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[2018] MYFC 12Federal Court

Suit Number: Civil Appeal Nos. 03(f)-2-04/2017(W), 03(f)-3-01/2017(W) & 03(f)-4-01/2017(W)  Date of Judgment: 03 May 2018

Litigation & court procedure – Judgment entered against the judgment debtor – Judgment Debtors Summons (JDS) proceedings initiated by the judgment creditor under Debtors Act 1957 – Order directing the judgment debtor to make, amongst others, payments on the original judgment debt by instalments – Default by judgment debtor – Filing of a Bankruptcy Notice founded on the original judgment against the judgment debtor – Whether the order for instalment payments under the JDS proceedings constitutes a variation or modification of the original judgment – Whether the Bankruptcy Notice founded on the original judgment valid – Application of Montgomery & Co v de Blumes [1898] 2 QB 420 and Re HA Pereira [1932] MLJ 112

[2018] MYCA 12Court of Appeal

Suit Number: Rayuan Jenayah No. B-05-3-01/2014  Date of Judgment: 09 January 2018

Criminal law – Trafficking in dangerous drugs – Offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 – Conviction – Mandatory death sentence – Appeal

Criminal law – Whether the accused had ownership and control of impugned drugs – Whether the accused had knowledge of the drugs – Whether the conviction was safe

[2018] MYCA 11Court of Appeal

Suit Number: Rayuan Jenayah No. P-05(M)-317-11/2015  Date of Judgment: 08 January 2018

Criminal law – Trafficking of dangerous drugs – Offence under section 39B(1)(a) of the Dangerous Drugs Act 1952 – Conviction – Mandatory death sentence – Appeal

Criminal law – Whether there was a failure on the part of the trial judge to properly evaluate the evidence submitted by the defence – Whether the trial judge was wrong in applying the impeachment procedure

Criminal law – Whether there was a violation of the prohibition of double presumption use

[2018] MYFC 11Federal Court

Suit Number: Civil Appeal No. 02(f)-76-07/2017(J)  Date of Judgment: 17 May 2018

Real Estate – Dispute on a piece of land between the original registered owner and a subsequent holder of interest – Both parties affected by the fraud of a third party – Whether the subsequent holder of interest (chargee bank) was entitled to raise the shield of indefeasibility under section 340 of the National Land Code 1965

Contracts & commercial – Solicitor and client relationship – Law of agency – Whether knowledge on the part of a solicitor of claims which amount to encumbrances over a piece of land could be imputed back to his client for the purposes of section 340(3) of the National Land Code 1965 – Whether the principle in Doshi v Yeoh Tiong Lay [1975] 1 MLJ 85 that the doctrine of constructive notice does not apply to the Torrens system in that an agent (solicitor)’s knowledge of fraud cannot be imputed to his client, was correct in law – Whether the solicitor’s knowledge acquired in a previous or different transaction could be imputed to his client – Whether the principle in Doshi was applicable only where there was fraud on the part of the agent – Whether the principle in Doshi was applicable in cases where the agent was not complicit in the fraud

Section 340(3) of the National Land Code – Proper construction of the requirement of “good faith” in the context of a purchaser falling within Section 340(3) – Meaning of Purchaser – Concept of indefeasibility – Deferred indefeasibility

Real estate – Whether the defendant was a purchaser in good faith falling within section 340(3) of the National Land Code – Whether the charge indefeasible

[2018] MYFC 10Federal Court

Suit Number: Rayuan Sivil No. 02(f)-66-09/2016(W)  Date of Judgment: 16 April 2018

Corporate law – Deadlock in the management and control of a company – Derivative action – Whether a derivative action can in law be brought for the benefit of a company where there is a deadlock in the board of directors (the management) and among the shareholders (the control) – Test to establish “wrongdoer control” – Whether the requirement of control satisfied where the company is practically incapable of bringing an action against the wrongdoers for its benefit – Whether an equal shareholder precluded from bringing a derivative action on behalf of the company in a deadlock situation with no clear-cut majority or minority shareholders – Whether a shareholder can bring a derivative action on the company’s behalf if the company is in liquidation

Corporate law – Deadlock in the management and control – Winding up on just and equitable grounds as an alternative remedy where there is a deadlock in the board and the shareholders of the company – Whether the availability of such alternative remedy disentitle a shareholder from opting to bring a derivative action on behalf of the company

Corporate law – Derivative action – Whether the derivative action properly constituted – Whether the Court of Appeal, in determining the preliminary issue of whether the derivative action was properly constituted, had erred in making absolute findings of fact on the issues of wrongdoing and control

[2018] MYCA 10Court of Appeal

Suit Number: Criminal Appeal Nos. S-05(M)-225-06/2016 & S-05(LB)-179-05/2017  Date of Judgment: 08 January 2018

Criminal law – Offences of trafficking in dangerous drugs – Conviction – Appeal

Criminal law – Whether the accused was under arrest when he uttered the words amounting to an admission of knowledge about the impugned drugs – Whether a statutory caution was given to the accused – Whether the trial judge failed to consider any evidence which corroborated with the defence of the accused – Whether the conviction was safe

[2018] MYFC 9Federal Court

Suit Number: Civil Appeal No. 01-23-07/2016(W)  Date of Judgment: 12 March 2018

Employment & labour law – Appointment and dismissal of civil servants – Doctrine of holding office during the pleasure of the Yang di-Pertuan Agong/ Yang di-Pertuan Negeri – Restrictions on the doctrine – Articles 132(2A) and 135 of the Federal Constitution

Employment & labour law – Revocation of a fixed term appointment held during the employment as opposed to termination of employment – Where the appellant, being the Director of Registration Services Division of the Companies Commission of Malaysia was appointed under section 11 of the Companies Commission of Malaysia Act 2001 to become a Deputy Chief Executive of the Companies Commission of Malaysia for a fixed term, whether the Minister of Domestic Trade, Co-operatives and Consumerism, under section 11 of the Companies Commission of Malaysia Act 2001, when revoking the fixed term appointment made by him, can concurrently terminate the employment of the appellant as an employee or officer of the Companies Commission of Malaysia

[2018] MYCA 9Court of Appeal

Suit Number: Rayuan Jenayah No. J-05-63-03/2015  Date of Judgment: 08 January 2018

Criminal law – Kidnapping for money – Charge under Section 3 of the Kidnapping Act 1961 – Reasonable doubt raised over prosecution’s case – Amended charge under section 5(1) of the Kidnapping Act – Guilty plea – Conviction – Sentence – Appeal by prosecution

Criminal law – Whether the trial court has erred when it decided that the failure to summon a prosecution witness was fatal to the prosecution's case – Whether the trial court erred in law and fact when it accepted the defence of the respondents and found them guilty of the amended charge

[2018] MYFC 8Federal Court

Suit Number: Rayuan Sivil No. 02 (f)-2-01/2015 (C)   Date of Judgment: 08 February 2018

Contracts & commercial – Assignment of debt – Failure to give notice in writing pursuant to section 4(3) of the Civil Law Act 1956 – Whether the assignee of the debt prevented from proceeding with its action

Contracts & commercial – Liability of a debtor to the assignee of that debt – Where there is no written notice of an absolute assignment pursuant to section 4(3) of the Civil Law Act 1956, is the debtor liable to the assignee for the debt under the assignment

Contracts & commercial – Liability of a debtor when the debtor has knowledge of assignment – Where there is no written notice of an absolute assignment pursuant of section 4(3) of the Civil Law Act 1956 and the trial court make a finding that the debtor has knowledge of an assignment between its customer and third party, can the debtor be held liable to that third party for the debt where the debtor has made payment of the same to its customer

Contracts & commercial – Notice of assignment – Where the creditor has assigned the benefit of funds in a fixed deposit account to a third party, can mere knowledge of the identity of the signatories to a current account, constitute notice of an assignment to the debtor

[2018] MYCA 8Court of Appeal

Suit Number: Rayuan Jenayah Nos. B-05(M)-297-07/2016 & B-05(SH)-299-08/2016  Date of Judgment: 05 January 2018

Criminal law – Murder – Attempt to Murder – Conviction – Death sentence – Appeal

Criminal law – Self Defence – Whether the trial court erred when it found the appellant’s defence to be a mere denial or an afterthought – Whether the trial court failed to sufficiently appreciate that the appellant’s evidence cast a reasonable doubt on the prosecution’s case

[2018] MYCA 7Court of Appeal

Suit Number: Rayuan Jenayah No. P-05(M)-350-12/2015  Date of Judgment: 04 January 2018

Criminal Law - Trafficking of dangerous drugs – Offense under section 39B(1)(a) of the Dangerous Drugs Act 1952

Criminal Law – Duty of the trial judge under Section 182A(1) the Criminal Procedure Code

Criminal Law – Whether the trial judge’s failure to adequately appreciate the cautioned statement contrary to Section 182A(1) the Criminal Procedure Code – Whether such failure of the trial judge amounts to misdirection warranting appellate intervention

[2018] MYFC 7Federal Court

Suit Number: Criminal Appeals No. 05-38-02/2014(A) & 05-37-02/2014(A)   Date of Judgment: 23 February 2018

Criminal law – Kidnapping under section 3 of the Kidnapping Act 1962 – Murder under section 302 of the Penal Code – Conviction – Death sentence – Appeal

Criminal law – Uncertainty surrounding the cause of death – Insufficiency of evidence – Inference from the DNA evidence – Identification of evidence – Issue of alibi – Failure of the police to properly investigate

Criminal law – Common intention – Whether there was evidence to prove the necessary ingredients under section 34 of the Penal Code

[2018] MYFC 6Federal Court

Suit Number: Civil Appeal No. 02(f)-55-08/2016(W)  Date of Judgment: 30 January 2018

Intellectual property law – Patents – Validity of patents

Patents – Inventiveness – Whether the 4-step Windsurfing Test should be applied in determining the inventiveness of an invention in Malaysia

Patents – Inventiveness – Steps of the Windsurfing Test – Identification of the inventive concept embodied in the patent – Assumption of the mantle of person having ordinary skill in the art, and imputation of common general knowledge at that date to him – Identification of the differences between the prior art and the alleged invention – Determination whether, viewed without any knowledge of the alleged invention, those differences constitute steps which would have been obvious to the person having ordinary skill in the art

Patents – Claimed features of a patent – Inventive concepts of an invention – Whether a distinction should be drawn between determining the “claimed features” of the claims of a patent (for assessing novelty and infringement) and determining the “inventive concepts” of the invention in the patent (for assessing inventiveness)

Patents – Assessment of inventive concepts of an invention – Whether an assessment of the “inventive concepts” of the invention should be confined to the claims of the patent or should it be construed from reading the patent specifications as a whole and with the common knowledge of the skilled person

[2018] MYCA 6Court of Appeal

Suit Number: Criminal Appeal No. A-05(M)-212-08/2015  Date of Judgment: 04 January 2018

Criminal Law – Possession of drugs – What constitutes possession – Whether the appellant had the sole custody and control of the drugs

Criminal Law – Presumption of trafficking in drugs – Section 37(da) of the Dangerous Drugs Act

Criminal Law – Whether the trial judge was wrong in finding that the prosecution had proven a prima facie case that the appellant had the sole custody and control of the drugs – Whether the defence had raised a reasonable doubt against the prosecution’s case

[2018] MYCA 5Court of Appeal

Suit Number: Rayuan Jenayah No. W-05(M)-209-06/2016  Date of Judgment: 04 January 2018

Criminal Law – Procedure – Whether parties should be allowed to make oral or written submissions at the close of the prosecution’s case

Criminal Law – Criminal procedure – Whether it is mandatory for trial judge to hear submissions before giving his decision – Whether that issue to be solely decided in light of Section 181(1) of the Criminal Procedure Code

Constitutional Law – Fair Trial – Whether failure of the trial judge to hear submissions amounts to denial of fair trial – Whether such failure contravenes Article 5(1) of the Federal Constitution

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