JUDGMENTS
Criminal Appeal No. 9 of 2007
[A total sentence of 6 year and 7 months and 5 strokes for 3 offences of carnal knowledge of a boy aged 5 years and 7 months contrary of S. 377 of the Penal Code and 1 offence of outraging his modesty contrary to S. 354 held to be manifestly lenient. Appeal allowed and a sentence of 9 years imprisonment and 5 strokes substituted]
PUBLIC PROSECUTOR v Bahrin Bin Rejab
COACM/9/2007
Decision date: 5 Nov 2007
Civil Appeal No. 2 of 2007
[Principal debtor and guarantors sued by bank for amounts owing under loan agreement Action settled. Consent judgment embodying settlement agreement. Failure to make repayments stipulated in settlement agreement. Writ issued relying upon loan agreement. Summary judgment sought and granted in that action. Held, on appeal, that there was no entitlement to summary judgment in the action brought relying upon the original loan agreement as the consent judgment embodying the Settlement Agreement extinguished the original causes of action. Quare whether the position would be otherwise in a fresh action relying upon the consent judgment.]
Liaw Watt Lee and 2 others v Baiduri Bank Berhad
COACV/2/2007
Decision date: 24 May 2007
Civil Appeal No. 4 of 2007
[Appeal against judge’s award of interest and default interest due on Banker’s claim under facility letters granting a term loan. Agreement for repayments on the loan to be made from customer’s current account which he did not keep in funds so that it went into unauthorised overdraft. Principal sums repaid by agreement. Issues concerning the interest and default interest payable on the overdraft and principal under the facility letters. Facility letter agreements held to apply to the current account as well as the loan account. Order of the judge upheld. Appeal dismissed. ]
Hj Md Yussop Bin Hj Md Daud v Baiduri Bank Brunei
COACV/4/2007
Decision date: 23 May 2007
Civil Appeal No. 12 of 2006
[Cyclist injured in road accident gave notice reserving his rights under section 9 of the Motor Vehicle Insurance (Third Party Risks) Act Cap 90 to the insurer of the registered owner (who had sold the insured motor car before the accident). The Cyclist intends to seek judgment against the registered owner and/or the unauthorised driver. He has not obtained judgment on either liability or quantum and has no claim against the insurer until he does. It is not known whether he will have a claim against the insurers or whether he will pursue it. Insurers application
for a declaration that it is not liable to the cyclist struck out by Registrar under O.15 r.16 as disclosing no reasonable cause of action and an abuse of process. Upheld by judge. Insurers appeal dismissed by Court of Appeal with costs on an Indemnity basis. ]
National Insurance Co Bhd v Qazi Mohammad Salman
COACV/12/2006
Decision date: 21 May 2007
Civil Appeal No. 19 of 2005
[Appeal allowed. Claim for goods sold and delivered. Items of small value sold and delivered over a long period of time. Course of dealings based upon written orders and acknowledgements of receipt. Admissibility of documentary evidence. Shifting of the evidentiary burden to the defendant. Waiver of objection to admissibility by the defendant.]
Khoon Fen Company v LTS Real Estate & Development (sued as a firm) and 4 others
COACV/19/2005
Decision date: 21 May 2007
Civil Appeal No. 6 of 2006
[Order 14 Rules of the Supreme Court. Summary Judgment for part of the plaintiff’s claim based on architect’s certificates issued under a building contract. Proper construction of the contract. No issue of law involved. Judge’s discretion as to whether execution should be stayed pending determination of counterclaim for damages.]
Jong Hoke Chiang (trading under the name and style of YONG PILING & CONTRACTOR) (Brunei Yellow IC: 008445) v Kok Heng Construction Company
COACV/6/2006
Decision date: 17 May 2007
Civil Appeal No. 2 of 2006
[Leave under Order 6 Rule 6 (1) required to issue writ for service abroad. The claim in the writ must be for a claim under Order 11 Rule 1. The writ for which leave was granted under order 11 Rule 1 (h) made no claim in tort. Submissions that conversion can relate to a credit in a bank account or for breach of trust rejected.]
Decision date: 6 Dec 2006
Civil Appeal No. 1 of 2006
[Personal injuries claim. Appeal on fact only on liability and contributory negligence. No sufficient grounds made out. Appeal on quantum. Awards upheld. ]
Decision date: 6 Dec 2006
Civil Appeal No. 13 of 2005
[Appeal on fact alone. Appeal dismissed]
Decision date: 6 Dec 2006
Criminal Appeal No. 11 of 2005
Criminal Appeal No. 1 of 2006
Civil Appeal No. 15 of 2005
Criminal Appeal No. 3 of 2006
[Public Prosecutor’s appeal against fines totaling $1,000 imposed for 2 offences of Criminal Breach of Trust contrary to S.406 of the Penal Code on the grounds that they were manifestly inadequate and did not have sufficient deterrent or retributive effect. Conceded that special circumstances justified the imposition of fines rather that a custodial sentence. Substantial mitigation advanced including information about the Respondent’s lack of means which was not challenged by the prosecution at trial. In the circumstances the punishment was appropriate if
apparently lenient. Appeal dismissed]
Decision date: 20 Nov 2006
Criminal Appeal No. 12 of 2006
[Three offences of breach of trust by clerk in Ministry of Defence. In all $326,890 was
misappropriated. After plea the Judge’s overall sentence of 4 years and 6 months would have been appropriate. Given a delay of 6 years and 3½ months between complaint and eventual appearance in court for which no satisfactory explanation was given the Judge’s discount of one year was however not adequate. A proper discount would have been 2 years. The appeal succeeds. Sentence reduced to 2 years and 6 months]
Awg Ismail Bin Sahari @ Abdul Hamid v PUBLIC PROSECUTOR
COACM/12/2006
Decision date: 13 Nov 2006
Criminal Appeal No. 13 of 2006
[Rape of a maid. Use of threats and a knife. Slight injury inflicted. Pitifully vulnerable
position of victim a grave aggravating factor. Proper starting point of 9 years]
Decision date: 11 Nov 2006
Criminal Appeal No. 12 of 2005
Criminal Appeal No. 9 of 2006
[ ]
Decision date: 6 Nov 2006
Civil Appeal No. 11 of 2005
[Joint and several bank guarantee by 5 persons to obtain a company overdraft. Subsequent guarantee entered into by 3 of the 5 to guarantee the same account in an increased sum.
Prior to the subsequent guarantee the 2, who do not enter into it, have a conversation with a bank officer informing him that they would like to be released from the first guarantee. He tells them that he will deal with the matter. No written notice of determination is given as required by the terms of the guarantee and there is non further communication as to release between the Bank and the 2 guarantors. Held that the evidence of the conversation fell far short of the clarity, precision and weight required to determine the guarantee. ]
Decision date: 6 Dec 2006
Civil Appeal No. 12 of 2005
[Misconduct of advocate and solicitor – effect of Legal Profession (Law Society) Order 2003 – held: Court has disciplinary jurisdiction when the Law Society is unable to fulfill its statutory obligations – in the instant case suspension reduced from 9 months to 6 months. ]
Decision date: 3 Dec 2005
Criminal Appeal No 7 of 2005
[The perception that there has been an increase in offences of incestuous rape since Ahmad Ebrahim v PP (Criminal Appeal 8 of 2004) was decided in December 2004 is not supported by the up to date statistics. Higher sentences passed on the basis of such increase are not justified. The guideline of a starting point of 15 years reduced to 10 after plea affirmed. Guidelines are to be followed unless sound reasons are given for departing from them]
Decision date: 1 Dec 2005
Criminal Appeal No. 17 of 2004
[Conviction for possession of cannabis for the purpose of the trafficking. In the particular
circumstance the conviction was found to be unsatisfactory. Conviction therefore quashed]
Decision date: 28 Nov 2005
Criminal Appeal No. 9 of 2005
[Fine only imposed for criminal breach of trust as a servant – appeal by Public Prosecutor.
Held that the mitigation, although strong, did not amount to the “very exceptional circumstances” required by R v Barrick, but in the present circumstances the court
would not interfere.]
Decision date: 28 Nov 2005
Criminal Appeal No. 6 of 2005
[Revised tariff for possession of amounts below 40 grammes of Methylamphetamine for the purpose of trafficking made necessary by the Misuse of Drugs Act (Amendment) Order of 2002]
Decision date: 21 Nov 2005
Criminal Appeal No. 8 of 2005
[3 offences of Rape of daughter when 13 and 16 years. Guidelines in A Bin I v PP [Cr.App.No.8 of 2004] considered. Overall sentence of 14 years imprisonment appropriate. Appeal dismissed]
Decision date: 17 Nov 2005
Criminal Appeal No. 3 of 2005
[The Appellant pleaded guilty to 3 charges of Criminal Breach of Trust contrary to S.409
of the Penal Code. On the individual charges, the Judge’s approach to sentence was impeccable. However, she then failed to consider whether the total consecutive sentences of 6 years were excessive, having regard to the overall criminality and mitigation. The total of 6 years’ imprisonment excessive. Reduced to 4 years]
Decision date: 16 Nov 2005
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