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Issue #40/2019 03 October 2019

New This Week Case(s) of the Week MERCK SHARP & DOHME GROUP & ANOR v. HOVID BHD [2019] 9 CLJ 1 Latest Cases Legal Network Series CLJ 2019 Volume 9 (Part 1) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

MERCK SHARP & DOHME GROUP & ANOR v. HOVID BHD [2019] 9 CLJ 1
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; AHMAD MAAROP PCA; RAMLY ALI FCJ; MOHD ZAWAWI SALLEH FCJ; NALLINI PATHMANATHAN FCJ
[CIVIL APPLICATION NO: 02(f)-53-07-2018(W)]
21 AUGUST 2019

When an independent claim in an adjudication process is deemed to be invalid, it does not necessarily follow that all dependent claims which make reference to such independent claim will automatically fail. The invalidity notwithstanding, the trial court is still duty bound to consider the validity of dependent claims based on the merits of the respective claims (departing from its own decision in SKB Shutters Manufacturing Sdn Bhd v. Seng Kong Shutter Industries Sdn Bhd & Anor).

INTELLECTUAL PROPERTY: Patent - Invalidation of patent - Challenge as to validity - Whether adjudication of independent claim as invalid, automatically renders claims dependent on independent claim invalid - Decision in SKB Shutters Manufacturing Sdn Bhd v. Seng Kong Shutter Industries Sdn Bhd & Anor - Whether would be to shut out possibility of inventor's valid patent to be rightfully registered and protected - Whether court must consider validity of each and every dependent claim separately - Whether s. 56(3) of Patents Act 1983 envisages grant of declaration to preserve validity of some claims or parts of claim - Whether empowers court to order amendments of surviving claims - Patents Act 1983, ss. 56(3), 57(2) & 79A(3)

CIVIL PROCEDURE: Court - Federal Court - Power to depart from own previous decision - Whether decision in case sought to be overruled was wrong, uncertain, unjust, outmoded or obsolete in modern conditions - SKB Shutters Manufacturing Sdn Bhd v. Seng Kong Shutter Industries Sdn Bhd & Anor ('SKB Shutters') - Whether decision of SKB Shutters premised on incomplete consideration of law relating to invalidation of claim - Whether court should depart from ruling

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Legal Network Series

[2018] 1 LNS 155	LEE CHOW YEE lwn. PP PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Rayuan oleh pendakwaan - Rayuan terhadap hukuman penjara 2 tahun bagi kesalahan di bawah s. 8 Akta 1971 dan 4 tahun bagi kesalahan di bawah s. 8(a) Akta 1960 - Sama ada hukuman berbentuk deteran diperlukan - Sama ada hukuman yang dijatuhkan memadai Bagi pihak perayu - Perayu Hadir Sendiri Bagi pihak responden - Nur Nisla Abd Latif, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Perlis
[2018] 1 LNS 1311	NG HING LEE v. SAY KAM WAH & ORS CONTRACT: Loan - Friendly loan - Return of loan - Loan without interest and agreement - Defendants alleged money received was for purpose of a joint venture agreement - Defendants deposited several post-dated cheques with plaintiff - Whether payment of money to defendant was a friendly loan - Whether joint venture business existed as alleged by defendants - Whether cheques in plaintiff's possession were for purpose of repayment of loan granted by plaintiff TORT: Conspiracy - Conspiracy to defraud - Conspiracy to hold in trust property for benefit of defendants and to prevent recovery of debt - Defendants conspired fraudulently to carry out transfer of property - Whether defendants played an active role in facilitating transfer of property - Whether there was a common intention to defeat realisation of debts - Whether there was deliberate plan among defendants to effect an unlawful purpose and cause loss and damage to plaintiff For the plaintiff - Shanmugahanantha & Eric Johnson Crais; M/s SP Crais & Associates For the defendant - S Mohan & Nazeera Hanif; M/s KC Hur & Co
[2018] 1 LNS 1312	ANNANITHY R PERIASAMY v. SAYEEDA ALAGAN TRUSTS: Constructive trust - Existence of a trust - Common intention - Trust arrangement in respect of family assets - Deposits and instalment payment for property were paid solely by husband without any contribution by wife - Whether there was common intention for husband to keep and maintain children and family assets - Whether husband was sole beneficial owner of properties to exclusion of wife TRUSTS: Breach of trust - Constructive trust - Failure to return landed properties and motor vehicles held in trust - Wife agreed to hold properties for husband in trust - Whether wife had committed breach of trust by failing to return properties to husband after having deserted him and leaving matrimonial home - Whether wife could stake any claim to any property as matrimonial property - Whether wife had reneged on understanding to hold properties and vehicles in trust for husband For the plaintiff - R Prabakaran; M/s R Kengadharan & Co For the defendant - Shahreena Abu Bakar; M/s Shahreena Sidik & Partners
[2019] 1 LNS 7	CHIN HIN HELMET SDN BHD v. SSN MEDICAL PRODUCTS SDN BHD CIVIL PROCEDURE: Damages - Assessment of - Wrongful occupation - Assessment for whole premises - Certificate of fitness not issued to some part of premises - Whether some parts of building should be excluded from assessment - Whether court should adopt 'user principle' EVIDENCE: Expert evidence - Admissibility - Evidence of registered valuer - Issue of valuation - Witness gave his opinion on method of valuation of market and rental value by other valuer without preparing valuation report - Whether a report was necessary For the appellant/defendant - Chong Ian Shin; T/n Arulampalam & Co For the respondent/plaintiff - HL Teh; T/n H L Teh
[2019] 1 LNS 72	ROSE ACHIENG OJALA lwn. PP PROSEDUR JENAYAH: Rayuan - Rayuan terhadap sabitan dan hukuman - Kesalahan-kesalahan di bawah s. 39B(1)(a) & 12(2) Akta Dadah Berbahaya 1952 - Memiliki dan mengedar dadah berbahaya - Tertuduh dihukum mati mandatori dan 3 tahun penjara - Sama ada Tertuduh mempunyai pengetahuan mengenai dadah berbahaya - Sama ada pembelaan "duress" di bawah s. 94 Kanun Keseksaan memenuhi pra syarat undang-undang - Sama ada beban ke atas pembelaan adalah terlalu tinggi apabila Mahkamah memerlukan keterangan pembuktian menyokong pembelaan Bagi pihak perayu - T/n Fadhly Yaacob & Co Bagi pihak responden - Ahmad Sazilee Abdul Khairi & Mohd Zain Ibrahim, Timbalan Pendakwa Raya; Jabatan Peguam Negara

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CLJ 2019 Volume 9 (Part 1)

When an independent claim in an adjudication process is deemed to be invalid, it does not necessarily follow that all dependent claims which make reference to such independent claim will automatically fail. The invalidity notwithstanding, the trial court is still duty bound to consider the validity of dependent claims based on the merits of the respective claims (departing from its own decision in SKB Shutters Manufacturing Sdn Bhd v. Seng Kong Shutter Industries Sdn Bhd & Anor).
Merck Sharp & Dohme Group & Anor v. Hovid Bhd [2019] 9 CLJ 1 [FC]

• SUBJECT
• CORAM
• COUNSEL

The Minister of Human Resources, in dealing with a trade union complaint or dispute under s. 9(1A) of the Industrial Relations Act 1976, has no statutory duty to provide any reason for his decision or to produce the result of the investigation carried out by the Director-General of Industrial Relations (DGIR). Consequently, no order of certiorari would issue purely on account of the Minister’s failure to produce the DGIR’s report to the court.
Alliance Bank Malaysia Bhd v. Menteri Sumber Manusia, Malaysia & Ors [2019] 9 CLJ 52 [CA]

• SUBJECT
• CORAM
• COUNSEL

A police informer who plays a significant role in a drug sale transaction may assume the mantle of an agent provocateur; failure to call such informer as a witness may vitiate the prosecution’s case and stymie its effort to establish a prima facie case.
Heng Poh Kean v. PP & Other Appeals [2019] 9 CLJ 69 [CA]

• SUBJECT
• CORAM
• COUNSEL

Seseorang waris tidak mempunyai hak atau kepentingan ke atas suatu harta pusaka yang sedang ditadbir selagi pentadbiran pusaka tersebut belum selesai; dan jika si waris tersebut memeterai apa-apa transaksi bagi menjual harta pusaka tersebut sebelum penyelesaian dicapai, maka penjualan sedemikian adalah terbatal dan tidak boleh dikuatkuasakan.
Masor Shafiei & Yang Lain lwn. Abdul Rahman Suleiman & Satu Lagi [2019] 9 CLJ 83 [CA]

• SUBJECT
• CORAM
• COUNSEL

A judgment arrived at after a full hearing to determine a party’s liability to pay damages is to be treated as a final judgment and its finality is not subject to the conclusion of the assessment of damages. Assessment is merely a consequential process to determine quantum and the exact amount of the proceeds of the judgment.
Tuan Mat Tuan Ismail v. Tan Ah Hin & Ors [2019] 9 CLJ 104 [CA]

• SUBJECT
• CORAM
• COUNSEL

In a claim for losses arising from judicial sale by public auction, the chargee bank is not a vendor, and thus, no contractual relationship exists between a successful bidder and the chargee bank to sustain an action against the latter. The doctrine of caveat emptor, in any case, applies against the successful bidder in such a sale.
AIM Edition Sdn Bhd v. AmBank (M) Bhd [2019] 9 CLJ 127 [CA]

• SUBJECT
• CORAM
• COUNSEL

A breakdown in the relationship between shareholders in a quasi-partnership is sufficient to justify the winding-up of a company and the fact that it was a going concern cannot be a ground to refuse an order of winding-up; the lack of probity on the part of the respondents is irrelevant so long as the petitioner comes to court with clean hands.
Liew Then Song & Anor v. Percetakan Yelian Sdn Bhd & Anor [2019] 9 CLJ 139 [CA]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. CORROBORATION RULES IN MALAYSIA: A BRIEF REVIEW ON THE IMPACT OF THE SEXUAL OFFENCES AGAINST CHILDREN ACT 2017 ^{[Read excerpt]}
   by Mageswary Siva Subramaniam* Hashvini Rekha Pachappan** [2019] 1 LNS(A) cxviii

[2019] 1 LNS(A) cxviii



MALAYSIA

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CORROBORATION RULES IN MALAYSIA: A BRIEF REVIEW ON THE IMPACT OF THE SEXUAL OFFENCES AGAINST CHILDREN ACT 2017

by
Mageswary Siva Subramaniam*
Hashvini Rekha Pachappan**

Abstract

This paper reviews the impact of the Sexual Offences Against Children Act 2017 (SOACA 2017) on corroboration rules in Malaysia with particular reference to cases involving sexual offences against children. The primary objective of this paper is to assess the legal effect this new legislation has on corroboration rules in Malaysia and identify the ambiguities found within its provisions which may result in uncertainties in the application of the law.

I. Introduction to The Malaysian Sexual Offences Against Children Act 2017

The Sexual Offences Against Children Act 2017 (“the Act”) which came into force on 10th of July 2017 was introduced with the primary objective to protect children and received the bipartisan legislative support from all political parties in Malaysia.^[1] It was introduced in response to growing public awareness and alarm over cases involving the sexual abuse of children in Malaysia including the widely reported Richard Huckle’s case.^[2]

. . .

* Lecturer, Faculty of Law Multimedia University, Malaysia.

** Assistant Lecturer, Faculty of Law Multimedia University, Malaysia.

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2. DEALING WITH SHARIAH NON-COMPLIANT TRANSACTIONS IN ISLAMIC CONTRACTS* ^{[Read excerpt]}
   by MOHAMMAD MAHBUBI ALI [2019] 1 LNS(A) cxix

[2019] 1 LNS(A) cxix



MALAYSIA

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DEALING WITH SHARIAH NON-COMPLIANT TRANSACTIONS IN ISLAMIC CONTRACTS*

by
MOHAMMAD MAHBUBI ALI

Strengthening shariah governance is imperative to maintain the confidence of stakeholders and the public at large. Inadequate attention to the whole process of shariah compliance triggers negative repercussion to Islamic financial institutions (IFIs). However, ensuring shariah compliance is not a straightforward matter. Human error as well as poor governance, business processes and supporting systems; in addition to lack of awareness and understanding of shariah matters are among the factors that can trigger shariah non-compliant transactions in IFIs. From the regulatory perspective, no specific shariah guidelines have been made available so far in dealing with shariah non-compliant incidents within IFIs. This might lead, in turn, to a misperception that every shariah non-compliant transaction is null and void, and therefore all income derived from it is tainted and should be donated to charity. This brief article discusses the shariah methodology to deal with shariah noncompliant transaction in IFIs.

. . .

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

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3. LEGAL PROFESSIONAL PRIVILEGE SWORD OR SHIELD? ^{[Read excerpt]}
   by John Wilson* Kieran Pender** [2019] 1 LNS(A) cxx

[2019] 1 LNS(A) cxx



AUSTRALIA

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LEGAL PROFESSIONAL PRIVILEGE SWORD OR SHIELD?

by
John Wilson*
Kieran Pender**

Legal professional privilege is a venerable principle. With antecedents in 16^th century Elizabethan England, the concept – that there can be no compelled disclosure of communications between a client and their lawyer – remains a fundamental tenet of common law legal systems the world over. Nor is the principle unique to the Anglosphere: although the exact nature and tenor of the rule varies widely, almost every jurisdiction globally recognises some form of confidentiality in lawyer-client communication.

Truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much.^[1] Vice-Chancellor Knight Bruce

…Which makes it somewhat surprising that the principle is under attack.

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 251 March 2018.

** Managing Legal Director Bradley Allen love Canberra.

*** Legal Advisor International Bar Association London.

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