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MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 3Court of Appeal

Suit Number: Civil Appeal Nos. A-03(IM)(NCC)-50-05/2016 & A-03(IM)(NCC)-51-05/2016  Date of Judgment: 04 January 2018

Bankruptcy – Whether bankruptcy notice should be set aside – Whether bankruptcy notice was premised on a final judgment – Whether the amount due to the judgment creditors had been clarified or quantified

Bankruptcy – Law on the application to set aside the bankruptcy notice – Whether the application to set aside the bankruptcy notice vide the affidavit filed by the judgment debtors was in compliance with the Bankruptcy Act 1967 and the Bankruptcy Rules 1969

[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 4Court of Appeal

Suit Number: Criminal Appeal No. B-05(M)-379-10/2016  Date of Judgment: 04 January 2018

Criminal Law – Trafficking in dangerous drugs - Dangerous Drugs Act 1952 – Mandatory death sentence – Appeal

Criminal law – Evidence – Whether the appellant had physical custody and control of the bag that contained the impugned drugs at the material time – Whether the luggage tags of the impugned bags were inadmissible on the ground of the hearsay rule – Whether the evidence on the DNA profile inadmissible as the person who extracted the blood specimen of the appellant was not called as a witness – Whether the evidence pertaining to the test-fitting of clothes on the appellant admissible as a caution under section 37A (now Section 37B) of the Dangerous Drugs Act 1952 was not administered before the test-fitting – Whether the evidence of the chemist inadmissible on the ground of hearsay evidence as the person who actually carried out the test was not called as a witness

Criminal law – Criminal procedure – Whether the written statement of the investigation officer inadmissible – Whether the written statement fulfills the requirement for a declaration under section 402B(2)(b) of the Criminal Procedure Code

Whether the statutory presumption under section 37(d) of the of the Dangerous Drugs Act 1952 was correctly invoked by the trial judge to hold that the appellant had possession of the impugned drugs – Whether the trial judge had adequately considered the Doctrine of willful blindness and the innocent carrier defence put up by the appellant

[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

[2018] MYCA 2Court of Appeal

Suit Number: Rayuan Jenayah Nos. K-05-133-05/2015 & K-05-134-05/2015  Date of Judgment: 04 January 2018

Criminal law – Drug trafficking – Offence under section 39B (1) (a) of the Dangerous Drugs Act 1952 read with section 34 of the Penal Code

Criminal law – Evidence – Whether the prosecution has succeeded in proving drug trafficking beyond reasonable doubt on both appellants – Whether Section 114(g) of the Evidence Act 1950 applies – Whether mutual intent was proven

[2018] MYCA 41Court of Appeal

Suit Number: Criminal Appeal No. B-05(M)-323-12/2015  Date of Judgment: 08 February 2018

Criminal Law – Trafficking in dangerous drugs - Dangerous Drugs Act 1952 – Mandatory death sentence – Appeal

Criminal Law – Evidence – Whether there were apparent discrepancies in the testimonies of the prosecution witnesses in relation to the description of the form and colour of the impugned drugs – Whether the differential description by the witnesses of the form of the impugned drugs a ground to suggest the presence of a gap in the chain of evidence relating to the identity of the impugned drugs

[2018] MYCA 42Court of Appeal

Suit Number: Criminal Appeal No. P-05(M)-200-06/2016  Date of Judgment: 07 February 2018

Criminal Law – Trafficking in dangerous drugs - Dangerous Drugs Act 1952 – Mandatory death sentence – Appeal

Criminal Law – Evidence – Whether discrepancy between the weight of the drugs stated in the Search List and obtained by the Chemist goes to the identity of the drug exhibits – Whether there was a break in the chain of evidence in relation to the movement of the drug exhibits – Whether the evidence of the chemist inadmissible on the ground of hearsay evidence given that the machine involved in the qualitative test was operated by a laboratory assistant who was not called as a witness – Whether the laboratory assistant a material witness

Criminal Law – Whether the trial judge erred in holding that the appellant had knowledge and possession of the impugned drugs – Whether there was a failure to investigate the alleged real trafficker – Whether the appellant had furnished adequate information about the alleged real trafficker to the investigating officer

[2018] MYFC 3Federal Court

Suit Number: Civil Appeal Nos. 01(f)-17-06/2016 (A), 01(f)-18-06/2016 (A) & 01(f)-19-06/2016 (A)  Date of Judgment: 29 January 2018

Constitutional law – Judicial power of the High Courts – Articles 121(1) and 121(1A) of the Federal Constitution – Role of Judiciary – Basic structure of the Constitution and Constitutional principles

Constitutional law – Syariah courts – Status of Syariah courts – Whether Syariah Courts are constituted in accordance with the provisions of Part IX of the Federal Constitution – Limits on jurisdiction of Syariah court

Constitutional law – Interpretation and effect of Article 121(1A) – Whether core jurisdiction of the superior courts can be ousted – Grant of jurisdiction to inferior courts –Whether the jurisdiction of a superior court can be vested in a body not constituted in accordance with the provisions protecting the independence of its judges

Administrative law – Judicial review – Whether the High Court has the exclusive jurisdiction pursuant to sections 23, 24 and 25 and the Schedule of the Courts of Judicature Act 1964 (read together with Order 53 of the Rules of Court 2012) and/or its inherent jurisdiction to review the actions of the Registrar of Muallafs or his delegate acting as public authorities in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004

Whether a child of a marriage under the Law Reform (Marriage and Divorce) Act 1976 who has not attained the age of eighteen years must comply with both sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (or similar provisions in State laws throughout the country) before the Registrar of Muallafs or his delegate may register the conversion to Islam of that child

Administration of the Religion of Islam (Perak) Enactment 2004 – Registration of Muallafs - Requirement for conversion to Islam - Capacity to convert to Islam - Certificate of conversion to Islam - Legal limits of statutory power

Family law – Whether the mother and the father (if both are still surviving) of a child of a marriage under the Law Reform (Marriage and Divorce) Act 1976 must consent before a certificate of conversion to Islam can be issued in respect of that child

Family law – Parental rights over children – Article 12(4) read with the Eleventh Schedule of the Federal Constitution – Sections 5 and 11 of the GIA Guardianship and Infants Act 1961

[2018] MYCA 1Court of Appeal

Suit Number: Rayuan Jenayah No. K-05(M)-17-01/2016  Date of Judgment: 03 January 2018

Criminal Law – Murder – Defence of Grave and sudden provocation

Criminal Law – Whether both elements, grave and sudden were present – Whether Exemption 1 to Section 300 of the Penal Code applies – Whether the trial judge failed to appreciate the facts that showed grave and sudden provocation

[2018] MYFC 2Federal Court

Suit Number: Rayuan Sivil No. 01(f)-6-03/2017(W)  Date of Judgment: 08 January 2018

Litigation & Court Procedure – Abuse of Process – Whether a challenge to the constitutionality of section 3 of the Sedition Act 1948 made in civil proceedings when the same had been determined by the Court of Appeal in a criminal appeal involving the same applicant amounts to an abuse of the process of the court

Litigation & Court Procedure – Res Judicata – Whether a challenge to the constitutionality of section 3 of the Sedition Act 1948 made in civil proceedings is res judicata in view of a prior similar challenge in criminal proceedings by the same applicant

Constitutional Law & Civil Rights – Whether section 3(3) of the Sedition Act 1948 contravenes Article 10 of the Federal Constitution and is therefore invalid and of no effect in law

[2018] MYFC 1Federal Court

Suit Number: Civil Appeal Nos. 01-15-05/2016 & 01-16-05/2016  Date of Judgment: 08 January 2018

Bankruptcy – Whether a judgment by the Court of Appeal for a monetary sum in favour of an undischarged bankrupt is a nullity when the appellant failed to disclose to the Court that he did not have the sanction of the Insolvency Department to prosecute the appeal

Corporate Law – Articles of Association – Whether the interpretation of the Articles of Association of a company is subject to past practices of the directors in relation to its implementation or the exercise of the power under it

Employment & Labour Law – Dismissal – Misconduct – Whether misconduct in employment law to warrant punishment is to be distinguished from criminal conduct by an employee and whether the Court of Appeal was correct in law in concluding that in the absence of an allegation of "any form of criminal conduct" the complaint "taken objectively, will not qualify as a misconduct"

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