426 [CA]

LNS Article(s)

1. ANIMAL LAW IN AUSTRALIA*
   Legalised cruelty and why we should care ^{[Read excerpt]}
   MIKE ROSALKY** [2017] 1 LNS(A) v

[2017] 1 LNS(A) v



AUSTRALIA

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ANIMAL LAW IN AUSTRALIA*
Legalised cruelty and why we should care

MIKE ROSALKY**

Animal law is a rapidly growing area of study. It was first taught at UNSW in 2005, and is now taught, or proposed to be taught, in 14 Australian law schools. An increasing number of legal practitioners are passionately pursuing this practice area as they learn about the cruel way many animals are legally able to be treated in Australia.

What is animal law?

Animal law is the field of law that governs interactions between humans and non-human animals. It can broadly be divided into two categories: laws that deal with animals and laws that purport to protect animals. For the purpose of this article, I will focus on laws that purport to protect animals (anti-cruelty laws). These laws exist primarily at the State and Territory level.

The Animal Welfare Act 1992 is the ACT’s primary anti-cruelty law. It prohibits a number of cruel practices such as debeaking hens and keeping farmed animals in sow stalls, farrowing crates or battery cages. The ACT Government should be commended as the only jurisdiction in Australia to have banned such practices. However, most animal products sold in the ACT have come from animals outside the Territory, who endured legalised cruelty during their lives or at slaughter or both.

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 241 September 2016.

** Animal Defenders Office

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2. MONEY LAUNDERING: AN APPRAISAL OF THE PROCESSES,
   TRENDS AND IMPACTS ON NIGERIA AS AN EMERGING ECONOMY ^{[Read excerpt]}
   NASIRU MUKHTAR* DR. YUSUF I.A.** [2017] 1 LNS(A) vi

[2017] 1 LNS(A) vi



NIGERIA

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MONEY LAUNDERING: AN APPRAISAL OF THE PROCESSES,
TRENDS AND IMPACTS ON NIGERIA AS AN EMERGING ECONOMY

NASIRU MUKHTAR*
DR. YUSUF I.A.**

Abstract

Money laundering has continued to be an issue of global concern because of its adverse impact on the economy of nation states and its being a threat to the survival of the financial system of both developed and developing countries. Money laundering activities by its nature undermines economic and social development of nations. For this reason, international cooperation among nations becomes necessary. To effectively combat money laundering, it is important to understand the nature of the offence and the various predicates that precipitates its commission. Nigeria has demonstrated commitment to combat the adverse effects of money laundering through legislative and enforcement framework and her compliance with international treaties, conventions and best practices. In spite of that, the Nigerian economy is down sliding in recent times as a result of problems ranging from treasury looting and laundering of national resources by few Politically Exposed Persons (PEPs) and their cronies. Against the above background, this paper argues that the Nigerian economy, as an emerging economy, is suffering from the adverse impact of money laundering resulting in a weak financial system, poor banking supervision, ineffective law enforcement drives, therefore making the economic policy and implementation guidelines more susceptible to distortion from the activities of the money launderers. The paper also appraises the nature, stages and trends of money laundering and its impact on emerging economies using Nigeria as a case study. The paper concludes that the Nigerian economy is not likely to revive until the various money laundering related activities are addressed and thus recommends a further strengthening of the Nigerian money laundering legislative regime and enforcement procedure to adequately address its devastating impact on the Nigerian economy.

KEY WORDS:  Money Laundering, Emerging Economies, Economic Impacts, Corruption, Financial Institutions, Politically Exposed Persons (PEPs)

. . .

* Nasiru Mukhtar - Department of Private & Islamic Law, Faculty of Law, University of Abuja- Nigeria.

** Dr. Yusuf, I.A. - Department of Public Law, University of Ilorin, Ilorin-Nigeria.

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CLJ Article(s)

1. ARE INSURERS LIABLE IF AN EMPLOYEE OF THE INSURED OR THE
   AUTHORISED DRIVER IS INJURED OR DIES IN AN ACCIDENT
   WHILST TRAVELLING AS A PASSENGER IN THE INSURED MOTOR
   VEHICLE IN THE COURSE OF HIS EMPLOYMENT? ^{[Read excerpt]}
   S SANTHANA DASS [2017] 1 CLJ(A) xi

[2017] 1 CLJ(A) xi



MALAYSIA

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ARE INSURERS LIABLE IF AN EMPLOYEE OF THE INSURED OR THE
AUTHORISED DRIVER IS INJURED OR DIES IN AN ACCIDENT
WHILST TRAVELLING AS A PASSENGER IN THE INSURED MOTOR
VEHICLE IN THE COURSE OF HIS EMPLOYMENT?

S SANTHANA DASS

There seems to be confusion as to whether insurers are liable if an employee of the insured or the authorised driver is injured or dies in an accident whilst travelling as a passenger in the insured motor vehicle in the course of his employment.

Section B of the motor policy reads as follows:

Section B - Liability to Third Parties

1. We will pay the amount which You or Your Authorised Driver are legally liable to pay (including claimant's costs and expenses) for accidents caused by or arising out of the use of Your Vehicle or in connection with the loading or unloading therefrom for:

(a) death or bodily injury to any person except those specifically excluded under Exceptions to Section B

Exceptions to Section B

We will not pay for

(i) ...

(ii) death or bodily injury to any person where such death or bodily injury arises out of and in the course of the employment of such person by You or Your authorised driver;

(iii) ...

(iv) liability to any person being carried in or upon or entering or getting on to or alighting from Your Car (unless he/she is required to be carried in or on Your Car by reason of or in pursuance of his contract of employment with You and/or Your Authorised Driver and/or his/her employer)

. . .

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