Back to Top

Print this page

Issue #4/2019 24 January 2019

New This Week Case(s) of the Week KONSORTIUM LORD-SABERKAT SDN BHD v. RP CHEMICALS (MALAYSIA) SDN BHD & ANOTHER APPEAL [2019] 1 CLJ 728 Latest Cases Legal Network Series CLJ 2019 Volume 1 (Part 6) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

KONSORTIUM LORD-SABERKAT SDN BHD v.
RP CHEMICALS (MALAYSIA) SDN BHD & ANOTHER APPEAL [2019] 1 CLJ 728
COURT OF APPEAL, PUTRAJAYA
IDRUS HARUN JCA, SURAYA OTHMAN JCA, STEPHEN CHUNG JCA
[CIVIL APPEALS NO: W-02(NCVC)(W)-2391-11-2017 & W-02(NCVC)(W)-2392-11-2017]
07 NOVEMBER 2018

ARBITRATION: Award – Setting aside – Application for – Parties entered into agreement for transport services (‘TSA’) and trust deed – Disputes arose due to appellant’s failure to return trailers to respondent – Appellant claimed for payment for outstanding charges, balance of goodwill and for maintenance of trailers – Appellant dissatisfied with final award handed down by arbitrator – Whether appellant restricted or prevented from enforcing rights under TSA – Whether limitation an issue – Deregistration and asset transfer of trailers took place 27 months after expiry of TSA – Whether appellant complied with terms of offer for balance of goodwill payment – Appellant required to maintain trailers in roadworthy conditions before delivering them to respondent – Whether appellant entitled to maintenance costs – Whether reasonable to impose liability on respondent for loss of profit and depreciation – Arbitration Act 2005, ss. 37 & 42

---

Legal Network Series

[2017] 1 LNS 1783	ZULKUFLI MUHD GADE v. PP CRIMINAL LAW: Control of Drugs and Cosmetics Regulations 1984 - Regulation 7(1)(a), 30(1) - Possession of unregistered products and drinks suspected to contain drugs - Absence of chemical analysis on products seized - Whether chemical analysis or chemist report was necessary in order to prove charges - Whether analyst certificate could serve as prima facie evidence - Whether seized products were herbal or traditional products CRIMINAL PROCEDURE: Prosecution - Break in chain of evidence - Exhibits not tendered in Portable Document Format ('PDF') - Whether there was break in chain of evidence CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Power of appellate court - Power to vary mode of payment - Offence under reg 7(1)(a), 30(1) of Control of Drugs and Cosmetics Regulations 1984 - Trial judge imposed fine of RM10,000.00 in default 6 months imprisonment for each charge - Whether appellate court could direct payment of fine to be made by way of instalments - Whether powers of appellate court extends to altering nature of sentence which would include a fine - Whether fine imposed by trial judge was excessive  For the appellant - Hazza Khalid, Nurul Hidayah Basiran & Iskandar Shah Ibrahim; M/s Hazza Khalid Suraya & Partners  For the respondent - Nur Iffa Zarilla Abd Rahman, TPR; Jabatan Peguam Negara
[2017] 1 LNS 1809	VY PLUMBING CONSTRUCTION SDN BHD v. PEMBINAAN LEGENDA UNGGUL SDN BHD & ORS COMPANY LAW: Separate legal entity - Action against company - Cause of action premised on fraud and conspiracy - Directors acted fraudulently to carry out business of company in a manner intended to defraud its creditors - Company operating through officers - Whether companies are separate legal entities from their directors and officers - Whether company could function independently on their own without acts and conduct of directors - Whether company has its own legal personality - Whether company could have committed actual fraud or conspiracy to defraud COMPANY LAW: Separate legal entity - Action against former directors - Absence of guarantee by former directors to pay any debts of company - Whether former directors of company could be adjudged for debt or liabilities of company - Whether plaintiff's claim sustainable CONTRACT: Claim for work done - Letter of award - Mere reliance on progress claims that have yet to be certified as due for payment - Whether existence of debt proven  For the plaintiff - Rajinder Singh; M/s Rajinder & Goh  For the 1st defendant - Micheal Koh & Wilson Ho; M/s Azman Davidson & Co  For the 2nd defendant - Steven Seah; M/s PY Hoh & Tai  For the 3rd to 6th defendants - Amran Aminuddin; M/s Hanif Idris & Associates
[2017] 1 LNS 1817	AMRATH KAUR MALKEET SINGH v. AJITPAL SINGH DHILLON EVIDENCE: Fresh or further evidence - Admissibility - Defendant attempting to tender fresh evidence on date of decision - Evidence to be filed 10 days before commencement of trial - Whether O. 38 r. 5 of Rules of Court 2012 should be interpreted strictly FAMILY LAW: Children - Custody - Child of tender age - Plaintiff wife's application for sole custody, care and control of the children - Whether mother entitled to custody of child during nurturing period - Whether paramount consideration in determining custody is child's welfare - Whether presumption under s. 88(3) of Law Reform (Marriage & Divorce) 1976 had been rebutted - Whether there must be stability, continuity and objectivity in life of children in their growing and nurturing years  For the plaintiff wife - Vicnesvary Alahakone & Kausalya Ponnusamy; M/s Alahakone & Associates  For the defendant husband - Kashwinder Singh & Sukhdev Singh; M/s Kesh, Dave & Partners
[2017] 1 LNS 928	BABU ADIAH & SATU LAGI lwn. PP PROSEDUR JENAYAH: Pendakwaan - Kes pendakwaan - Pembuktian prima facie - Kesalahan di bawah s. 135(1)(e) Akta Kastam 1967 ('Akta 1967') - Barang-barang larangan - Ketiadaan bukti bahawa barang-barang yang diangkut oleh tertuduh adalah barang-barang larangan - Ketiadaan keterangan daripada pihak kastam yang mengesahkan bahawa barang-barang yang diangkut tertuduh adalah barang-barang larangan - Sama ada pihak pendakwaan telah gagal membuktikan elemen-elemen s. 135(1)(e) Akta 1967 - Sama ada kes prima facie telah dibuktikan PROSEDUR JENAYAH: Rayuan - Rayuan terhadap sabitan - Kekhilafan hakim bicara - Kesalahan di bawah s. 135(1)(e) Akta Kastam 1967 - Hakim bicara menyatakan hanya dua elemen sahaja perlu dibuktikan oleh pihak pendakwaan - Niat tertuduh tidak dibuktikan pihak pendakwaan - Sama ada hakim bicara telah tersalah arah - Sama ada ketinggalan hakim bicara untuk menimbang persoalan niat telah menyebabkan salah laksana keadilan - Sama ada s. 422 Kanun Tatacara Jenayah terpakai UNDANG-UNDANG JENAYAH: Akta Kastam 1967 - Seksyen 135(1)(e) - Niat - Sama ada elemen-elemen di bawah s. 135(1)(e) telah dibuktikan - Sama ada elemen niat untuk menipu kerajaan berkenaan duti perlu dibuktikan  Bagi pihak perayu pertama & perayu kedua - Mohd Razak Sharif; T/n MR Sharif & Co  Bagi pihak responden - Muhammad Shukri Hussain, Timbalan Pendakwa Raya
[2017] 1 LNS 1743	TAN KEH AN & YANG LAIN lwn. ENDOK SELOK HJ LAUNGENG & YANG LAIN & KES LAIN TORT: Pencerobohan - Pencerobohan atas tanah - Penyandaran kepada pelan akui baru berkenaan ukuran sempadan baru yang belum diluluskan oleh pentadbir tanah - Ketiadaan hakmilik yang muktamad - Dakwaan pencerobohan berlaku berikutan perubahan sempadan ke atas hakmilik - Sama ada pelan terakhir masih lagi merupakan pelan yang sah dan muktamad yang perlu dipatuhi oleh pihak-pihak - Sama ada kawasan plaintif telah diceroboh - Sama ada pencerobohan telah dibuktikan  Bagi pihak plaintif - Amrik Singh; T/n Sing, Lim & Low  Bagi pihak defendan - Meachery Jo-Anne Joseph; T/n Raman Velu & Co

 

---

CLJ 2019 Volume 1 (Part 6)

FEDERAL COURT

Seni Jaya Sdn Bhd & Anor v. Dato' Hj Ahmad Tarmizi Hj Puteh & Anor
Ahmad Maarop PCA, David Wong Dak Wah CJ (Sabah & Sarawak), Zainun Ali, Balia Yusof Wahi, Mohd Zawawi Salleh FCJJ
(Contract - Agreement - Breach - Whether there was concluded contract between parties) [2019] 1 CLJ 713 [FC]

 For the 1st & 2nd appellants - Muhammad Shafee Abdullah, Sarah Abishegam & Wee Yeong Kang; M/s Shafee & Co
 For the 2nd respondent - Cyrus V Das, Kamaruzaman M Arif & Sofiah Omar; M/s Kamaruzaman Arif, Amran & Chong 

COURT OF APPEAL

Konsortium Lord-Saberkat Sdn Bhd v. RP Chemicals (Malaysia) Sdn Bhd & Another Appeal
Idrus Harun, Suraya Othman, Stephen Chung JJCA
(Arbitration - Award - Setting aside - Whether reasonable to impose liability for loss of profit and depreciation) [2019] 1 CLJ 728 [CA]

 For the appellant - Ben Chan Chong Choon & Chin Yu Yen; M/s Megat Najmuddin Leong & Co
 For the respondent - Vijay Raj Balasupramaniam & Tan Hui Wen; M/s Skrine

Noordin Sadakathullah & Ors v. PP
Mohd Zawawi Salleh, Idrus Harun, Kamardin Hashim JJCA
(Criminal Law; Administrative Law - Corruption - Public servants - Whether gratification presumed to have been corruptly obtained as inducement) [2019] 1 CLJ 748 [CA]

 For the prosecution - Wong Poi Yoke; DPP
 For the appellant - MM Athimulan; M/s Athimulan & Co

PP v. Kumar Amir
Abdul Rahman Sebli, Rhodzariah Bujang, Kamaludin Md Said JJCA
(Criminal Procedure; Evidence - Prosecution - Break in chain of evidence - Whether led to reasonable doubt as to identity of exhibits) [2019] 1 CLJ 773 [CA]

 For the prosecution - Mohd Zain Ibrahim; DPP
 For the respondent - Satinder Singh Sandhu & M Isayyem Azim; M/s Sandhu & Co Advocs 

HIGH COURT

Malayan Banking Bhd v. Punjab National Bank
Noorin Badaruddin J
(Banking - Banks and banking business - Letter of credit - Whether bank bound to honour obligation) [2019] 1 CLJ 788 [HC]

 For the plaintiff - Mong Chung Seng & Chia Oh Sheng; M/s Lee Hishammuddin Allen & Gledhill
 For the defendants - T Gunaseelan & Keshvinjeet Singh Sidhu; M/s Gunaseelan & Assocs 

Ng Chong Hwa v. PP
Collin Lawrence Sequerah J
(Criminal Procedure - Bail - Application for - Whether ought to be allowed) [2019] 1 CLJ 823 [HC]

 For the respondent - Ashraf Kamarul, Nik Syahril Nik Ab Rahman; DPPs
 For the applicant - Tan Hock Chuan, Natalie Tan & Cains Tan; M/s Tan Hock Chuan & Co 

SUBJECT INDEX

ADMINISTRATIVE LAW

Public servants - Corruption - Corruptly accepting and obtaining gratification - Malaysian Anti-Corruption Commission Act 2009, s. 17(a) - Whether police officers agents of Government of Malaysia - Whether gratification presumed to have been corruptly obtained as inducement - Arrests made of suspects involved in theft of motor lorry - Whether police officers received RM10,000 to secure release of suspects - Failure to make arrest report - Whether clearly showed intention to conceal obtainment of bribe money - Late disclosure of police diary as evidence - Whether ought to be treated as afterthought defence - Whether testimony of interested witness fabricated and ought to be rejected - Whether police officers failed to rebut presumption under s. 50(1) of Malaysian Anti-Corruption Commission Act 2009
Noordin Sadakathullah & Ors v. PP
(Mohd Zawawi Salleh, Idrus Harun, Kamardin Hashim JJCA) [2019] 1 CLJ 748 [CA]

ARBITRATION

Award - Setting aside - Application for - Parties entered into agreement for transport services ('TSA') and trust deed - Disputes arose due to appellant's failure to return trailers to respondent - Appellant claimed for payment for outstanding charges, balance of goodwill and for maintenance of trailers - Appellant dissatisfied with final award handed down by arbitrator - Whether appellant restricted or prevented from enforcing rights under TSA - Whether limitation an issue - Deregistration and asset transfer of trailers took place 27 months after expiry of TSA - Whether appellant complied with terms of offer for balance of goodwill payment - Appellant required to maintain trailers in roadworthy conditions before delivering them to respondent - Whether appellant entitled to maintenance costs - Whether reasonable to impose liability on respondent for loss of profit and depreciation - Arbitration Act 2005, ss. 37 & 42
Konsortium Lord-Saberkat Sdn Bhd v. RP Chemicals (Malaysia) Sdn Bhd & Another Appeal
(Idrus Harun, Suraya Othman, Stephen Chung JJCA) [2019] 1 CLJ 728 [CA]

BANKING

Banks and banking business - Letter of credit - Issuance of letter of credit ('LC') by plaintiff bank in favour of beneficiary - Defendant bank irrevocably undertook to pay and reimburse on maturity date of LC - Beneficiary required to present certain documents to obtain payment under LC - Whether documents complied with terms of LC - Allegation of discrepancy in documents - Whether defendant bank absolved from reimbursing plaintiff bank on grounds of discrepancy - Whether defendant bank gave valid notice of refusal - Whether given within prescribed time - Whether defendant bank bound to honour obligation
Malayan Banking Bhd v. Punjab National Bank
(Noorin Badaruddin J) [2019] 1 CLJ 788 [HC]

CONTRACT

Agreement - Breach - Agreement with media operators for billboard sites - Billboard advertisement scheme - Allegation by tenderer that there was breach of alleged agreement by town council to privatise to tenderer exclusive right to manage and operate all outdoor advertising sites in city - Allegations made based on letter - Whether letter signified concluded contract - Whether there was clear and definite offer and absolute and unqualified acceptance - Whether payments made evidence of concluded contract - Whether there was concluded contract between parties - Contracts Act 1950, s. 7
Seni Jaya Sdn Bhd & Anor v. Dato' Hj Ahmad Tarmizi Hj Puteh & Anor
(Ahmad Maarop PCA, David Wong Dak Wah CJ (Sabah & Sarawak), Zainun Ali, Balia Yusof Wahi, Mohd Zawawi Salleh FCJJ) [2019] 1 CLJ 713 [FC]

CRIMINAL LAW

Corruption - Corruptly accepting and obtaining gratification - Malaysian Anti-Corruption Commission Act 2009, s. 17(a) - Whether police officers agents of Government of Malaysia - Whether gratification presumed to have been corruptly obtained as inducement - Arrests made of suspects involved in theft of motor lorry - Whether police officers received RM10,000 to secure release of suspects - Failure to make arrest report - Whether clearly showed intention to conceal obtainment of bribe money - Late disclosure of police diary as evidence - Whether ought to be treated as afterthought defence - Whether testimony of interested witness fabricated and ought to be rejected - Whether police officers failed to rebut presumption under s. 50(1) of Malaysian Anti-Corruption Commission Act 2009
Noordin Sadakathullah & Ors v. PP
(Mohd Zawawi Salleh, Idrus Harun, Kamardin Hashim JJCA) [2019] 1 CLJ 748 [CA]

CRIMINAL PROCEDURE

Bail - Application for - Applicant arrested by Malaysian police based on warrant of arrest requested by United States of America - Magistrate ordered applicant to be remanded for 60 days pending extradition proceedings at Sessions Court - Application to be released on bail pending disposal of extradition proceedings at Sessions Court - Whether applicant posed flight risk - Whether applicant denied access to counsel - Whether remand period of 60 days too long and oppressive - Whether application ought to be allowed
Ng Chong Hwa v. PP
(Collin Lawrence Sequerah J) [2019] 1 CLJ 823 [HC]

Prosecution - Gap in evidence - Charge under s. 39B(1)(a) of the Dangerous Drugs Act 1952 - Discrepancies in weight of drug exhibit as stated by customs officer and chemist - Whether sufficient explanation given for discrepancies - Whether created serious gap in evidence - Whether led to reasonable doubt as to identity of drug exhibits
PP v. Kumar Amir
(Abdul Rahman Sebli, Rhodzariah Bujang, Kamaludin Md Said JJCA) [2019] 1 CLJ 773 [CA]

EVIDENCE

Exhibits - Break in chain of evidence - Charge under s. 39B(1)(a) of the Dangerous Drugs Act 1952 - Discrepancies in weight of drug exhibit as stated by customs officer and chemist - Whether sufficient explanation given for discrepancies - Whether created serious gap in evidence - Whether led to reasonable doubt as to identity of drug exhibits
PP v. Kumar Amir
(Abdul Rahman Sebli, Rhodzariah Bujang, Kamaludin Md Said JJCA) [2019] 1 CLJ 773 [CA]

---

LNS Article(s)

1. MALAYSIA'S GREEN SUKUK* ^{[Read excerpt]}
   by MAHBUBI ALI [2019] 1 LNS(A) x

[2019] 1 LNS(A) x



MALAYSIA

---

MALAYSIA'S GREEN SUKUK*

by
MAHBUBI ALI

Environmental preservation has been over the last few years the focus of renewed investors' attention, evidenced by the growing interest toward socially responsible investment (SRI) instruments. Green sukuk, a Shariah compliant SRI instrument for renewable energy and other environmental sustainability projects, is an important and commendable initiative.

Malaysia, being a home to the world’s largest sukuk market, pioneered the issuance of green sukuk. On 27th July 2017 the Securities Commission (SC) of Malaysia announced the inaugural debut of the worlds’ first green sukuk under its SRI sukuk framework. This historical milestone is the result of a joint effort between SC Malaysia, Bank Negara Malaysia and the World Bank Group to facilitate the development of green financing and to increase investors’ greater participation in SRI sukuk.

. . .

* 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.

2. HARNESSING THE NEW LEGAL PLURALISM AND 'SATU MALAYSIA' POLICYAS INSTRUMENTS FOR FOSTERING UNITY IN MALAYSIA ^{[Read excerpt]}
   by M. K. Imam-Tamim^[i] Najibah Mohd Zin^[ii] Norliah Ibrahim^[iii] [2019] 1 LNS(A) xi

[2019] 1 LNS(A) xi



MALAYSIA

---

HARNESSING THE NEW LEGAL PLURALISM AND 'SATU MALAYSIA' POLICY
AS INSTRUMENTS FOR FOSTERING UNITY IN MALAYSIA

by
M. K. Imam-Tamim^[i]
Najibah Mohd Zin^[ii]
Norliah Ibrahim^[iii]

Abstract

Malaysia is legally pluralistic country as it is inhabited by peoples of diverse socio-cultural and racial backgrounds. After its independence, successive Malaysian governments have been making several efforts to unite its citizens - comprising the Malays, Chinese and Indians. The unity of Malaysia has been challenged at several times due to allegations that the government and the citizens fail to adequately manage the plurality of laws and cultures in the country. Successive governments have thus put in place various policies to help foster unity in the country. Nevertheless, the citizens have treated these efforts with suspicion. One of such efforts is the "satu Malaysia" policy of the current government. This paper, therefore, intends to examine the basis of the 'satu Malaysia' concept, its relationship with the concept of legal pluralism and show how both of these socio-economic and legal concepts can be harnessed to foster trust and unity amongst Malaysians. This paper will add to the existing contributions on law, peace and development in Malaysia. The paper adopts the qualitative research methodology by engaging in documentary content analysis of various primary and secondary sources of literature on law and social policy in Malaysia. This paper finds that legal pluralism and the 'satu Malaysia' policy, if properly harnessed, can be used to improve on mutual trust and unity among the various groups in Malaysia.

. . .

[i] Corresponding Author, PhD, Lecturer at Law, Department of Islamic Law, Faculty of Law, University of Ilorin. Email: lawyertamim@gmail.com.

[ii] Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia.

[iii] Associate Professor, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia.

---

Please subscribe to cljlaw or login for the full article.

3. TELECOMMUNICATION BUSINESS IN NIGERIA AND THE NEED FOR LEGISLATIVE INTERVENTION ^{[Read excerpt]}
   by ADEOLA OLUFUNKE KEHINDE* [2019] 1 LNS(A) xii

[2019] 1 LNS(A) xii



NIGERIA

---

TELECOMMUNICATION BUSINESS IN NIGERIA AND THE NEED FOR LEGISLATIVE INTERVENTION

by
ADEOLA OLUFUNKE KEHINDE*

Abstract

In the last two decades of mobile telecommunication business in Nigeria, academic efforts have been concentrated on the positive impacts of the industry on the nation's economy. Little attention has, however, been paid to the adverse effects of the industry's activities on the citizens. It is against this backdrop that this paper seeks to investigate some of the challenges that Nigerians face resulting from the activities of mobile telecommunication companies in Nigeria. The data used in the paper are drawn from the extant literature, reports of surveys, and questionnaires from selected states of the federation. The data are subjected to in-depth analysis. The findings revealed that most of the machines and facilities that are used by the companies in the industry pose environmental and health threats to the citizens. It was also found that these challenges appear to have persisted because of a legislative gap to adequately regulate the affairs of the industry. The paper concludes with some recommendations that could ensure that the country and its citizens have an all-around beneficial mobile telecommunication business.

. . .

* PhD, Lecturer, Department of Private and Business Law, Faculty of Law, Ajayi Crowther University, Oyo, Oyo State Nigeria. Email: princessadeola2000@gmail.com.

---

Please subscribe to cljlaw or login for the full article.

Principal Acts

Amending Acts

PU(A)

PU(B)

Legislation Alert