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16 June 2022
New This Week
CASE(S) OF THE WEEK
Once custody and control of the offensive drugs is proved, the trial judge in a drug trafficking case is left with no discretion not to invoke the presumption under s. 37(d) of the Dangerous Drugs Act 1952 (DDA), whereupon the onus of proof shifts to the accused to show, on the balance of probabilities, that he had no knowledge of the drugs and of the nature of the drugs; if the accused could prove, in rebuttal of the presumption, that he had no knowledge of the drugs on both counts, he would be acquitted outright of the trafficking charge despite being in physical possession of the drugs. On the contrary, any failure on the part of the accused to rebut the presumption of knowledge under s. 37(d) must mean that the presumed knowledge of the presence of the drugs and of the nature of the drugs became actual proof of the facts presumed; it became the truth that the appellant knew not only of the presence of the drugs but also that they were dangerous drugs. Notwithstanding, the trial judge, after having found the accused to have failed to rebut the presumption of knowledge under s. 37(d), is next compelled to invoke the further step of considering whether the accused's act of knowingly carrying or transporting the drugs was for the purpose of trafficking. The trial judge would have committed a serious error of law if he had proceeded to convict the accused without going through this separate exercise. It also goes that, for this separate exercise, the correct standard of proof to apply is the lighter evidential burden of casting a reasonable doubt in the prosecution case, and not the heavier burden of proving on the balance of probabilities, which is the standard required to rebut the presumption of trafficking under s. 37(da) of the DDA.
CRIMINAL PROCEDURE: Defence - Dangerous drugs - Accused person called to enter defence upon prove of prima facie case at end of prosecution case - Whether court followed procedure under s. 180 of Criminal Procedure Code - Whether accused to be informed reasons why defence called - Whether establishment of prima facie case obvious - Failure to state whether any presumption of law applies against accused person - Whether ipso facto rendered decision to call for defence flawed
CRIMINAL PROCEDURE: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Appeal against conviction and sentence - Trial judge invoked presumption under s. 37(d) of Dangerous Drugs Act 1952 - Accused person proven to have knowledge of presence of drugs in large amount in his custody and control - Whether presumption correctly invoked - Whether defence correctly called - Whether judge's failure to inform whether defence called on presumed trafficking or direct trafficking caused prejudice - Whether proffered plausible explanation for carrying of large amount of drugs - Whether blanket denial of knowledge of drugs - Whether burden of proof discharged - Dangerous Drugs Act 1952, ss. 37(d) & (da) - Criminal Procedure Code, ss. 180 & 182A
Sogit kampung and sogit mangsa, as an adat of the Kadazandusun of Penampang, are meant to appease the family of the victims in a misadventure or misfortune, and its parameters must remain finite as such and not be unnecessarily extended or magnified. It follows that for the appellants pedestrians herein, the fact that they have accepted and retained sogit kampung monies from the respondents after being hit by a vehicle driven by the first respondent and owned by the second respondent, were not restrained by law from filing an action claiming for damages against the latter. Conversely, for the respondents, payment of such monies cannot amount to 'accord and satisfaction' and cannot by itself discharge them from further liability.
ROAD TRAFFIC: Accident - Claim - Liability - Appeal against decision of Sessions Court Judge - Driver lost control of vehicle and ran onto pedestrians standing at roadside - Victims accepted 'sogit kampung' and 'sogit mangsa' - Adat or customary of Kadazandusun of Penampang - Whether intention of all parties that accident to be settled amicably between parties through payments of 'sogit' - Whether initial cash payments for medical expenses/treatments received and retained by victims showed intentions and agreements to discharge driver from further liability - Whether victims estopped from pursuing legal action
Legal Network Series
CLJ 2022 Volume 5 (Part 4)
The defence of fair comment revolves around comments or inferences honestly made and based on certain existing substratum of facts that are truly stated. The comment must identify at least in general terms the matters on which it is based. As so aptly attested by the facts and circumstances of the present case, the primary reasoning for the defence leverages on the desirability of affirming one's entitlement to freely express a view about a matter of public interest. Based on the evidence, the conclusion reached by the respondent that public funds had been misused is an opinion and inference that a fair-minded person would have honestly made in the circumstances; the respondent having not been motivated by malice, the defence of fair comment must avail him.
TORT: Defamation - Defence - Fair comment - Whether impugned statement opinion and inferences made from facts - Whether based on certain existing substratum of facts truly stated - Whether words complained of were comment - Whether comment matter of public interest - Whether comment was one which a fair minded person can make on facts proved - Whether there was proof of malice - Whether maker of impugned statement liable for damages for defamation
AZAHAR MOHAMED CJ (MALAYA)
Parliament's legislative power to enact laws with respect to 'medicine and health' includes the power to legislate on Islamic medicine and Malay traditional medicine. Both matters have a rational connection to the subject of 'medicine and health'. Hence, it is well within the realm of the Legislature's power of Parliament to enact the Traditional and Complementary Medicine Act 2016 in respect of Islamic medicine and Malay traditional medicine.
CONSTITUTIONAL LAW: Parliament - Powers and competency - Whether Parliament had powers and/or competency to enact provisions that regulates matters relating to Islamic medicine and Malay traditional medicine in Traditional and Complementary Medicine Act 2016 ('Act') - Whether provisions under Act on Islamic medicine and Malay traditional medicine valid - Whether Act ought to be passed with consent of Conference of Rulers - Doctrine of substance and pith
MOHD ZAWAWI SALLEH FCJ
The term 'adjudicated amount' in s. 30 of the Construction Industry Payment and Adjudication Act 2012 ('CIPAA') does not include interests and costs. If interests and costs were intended to be included within the meaning of 'adjudicated amount' in sub-ss. 30(1) and (3) of the CIPAA, express words to that effect would have been inserted in the subsections as the terms 'interest' and 'costs' were used in the other parts of the CIPAA.
CONSTRUCTION LAW | STATUTORY INTERPRETATION | WORDS AND PHRASES
CONSTRUCTION LAW: Adjudication decision - Application - Application by nominated sub-contractor - Adjudication decision in favour of sub-contractor against main contractor - Order for principal contractor to pay directly to sub-contractor amounts due and owing to sub-contractor by main contractor - Whether there was money due or payable by principal contractor to main contractor - Whether term 'adjudicated amount' includes interest and costs - Construction Industry Payment and Adjudication Act 2012, ss. 30 and 31 - Rules of Court 2012, O. 5, O. 7, O. 28, O. 69A and/or O. 92 ss. 4
STATUTORY INTERPRETATION: 'adjudicated amount' - Construction Industry Payment and Adjudication Act 2012, s. 30 - Whether 'adjudicated amount' includes interest and costs
WORDS AND PHRASES: 'adjudicated amount' - Construction Industry Payment and Adjudication Act 2012, s. 30 - Whether 'adjudicated amount' includes interest and costs
ALIZA SULAIMAN J
It is incumbent upon an applicant to prove beyond reasonable doubt that an alleged contemnor had wilfully or deliberately disobeyed a court order. A court order will not be enforced by committal if its terms are vague or ambiguous. Any ambiguity and uncertainty must be resolved in favour of the alleged contemnor.
CIVIL PROCEDURE: Committal proceedings - Application for - Payment of retained profits in company - Refusal to certify profits available for dividend distribution - Applicants obtained order to uplift and pay out sum held in deposit pursuant to consent order - Application to commit alleged contemnor to prison for contempt of court for alleged failure to comply with order - Whether alleged contemnor wilfully or deliberately disobeyed court order - Whether applicants proved beyond reasonable doubt that alleged contemnor committed contempt - Rules of Court 2012, O. 52 ss. 6(3)
LIZA CHAN SOW KENG JC
The law does not put a strict liability on the owner and principal of day-care centres and kindergartens. Although there exists a duty of care towards the children, such duty of care must commensurate with their opportunity and ability to protect the minors from dangers that are known or that should be apprehended. This duty is not one to insure against injury but to take reasonable care to prevent it.
TORT | EVIDENCE
TORT: Negligence - Claim - Claim by mother against kindergarten/day-care and owner/principal - Allegations that child sexually molested - Child/alleged victim not called to testify - Whether non-calling of child detrimental to claimant's case - Whether injury/incident had been proven - Whether injury/incident reasonably foreseeable - Whether kindergarten/day-care and owner/principal took reasonable steps to protect child/alleged victim against risks
EVIDENCE: Adverse inference - Non-calling of material witness - Claim by mother against kindergarten/day-care and owner/principal - Allegations that child sexually molested - Child/alleged victim not called to testify - Whether non-calling of child detrimental to claimant's case - Whether adverse inference ought to be invoked - Evidence Act 1950, s. 114(g)
AMELATI PARNELL JC
The customer's claim against the bank for unlawfully disclosing and providing copies of its bank statements to a third party without its consent or authority cannot possibly succeed as the bank statements are crucial for the ongoing suit in court. The protection, confidentiality and secrecy accorded to the customer by the Financial Services Act 2013, the Bankers' Books (Evidence) Act 1949 and the Personal Data Protection Act 2010 must be balanced with the court's interest to have before it all the relevant facts and information as would assist it to come to a just, well-informed and well-reasoned decision. The bank's duty of secrecy owed to the customer having been outweighed by the requirements of the Evidence Act 1950, the bank is legally obliged to disclose the relevant statements to the court.
BANKING: Banker and customer - Production of customer's bank accounts - Production by bank of customer's bank accounts during course of trial of suit - Bank served with subpoena to address question as to whether customer's account had sufficient funds - Whether bank wrongfully disclosed and provided customer's bank statements to third party without consent - Whether there was breach of relevant legislations - Whether bank complied with procedure prescribed by law to produce customer's account statements as documentary evidence - Whether there was breach of fiduciary duty - Failure to call material witness - Whether adverse inference invoked under s. 114(g) of Evidence Act 1950 - Whether bank's duty of secrecy outweighed by requirements of s. 132 of Evidence Act 1950 - Financial Services Act 2013, s. 133 - Personal Data Protection Act 2010, s. 7 - Bankers' Books (Evidence) Act 1949, s. 6
ONG CHEE KWAN JC
MAHKAMAH: Menghina mahkamah - Perintah pengkomitan - Ahli Parlimen - Mendakwa Mahkamah Syariah mendiskriminasi Wanita Muslim, membiar mereka tidak terbela dan tidak bertindak terhadap bapa-bapa yang tidak membayar nafkah anak - Sama ada bersifat menghina - Sama ada salah nyataan dan tidak berdasarkan fakta sebenar - Sama ada menjejaskan reputasi dan martabat Mahkamah Syariah - Sama ada mewajarkan perintah pengkomitan - Akta Tatacara Mal Mahkamah Syariah (Wilayah-wilayah Persekutuan) 1998, s. 229(3)
MOHAMED FOUZI MOKHTAR HS