Back to Top

Print this page

Issue #25/2019 20 June 2019

New This Week Case(s) of the Week ALMA NUDO ATENZA v. PP & ANOTHER APPEAL [2019] 5 CLJ 780 PCP CONSTRUCTION SDN BHD v. LEAP MODULATION SDN BHD; ASIAN INTERNATIONAL ARBITRATION CENTRE (INTERVENER) [2019] 6 CLJ 1 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2019 Volume 5 (Part 6) CLJ 2019 Volume 6 (Part 1) Articles LNS Article(s) CLJ Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

ALMA NUDO ATENZA v. PP & ANOTHER APPEAL [2019] 5 CLJ 780
FEDERAL COURT, PUTRAJAYA
RICHARD MALANJUM CJ, DAVID WONG DAK WAH CJ (SABAH & SARAWAK), RAMLY ALI FCJ, BALIA YUSOF WAHI FCJ, ALIZATUL KHAIR OSMAN FCJ, ROHANA YUSUF FCJ, TENGKU MAIMUN TUAN MAT FCJ, ABANG ISKANDAR FCJ, NALLINI PATHMANATHAN FCJ
[CRIMINAL APPEALS NO: 05-94-05-2017(B) & 05-193-08-2017(W)]
05 APRIL 2019

CRIMINAL LAW: Dangerous drugs – Trafficking – Presumption of – Constitutional validity of s. 37A of Dangerous Drugs Act 1952 ('DDA') with reference to arts. 5, 8 and 121 of Federal Constitution ('FC') – Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of DDA – Principle of separation of powers – Whether Parliament empowered only to make laws – Whether judicial power vested exclusively in courts – Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible – Whether s. 37A of DDA offended requirement of fairness under arts. 5 and 8 of FC – Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality – Whether statutory words 'deemed possession' under s. 37(d) of DDA could be equated to 'found possession' to invoke presumption of trafficking under s. 37(da) of DDA – Whether plain reading of s. 37(d) and (da) permit concurrent application of both presumptions in prosecution of drug trafficking offence – Whether s. 37A of DDA prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists – Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1) of FC – Whether convictions and sentences of accused persons quashed under s. 39B and substituted with convictions under s. 12(1) of DDA

CONSTITUTIONAL LAW: Presumptions – Dangerous drugs – Offences – Constitutional validity of s. 37A of Dangerous Drugs Act 1952 ('DDA') with reference to arts. 5, 8 and 121 of Federal Constitution ('FC') – Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of Dangerous Drugs Act 1952 – Principle of separation of powers – Whether Parliament empowered only to make laws – Whether judicial power vested exclusively in courts – Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible – Whether s. 37A of DDA offended requirement of fairness under arts. 5 and 8 of FC – Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality – Whether statutory words 'deemed possession' under s. 37(d) could be equated to 'found possession' to invoke presumption of trafficking under s. 37(da) – Whether plain reading of s. 37(d) and (da) permit concurrent application of both presumptions in prosecution of drug trafficking offence – Whether s. 37A prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists – Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1)

CONSTITUTIONAL LAW: Fundamental liberties – Presumption of innocence – Right to fair trial and presumption of innocence under art. 5 of Federal Constitution ('FC') – Offence of trafficking in dangerous drugs – Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of Dangerous Drugs Act 1952 ('DDA') – Constitutional validity of s. 37A of DDA with reference to arts. 5, 8 and 121 of FC – Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible – Whether s. 37A offended requirement of fairness under arts. 5 and 8 of FC – Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality – Whether plain reading of s. 37(d) and (da) of DDA permit concurrent application of both presumptions in prosecution of drug trafficking offence – Whether s. 37A prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists – Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1) of FC

---

PCP CONSTRUCTION SDN BHD v. LEAP MODULATION SDN BHD;
ASIAN INTERNATIONAL ARBITRATION CENTRE (INTERVENER) [2019] 6 CLJ 1
FEDERAL COURT, PUTRAJAYA
RAMLY ALI FCJ, AZAHAR MOHAMED FCJ, ROHANA YUSUF FCJ, TENGKU MAIMUN TUAN MAT FCJ, NALLINI PATHMANATHAN FCJ
[CIVIL APPLICATION NO: 08(i)-394-07-2018(W)]
23 APRIL 2019

CIVIL PROCEDURE: Proceedings – Committal proceedings – Contempt of court – Scandalising contempt – Application by Attorney General against advocate and solicitor – Court of Appeal Judge made detrimental pronouncements in dissenting decision against party which was not party to litigation – Aggrieved party applied to intervene at Federal Court for expunction of portions of pronouncements made against it – Federal Court allowed intervention and expunction – Advocate and solicitor sent press release to online news portal – Press release contained statements pertaining to judicial conduct in hearing, disposal and decision of Federal Court in aggrieved party's application for intervention and expunction of parts of judgment – Online news portal published articles based on press release – Whether statements directed at Federal Court and Judiciary – Whether statements amounted to fair criticism – Whether press release sent by advocate and solicitor edited by online news portal – Whether statements calculated to bring administration of justice into disrepute and erode public confidence in Judiciary – Whether advocate and solicitor committed contempt – Rules of Court 2012, O. 52

---

1. Collins Chigbo Chima v. PP [2019] 1 LNS 107 (CA) affirming the High Court case of PP v. Collins Chigbo Chima [Criminal Trial No: 45A-34-7/2016]

2. Ireka Engineering and Construction Sdn Bhd v. PWC Corporation Sdn Bhd & Another Appeal [2019] 1 LNS 51 (CA) affirming the High Court case of PWC Corporation Sdn Bhd v. Ireka Engineering and Construction Sdn Bhd [Originating Summons No: WA-24C-107-06/2017]

Legal Network Series

[2018] 1 LNS 328	CHUAT ENGKRUAK v. RING LABANG & ORS TORT: Defamation - Libel - Action by tuai rumah against residents of long house - Defamatory statement appeared in a letter attaching minutes of meeting of residents - Whether any evidence to show that residents published or agreed to publish minutes of meeting - Whether residents had published and defamed tuai rumah - Whether allegations made against tuai rumah were true - Whether defence of justification available CIVIL PROCEDURE: Pleadings - Statement of claim - Action based on defamation - Defamatory words pleaded in language other than used by court - Words complained of were in Iban - Whether words in Iban should be set out together with a translation thereof in statement of claim - Whether failure to plead actual words used was fatal - Rules of Court 2012, O. 92 r. 1(2) For the appellant - Peli Aron; M/s Peli Anak Aron Advocates For the respondents - Frederick Sebungkok; M/s Jayadi & Company
[2018] 1 LNS 489	HARTAJAYA-BENTENG TIMUR-AMR JELI JV SDN BHD v. UNITED OVERSEAS BANK (MALAYSIA) BHD (NO 3) CIVIL PROCEDURE: Striking out - Defence - Application to strike out certain paragraphs of defence - Allegation that defendant pleaded evidence in pleading - Whether defendant was entitled to rely on defence pleaded - Whether whole defence should proceed to trial - Whether it was relevant for defendant to plead facts relating to various legal actions commenced by plaintiff and related parties against defendant For the plaintiff - T Gunaseelan, Dennis Xavier, Keshrinjeet Singh & Vinod; M/s Gunaseelan & Associates For the defendant - Ng Sai Yeang & Wong Chee Chien; M/s Raja, Darryl & Loh
[2018] 1 LNS 204	BANK MUAMALAT MALAYSIA BERHAD v. ALIRAN WIBAWA SDN BHD & ORS CONTRACT: Guarantee - Existence of - Letter of guarantee and indemnity - Allegation that signature on letter of guarantee was forged - Fraud - Absence of conclusive analysis by chemist on signature - Whether element of fraud established on balance of probabilities - Whether signature on letters of guarantee and indemnity forged TORT: Negligence - Damage - Remoteness - Action against financial institution - Allegation that bank failed to ensure proper documentation in banking facilities - Defendant claiming to have suffered trauma - Absence of medical report - Whether there was negligence committed by bank - Whether negligence caused defendant to suffer loss and damages - Whether alleged trauma supported by any medical evidence EVIDENCE: Adverse inference - Failure to call material witness - Whether non-calling of important witnesses would attract invocation of adverse inference - Evidence Act 1950, s. 114(g) For the plaintiff - Nasrul Hadi Mat Saad; M/s Adnan Sharida & Associates For the 4th defendant - Budiah Kartika Che Kadir; M/s Faizan & Co
[2018] 1 LNS 270	SHARIFAH CHE SYED OMAR & YANG LAIN lwn. ALLMET CORPORATION SDN BHD & SATU LAGI TUAN TANAH DAN PENYEWA: Perjanjian sewa - Pengingkaran - Pengingkaran terma-terma perjanjian sewa dan perintah persetujuan oleh penyewa - Sewa tidak dibayar - Hak tuan tanah selepas pengingkaran penyewa - Sama ada penyewa telah mengingkari perintah persetujuan dan perjanjian sewa - Sama ada tuan tanah berhak untuk memasuki tanah dan mengambilalih milikan TUAN TANAH DAN PENYEWA: Perjanjian sewa - Penguatkuasaan - Perjanjian sewa beli ditandatangani atas surat kuasa wakil - Wakil yang menandatangani surat kuasa wakil telah meninggal dunia - Sama ada surat kuasa wakil berkuatkuasa lagi - Sama ada perjanjian sewa boleh diketepikan Bagi pihak plaintif-plaintif - V Selvaratnam; T/n V.Selva & Associates Bagi pihak defendan-defendan - Wan Koon Seng & Justin Devakumar; T/n Wan & Wan
[2018] 1 LNS 343	TEMURUN DINAMIK SDN BHD lwn. KERAJAAN MALAYSIA KONTRAK: Kontrak pembinaan - Perakuan muktamad - Penyediaan - Sama ada penyediaan perakuan muktamad memerlukan kehadiran kontraktor dan perunding bagi pemeriksaan tapak - Sama ada perakuan muktamad adalah sah dan benar PENTAFSIRAN BERKANUN: Pentafsiran statut - Pendekatan pentafsiran - Perlantikan saksi pakar - Aturan 40 dan 40A Kaedah-Kaedah Mahkamah 2012 ('KKM') - Sama ada kedua-dua A. 40 dan 40A KKM adalah berbeza - Sama ada A. 40 dan 40A KKM boleh dibacakan secara sesama - Sama ada pihak-pihak adalah bebas untuk memanggil mana-mana saksi pakar untuk memberikan keterangan dibawah A. 40A KKM - Sama ada Mahkamah masih mempunyai kuasa untuk menghadkan bilangan saksi pakar yang dipanggil oleh pihak-pihak yang bertelagah - Sama ada pemanggilan saksi pakar boleh dilakukan semasa perbicaraan dan sebelum perbicaraan dijalankan Bagi pihak perayu - Mohd Khainis Yussof; T/n Johar Othman & Helmy Bagi pihak responden - TPR Muhamad Yasser Mohd Nasri; Pejabat Penasihat Undang-undang

---

CLJ 2019 Volume 5 (Part 6)

Special Report

Public Inquiry Into The Disappearance Of Amri Che Mat
by Human Rights Commission Of Malaysia (SUHAKAM) [2019] 5 CLJ 713

• For the family of Amri Che Mat - M David Morais, Khabir Dillon, Raul Lee Bhaskaran & Larissa Ann Louis
• For SUHAKAM - Simon Karunagaram, Joshua Ericsson, Nur Adlin Abd Ghaffar & Yustina Ishak
• For the Bar Council - Roger Chan Weng Keng, Mansoor Saat & Cyrus Tiu Foo Woei
• For the police - SAC Dato' Moktar, SAC Dato' Azman, DSP Nuzulan, ASP Irwan & ASP Ismail 

FEDERAL COURT

Alma Nudo Atenza v. PP & Another Appeal
Richard Malanjum CJ, David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Balia Yusof Wahi, Alizatul Khair Osman, Rohana Yusuf, Tengku Maimun Tuan Mat, Abang Iskandar, Nallini Pathmanathan FCJJ
(Criminal Law; Constitutional Law - Constitutional validity of s. 37A of Dangerous Drugs Act 1952 with reference to arts. 5, 8 and 121 of Federal Constitution - Allowing usage of double presumptions to find possession as well as trafficking for charge) [2019] 5 CLJ 780 [FC]

• (Criminal Appeal No: 05-94-05-2017(B))
• For the appellant - Gopal Sri Ram, Srimurugan Alagan, Surjan Singh, R Kengadharan, Jamil Mohamed Shafie, Emily Wong, Magita Hari Mogan, Yasmeen Soh, How Li Nee, Nursyazwani Ilyana Iskandar Dzulkarnain, Hussein Akhtar, Sathiswaranji Samy; M/s Srimurugan & Co
• For the respondent - Nik Suhaimi Nik Sulaiman, Mohd Dusuki Mokhtar, Ku Hayati Ku Haron & Hamdan Hamzah; DPPs
• (Criminal Appeal No: 05-193-08-2017(W))
• For the appellant - Gopal Sri Ram, A Jeyaseelen, Rajpal Singh, Emily Wong, Magita Hari Mogan, Yasmeen Soh, How Li Nee; M/s Jeyaseelen & Co
• For the respondent - Nik Suhaimi Nik Sulaiman, Mohd Dusuki Mokhtar, Ku Hayati Ku Haron & Hamdan Hamzah; DPPs 

Clariant Masterbatches (M) Sdn Bhd v. Prestige Dynamics Industries Sdn Bhd
Ahmad Maarop CJ (Malaya), Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Jeffrey Tan FCJJ
(Contract; Sale Of Goods - Claim for damages arising from breach of condition - Whether buyer able to recover damages for any further and/or consequential loss arising out of buyer's own liability to third party) [2019] 5 CLJ 835 [FC]

• For the appellant - Ng Sai Yeang & Teoh Chye Yi; M/s Raja Darryl & Loh
• For the respondent - Cyrus Das, Karin Lim Ai Ching & Suppiah Arumugam; M/s Pregrave & Matthews 

HIGH COURT

Lee Ah Hah & Anor v. Teh Chin Lan & Ors
Mohd Radzi Harun JC
(Legal Profession - Application to bar legal firm from representing plaintiffs - Whether solicitor of legal firm took part actively in Extraordinary General Meeting of company - Whether legal firm ought to be disqualified) [2019] 5 CLJ 855 [HC]

• (Main Suit)
• For the plaintiffs - Faizul Hilmy Ahmad Zamri; M/s WY Chan & Roy
• For the 1st defendant - M/s Thevin Chandran (not present)
• For the 2nd, 4th & 5th defendants - KL Mah; M/s KS Su & Mah
• For the 3rd defendant - Cheah Sau Voon; M/s KH Wong, Chin & Cheah
• For the 6th defendant - Lee Boon Koon; M/s Owee & Ho
• (Counter-Claim)
• For the plaintiff - Lee Boon Koon; M/s Owee & Ho
• For the 1st & 2nd defendants - Faizul Hilmy Ahmad Zamri; M/s WY Chan & Roy
• For the 5th defendant - Norazli Nordin; M/s Maxwell, Kenion, Cowdy & Jones 

SUBJECT INDEX

CONSTITUTIONAL LAW

Fundamental liberties - Presumption of innocence - Right to fair trial and presumption of innocence under art. 5 of Federal Constitution ('FC') - Offence of trafficking in dangerous drugs - Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of Dangerous Drugs Act 1952 ('DDA') - Constitutional validity of s. 37A of DDA with reference to arts. 5, 8 and 121 of FC - Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible - Whether s. 37A offended requirement of fairness under arts. 5 and 8 of FC - Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality - Whether plain reading of s. 37(d) and (da) of DDA permit concurrent application of both presumptions in prosecution of drug trafficking offence - Whether s. 37A prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists - Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1) of FC
Alma Nudo Atenza v. PP & Another Appeal
(Richard Malanjum CJ, David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Balia Yusof Wahi, Alizatul Khair Osman, Rohana Yusuf, Tengku Maimun Tuan Mat, Abang Iskandar, Nallini Pathmanathan FCJJ) [2019] 5 CLJ 780 [FC]

Presumptions - Dangerous drugs - Offences - Constitutional validity of s. 37A of Dangerous Drugs Act 1952 ('DDA') with reference to arts. 5, 8 and 121 of Federal Constitution ('FC') - Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of Dangerous Drugs Act 1952 - Principle of separation of powers - Whether Parliament empowered only to make laws - Whether judicial power vested exclusively in courts - Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible - Whether s. 37A of DDA offended requirement of fairness under arts. 5 and 8 of FC - Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality - Whether statutory words 'deemed possession' under s. 37(d) could be equated to 'found possession' to invoke presumption of trafficking under s. 37(da) - Whether plain reading of s. 37(d) and (da) permit concurrent application of both presumptions in prosecution of drug trafficking offence - Whether s. 37A prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists - Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1)
Alma Nudo Atenza v. PP & Another Appeal
(Richard Malanjum CJ, David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Balia Yusof Wahi, Alizatul Khair Osman, Rohana Yusuf, Tengku Maimun Tuan Mat, Abang Iskandar, Nallini Pathmanathan FCJJ) [2019] 5 CLJ 780 [FC]

CONTRACT

Breach - Condition - Claim for damages arising from breach of condition - Seller supplied masterbatches to buyer - Condition stipulated that masterbatches shall not contain hazardous substance - Buyer placed series of orders before demanding for test report from seller - Discovery that masterbatches bought from seller and incorporated by buyer into third party's plastic products contained hazardous substance - Buyer paid compensation to third party and claimed for amount paid from seller in damages - Whether buyer waived any alleged breach of contract by supplier after making payment - Whether buyer able to recover damages for any further and/or consequential loss arising out of buyer's own liability to third party
Clariant Masterbatches (M) Sdn Bhd v. Prestige Dynamics Industries Sdn Bhd
(Ahmad Maarop CJ (Malaya), Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Jeffrey Tan FCJJ) [2019] 5 CLJ 835 [FC]

CRIMINAL LAW

Dangerous drugs - Trafficking - Presumption of - Constitutional validity of s. 37A of Dangerous Drugs Act 1952 ('DDA') with reference to arts. 5, 8 and 121 of Federal Constitution ('FC') - Allowing usage of double presumptions to find possession as well as trafficking for charge under s. 39B of DDA - Principle of separation of powers - Whether Parliament empowered only to make laws - Whether judicial power vested exclusively in courts - Whether using presumption of possession to invoke presumption of trafficking under s. 37 of DDA harsh, oppressive and impermissible - Whether s. 37A of DDA offended requirement of fairness under arts. 5 and 8 of FC - Whether right to fair trial and presumption of innocence under art. 5 may be qualified by reference to principle of proportionality - Whether statutory words 'deemed possession' under s. 37(d) of DDA could be equated to 'found possession' to invoke presumption of trafficking under s. 37(da) of DDA - Whether plain reading of s. 37(d) and (da) permit concurrent application of both presumptions in prosecution of drug trafficking offence - Whether s. 37A of DDA prima facie violated presumption of innocence since it permitted accused to be convicted while reasonable doubt exists - Whether s. 37A of DDA unconstitutional for violating arts. 5(1) read with art. 8(1) of FC - Whether convictions and sentences of accused persons quashed under s. 39B and substituted with convictions under s. 12(1) of DDA
Alma Nudo Atenza v. PP & Another Appeal
(Richard Malanjum CJ, David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Balia Yusof Wahi, Alizatul Khair Osman, Rohana Yusuf, Tengku Maimun Tuan Mat, Abang Iskandar, Nallini Pathmanathan FCJJ) [2019] 5 CLJ 780 [FC]

LEGAL PROFESSION

Practice of law - Practice and etiquette - Application to bar legal firm from representing plaintiffs - Whether solicitor of legal firm took part actively in Extraordinary General Meeting ('EGM') of company - Whether there were alleged wrongdoings by solicitor - Whether solicitor present at EGM on proxy of another individual - Whether solicitor not at EGM in capacity of partner of legal firm - Whether possibility of solicitor being called as witness for suit automatically triggered application of r. 28 of Legal Profession (Practice and Etiquette) Rules 1978 - Whether ethical restrictions for legal firm to appear for plaintiffs arose - Whether legal firm ought to be disqualified
Lee Ah Hah & Anor v. Teh Chin Lan & Ors
(Mohd Radzi Harun JC) [2019] 5 CLJ 855 [HC]

SALE OF GOODS

Damages - Claim for - Claim for damages arising from breach of condition - Seller supplied masterbatches to buyer - Condition stipulated that masterbatches shall not contain hazardous substance - Buyer placed series of orders before demanding for test report from seller - Discovery that masterbatches bought from seller and incorporated by buyer into third party's plastic products contained hazardous substance - Buyer paid compensation to third party and claimed for amount paid from seller in damages - Whether buyer waived any alleged breach of contract by supplier after making payment - Whether buyer able to recover damages for any further and/or consequential loss arising out of buyer's own liability to third party - Whether liability naturally arises in usual course of seller selling goods - Whether claim for damages ought to be allowed
Clariant Masterbatches (M) Sdn Bhd v. Prestige Dynamics Industries Sdn Bhd
(Ahmad Maarop CJ (Malaya), Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Jeffrey Tan FCJJ) [2019] 5 CLJ 835 [FC]

---

CLJ 2019 Volume 6 (Part 1)

FEDERAL COURT

PCP Construction Sdn Bhd v. Leap Modulation Sdn Bhd; Asian International Arbitration Centre (Intervener)
(Ramly Ali, Azahar Mohamed, Rohana Yusuf, Tengku Maimun Tuan Mat, Nallini Pathmanathan FCJJ)
(Civil Procedure - Committal proceedings - Contempt of court - Whether statements amounted to fair criticism) [2019] 6 CLJ 1 [FC]

• For the appellant - Tommy Thomas, Amarjeet Singh Serjit Singh, Alice Loke Yee Ching & Suzana Atan; SFCs
• For the respondents - Bastian Vendargon, Haniff Khatri, S Chandran & Joy Appukuthan; M/s S Chandran & Partners 

COURT OF APPEAL

Amanah Raya Bhd v. Ong Chin Hoo
Tengku Maimun Tuan Mat, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA
(Civil Procedure; Succession - Whether combination of various limbs of O. 18 r. 19(1) in one single application rendered application irregular and defective - Intestate estate - Whether beneficiaries lacked capacity to sell properties) [2019] 6 CLJ 41 [CA]

• For the appellant - Abdul Fareed Gafoor; M/s VM Mohan, Fareed & Co
• For the respondent - Zakiah Mohammed; M/s Gan Teik Chee & Ho 

Mohamad Nazarie Halidi v. PP & Another Appeal
Hamid Sultan Abu Backer, Abang Iskandar, Badariah Sahamid JJCA
(Criminal Procedure; Evidence - Murder - Whether trial judge considered evidence in totality - Whether motive established - Whether common intention proven - Expert evidence) [2019] 6 CLJ 61 [CA]

• For the 1st accused - CM Sundram; M/s CM Sundram & Co
• For the 2nd accused - Fung Lee Fook; M/s Fung Lee Fook Advocates
• For the respondent - Norinna Bahadun; DPP 

Ooi Cheng Cheng v. AXA Affin General Insurance Bhd
Hamid Sultan Abu Backer, Abang Iskandar, Mary Lim, Hamid Sultan Abu Backer JJCA
(Insurance - Policy - Repudiation of liability by insurer - Whether deceased covered by insurance policy) [2019] 6 CLJ 84 [CA]

• For the appellant - N Ahilan; M/s Ong & Assocs
• For the respondent - Gurmukh Singh; M/s Isharidah Ho Chong & Menon 

Sabah Land Development Board v. Teraju Hijau Sdn Bhd
Abdul Rahman Sebli, Kamardin Hashim, Kamaludin Md Said JJCA
(Contract - Agreement - Breach - Claim for payment due and outstanding - Whether there was breach of provisions of ss. 65 & 66 of Evidence Act 1950 - Whether plaintiff wrongfully assumed defendant repudiated agreement) [2019] 6 CLJ 97 [CA]

• For the appellant - Sugumar Balakrishnan & Coralee-Jane Harry Sibungkil; M/s JT Kulai & Co
• For the respondent - Chin Nyuk Kyeong & Alvin Leong Yin Yuan; M/s Chin Mirdin & Co 

HIGH COURT

Sivaraj Chandran v. Suruhanjaya Pilihan Raya Malaysia
Nordin Hassan J
(Administrative Law; Election; Words & Phrases - Judicial review - Application to quash decision - Whether decision adversely affected applicant - Whether decision final and disposed of applicant's right - Allegation of corrupt practice - 'knowledge and consent' - Election Offences Act 1954, s. 37(1)(a)(i)) [2019] 6 CLJ 121 [HC]

• For the applicant - Vasanthi Arumugam, Vasanthan Gopalan, Raja Sekaran, Noor Farazidah & Dinesh Kumasekar; M/s Vas & Co
• For the respondent - Suzana Atan, Narkunavathy Sundaresan & Azizan Arshad; SFCs 

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application to quash decision - Decision by Election Commission in letter signed by Chairman - Applicant no longer eligible to vote or stand for election for five years - Whether letter contained decision by a decision-maker - Whether decision adversely affected applicant - Whether decision final and disposed of applicant's right - Whether amenable to judicial review - Rules of Court 2012, O. 53 r. 2(4)
Sivaraj Chandran v. Suruhanjaya Pilihan Raya Malaysia
(Nordin Hassan J) [2019] 6 CLJ 121 [HC]

CIVIL PROCEDURE

Proceedings - Committal proceedings - Contempt of court - Scandalising contempt - Application by Attorney General against advocate and solicitor - Court of Appeal Judge made detrimental pronouncements in dissenting decision against party which was not party to litigation - Aggrieved party applied to intervene at Federal Court for expunction of portions of pronouncements made against it - Federal Court allowed intervention and expunction - Advocate and solicitor sent press release to online news portal - Press release contained statements pertaining to judicial conduct in hearing, disposal and decision of Federal Court in aggrieved party's application for intervention and expunction of parts of judgment - Online news portal published articles based on press release - Whether statements directed at Federal Court and Judiciary - Whether statements amounted to fair criticism - Whether press release sent by advocate and solicitor edited by online news portal - Whether statements calculated to bring administration of justice into disrepute and erode public confidence in Judiciary - Whether advocate and solicitor committed contempt - Rules of Court 2012, O. 52
PCP Construction Sdn Bhd v. Leap Modulation Sdn Bhd; Asian International Arbitration Centre (Intervener)
(Ramly Ali, Azahar Mohamed, Rohana Yusuf, Tengku Maimun Tuan Mat, Nallini Pathmanathan FCJJ) [2019] 6 CLJ 1 [FC]

Striking out - Application for - Combining three different limbs of O. 18 r. 19(1) of Rules of Court 2012 as paras (a) and/or (b) and/or (d) in one application - Whether para (a) cannot be combined with other limbs under O. 18 r. 19(1) - Whether combination of various limbs of O. 18 r. 19(1) in one single application rendered application irregular and defective
Amanah Raya Bhd v. Ong Chin Hoo
(Tengku Maimun Tuan Mat, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA) [2019] 6 CLJ 41 [CA]

CONTRACT

Agreement - Breach - Claim for payment due and outstanding - Allegation that defendant could not fulfil obligations under agreement - Whether plaintiff produced invoices to prove allegation that there was sum due and outstanding - Whether improbable for Judicial Commissioner to rely on oral testimony of witnesses - Whether Judicial Commissioner erred in reversing burden of proof from plaintiff to defendant in relation to alleged invoices - Whether defendant's duty to fill up gaps in plaintiff's case - Whether there was breach of provisions of ss. 65 & 66 of Evidence Act 1950 - Whether plaintiff wrongfully assumed defendant repudiated agreement - Whether plaintiff's election to accept purported repudiation invalid - Whether plaintiff failed to prove case on balance of probabilities - Whether plaintiff's claim on liquidated damages allowed
Sabah Land Development Board v. Teraju Hijau Sdn Bhd
(Abdul Rahman Sebli, Kamardin Hashim, Kamaludin Md Said JJCA) [2019] 6 CLJ 97 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Murder - Accused persons convicted and sentenced to death by hanging - Whether trial judge considered evidence in totality - Positive DNA match-up implicating accused persons - Whether direct evidence leading to irresistible conclusion of guilt of accused persons - Whether failure to uplift finger printing fatal - Whether presence of other persons' fingerprints negated involvement of accused persons - Whether suppression of material witness by prosecution established - Whether lack of proof of motive fatal to prosecution case - Whether common intention proven - Penal Code, ss. 34 & 302
Mohamad Nazarie Halidi v. PP & Another Appeal
(Hamid Sultan Abu Backer, Abang Iskandar, Badariah Sahamid JJCA) [2019] 6 CLJ 61 [CA]

ELECTION Petition - Allegation of corrupt practice - Report of Election Judge - Election Commission decided applicant no longer eligible to vote or stand for election for five years based on Election Judge's report - Whether report in accordance with s. 37(1) of Election Offences Act 1954 - Whether report showed that corrupt practice committed with knowledge and consent of applicant - Whether decision of Election Commission in accordance with law - Election Offences Act 1954, s. 37(1)(a)(i), (3)
Sivaraj Chandran v. Suruhanjaya Pilihan Raya Malaysia
(Nordin Hassan J) [2019] 6 CLJ 121 [HC]

EVIDENCE

Expert evidence - DNA profiling - Whether independent in nature - Positive DNA match-up implicating accused persons - Whether direct evidence leading to irresistible conclusion of guilt of accused persons - Whether trial judge considered evidence in totality
Mohamad Nazarie Halidi v. PP & Another Appeal
(Hamid Sultan Abu Backer, Abang Iskandar, Badariah Sahamid JJCA) [2019] 6 CLJ 61 [CA]

INSURANCE

Policy - Liability - Repudiation of liability by insurer - Deceased bought insurance policy for cancer - Deceased diagnosed with cancer and later passed away - Insurer repudiated claim for monies under policy by deceased's wife - Allegation that deceased's cancer started within three months after policy was incepted - Whether deceased knew of cancer when he bought insurance policy - Whether deceased covered by insurance policy - Whether deceased's wife entitled to monies claimed for under insurance policy - Whether insurer could repudiate claim and liability under insurance policy
Ooi Cheng Cheng v. AXA Affin General Insurance Bhd
(Hamid Sultan Abu Backer, Abang Iskandar, Mary Lim, Hamid Sultan Abu Backer JJCA) [2019] 6 CLJ 84 [CA]

SUCCESSION

Administration - Sale of properties - Intestate estate - Beneficiaries entered into sale and purchase agreement before grant of letters of administration - Whether valid transaction - Whether property vests in Amanah Raya Berhad until grant of letters of administration - Whether property will only vest in administrator after grant of letters of administration - Whether beneficiaries lacked capacity to sell properties - Probate and Administration Act 1959, ss. 39, 60(3) & (4) - National Land Code, s. 346
Amanah Raya Bhd v. Ong Chin Hoo
(Tengku Maimun Tuan Mat, Nallini Pathmanathan, Zabariah Mohd Yusof JJCA) [2019] 6 CLJ 41 [CA]

WORDS & PHRASES

'knowledge and consent' - Election Offences Act 1954, s. 37(1)(a)(i) - Whether word 'and' to be read conjunctively - Whether to be read as 'or' contrary to plain meaning of provision
Sivaraj Chandran v. Suruhanjaya Pilihan Raya Malaysia
(Nordin Hassan J) [2019] 6 CLJ 121 [HC]

---

LNS Article(s)

1. BARGAINING IN A BAZAAR?* ^{[Read excerpt]}
   by Trevor Padasian^[i] Nimalan Devaraja^[ii] [2019] 1 LNS(A) lxxix

[2019] 1 LNS(A) lxxix



MALAYSIA

---

BARGAINING IN A BAZAAR?*

by
Trevor Padasian^[i]
Nimalan Devaraja^[ii]

Trevor and Nimalan examine a landmark case on the appointment of a Chief Minister in Sabah.

THE ORIGINAL POLITICAL'TSUNAMI'

About 23 years before Malaysia's political tsunami at the 12th General Election, its eastern state of Sabah experienced its own political tsunami. A vigorously contested Sabah state election, held on 20 and 21 April 1985, resulted in the defeat of the ruling Berjaya Party ("Berjaya") by the fledgling Parti Bersatu Sabah ("PBS").

PBS, led by Datuk Joseph Pairin Kitingan (“Datuk Pairin”), secured 25 out of 48 elected seats in the State Legislative Assembly (“State Assembly”), handing a smackdown to Berjaya (which garnered only six seats) and United Sabah National Organisation (“USNO”) (16 seats). PBS was later joined by a candidate from an independent party, Parti Pasok. This was a significant milestone in Sabah’s political history as it was the first time that a party which was not part of the nation’s ruling coalition had earned the right to form the State Government.

. . .

*© 2015 Skrine. This Article was first published in Issue 1/2015 of Legal Insights, a Skrine Newsletter. Reproduced with permission of Skrine.

[i] Trevor is a Partner in SKRINE. His main practice areas are commercial litigation and bankruptcy and insolvency law.

[ii] Nimalan is an Associate in SKRINE. He graduated from King's College London in 2010.

---

Please subscribe to cljlaw or login for the full article.

2. THE MANY CHALLENGES FACING THE JURISPRUDENCE OF MAQASID (PART 2)* ^{[Read excerpt]}
   by AHMAD BADRI ABDULLAH [2019] 1 LNS(A) lxxvii

[2019] 1 LNS(A) lxxvii



MALAYSIA

---

THE MANY CHALLENGES FACING THE JURISPRUDENCE OF MAQASID (PART 2)*

by
AHMAD BADRI ABDULLAH

In addressing some practical challenges facing the current maqasid al-shariah discourse, some fundamental issues stand out. Like any other idealistic concept, maqasid as an abstract and general idea is facing the challenge of application or adoption in the practical sphere. One of them is that the reality is always complex, full of multiple contending factors and invariably seems to be not compatible with ideal values.

Therefore questions arise on how to operationalise abstract concepts such as maqasid in practical problems. This question also leads to another critical issue, that is how maqasid as a general principle could avoid subjective interpretations emanating from different perspectives, cultures, and individuals which will lead to misinterpretations and abuses.

. . .

* Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. (www.iais.org.my).

---

Please subscribe to cljlaw or login for the full article.

3. THE CONTINUED RELEVANCE OF INTERNATIONAL HUMANITARIAN LAW IN LIGHT OF NEW MEANS AND METHODS OF WARFARE ^{[Read excerpt]}
   by Dr. Chris Wigwe^[i] Ononye, I. U. Esq.^[ii] Okanyi, D. O. Esq.^[iii] Oguekwe, Adaeze Udeze Esq.^[iv] [2019] 1 LNS(A) lxxviii

[2019] 1 LNS(A) lxxviii



NIGERIA

---

THE CONTINUED RELEVANCE OF INTERNATIONAL HUMANITARIAN LAW IN LIGHT OF NEW MEANS AND METHODS OF WARFARE

by
Dr. Chris Wigwe^[i]
Ononye I. U. Esq.^[ii]
Okanyi D. O. Esq.^[iii]
Oguekwe Adaeze Udeze Esq.^[iv]


ABSTRACT

The relevance of International Humanitarian Law (IHL) has been under controversy. This is as a result of the complexly evolving nature of contemporary armed conflicts. The contemporary challenges facing IHL range from the classification of conflicts, to the new weapons of warfare, to civilians directly participating in warfare, to private military contractors, to the law of occupation as it relates to prolonged occupation, to non-state armed groups and terrorism among other issues. This study aims to critically analyse IHL rules and regulations to show their continued relevance or irrelevance in this era of new means and methods of warfare. The article will be laid out in sections, each section will appraise an issue of contemporary challenge and the response to address the issue. The article concludes that the relevance of International Humanitarian Law cannot be over-emphasised, the numerous challenges notwithstanding.

. . .

[i] Associate Professor and Associate Dean of Law, Rivers State University of Science & Technology, Port Harcourt.

[ii] LL.B, BL, LL.M (ARIZONA), PhD (USA) (IN VIEW); Lecturer, Nigerian Law School, Abuja.

[iii] LL.B, BL, LL.M (NIGERIA), Lecturer, Nigerian Law School Enugu Campus.

[iv] LL.B, BL, LL.M (LONDON), Associate, Oguekwe; Onyali & Co., Abuja.

---

Please subscribe to cljlaw or login for the full article.

CLJ Article(s)

1. TECHNOLOGY AND DELIVERY OF JUSTICE: WITH REFERENCE TO COURT RECORDING TRANSCRIPTION ^{[Read excerpt]}
   by PROFESSOR DATO' SRI DR ASHGAR ALI ALI MOHAMED* [2019] 6 CLJ(A) i

[2019] 6 CLJ(A) i



MALAYSIA

---

TECHNOLOGY AND DELIVERY OF JUSTICE:
WITH REFERENCE TO COURT RECORDING TRANSCRIPTION

by
PROFESSOR DATO' SRI DR ASHGAR ALI ALI MOHAMED*

Introduction

The main business of the Judiciary is to interpret and enforce the laws enacted by the Legislature including the Federal Constitution, State Constitutions and any other source of law recognised by the legal system.^[1] The courts perform their task in accordance with the oath taken by judges to uphold the Constitution and the enacted laws. 'The courts are the final arbiter between the individual and the State and between individuals inter se, and in performing their constitutional role, they must of necessity and strictly be in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional legislation or excesses in administrative action. If that role of the Judiciary is appreciated, then it will be seen that the courts have a duty to perform in accordance with the oath taken by judges to uphold the Constitution and act within the provisions of and in accordance with the law.'^[2] A judge must 'maintain the highest traditions of judicial rectitude, independence and impartiality.'^[3] He should have an open mind and should not be biased against the person whom the action is sought to be taken nor should he be someone who has prejudged the issues.

. . .

* Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia

---

Please subscribe to cljlaw or login for the full article.

Principal Acts

Amending Acts

PU(A)

PU(B)

Legislation Alert