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Issue #14/2018 05 April 2018

New This Week Case(s) of the Week ABU HASSAN HASBULLAH v. ZUKERI IBRAHIM [2018] 3 CLJ 726 Latest Cases Legal Network Series CLJ 2018 Volume 3 (Part 6) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

ABU HASSAN HASBULLAH v. ZUKERI IBRAHIM [2018] 3 CLJ 726
COURT OF APPEAL, PUTRAJAYA
HAMID SULTAN ABU BACKER JCA, AB KARIM AB JALIL JCA, ASMABI MOHAMAD JCA
[CIVIL APPEAL NO: D-02(NCVC)(W)-349-02-2016]
22 OCTOBER 2017

TORT: Defamation – Libel – Ingredients – Proof – Impugned emails containing words allegedly defamatory of plaintiff sent to various parties – Whether impugned emails capable of bearing defamatory meaning, referred to plaintiff and published to third person – Whether trial judge had duty to rule on essential ingredients before proceeding to decide on defences – Whether trial judge applied settled principles of law – Whether trial judge failed to judicially appreciate evidence and law – Whether appellate intervention warranted

TORT: Defamation – Libel – Qualified privilege – Justification – Impugned emails containing words allegedly defamatory of plaintiff sent to various parties – Whether impugned emails capable of bearing defamatory meaning, referred to plaintiff and published to third person – Whether defendant had duty to send impugned emails to parties concerned – Whether parties who received emails had interest in matters raised – Whether defendant as probationary lecturer adhered to university guidelines in sending impugned emails – Statements in impugned emails not verified to be true – Whether defence of qualified privilege and justification applied

TORT: Defamation – Libel – Fair comment – Impugned emails containing words allegedly defamatory of plaintiff sent to various parties – Whether statement of facts could be termed as comments for purpose of defence – Failure to comply with O. 78 of Rules of Court 2012 – Whether defendant had legal duty to send impugned emails – Whether defence of fair comment applied

TORT: Damages – Defamation – Libel – Compensatory, aggravated and exemplary damages – Whether award ought to be sufficient to vindicate gravity of allegations against plaintiff

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Legal Network Series

[2017] 1 LNS 207	SITI NURBAYA ABDUL WAHAB lwn. PANGLIMA ANGKATAN TENTERA & SATU LAGI	UNDANG-UNDANG PENTADBIRAN: Semakan kehakiman - Certiorari - Permohonan pembatalan pemberhentian perkhidmatan anggota tentera - Pemohon telah diberhentikan demi kepentingan perkhidmatan tanpa melalui sebarang proses perbicaraan - Sama ada pemberhentian perkhidmatan pemohon merupakan tindakan rasmi Panglima Angkatan Tentera Malaysia - Sama ada hak pendengaran di bawah per 135 Perlembagaan Persekutuan terpakai kepada perkhidmatan anggota tentera - Sama ada doktrin pengampunan terpakai - Sama ada pemberhentian perkhidmatan pemohon adalah sah
[2017] 1 LNS 775	MOHD SYAHID SYAFEE & SATU LAGI lwn. TAN CHENG LONG	LALULINTAS JALAN: Kecuaian - Kemalangan jalan raya - Penentuan tanggungan - Perlanggaran antara mortorsikal dan motorvan - Penyandaran kepada keterangan senyap - Kebanyakan serpihan komponen berada di laluan sah motorvan - Kerosakan motorvan tertumpu kepada bahagian kiri - Kerosakan motorsikal tertumpu di bahagian hadapan - Sama ada motorsikal telah melintas di hadapan laluan sah pemandu van dan menyebabkan pertembungan - Sama ada penunggang motorsikal bertanggungan 100% kecuaian dalam kemalangan
[2017] 1 LNS 980	HOLSTEN MARKETING (M) SDN BHD & ORS v. PP	CRIMINAL LAW: Malaysian Quarantine and Inspection Services Act 2011 ('MAQIS Act') - Section 11(1) and 11(2) - Accused persons charged for importing and attempting to export frozen buffalo carcasses without a permit - Goods in transit - Goods were under control of customs department - Whether goods were subject to MAQIS Act - Whether an import and export permit is required for goods in transit
[2017] 1 LNS 1010	PP v. SARAVANAN RAJAGOPAL & ANOR	CRIMINAL LAW: Murder - Section 302 of Penal Code - Circumstantial evidence - Common intention - Deceased slashed with intention of causing him death - Whether murder was perpetrated in furtherance of common intention of accused persons to commit murder - Whether prosecution had established a prima facie case against accused persons CRIMINAL PROCEDURE: Defence - Denial - Murder with common intention - Accused persons gave two different versions pertaining to events that took place on day of murder - Accused persons were unreliable and untrustworthy witnesses - Evidence of accused persons conflicted with one another - Unsatisfactory features in testimony of accused persons - Whether testimony of accused persons were consistent with their innocence - Whether defence created a reasonable doubt on prosecution's case
[2017] 1 LNS 1113	WAN MOHAMAD SHUKRI WAN AB KADIR v. CRS CORPORATE SERVICES SDN BHD	COMPANY LAW: Liquidators - Representative of liquidators - Scope of authorisation - Representatives appointed and authorised by liquidators to deal with matters in relation to liquidation administration - Equitable estoppel - Whether authority given to representative was limited - Whether defendant's actions were consistent with authority given by plaintiff under letter of authorisation - Whether court has to give effect to intention of parties as reflected in letter of authorisation - Whether estoppel operates against plaintiff - Whether plaintiff could resile from agreement with defendant

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CLJ 2018 Volume 3 (Part 6)

FEDERAL COURT

Chew Wai Keong & Anor v. PP & Another Appeal
Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ
(Criminal Law; Evidence - Kidnapping Act 1961 - Section 3 - Whether forceful and wrongful detention established) [2018] 3 CLJ 681 [FC]

COURT OF APPEAL

Abu Hassan Hasbullah v. Zukeri Ibrahim
Hamid Sultan Abu Backer, Ab Karim Ab Jalil, Asmabi Mohamad JJCA
(Tort - Defamation - Libel - Ingredients - Impugned emails containing words allegedly defamatory of plaintiff sent to various parties) [2018] 3 CLJ 726 [CA]

Pengarah Pejabat Perdagangan Dalam Negeri, Koperasi Dan Kepenggunaan Negeri Sabah & Ors v. Multi Inrich Sdn Bhd
Tengku Maimun Tuan Mat, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA
(Tort; Limitation; Words & Phrases - Malicious prosecution - Whether seizure of goods with reasonable or probable cause - Whether goods required as evidence at trial) [2018] 3 CLJ 752 [CA]

Thameez Nisha Hasseem v. Anitha Farhana Sharbudeen & Anor
Rohana Yusuf, Vernon Ong Lam Kiat JJCA, Yeoh Wee Siam J
(Land Law; Revenue Law - Deed of assignment - Purpose - Whether only for assignment of property) [2018] 3 CLJ 768 [CA]

HIGH COURT

PP v. Phee Boon Poh & Ors
Abdul Wahab Mohamed JC
(Criminal Procedure - Revision - Remand proceedings - Whether there was failure to comply with s. 117 of Criminal Procedure Code) [2018] 3 CLJ 784 [HC]

Uma Devi Elangovan v. Pejabat Daerah Dan Tanah Gombak & Ors
Azimah Omar JC
(Contract; Tort - Termination - Unilateral termination - Limitation Act 1953, s. 6 - Public Authorities Protection Act 1948, s. 2(a)) [2018] 3 CLJ 799 [HC]

SUBJECT INDEX

CONTRACT

Breach - Failure to perform - Plaintiff and third defendant entered into contract to complete housing scheme project - Discovery of plaintiff's disqualification from project - Whether requirement for plaintiff to be original squatter of property to qualify for project part of contract - Whether defendants could unilaterally vary and add foreign terms into contracts - Whether third defendant unlawfully failed to perform its contractual obligations - Whether third defendant contractually bound to plaintiff - Whether third defendant liable for breach of contract - Whether plaintiff's claim against third defendant time barred - Limitation Act 1953, s. 6
Uma Devi Elangovan v. Pejabat Daerah Dan Tanah Gombak & Ors
(Azimah Omar JC) [2018] 3 CLJ 799 [HC]

Termination - Unilateral termination - Plaintiff and second defendant entered into construction contract for building of housing scheme - Discovery of plaintiff's disqualification from project - Whether requirement for plaintiff to be original squatter of property to qualify for project part of contract - Whether defendants could unilaterally vary and add foreign terms into contracts - Whether second defendant contractually bound to plaintiff - Whether second defendant unlawfully terminated contract - Whether second defendant liable for breach of contract - Whether plaintiff's claim against second defendant time barred - Limitation Act 1953, s. 6
Uma Devi Elangovan v. Pejabat Daerah Dan Tanah Gombak & Ors
(Azimah Omar JC) [2018] 3 CLJ 799 [HC]

CRIMINAL LAW

Kidnapping Act 1961 - Section 3 - Whether forceful and wrongful detention established - Whether kidnapped for ransom - Whether kidnapper was able to exert will over kidnapped person - Whether kidnapper had knowledge of abduction and captivation - Whether there was incriminating evidence against kidnapper
Chew Wai Keong & Anor v. PP & Another Appeal
(Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2018] 3 CLJ 681 [FC]

Murder - Cause of death - Forceful blow causing bone fractures and internal bleeding caused blood to enter airway resulting in breathing difficulties - Whether act of causing facial injuries fell within s. 300(c) of Penal Code - Whether deceased suffered any other ailments that could have contributed to death - Whether trial judge considered issue of actus reus - Penal Code, s. 302
Chew Wai Keong & Anor v. PP & Another Appeal
(Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2018] 3 CLJ 681 [FC]

Murder - Common intention - Whether circumstantial evidence established that accused persons were perpetrators of offences in furtherance of common intention - Whether acted in concert to kidnap and murder deceased - Whether pre-arranged plan proved - Kidnapping Act 1961, s. 3 - Penal Code, s. 302
Chew Wai Keong & Anor v. PP & Another Appeal
(Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2018] 3 CLJ 681 [FC]

CRIMINAL PROCEDURE

Revision - Remand proceedings - Initial objection raised regarding issue of applicants' access to legal representatives under s. 28A of Criminal Procedure Code - Parties agreed for initial objection to be decided upon before proceeding with merits of remand application - Senior Assistant Registrar ('SAR') granted remand order for period of five days - Whether decision invalid - Whether SAR's failure to determine on initial objection deprived applicants from fundamental rights to legal counsel - Whether there was failure to comply with s. 117 of Criminal Procedure Code - Whether applicants denied right to be heard on merits - Federal Constitution, art. 5(3) - Criminal Procedure Code, s. 323
PP v. Phee Boon Poh & Ors
(Abdul Wahab Mohamed JC) [2018] 3 CLJ 784 [HC]

EVIDENCE

Circumstantial evidence - Kidnapping and murder - Circumstantial evidence that accused persons were perpetrators of offences in furtherance of common intention - Whether established beyond reasonable doubt
Chew Wai Keong & Anor v. PP & Another Appeal
(Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2018] 3 CLJ 681 [FC]

Defence - Alibi - Whether defence of alibi supported by evidence - Error on face of record in respect of reference to alibi witnesses - Whether prejudiced defence - Failure by police to investigate alibi notice - Whether advantage to accused person - Whether defence of alibi raised reasonable doubt to prosecution case
Chew Wai Keong & Anor v. PP & Another Appeal
(Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2018] 3 CLJ 681 [FC]

Identification evidence - Quality of identification - Failure by trial judge to mention Turnbull guideline in grounds of judgment - Whether trial judge considered evidence and prevailing circumstances in evaluation of evidence - Whether credibility of witnesses given proper weight and consideration - Whether appellate interference warranted
Chew Wai Keong & Anor v. PP & Another Appeal
(Zainun Ali, Azahar Mohamed, Zaharah Ibrahim, Aziah Ali FCJJ) [2018] 3 CLJ 681 [FC]

LAND LAW

Assignment - Deed of assignment - Whether 'instrument' within ss. 2, 4(1) & 4A(1) of Stamp Act 1949 - Purpose - Whether only for assignment of property - Whether transfer effected - Whether instrument of transfer by way of Form 14A
Thameez Nisha Hasseem v. Anitha Farhana Sharbudeen & Anor
(Rohana Yusuf, Vernon Ong Lam Kiat JJCA, Yeoh Wee Siam J) [2018] 3 CLJ 768

Indefeasibility of title - Registered title - Challenge against registered title - Allegation that deed of assignment invalid - Deed of assignment - Whether conveyance document as envisaged in ss. 215, 217, 218 and 340(2) of National Land Code - Whether transfer of property invalid
Thameez Nisha Hasseem v. Anitha Farhana Sharbudeen & Anor
(Rohana Yusuf, Vernon Ong Lam Kiat JJCA, Yeoh Wee Siam J) [2018] 3 CLJ 768 [CA]

LIMITATION

Cause of action - Claim for damages - Allegation of malicious prosecution for offence under s. 3(1)(b) of Trade Description Act 1972 - Respondent acquitted and discharged without defence being called - Commencement of action two years after acquittal - Whether action for damages barred by limitation - Limitation Ordinance, s. 3
Pengarah Pejabat Perdagangan Dalam Negeri, Koperasi Dan Kepenggunaan Negeri Sabah & Ors v. Multi Inrich Sdn Bhd
(Tengku Maimun Tuan Mat, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA) [2018] 3 CLJ 752 [CA]

REVENUE LAW

Stamp duty - Instruments - Deed of assignment - Whether 'instrument' within ss. 2, 4(1) & 4A(1) of Stamp Act 1949 - Whether s. 4A of Stamp Act applies to instrument executed outside Malaysia to effect transfer of any immovable property in Malaysia - Whether ad valorem duty payable - Whether stamp duty imposed on instrument and not on transaction
Thameez Nisha Hasseem v. Anitha Farhana Sharbudeen & Anor
(Rohana Yusuf, Vernon Ong Lam Kiat JJCA, Yeoh Wee Siam J) [2018] 3 CLJ 768 [CA]

TORT

Damages - Defamation - Libel - Compensatory, aggravated and exemplary damages - Whether award ought to be sufficient to vindicate gravity of allegations against plaintiff
Abu Hassan Hasbullah v. Zukeri Ibrahim
(Hamid Sultan Abu Backer, Ab Karim Ab Jalil, Asmabi Mohamad JJCA) [2018] 3 CLJ 726 [CA]

Defamation - Libel - Fair comment - Impugned emails containing words allegedly defamatory of plaintiff sent to various parties - Whether statement of facts could be termed as comments for purpose of defence - Failure to comply with O. 78 of Rules of Court 2012 - Whether defendant had legal duty to send impugned emails - Whether defence of fair comment applied
Abu Hassan Hasbullah v. Zukeri Ibrahim
(Hamid Sultan Abu Backer, Ab Karim Ab Jalil, Asmabi Mohamad JJCA) [2018] 3 CLJ 726

Defamation - Libel - Ingredients - Proof - Impugned emails containing words allegedly defamatory of plaintiff sent to various parties - Whether impugned emails capable of bearing defamatory meaning, referred to plaintiff and published to third person - Whether trial judge had duty to rule on essential ingredients before proceeding to decide on defences - Whether trial judge applied settled principles of law - Whether trial judge failed to judicially appreciate evidence and law - Whether appellate intervention warranted
Abu Hassan Hasbullah v. Zukeri Ibrahim
(Hamid Sultan Abu Backer, Ab Karim Ab Jalil, Asmabi Mohamad JJCA) [2018] 3 CLJ 726 [CA]

Defamation - Libel - Qualified privilege - Justification - Impugned emails containing words allegedly defamatory of plaintiff sent to various parties - Whether impugned emails capable of bearing defamatory meaning, referred to plaintiff and published to third person - Whether defendant had duty to send impugned emails to parties concerned - Whether parties who received emails had interest in matters raised - Whether defendant as probationary lecturer adhered to university guidelines in sending impugned emails - Statements in impugned emails not verified to be true - Whether defence of qualified privilege and justification applied
Abu Hassan Hasbullah v. Zukeri Ibrahim
(Hamid Sultan Abu Backer, Ab Karim Ab Jalil, Asmabi Mohamad JJCA) [2018] 3 CLJ 726 [CA]

Malicious prosecution - Reasonable and probable cause - Allegation of malicious prosecution for offence under s. 3(1)(b) of Trade Description Act 1972 ('TDA') - Respondent acquitted and discharged without defence being called - Whether seizure of goods with reasonable or probable cause - Whether enforcement officers have full powers to seize goods - Whether for purpose of ascertaining whether offence under TDA has been committed - Whether goods required as evidence at trial - Whether failure to obtain search warrant rendered seizure illegal
Pengarah Pejabat Perdagangan Dalam Negeri, Koperasi Dan Kepenggunaan Negeri Sabah & Ors v. Multi Inrich Sdn Bhd
(Tengku Maimun Tuan Mat, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA) [2018] 3 CLJ 752 [CA]

Statutory duty - Breach - Plaintiff entered into housing scheme contract with second and third defendants - First defendant's discovery of plaintiff's disqualification from project - Whether caused termination and non-performance of contract between parties - Whether requirement for plaintiff to be original squatter of property to qualify for project part of contract - Whether defendants could unilaterally vary and add foreign terms into contracts - Whether requirement an afterthought to defeat plaintiff's rights over property and project - Whether first defendant owed public and statutory duty to protect plaintiff's rights - Whether plaintiff's action against first defendant time barred - Whether first defendant fell within ambit of s. 2(a) of Public Authorities Protection Act 1948
Uma Devi Elangovan v. Pejabat Daerah Dan Tanah Gombak & Ors
(Azimah Omar JC) [2018] 3 CLJ 799 [HC]

WORDS & PHRASES

'reasonable or probable cause' - Definition - Whether question of fact - Whether to be determined by court - Whether determination at point of investigation required - Whether honest belief that offence had probably been committed sufficient
Pengarah Pejabat Perdagangan Dalam Negeri, Koperasi Dan Kepenggunaan Negeri Sabah & Ors v. Multi Inrich Sdn Bhd
(Tengku Maimun Tuan Mat, Vernon Ong Lam Kiat, Abdul Rahman Sebli JJCA) [2018] 3 CLJ 752 [CA]

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LNS Article(s)

1. DUMPING, COUNTERVAILING MEASURES AND THE PUBLIC INTEREST DEBATE: A DEVELOPMENTAL PARADOX ^{[Read excerpt]}
   MAIYAKI THEODORE BALA* DR JOSEPHINE ALADI ACHOR AGBONIKA** [2018] 1 LNS(A) xxviii

[2018] 1 LNS(A) xxviii



NIGERIA

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DUMPING, COUNTERVAILING MEASURES AND THE PUBLIC INTEREST DEBATE:
A DEVELOPMENTAL PARADOX

MAIYAKI THEODORE BALA*
DR JOSEPHINE ALADI ACHOR AGBONIKA**

ABSTRACT

Over the past three decades, dumping of products by different countries has increased considerably, driven by industrialization and globalization. As countries continue to adopt antidumping laws, it is vital to understand the ways that anti-dumping laws have advanced their purpose. Tariff cuts have been popularly administered during various rounds of the General Agreement on Tariffs and Trade (GATT). The year 1995 is conterminous with the formation of WTO and institution of the Anti-dumping Agreement by 123 member nations. Studies show that the number of filings and the percentage of cases that receive an affirmative decision has increased, despite the existence and clarity of anti-dumping laws: including the delicate issue of public interest considerations when determining anti-dumping. This paper presents a critical overview that dovetails into the impact of anti-dumping initiatives on multilateral trade relations and the public interest debate.

. . .

* PhD, BL, Senior Lecturer: Faculty of Law, University of Abuja, Nigeria.

** LL.B, BL, LL.M, PhD, LSM, JP, ACTI, ACIArb, Senior Lecturer, Kogi State University; Also Commissioner, Tax Appeal Tribunal, South East Zone, Enugu.

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2. EXAMINING AND UNDERSTANDING RELATED ISSUES RELATING TO TRANSFER OF EMPLOYEE ^{[Read excerpt]}
   RHYMIE BIN MOHD RAMLI* [2018] 1 LNS(A) xxix

[2018] 1 LNS(A) xxix



MALAYSIA

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EXAMINING AND UNDERSTANDING RELATED ISSUES RELATING TO TRANSFER OF EMPLOYEE

RHYMIE BIN MOHD RAMLI*

To ensure the needs of an organization is efficient in its operation, an employer may transfer his employee to another work place within the organization. The order to transfer can be made even in the absence of express provision relating to it. The issue on whether an employer has the right to transfer their employee has been determined by the Court of Appeal in the case of Ladang Hollyrod v. Ayasamy Manikam & Ors^[1] where the court ruled that the employer has the implied right to transfer their employee. Furthermore, the court also held that it will not interfere with the decision of the employer except in circumstances whereby the decision to transfer is tainted with mala fide, improper or indirect motives. Such transfer also must not involve a change in the employment contract which is detrimental to the employee. The decision in the said case also meant that under the Employment Act 1955 (the Act), an employee cannot simply refuse a transfer order due to the absence of a transfer clause under the employment contract.^[2] Thus, this article is written with the aim of examining and understanding related issues relating to transfer of employee.

. . .

* LL.B (Hons) IIUM Employment Law Practitioner.

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