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Constitutional Law / Criminal Law / Civil Procedure: Case Updates

Indah Desa Saujana Corporation Sdn Bhd & 2 Ors v James Foong Cheng Yuen, Hakim, Mahkamah Tinggi Malaya & Anor [2008] 2 AMR 6 [COA]

Article 145(2) of the Federal Constitution provides, inter alia, that it shall be the duty of the attorney general to discharge the functions conferred on him by or under the Constitution or any other written law, and one of the functions is to represent the government and any person performing any function thereunder.
The 1st defendant, being a judge of the Kuala Lumpur High Court as well as the head of the civil division having in charge of all matters pertaining to the execution of assets in Kuala Lumpur including writs of seizure and sale, was merely performing his duties as a judge. The attorney general was therefore under a mandatory duty to provide the 1st defendant with legal representation in order to defend and protect the office and institution of the administration of justice in Malaysia.
The plaintiff's cause of action was based on the writ of seizure and sale. Upon a true construction of the relevant rules in Order 46 of the Rules of the High Court 1980 ("RHC"), it is clear that all monies received pursuant to the same have to be paid into the court first and the money so credited shall be paid to the judgment creditors pursuant to those rules. In the circumstances, the cheque was rightly made out in favour of the Senior Assistant Registrar.
Judicial immunity conferred by Section 14(1) of the Courts of Judicature Act, 1964 ("CJA") is wide enough to extend to the discharge of a judge's duties under written law. These include all acts and duties expected or assigned to be performed by the 1st defendant both within and outside Malaysia. The mode and manner in which he exercised his duties were irrelevant.

Pendakwa Raya v Ouseng Sama-Ae [2008] 2 AMR 51 [COA]

In order to establish a prima facie case, the prosecution had to prove that the accused was in actual possession of the drug and that the accused at the material time had the knowledge of the drug found to be in his possession. On the facts, the 1st element was easily established because the accused had the custody and control of the bag and it was clear from the evidence that he was exercising dominion over it at all material times.

Shayne Corey Cahill v Kaka Singh Dhaliwal (didkawa di bawah seksyen 9(c) Akta Pertubuhan 1966 sebagai pegawai awam berdaftar Persatuan Perlumbaan Malaya [2008] 2 AMR 57 [COA]

It is a general rule that an issue which was not raised in the court below cannot be raised on appeal. However, as an appeal is conducted by way of rehearing, an appellate court retains the discretion as to whether to entertain a point raised for the first time on appeal. Therefore, the court should exercise its discretion in favour of hearing the new point raised by the plaintiff since the new point raised by the plaintiff was solely on the point of law, based on undisputed facts.

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