‘Malayan Law Journal 502 31 August 1990 [1990] 2 ML reasons given by a judge for arriving at conclusions offact_A in Tan's power and had to do what he was told. But that is not ‘law’ and does not constitute judicial precedent. To return to the evidence in this case, whichever version of the accused takes, the blunt fact remains that for the sake of a monetary payment he took the packet in question, concealed it on his person, and moved off to deliver it tits designated consignee. ‘Carrying, sending, and delivering," is included in ‘wrafficking’ under s2of the Act. ‘As to knowledge, heroin was uppermost in the ac- cused’s mind at the time. He was a self-confessed drug addict. He got the packet from a person he knew to bea rug supplier and he was going to give itto a person who was to sell him drugs. He knew the packet contained something ‘illicit’ Before it was put in, the court interpreter explained the cautioned statement to the accused in Cantonese and the accused confirmed it was what he told the recording officer. It is true that he said then that he did not know ‘what was in the packet. In court too he disclaimed knowl- edge of the contents. His denial was consistent. But was it credible? ‘The accused contradicted himself on who gave him the package (three Malays in the cautioned statement; ‘Tan Boon Hock in his evidence). And on how much he ‘was paid ($40 in his evidence-in-chief with a $1 to be used 4s a password and $100 in his cross-examination). These are serious discrepancies. ‘Then there is the question of the note to Tan Boon Hock. Tan Boon Hock had been summoned and was in the court precincts but he was not called by the accused. The accused has no duty to call any witnesses and in this respect I donot consider a drug case to be any different to 2 normal criminal case even where the presumptions apply. The fact that the note had to be written at all does not add to the accused’s credibility. Where it leaves the court is that the accused took this packet for $100 to convey it to Ah Keong. Has he displaced the presumption that he knew that itcontained ‘heroin’? The fact that he knew both Tan and ‘Ab Keong to be drug suppliers, was himself a drug eddict, concealed the packet in his trousers and ran away from the police, to my mind points only to one conclusion. The accused knew he was carrying heroin. At the tisk of repetition but to make myself absolutely clear, I do not think that the accused’s not knowing that 83.62 out of the 235.60g of the contents of the packet was pure heroin is a defence, since I hold he knew the nature of the drug he was carrying. ‘The only factor which may be urged in the accused’s favour in this case isthe fact of he being a drug addict and suffering from withdrawal symptoms at the time he was factor can only be a mitigating circumstance when the fate ofthe accused is ultimately considered because in my view hhe was fully conscious of what he was doing, and he knew hhe was doing wrong. Consequently I convict him of the offence of which he is charged and would invite counsel to make any observ: tions considered appropriate before I pass on to sentence. (After hearing defence counsel on observations ap- propriate for consideration by the Pardons Board, the court made orders for retention of the exhibits and stay of execution pending appeal. The accused was then sen- tenced to death.) Accused convicted. Solicitors: Yusuf, Lee, Pathma & Marbeck. Reported by Mathavan Devadas Siland Sdn Bhd & Anor v M & J Frozen Food Sdn Bhd & Anor HIGH COURT JOHORE BAHRU) — CIVIL SUIT No 22-980 OF 1987 RICHARD TALALLA JC 25 FEBRUARY 1950 Land Law — Sale by public auction — Whether rights of chargor cease before conclusion of sale — Failure of purchaser to make aymen: of Balance within seipulaed time — Whether purchaser ‘ited to extension of time to make payment under order of cour for sale — National Land Code 1965, 81 256, 257(1), (2) & 258(1)(0) ‘The first plaintiff (‘Siland”) was at all material times the owner ‘of apiece of land. This land was charged to the second defendant (CEu Finance") as security fora loan. Siland defaulted, whereupon ‘Eu Finance applied for an order for sale of the land by public ‘auction. The sale was subject tocertain special conditions of sae. ‘The first defendant (‘Frozen Food") was duly pronounced the purchaser and a deposit of 25% of the purchase price was paid ‘and a memorandum of contract was executed between the auc~ tioneer and Frozen Food. Under cl 7 of the special conditions, Frozen Food was obliged to pay the balance ofthe purchase price {nto court within 30 days of the date of sale, ic 25 January 1987, and time was the essence of the contract. Frozen Food failed t0 oso. In July 1987, they obtained an order of courtextending the time to pay the balance of the purchase price. However, Siland was not made a party tothe proceedings Siland then successfully applied to intervene in the proceedings and the order extending. ‘time was set aside. Notwithstanding the setting aside, Frozen Food paid the balance of the purchase price into court. On. 29 September 1988, the senior assistant registrar issued a certifi- ‘ate of sale and the land was transferred to and registered in the name of Frozen Food.Siland Sdn Bhd v M & J Frozen Food Sdn Bhd [1990] 2 MLJ Richard Talalla JC 503 Siland then sought a delaration that (1) Frozen Food was notentitled to an extension of time to pay the balance purchase price; (2) the deposit be forfeited in Siland’s favour, (3) the purported sale o Frozen Food be rescinded; (4) the certificate of sale be annulled; (5) the registration of Frozen Food’s title to the land be cancelled; (6 the issue document of tite be returned to the registrar; and (7) the property be put up for sale by the court again. Held, allowing the first plaints applicat (Q) Notwithstanding the order of sale, the chargor hes rights in respect of land which contiove until the sale cluded. Under ccargor may at any time up all moneys due under the charge and all expenses whereup ‘of the order for sale shall cease to have effect. As it isthe cchargor’s land, itis only right that if he pays the debt in fall together with all expenses before the concluded sale, the order forsale should cease to have effect and the chargor should have his land beck. (2) There was no provision in the order forsale, the Johore conditions of sal, the special conditions or the memorandum of contract empowering the court onthe application of the buyer of the land to extend time for payment ofthe balance purchase price, The extension of time was granted without reference to the chargor and in abrogation of the chargor' rights, thus rendering the chargor open tolibiity to pay addtional interest ‘on the loan forthe extended period. It also gave preference 19 the buyer who had defaulted under the contract and, subject 0 ten days" notice, would have had his deposit forfeited, and the property resold. As such Frozen Food is not entitled to the extension of time. [Editorial Note: The frst defendant has appealed to the Su- preme Court vide Civil Appeal No 02-149 of 1990.] Case referred to 1 Malayan United Finance Bhd v Liew Yet Lan [1990] 1 ML] 317 (distd) tion referred to National Land Code 1965 ss 256, 257(1), (2), 258(1)(2) N Jegatheeson (Gunasegaron with him) forthe plaintiff. ‘Arthur Lee (SC Yop with him) for the first defendant. ‘Sophia Chew (Ms) for the second defendant. Gur Adv Vutt Richard Talalla JC: In this action the first plaintiff, Siland Sdn Bhd (‘Siland’), was at all material times the ‘owner of a piece of land in the mukim of Plentong in the district of Johore Bahru (‘the land’). Siland charged the land to the second defendant, Eu Finance Bhd (‘Eu Finance’), as security for a loan granted by Eu Finance to Siland. Siland defaulted under the terms of the charge ‘whereupon there accrued to Eu Finance a right to have the land sold and the loan realized out of the proceeds of sale, Iris trite that when a lender wishes to sell the land of a borrower in order to recover a debt, as in the present ‘case, the lender cannot sell the land as and how the lender pleases. The law requires the sale of the land to be under A. the supervision of the court. Thisis in order to ensure that the sale is carried out in justice and fairness to all persons ‘concerned which persons include not only the charge but also the chargor. The procedure for the exercise by the court of supervisory powers over the sale ofland held under regis- B try title, as the land in this case was, is contained in ss 256 1 259 of the National Land Code 1965. Section 256 provides for an order for sale of land to be made on application by the chargee. Under s 257(1), the order for sale shall provide for the sale o be by public auction. Sub- section (2) ofthat section enables the court to include in © the order forsale such other directions with respect to the sale as the court may think fit. Inorderto facilitate the imposition by the courtof the terms and conditions of sale, certain general conditions of sale were set out. These general conditions are known as 1p the Johore Conditions of Sale. They provide, inter alia, that in case of conflict or repugnancy between those conditions and any special conditions imposed on any sale, the special conditions shall prevail; and the Johore Conditions shall be deemed to be modified so far only as is necessary to give full effect to such special condition. E Seecl23. In Originating Summons No 180 of 1985, Eu Finance applied to this court for an order forsale ofthe land. Siland entered an appearance to the summons. Pursuant thereto, an order for sale of the land was made and the second plaintiff, Mohd Kepol bin Bidin (‘Kepol’), now deceased, F a licensed auctioneer was appointed by the court to carry out the sale. ‘The sale was by public auction and conducted subject toa proclamation of sale and certain special conditions of sale ‘special conditions”) both of which were printed and duly published. The first defendant, M & J Frozen Food ‘Sdn Bhd (‘Frozen Food’), was the successful bidder at the auction and duly pronounced the purchaser at a price of $196,000. In accordance with cl 6 of the special condi- tions, Frozen Food paid a deposit of 25% of the purchase price and a memorandum of contract was executed between Kepol and Frozen Food. Under cl of the special conditions, Frozen Food was obliged to pay the balance of the purchase money into court to the credit of the proceed ings within 30 days of the dateof sale, the date of sale being 25 January 1987, and in this respect time was of the essence of the contract. Frozen Food failed to do so. 1 Thespecial conditions did not provide for the conse- quence of such failure, nor did the memorandum of contract. Therefore recourse had to be had to the Johore Conditions of Sale which were expressly stated to appl There itis stated, see cl 19, thatif the purchaser shall fail to comply with these or the special conditions or the contract, the vendor shall be at liberty (after ten days’Malayan Law Journal 504 31 August 1990 [1990] 2 ML] written notice tothe purchaser or his solicitor) to treat the deposit as forfeited, and, without tendering an assurance, to resell the property. It is not known whether such written notice was given to Frozen Food. ‘The record in Originating Summons No 180 of 1985 discloses thata letter dated 18 February 1987 was written to our senior assistant registrar wherein an extension of two months from 25 February 1987 to pay the balance of the purchase price was sought. This letter was followed by another dated 8 May 1987 seeking a further extension of one month from 25 April 1987 in which to pay the balance. There appears to have been no answer to either letter. On 15 July 1987, Frozen Food applied to this court by Originating Summons No 31-731 of 1987 whereunder sought an order for an extension of time to pay the balance price. Thus they waived the right to have the ten days? written notice, assuming such notice was not given. The respondents in the originating summons were Eu Finance. The order for extension of time was made the same day. Siland was not made. party to the proceed- ings. However, Siland obviously had wind of it and on 8 October 1987, claiming to be an interested and ag- grieved party, applied to intervene in the proceedings. ‘The application was allowed and it was further ordered that the order of 15 July 1987 extending time be set aside. ‘Notwithstanding the setting aside of the order of 15 July, Frozen Food paid the balance of the purchase price ‘of $147,000 to the senior assistant registrar. This payment was incidentally one year after the expiry of the period stipulated inthe special conditions for the payment of the balance of the purchase price. On 29 September 1988, the learned senior assistant registrar issued a certificate of sale and the land was transferred and registered in the name of Frozen Food. Siland now seeks relief to the end that it be declared that Frozen Food are not entitled to an extension of time 10 pay the balance purchase price, the deposit of $49,000 bbe forfeited in their favour, the purported sale of the land to Frozen Food be rescinded, the certificate of sale be annulled, the registration of Frozen Food’s title to the land be cancelled, the issue document of title be returned to our registrar and the property be put up for sale by the court once again. It is submitted on behalf of Frozen Food that the ‘moment the hammer was struck at the auction, the sale was complete and Siland’s right to the land vanished and all Siland was entitled to thereafter was the residue, ifany, ofthe money realized on the sale ofthe land. The decision of VC George J in Johore Bahru High Court Originating ‘Summons No 31- 745 of 1985 Malayan United Finance Bhd Liew Yet Lan'was relied on for supportof the argu- ‘A ment. Areading of that decision, with which I respectfully agree, does not appear to support Frozen Food’s case at all. There his Lordship laid down that adefaulting chargor abdicated his right as registered owner of the land vis-a- vis selling it, in favour of the chargee. That is, to my mind, afar cry from saying that a chargor’s right to the land, the 1B Tight to residue of the balance purchase price excepted, vanishes as soon as the auctioneer brings down his ham- {It seems to me that notwithstanding the order for sale the chargor has rights in respect of the land which con- tinue until the sale is concluded. Pursuant to s 266(1) of C the National Land Code 1965 he may at any time before the conclusion of the sale pay up all moneys due under the ccharge and all expenses incurred in connection with the order for sale whereupon the order for sale shall cease to have effect. This may well be one of the reasons why the registrar of the court is required to serve a copy of the D order for sale on the chargor. See s 258(1)(a) of the Code. After all itis the chargor’s land. Itis therefore only right and in accordance with common sense that if he pays the debt in full together with all expenses before the con cluded sale, the order for sale should cease to have effect and the chargor should have back his land. Nowhere in the order for sale, the Johore Conditions of Sale, the special conditions or the memorandum of ‘contract was there anything empowering the court, on the application of buyer of the land, to extend time for pay- ‘ment of the balance purchase price; itis quite the contrary. VC George J found so in the Malayan United Finance case? abovestated and likewise possibly did the learned judge ‘who set aside the order extending time. ‘The extension of time was granted without reference to the chargor. It was granted in abrogation of the char- gor’s rights, thus rendering the chargor open to liability to G pay additional interest on the loan, to wit, interest for the extended period allowed for completion of the sale. What is more, the extended time gave preference to the buyer who had defaulted under the contract and who by virtue of that default and the terms of the contract should, subject to the ten days’ notice, have had his deposit H_ forfeited whereafter the property should have been resold, Frozen Food obtained this without notice to Siland. It was soon put right when Siland intervened and put forward their case. ‘That being the case, it does not fall to me to declare that Frozen Food isnotentitledtotheextensionof time. That T isso much water as has passed beneath the bridge. As I see it, T must now make orders consequential to the order setting aside the order for extension of time. There is no appeal against that order. Eu Finance had taken the same stand as and sup- ported Frozen Food.Siland Sdn Bhd v M & J Frozen Food Sdn Bhd [1990] 2 ML Richard Talalla JC 505 Taccordingly adjudge as follows: (a) the deposit of $49,000 be forfeited in favour of Si- (b) the learned senior assistant registrar’s certificate of sale be annulled; (©) the registration of the title o the land in the name of Frozen Food be cancelled and the issue document of title thereto be returned to the senior assistant regis- tear; (4) the land be resold; (©) there be liberty to appl (Othe defendants do pay the first plaintiff's costs of the action to be taxed. Application allowed. Solicitors: Guna & Co; Arthur Lee, Yap & Netto; KC Yap Kamalutin & Partners. Reported by Yap Shao Sin Ley Boon Hee v Paling Construction Sdn Bhd HIGH COURT (BORNEO) — SUIT NO KG 606 OF 1986 HAIDAR] 2 FEBRUARY 1990 (Civil Procedure — Defence and counterclaim — Application for sriking out — Failure of defendants to comply with court order — Whether plaintiff thereby prejudiced — Rules of the High Court 1980, 0 24 r 16(1) ‘The plaintiff filed a summons-in-chambers under O 24 16(1) of the Rules of the High Cour 1980 (RHC) against the defendant for an order, inter ali, tht the defence and counter- claim be struck out and judgment entered in favour of the plaintiff. The plaintiff contended thatthe defendant had failed to comply with the court order pursuant to summons for direc ‘ons in thatthe defendant did not within 60 days serve on the plaintiff alist of documents and file an affidavit verifying such listand thus the plaintiff had been prejudiced. The defendant's counsel filed thelist of documents andthe affidavit verifying Such list on 13 January 1990 (expiry ofthe 60 days being on 15, January 1989) but they could not be served on the plaintif's advocates on 13 January 1990 itself, asit was a Saturday and the laters office does not work on a Saturday. It remained un- served atthe date of the hearing ofthe present summons on 15, January 1950 Held, making an ‘unless’ order: (1) Order 245 16(1) ofthe RHC clearly gives power to the court in such an application to order that the defence be struck out and judgment be entered accordingly unless the party ‘complies with the rule or order for discovery by a stated hour of ‘stated day. However, such power is a discretionary one and it has to be exercised cautiously and with due regard to maintain- ing the principle chat orders were made to be complied with. A (2) The issue of delay per se does not by itself necessarily. ‘mean that the court should grant the order prayed for in this, summons by the plaintiff merely on the ground of non-compli- ance with the procedural steps laid down under RHC as the ‘merits of the case isa material consideration. (3) The proper course is for the plaintiff to apply for an ‘unless’ order which the defendant is asking for in this case from the court, (4) Asthe defendant had filed the list of documents and the affidavit verifying the list of documents, though not served on the plaintiff yet, the object of the plaintiff has in fact been achieved because the summons has produced what they wanted, viz that the due process of the action should go forward. [Editorial Note: The plaintiff has appealed tothe Supreme Court vvide Civil Appeal No 02-91 of 1990.] Cases referred to 1 Samuels v Linzi Dresses Ltd [1980] 1 All ER 803 (refd) 2. Husband'sof Marchwood Ltd Drummon Walker Developments ‘Led [1975] 2 All ER 30 (folld) 3. Fira Development Sdn Bhd v Goldin Sén Bhd [1989] 1 MLJ 40 (ref) Legislation referred to Rules of the High Court 1980 0 24 r 16(1) Cheng Ling (Miss) for the plaintiff. HC Sim for the defendant. Cur Ado Vute Haidar J: Ley Boon Hee (‘LBH’), the plaintiff, filed a summons-in-chambers dated 20 July 1989 under O 24 F 16(1) of the Rules of the High Court 1980 (‘RHIC’) against the defendant, Paling Construction Sdn Bhd CPCSB’), for an order that: (the defence and counterclaim dated 9 January 1987 be struck out; (i) judgment be entered in favour of LBH for the sum of $461,957.37; (fii) damages to be assessed by the Registrar of the High Court; and (iv) costs to be taxed including the costs of and incidental to the summons (encl 47). ‘The grounds of the summons are: (@) PCSB has failed to comply with item 2 of the court ‘order dated 3 October 1988, thats, it did not comply within sixty (60) days from the date of service of the ‘court order serve on LBH alist of documents and file an affidavit verifying such list; the delay is inordinate, inexcusable, and/or inten- tional and contumelious; and LBH has been irreparably prejudiced by the failure of PCSB to comply with the said item 2 of the court order, which cannot be compensated by costs. Iris supported by the affidavit of LBH himself. (b) ©