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[2018] MYCA 192Court of Appeal

Suit Number: Civil Appeal No. C-02-(NCVC)(W)-1528-07/2017  Date of Judgment: 21 June 2018

Contracts & commercial – Building contract – Non-completion of works by the plaintiff contractor within the stipulated time – Termination by the defendant – Certification of termination – Claim by the plaintiff for payments for completed works – Dispute on the percentage of completed works

Construction & engineering – Building contract – Dispute on the percentage of completed works – Burden under sections 102 and 103 of the Evidence Act 1950 to prove the percentage of completion – Whether the calculation for the plaintiff’s claim for payments for completed works based on measurement done on site – Whether the plaintiff had failed to discharge the burden of proof on the balance of probabilities

Contracts & commercial – Building contract – Whether the defendant can claim Liquidated and Ascertained Damages (LAD) – Whether there was sufficient notice to the plaintiff on the defendant’s intention to claim LAD

[2018] MYCA 190Court of Appeal

Suit Number: Criminal Appeal No. B-05(M)-436-11/2016 (NGA)  Date of Judgment: 12 June 2018

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal – Whether the conviction safe

Criminal law – Whether the trial court had erred in law and in fact in failing to give due consideration to the defence of Innocent Carrier mounted by the appellant – Whether the trial court had erred in law and in fact in giving unsuitable emphasis on the qualifier of Wilful Blindness – Whether the trial court erred in law and in fact in rejecting the evidence of the appellant’s good character

[2018] MYCA 189Court of Appeal

Suit Number: Rayuan Jenayah Nos. P-05(M)-73-02/2017 & P-05(M)-75-02/2017  Date of Judgment: 07 June 2018

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal

Criminal law – Whether the appellants had exclusive possession of the car in which the impugned drugs were discovered – Whether the trial court failed to appreciate the defence of the appellants – Whether the evidence of a police officer ought to have been rejected as it was contradictory

[2018] MYCA 188Court of Appeal

Suit Number: Rayuan Sivil Nos. P-02(NCVC)(W)-1384-08/2015, P-02(NCVC)(W)-1385-08/2015, P-02(NCVC)(W)-1401-08/2015 & P-02(NCVC)(IM)-290-02/2016   Date of Judgment: 23 May 2018

Tort – Negligence – Duty of care owed by medical doctors to patients – Failure to obtain an informed consent from the patient’s father before surgery – Failure to request the hospital to supply requisite facilities for the surgery – Performance of spinal surgery without requisite facilities – Whether amounts to breach of duty – Liability – Damages – Quantum of damages

Tort – Negligence by medical doctors – Vicarious liability of a hospital for tortious conduct or clinical negligence of medical doctors – Whether the doctors independent contractors or agents or employees of the hospital – Liability of hospital under the doctrine of non-delegable duty of care

[2018] MYCA 186Court of Appeal

Suit Number: Criminal Appeal No. S-05(M)-104-02/2017   Date of Judgment: 08 June 2018

Criminal law – Murder – Conviction – Death sentence – Appeal

Criminal law – Whether the trial court failed to sufficiently consider the appellant’s defence in particular the defence as stated in his cautioned statement – Whether such failure deprived the appellant of his right under section 182A(1) of the Criminal Procedure Code – Whether the trial court ought to have invoked adverse inference under section 114(g) of the Evidence Act 1950 for the prosecution’s failure to call a material witness to testify or offer him to the defence

Criminal law – Defence of sudden and grave provocation – Test – Elements to be established for provocation to be raised in defence to a charge of murder – Whether the defence open to the appellant

[2018] MYCA 185Court of Appeal

Suit Number: Civil Appeal No. B-02(NCVC)(W)-1125-06/2017  Date of Judgment: 28 May 2018

Contracts & commercial – Sale and purchase agreement for transfer of property – Restriction in interest in that transfer of title could only be effected with the consent of the State Authority – Whether the agreement automatically becomes null and void – Whether the agreement not binding on the parties owing to mutual mistake of fact – Notice of termination of the agreement – Whether the notice of termination valid and enforceable – Whether the agreement validly terminated – Whether specific performance should be granted

[2018] MYCA 184Court of Appeal

Suit Number: Rayuan Jenayah No. B-05(M)-443-12/2016  Date of Judgment: 06 June 2018

Criminal law – Murder – Conviction – Death sentence – Appeal – Whether conviction safe

Criminal procedure – Circumstantial evidence – Interested witness

Criminal procedure – Element of intent – Whether there was an intent to kill – Determination of intent to kill

[2018] MYCA 181Court of Appeal

Suit Number: Criminal Appeal No. N-05(M)-234-09/2015  Date of Judgment: 01 June 2018

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal

Criminal law – Scope of “manufacturing” drugs – Whether manufacturing of drugs constitute trafficking within section 2 of the Dangerous Drugs Act 1952 – Whether possession of drugs an essential ingredient in a case involving manufacturing of drugs – Whether proof of possession required before invoking the definition of trafficking under section 2 of the Dangerous Drugs Act 1952

[2018] MYCA 180Court of Appeal

Suit Number: Civil Appeal Nos. W-02(IM)(NCC)-1936-11/2015, W-02(IM)(NCC)-1938-11/2015, W-02(IM)(NCC)-1950-11/2015, W-02(IM)(NCC)-1951-11/2015, W-02(IM)(NCC)-1977-12/2015, W-02(IM)(NCC)-1978-12/2015, W-02(IM)(NCC)-2022-12/2015 & W-02(IM)(NCC)-2089-12/2015  Date of Judgment: 01 June 2018

Litigation & court procedure – Whether the defendants could in law apply for and be granted an order under Order 33 rule 2 of the Rules of Court 2012 having previously failed in their application for an order under Order 14A – Whether the defendants’ applications under Order 33 rule 2 were barred by res judicata on the ground that their previous applications under Order 14A had been determined

[2018] MYCA 179Court of Appeal

Suit Number: Criminal Appeal No. Q-05(M)-46-01/2016  Date of Judgment: 31 May 2018

Criminal law – Murder – Conviction – Death sentence – Appeal – Whether the conviction safe

Criminal law – Exception of private defence – Defence of sudden fight in the heat of passion upon a sudden quarrel – Defence of grave and sudden provocation – Burden of proof of applicability of exceptions under section 300 of the Penal Code

Criminal law – Dying declaration – Conditions for admissibility of a dying declaration

Criminal law – Whether the prosecution had failed to make out a prima facie against the appellant on the charge as amended – Whether the trial court had not adequately considered the defence posited by the appellant

[2018] MYCA 178Court of Appeal

Suit Number: Criminal Appeal No. J-05(SH)-309-08/2016  Date of Judgment: 01 June 2018

Criminal law – Charges under sections 302 and 324 of the Penal Code – Reduction of charges to section 304(a) and 334 of the Penal Code – Appeal against sentence under reduced charges

Criminal law – Defence of sudden and grave provocation – Elements constituting such defence – Burden of proof – Burden of proving the existence of circumstances bringing the case within any special exception to section 300 of the Penal Code – Whether the trial court had made an error of law and on the fact when, following the finding of sudden and grave provocation, it reduced the charge from an offence under section 302 to one under section 304(a) of the Penal Code – Whether the appeal should be allowed

[2018] MYCA 177Court of Appeal

Suit Number: Rayuan Jenayah Nos. K-05(M)-184-05/2017 & K-05(M)-186-05/2017  Date of Judgment: 30 May 2018

Criminal law – Trafficking in dangerous drugs – Conviction – Death sentence – Appeal – Whether the conviction safe

Criminal law – Identity of the first appellant – Whether there was prima facie evidence – Whether the prosecution has proved the element of common intention on the part of the second appellant

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