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[2018] MYCA 231Court of Appeal

Suit Number: Criminal Appeal No. Q-05(M)-69-02/2017  Date of Judgment: 31 July 2018

Criminal law – Murder – Conviction – Sentence – Appeal – Whether appellate intervention warranted

Litigation & court procedure – Admissibility of witness statements – Whether the witness statements properly identified and signed – Whether the contents of the witness statements understood and confirmed by the respective witnesses – Whether the failure to read the witness statements aloud in open court (although they were translated and explained to the respective witnesses in open court) caused any injustice to the defence – Whether the witness statements had fulfilled the pre-requisites of section 402B of the Criminal Procedure Code – Whether the witness statements admissible

Criminal procedure – Defence of provocation, sudden fight and self-defence – Test – Probative force of the defence when disclosed during the time of arrest and/or during the trial as opposed to during the defence stage

[2018] MYCA 230Court of Appeal

Suit Number: Civil Appeal No. W-02(NCVC)(W)-868-05/2017  Date of Judgment: 31 July 2018

Litigation & court procedure – Admission of facts – Whether the High Court judge correct in refusing to enter judgment based on the admission – Whether this resulted in the miscarriage of justice – Section 17 of the Evidence Act, Order 27 of Rules of Court 2012

[2018] MYCA 229Court of Appeal

Suit Number: Civil Appeal No. S-02(NCVC)(W)-253-02/2017  Date of Judgment: 17 July 2018

Litigation & court procedure – Striking out of claim – Order 18 rule 19(1)(b) & (d) and Order 92 rule 4 of the Rules of Court 2012 – Principle of res judicata and absence of express law ousting the jurisdiction of the civil court in dealing with estates of natives in Sabah as grounds for striking out – Whether the instant case warrants striking out of the claim

[2018] MYCA 227Court of Appeal

Suit Number: Rayuan Sivil No. C-01[A]-53-02/2017  Date of Judgment: 27 July 2018

Administrative law – Judicial review against the decision of the Criminal Prevention Board – Whether there was non-compliance of procedures under section 9 and section 6 of the Prevention of Crime Act 1959 – Whether there was a contravention of the provisions of section 7 of the Prevention of Crime Act 1959 – Whether non-compliance of procedures raised in the affidavit of the applicant

[2018] MYCA 225Court of Appeal

Suit Number: Rayuan Jenayah Nos. W-05(H)-187-05/2016 & W-05(H)-189-05/2016  Date of Judgment: 23 July 2018

Criminal law – Inciting or promoting occurrence of acts of terrorism in Malaysia – Charges under sections 130G (a), 130J (1) (b) and 120B (1) of the Penal Code – Guilty plea – Conviction – Sentence – Appeal against the sentence – Whether the sentence manifestly excessive – Public interest element – Whether the trial court wrong – Whether appellate intervention warranted

[2018] MYCA 224Court of Appeal

Suit Number: Civil Appeal No. Q-02(NCVC)(W)-137-1/2016  Date of Judgment: 16 July 2018

Real estate – Easement – Registered easement – Right to statutory registered easement – Whether a right to a statutory registered easement could be lost by effluxion of time when the registered easement itself contains no time stipulation for its existence – Whether there could be a partial release or abandonment of a registered easement

Real estate – Easement – Registered easement – Whether the trial court was wrong in holding that the plaintiffs’ right to the statutory easement was lost by effluxion of time due to the alleged non-action – Whether the estoppel found by the trial court against the plaintiffs in effect a partial determination or extinguishment of the registered statutory interest of the plaintiffs and therefore without legal basis – Whether the plaintiffs entitled to an access road of 16 feet in law – Whether it was possible to estop the aggrieved party from insisting on a statutory 16 feet access road even though they had knowledge of the reduced width before, when the reduction itself was unlawful and in contravention of the condition precedent to the title

Litigation & court procedure – Pleadings – Parties bound by pleadings – Whether the trial court was wrong when it held that, despite not pleaded in the defendant’s defence, it was entitled as a matter of law to suo motu raise the issue of delay by the plaintiffs to pursue their right to the registered easement and determine the case relying on it

[2018] MYCA 223Court of Appeal

Suit Number: Criminal Appeal No. B-05(M)-22-01/2016  Date of Judgment: 24 July 2018

Criminal law – Trafficking in dangerous drugs – Conviction – Mandatory death sentence – Appeal

Criminal law – Whether the trial court was wrong to find that the appellant had knowledge of the drugs – Whether the defence had succeeded to raise a reasonable doubt against the finding of actual possession – Whether the trial court had failed to adequately evaluate the effect of the lack of investigation by the investigating officer on the phone numbers given by the appellant in his cautioned statement – Whether the trial court was right to find that insufficient Alcontara notice had been given by the appellant to shift the burden of proof to the prosecution – Whether there was any appealable error or misdirection on the part of the trial court

[2018] MYCA 222Court of Appeal

Suit Number: Criminal Appeal No. B-05(M)-260-06/2016  Date of Judgment: 24 July 2018

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

Criminal law – Whether the trial court had erred in the handling of the presumptions under the Dangerous Drugs Act 1952 – Whether the trial judge had misdirected itself when it failed to draw an adverse inference in favour of the appellant arising from the investigating officer’s failure to investigate crucial elements of the case – Whether there was a failure to provide the appellant with a proper interpreter

[2018] MYCA 220Court of Appeal

Suit Number: Rayuan Sivil Nos. W-02(IM)(NCVC)-2513-12/2017 & W-02(IM)(NCVC)-2514-12/2017  Date of Judgment: 04 July 2018

Litigation & court procedure – Amendment to Statement of Claim – Introduction of further documents for the purposes of trial – Whether the respondents have given a cogent and reasonable explanation for their delay – Whether the proposed new claim lacks particulars – Whether there are real prospects of success in proving the claim – Whether the proposed amendment to add a new claim for special damages has the effect of changing the character of the respondents’ suit into another of inconsistent character – Whether the prejudice caused to the appellant by the proposed new claim for special damages, if allowed by the court, could be compensated by costs – Whether the amendment application is a tactical manoeuvre to delay the trial and/or to intimidate and harass the appellant

[2018] MYCA 219Court of Appeal

Suit Number: Criminal Appeal No. B-05-161-04/2017 (FJI)  Date of Judgment: 12 July 2018

Litigation & court procedure – Whether the High Court was plainly wrong in the exercise of its discretion under section 84 of the Courts of Judicature Act 1964 in not transmitting the constitutional law questions referred to it to the Federal Court – Whether the mere filing of an application under section 84 of the Courts of Judicature Act 1964 provides an automatic right to the applicant and therefore imposes an automatic duty on the High Court to refer the purported constitutional questions to the Federal Court even if the application does not pass the “special case” test stipulated under section 84 of the Courts of Judicature Act 1964 and rules 32 and 33 of the Rules of the Federal Court 1995

Constitutional law – Whether sections 39B(1)(a) and 39B(2) of the Dangerous Drugs Act 1952 inconsistent with Articles 5 and 8 of the Federal Constitution – Whether the mandatory death sentence for trafficking of a dangerous drug provided for by section 39B of the Dangerous Drugs Act 1952 inconsistent with the Federal Constitution for being arbitrary and disproportionate and for failing to take into account individual mitigating circumstances

Criminal law – Trafficking in dangerous drugs – Constitutional validity of sections 39B(1)(a) and 39B(2) of the Dangerous Drugs Act 1952

[2018] MYCA 218Court of Appeal

Suit Number: Rayuan Sivil Nos. W-01-(IM)(NCVC)-399-11/2017 & W-02-(IM)(NCVC)-2293-11/2017  Date of Judgment: 10 July 2018

Tort – Tort of misfeasance in public office – Meaning of “public officer” for the purposes of the law of the tort of misfeasance in Malaysia – Whether Prime Minister a “public officer”

[2018] MYCA 216Court of Appeal

Suit Number: Rayuan Sivil No. A-02(NCVC)(W)-1858-09/2017  Date of Judgment: 10 July 2018

Contracts & commercial – Construction contract – Nature of the contract between the parties – Whether lump sum contract or re-measurement contract – Examination of the contemporaneous documentary and oral evidence and the surrounding circumstances – Whether the High Court erred in determining that the contract was a lump sum contract – Whether appellate intervention warranted

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