17 December 2010

Right of Any Person To Legal Counsel (Part 1)

In an earlier posting back in 2009, and an update posting this year; we had discussed about the rights of the arrested person to call upon Legal Counsel to advise the person. That is Section 28A of the Criminal Procedure Code.

We find a lacuna in Malaysian Laws on this area, specifically; the Law made no specific reference to the rights of a person called upon by the Police (or other relevant authorities) to assist in the criminal investigation.

If you are called by the Police (for example) to assist in an on-going investigation, can you call a lawyer along? Logic would dictate; Yes. But there is no specific provision similar to that in Section 28A CPC.

Today, we start a series of review of Laws from other Jurisdictions on how that Country
defines the right of the volunteer person.


United Kingdom

In UK, the rights of a person assisting in a Police questioning or investigation is contained in the Police and Criminal Evidence Act 1984 [PACE 1984]. We refer herein to Code C of PACE 1984, which is also known as Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, whereby it is stated in Note 1A Code C of PACE 1984 that:-


“Although certain sections in this Code apply specifically to people in custody at police stations, those there voluntarily to assist with an investigation should be treated with no less consideration, e.g. offered refreshments at appropriate times, and enjoy an absolute right to obtain legal advice or communicate with anyone outside the police station.”

From the same, we are able to deduce that the police officer is required to respect the person who comes to police station with the intention to give information of the investigation, whether that person an accused, witness or even an volunteer informant. As such, any person is to be given access to legal advice or communication with any other person outside the police station.

This was followed in the case of Brooks v. Commissioner of Police of the Metropolis [2005] UKHL 24 which was decided by the House of Lords of United Kingdom (now known as the Supreme Court) on 21st April 2005. Lord Steyn; wherein he had held that “whilst focusing on investigating crime, and the arrest of suspects, police officers would in practice be required to ensure that in every contact with a potential witness or a potential victim time and resources were deployed to avoid the risk of causing harm or offence”.

Lord Rodger in the same case also held that “as a matter of professional ethics, officers can be expected to treat witness with appropriate courtesy and consideration, and may be open to disciplinary proceedings if they do not.”



05 December 2010

Bar Council 2011 election

Our Richard Wee was elected to Bar council, in the recent Bar Council 2011 election. We thank our friends for the support.



1Hendon Mohamed1803
2Haji Sulaiman Abdullah1783
3Christopher Leong1381
4George Varughese1365
5Datuk Kuthubul Zaman Bukhari1324
6Andrew Khoo Chin Hock1265
7Low Beng Choo1237
8Steven Thiru1225
9Dato' Yasmeen Shariff1196
10Syamsuriatina bt Ishak (Tina)1087
11Richard Wee Thiam Seng1052
12Anand Ponnudurai1042

23 November 2010

Will - Documents living beyond you



Wills are unique. These documents only come alive when the maker of the Will has passed away. Hence these documents lives beyond you.

Whatever drafted on the Will has to be accurate. Once the maker of the Will has passed away, the Executor of the Will would have to decipher what the maker wishes. So, the Will has to be drafted in clear and understandable language. Any ambiguity may lead to unwanted consequences (for example; an ambiguous clause may be declared too vague, and the asset which you wish to donate to a specific beneficiary may not end up with that beneficiary after all).

It is strongly advised that you engage a Solicitor to draft a Will. Inform the Solicitor of all your tangible assets. Inform the Solicitor which asset shall go to who, upon your demise. Be clear with the Solicitor.

It is perhaps best not to have an asset divided to too many people (for example Landed properties should not be divided to too many people). One must also consider if the one asset is divided to too many people, when this beneficiary themselves pass away (and if they pass away without a Will) then your legacy would be in conflict and sometimes in chaos.

In some Wills, the maker gives a House to 5 children. When the maker dies, all 5 Children will be registered as co-owner. But when one of the child themselves passes away AND pass away without a Will; that is where your legacy faces problems. The 3rd generation will face much issues.

Anyway, this is merely an example. Be sure you think beyond the coming generation when deciding who benefits from your Will. It would be beneficial if you ponder of the 3rd generation too.


17 November 2010

Bar Council 2011 election

Our very own Richard Wee has offered himself as a Candidate for a place at the Bar Council, next term. The firm wishes him the best of luck; and hope the members will consider his candidacy.

Please see the link below, to the Malaysian Bar Website; where Richard's nomination can be found. 

RWY supports Richard's effort to be elected. 



02 November 2010

RWY welcomes Sarah Kambali


Another talent joins RWY. Sarah was a pupil of Richard Wee back in 2007, and her return is somewhat of a reunion with Richard.

RWY welcomes Sarah, who will be supporting & assisting the partners in matters of Conveyancing & Contracts.

With Sarah in RWY, we now have a pool of 4 lawyers and a Para-Legal to call upon, over and above our support staffs.

Welcome aboard, Sarah!

01 November 2010

RWY in the news : Court rules in favour of SIS

KUALA LUMPUR: SIS Forum (Malaysia) can use Sisters In Islam as its name and identity.

The Malaysian Assembly of Mos que Youth (Pemuda Masjid) failed in its bid yesterday to prevent SIS Forum (Malaysia) from using Sisters In Islam.

High Court judge Justice Zabariah Mohd Yusof allowed an application by SIS Forum to strike out the suit against them after meeting the parties in chambers at the court complex here yesterday.

Lawyer Richard Wee, who represented SIS Forum, told reporters that the judge agreed to strike out the suit as she ruled that Pemuda Masjid had insufficient locus standi to act against them.

“If the applicant (Pemuda Masjid) had any problems with SIS Forum, they should take it up with the Companies Commission of Malaysia (SSM).

“The judge agreed with this and ruled in our favour,” Wee said.

SIS Forum was also represented by counsel Malik Imtiaz Sarwar and Azhar Harun while lawyers Mohd Ibrahim Mohd and Anas Fauzi acted for Pemuda Masjid.

On June 16, SIS Forum filed an application to strike out the suit.

On March 22, Pemuda Masjid – a non-governmental organisation with 5,000 members – filed an originating summons seeking a declaration that the valid name for the organisation under the law was not Sisters In Islam and wanted to prevent the organisation from using the name.

In an affidavit filed in support of the application, its executive director Mohd Taqiuddin Abdullah said a check with the SSM revealed that the respondent was registered under the name of SIS Forum (Malaysia) and not Sisters In Islam.

The use of the word Islam was controlled and limited by the Registrar of Companies and could only be used upon getting permission from the SSM and related government agencies, he added.


22 September 2010

Innocent until Proven Guilty

In Malaysia, like all Commonwealth Countries, the Criminal Justice system is run on the premise that the Accused is Innocent Until Proven Guilty. The Onus is on the Prosecutor to prove the Guilt of the Accused.

And many would have heard the phrase that the Prosecutor must prove a person's guilt" beyond reasonable doubt". What this phrase "beyond reasonable doubt" basically means is that the Prosecutor must tender in Evidences that would strongly suggest that the Accused before the Court, is in fact the person guilty of the crime accused. If there is any reasonable doubt, the Court cannot convict the Accused.

The reason for this? Well, the Criminal Justice system is administered to not convict the innocent. As William Blackstone once said, "Better that ten guilty persons escape than that one innocent suffer".

This system ensures that the Police and Prosecutor will continue to work fairly and hard to catch the right person and charge the right person. If the standard to convict a person is low, then it may lead to a system where the Police or Prosecutor will do a flimsy job as it would be easy to convict a person.




15 September 2010

Alliance Law Firms

RWY is part of an Alliance of Law Firms all over Peninsular Malaysia. The firms we are allied to are:-

1. Messrs Benjamin & Co at Bukit Mertajam, Penang
2. Messrs Choong Meng Sze & Lai at Ipoh, Perak
3. Messrs Chee Hoe & Associates at Kuala Lumpur
4. Messrs Ermiey, Nizam & Ho at Melaka & Johor Bahru
5. Messrs Damian SL Yeo & LC Goh at Melaka.

The Alliance proves helpful to our clients when dealing with matters within the Country. Also the Allied firms sometimes offer other legal services which differ from RWY. In some instances, RWY also jointly work with our member Allied firms in some legal projects or matters. 

All this is part of our aim to be the Bridge for our client, to all legal solutions.






18 August 2010

My Experience As An Intern at RWY (By Bryan Cheong)

Dear RWY,

As Richard said to us, on the first day we came to the firm, there are so much things for us to learn especially for a first year law degree student like us.

And I am really thankful to Richard, Mr. Yip and Johnson for giving us the chance to be involved in some significant cases; such as the drug-trafficking, defamation and the ISA cases. We acquire the knowledge of what are the essential elements to establish a particular charge and how the proceeding of these cases, run.

For instance, in the drug-trafficking case, we managed to learn the charges under Dangerous Drugs Act 1952 such as the s.39A and s.39B Dangerous Drugs Acts 1952 and the defences against these charges. When we were reading the facts of the case, we were also being taught the ways to establish defence through the evidence given by the prosecution side and the ways to cross-examine the prosecution’s witness.

In the defamation case, while doing the research, I learnt to search for relevant cases effectively through the CLJ web site. Though it took quite a long time and I had to read through the facts of those cases to fit in with the case before us, it was really worth it all, as it is vital in our future career.

Moreover, while doing the research, I also realize that the definition of an offence is very important to distinguish with the case before us, for example, in the cases of defamation, there is a very fine distinction between whether a statement made is defamatory or just merely an opinion with no intention bring down the reputation of the Plaintiff.

The most unforgettable experience for me is that we went for the Teoh Beng Hock’s inquest in the Shah Alam Coroner’s Court with Richard Wee. From a lay person’s point of view, we could see how ridiculous are the cross-examination questions posed to the witness, one Tan Boon Hong; skewed at trying to establish MACC’s theory that Teoh Beng Hock purportedly committed suicide. And the another thing I learnt, is that a litigator should be rational and act professionally by not bringing out their personal feeling when he is representing his client in the court.

Other than that, we had also learnt some basic litigation procedures such as drafting Affidavit, Letter of Demand, Summons, Statement of Claim, Submissions, bankruptcy procedure and winding up procedures.

Again, I wish to thank all at RWY for your help and please accept my sincerest gratitude for giving me the chance to learn from you all.

Regards,
Bryan


16 August 2010

Return of Yip Xiaoheng

Our former attachment student, Yip Xiaoheng has recently join Richard Wee & Yip as para-legal.

Welcome aboard Xiaoheng, as we continue to bring in more talent to help our client to bridge the gaps.

30 July 2010

Amendments to the Subordinate Courts Act 1948


Press Release: Proposed changes to Subordinate Courts Act are too drastic and require proper studyPDFPrintE-mail
ImageThe Malaysian Bar is concerned that the far-reaching amendments to the Subordinate Courts Act 1948 are being tabled for adoption in Parliament without a detailed and thorough impact assessment exercise, and exhaustive consideration of the ramifications.

The proposed amendments contemplate increasing the limits in monetary jurisdiction of, among others, the Sessions Court (from RM250,000 to RM1,000,000), and the Magistrates Court (from RM25,000 to RM100,000).  Such a sudden and substantial expansion, representing a four-fold increase, is too large, and immediately calls into question the ability of the current capacity of the Subordinate Courts to handle the corresponding increase in workload.  Allocation of resources is also a significant issue, as the upsurge in workload will similarly require an increase in the number of judges and court infrastructure.  No details have been provided as to how these concerns will be addressed. 

Although there are inflationary-based arguments that justify a reasonable enlargement in the monetary jurisdiction of the Subordinate Courts after 16 years, an extensive study is crucial to ensure the amendments do not subject litigants in Malaysia to hardship and place undue stress and pressure on the present structure and resources of the Subordinate Courts.  A gradual and incremental increase would be a more appropriate and realistic move, which would also be less likely to adversely impact on the capacity of the Subordinate Courts to handle and dispose of such claims in an effective and efficient manner.

The Malaysian Bar is also concerned about the competence and judicial experience of judicial officers of the Subordinate Courts to effectively deal with claims of such financial magnitude.  An essential consideration is whether they possess the necessary experience and qualifications to preside over such matters, and the adequacy of the training they must necessarily be given.

The proposed amendments also contemplate conferring additional jurisdiction on the Sessions Court, allowing it to grant equitable remedies such as injunctions and declaratory relief, provided the claim is within its (enlarged) monetary jurisdiction.  The Malaysian Bar has reservations that the relatively short time spent as judicial officers in the Subordinate Courts and the resultant lack of experience do not adequately equip the judicial officers to deliberate upon and grant equitable remedies, which involve complex legal principles and can have harsh and serious consequences on a litigant.  Conferring such power, especially the power to grant an injunction directing a party to do, or refrain from doing, a particular act, will potentially result in adverse consequences arising from imprudent or erroneous decisions.

The Malaysian Bar believes that a more appropriate and realistic boundary between the Subordinate Courts and the High Court should be based on the relative complexity of the subject matter of the claim rather than the claim amount alone, to ensure that more complex matters are heard by High Court Judges who possess greater experience and knowledge of legal principles. 

We call on the Government to defer the Amendment Bill until a comprehensive study is undertaken to address the myriad issues posed by the proposed amendments, and the Bar Council is consulted and given a full opportunity to provide its views.  The Bar Council is presently working closely with the Judiciary on the formulation of the Combined Rules of Court and considerations of enlarging the jurisdiction of the Subordinate Courts ought to be discussed and dealt with comprehensively in tandem with this. 

Lim Chee Wee
Vice-President
Malaysian Bar

2 July 2010 

21 July 2010

Section 218 Companies Act 1965



The Companies Act 1965 (CA 1965) includes a provision which allows a party to file a Petition in High Court to wind up a Company. Today we look at one of the few provisions related to this issue, Section 218 of the CA 1965. 

We re-produce Section 218 below


218.  Circumstances in which company may be wound up by Court.

(1) The Court may order the winding up if -
(a) the company has by special resolution resolved that it be wound up by the Court;

(b) default is made by the company in lodging the statutory report or in holding the statutory meeting;

(c) the company does not commence business within a year from its incorporation or suspends its business for a whole year;

(d) the number of members is reduced in the case of a company (other than a company the whole of the issued shares in which are held by a holding company) below two;

(e) the company is unable to pay its debts;

(f) the directors have acted in the affairs of the company in their own interests rather than in the interests of the members as a whole, or in any other manner whatsoever which appears to be unfair or unjust to other members;

(g) an inspector appointed under Part IX has reported that he is of opinion -
(i) that the company cannot pay its debts and should be wound up; or

(ii) that it is in the interests of the public or of the shareholders or of the creditors that the company should be wound up;
(h) when the period, if any, fixed for the duration of the company by the memorandum or articles expires or the event, if any, occurs on the occurrence of which the memorandum or articles provide that the company is to be dissolved;

(i) the Court is of opinion that it is just and equitable that the company be wound up;

(j) the company has held a licence under the Banking and Financial Institutions Act 1989 (Act 372) or the Islamic Banking Act 1983 (Act 276) and that licence has been revoked or surrendered;

(k) the company has carried on Islamic banking business, licensed business, or scheduled business, or it has accepted, received or taken deposits in Malaysia, in contravention of the Banking and Financial Institutions Act 1989 or the Islamic Banking Act 1983, as the case may be;

(l) the company has held a licence under the Insurance Act 1996 and-
(i) that licence has been revoked;
(ii) Bank Negara Malaysia has been petitioned for its winding up under

subsection 58(4) of the Insurance Act 1996; or

(iii) an order under paragraph 59(4)(b) of the Insurance Act 1996 has been made in respect of it;
(m) the company is being used for unlawful purposes or any purpose prejudicial to or incompatible with peace, welfare, security, public order, good order or morality in Malaysia; or

(n) the company is being used for any purpose prejudicial to national security or public interest.
[Am. Act A1022]
DEFINITION of inability to pay debts.
(2) A company shall be deemed to be unable to pay its debts if -
(a) a creditor by assignment or otherwise to whom the company is indebted in a sum exceeding five hundred ringgit then due has served on the company by leaving at the registered office a demand under his hand or under the hand of his agent thereunto lawfully authorized requiring the company to pay the sum so due, and the company has for three weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor;

(b) execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or

(c) it is proved to the satisfaction of the Court that the company is unable to pay its debts; and in determining whether a company is unable to pay its debts the Court shall take into account the contingent and prospective liabilities of the company.


As you may see, Section 218 gives you a list of instances where one may file such a Petition. This is a popular method used by debtor to Petition the winding up of a Company which owes the debtor. 

In some instances, the very service of a Notice under that Section 218, would trigger the essential response to report to the Stock Exchange, if the Company targeted is a Public listed Company. 

There have also been a mixed responses from Judges whether the provision can be used if the Debtor has yet to attain Judgment against the owing Company. There have been cases where Debtors file this Petition to pressure the Company to settle the outstanding amount, even though that Debtor has not crystalized that debt into a Judgment. The case laws are split in the sense that some Judges opine that one must attain a Judgment first before proceeding to the Petition; whilst another line of authority felt that it is all right to file such a Petition, with or without a Judgment.


14 July 2010

LOYARBUROK : ISA Musical Chairs: High Court judgment in Azzahari & 7 others

BY JOHNSON LIM

We often hear that the draconian and anachronistic ISA is used by the government of the day as an oppressive tool to stifle peaceful and political dissent. More often than not, political activists/politicians and to some extent, journalists in the past decade have been detained under the ISA without trial.

However, the ISA was again used recently on 21 January 2010 – but this time rather than targeting political opponents, more than 50 people of various nationalities including students from local universities were arrested in a crackdown at Sungai Cincin, Gombak for allegedly participating in “unsanctioned” Islamic sermons/religious classes; and for allegedly having links with international terrorist organisations.

Despite letters sent by us (as solicitors representing the detainees) to the Inspector-General of Police and the Home Minister on 29 January 2010 to seek further information on the arrests and to request for access, the addressees failed to respond positively.

A writ of habeas corpus was subsequently filed on 4 February 2010, on behalf of the detainees, to secure the release of those still being detained and to prevent the deportation of those who were not Malaysians. On 5 February, we were informed that one of the foreigners had been deported back to his country of origin, while the remaining 6 had been released to the custody of the Immigration Department.

The application was heard by the High Court on 10 March 2010, before His Lordship Dato Hj Ghazali Bin Hj. Cha. On the very same day of the hearing, in an obvious attempt to frustrate legal process, we were informed that a Restriction Order has been issued against Azzahari, the Malaysian detainee.

In light of this, a preliminary objection to the writ was raised on the ground that the application is now academic as the detainees are no longer in the custody of the Police or Home Ministry.

In dismissing the application for writ of habeas corpus (and thus allowing the preliminary objection), the High Court held inter alia:-
1. On the issue of the application now being academic
Adalah undang-undang yang mantap bahawa sesuatu Permohonan untuk mendapatkan writ of habeas corpus hanya terpakai bila mana seseorang individu itu berada di dalam tahanan secara fizikal dengan tidak mengikut undang-undang; atau dengan lain perkataan “He must be in actual custody,” “restrictee” juga tidak berhak untuk memohon writ of habeas corpus. Rujuk kes ‘Kerajaan Malaysia & Ors v. Nasharuddin Nasir’ (2004) 1 CLJ 90 (F/Ct):
“In the result, Choor Singh J took the position that a writ of habeas corpus had to be addressed to the person or authority having actual physical custody of the person alleged to be detained illegally. That, in my view, represents a correct statement of law. In a situation where the court finds it impossible to issue the writ because the person or authority no longer had the custody of the detainee, it should not hear the application. Indeed, it has no jurisdiction to do so. This is precisely the position of the instant case. Here, the facts show that when the application came up for full argument before the court, the police no longer has custody of the respondent. …”

2. On the issue of public policy and public interest grounds
One of the issues submitted by us was whether the scope and purview of ISA was wide enough to cover alleged security threats outside Malaysia i.e. international security threats. It was submitted that the purpose of the ISA, via the speech of Tun Abdul Razak recorded in Hansard, limited the use of the ISA to internal threats:-
The Honorable Prime Minister and other Members of Government, including myself, have made it quite clear on a number of occasions that, because Emergency is to be declared at an end, the Government does not intend to relax its vigilance against the evil enemy who still remains as a threat on our border and who is now attempting by subversions to succeed where he has failed by force of arms. It has two main aims: firstly to counter subversion throughout the country and secondly, to enable the necessary measures to be taken on the border area to counter terrorism.
The High Court however held as follows:-
Mengenai isu kepentingan awam, saya percaya kepentingan awam akan lebih dipelihara dari segi keselamatan mereka sekiranya tindakan pencegahan yang cepat bagi menangani isu keganasan diambil, maka isu sama ada ISA terpakai hanya untuk keselamatan negara hendaklah ditafsirkan secara meluas, iaitu bagi menghalang kegiatan keganasan yang akan atau mungkin menular ke negara ini, apa yang berlaku di negara luar perlu dihalang penularannya ke negara ini, di dalam kes ini Pemohon-pemohon telah ditahan di dalam negara ini, dalam keadaan ISA adalah terpakai kepada Pemohon-Pemohon.
3. On the issue of the conduct of the Respondents in frustrating the legal process
Mengenai isu kedua sama ada Y.B. Menteri dan Responden bertindak secara melampau dengan niat bagi menggagalkan Permohonan Pemohon-Pemohon, saya percaya ini bukanlah menjadi isu berdasarkan kepada jumlah pemfailan affidavit-affidavit oleh Responden-Responden, dan tindakan Y.B. Menteri yang menandatangani perintah sekatan terhadap Pemohon Pertama baru semalam (10/3/2010), pada pendapat saya, tidak sekali-kali terjumlah kepada tindakan menghina Mahkamah. Saya faham dengan kesibukan Y.B. Menteri setiap hari dan tandatangan di saat akhir perintah sekatan itu pada pendapat saya dilakukan tanpa unsur-unsur mala fide.
An appeal was filed on 5 April 2010 against the decision and is now scheduled to be heard on 19 July 2010 by the Federal Court. Another habeas corpus appeal is scheduled to be heard together, that of actor Khaeryll Benjamin Ibrahim (popularly known as Benjy).

LB: The writer is the solicitor at Messrs Richard Wee & Yip handling the matter, and part of the team of counsel acting for the detainees.


*Original posting at www.loyarburok.com

14 June 2010

RWY in the news : SIS to apply to strike out Pemuda Masjid Suit

From the Star:-

http://thestar.com.my/news/story.asp?file=/2010/5/27/nation/20100527145632&sec=nation


KUALA LUMPUR: SIS Forum (Malaysia) will apply to strike out a suit filed against it by the Malaysian Assembly of Mosque Youth (Pemuda Masjid) over the usage of “Sisters In Islam” as the forum’s name and identity.

Lawyer Richard Wee, who represented SIS Forum, informed deputy registrar Suzarika Sahak during case management at the Jalan Duta court complex Thursday that the forum would file an application to strike out the suit and also file the affidavit in reply to the originating summons before the case was called for another case management on June 18.

Lawyer Ernie Sohib from Sahlan & Associates appeared for Pemuda Masjid.

On March 22, Pemuda Masjid - a non-governmental organisation with 5,000 members - filed an originating summons seeking a declaration that the valid name for the organisation under the law was not Sisters In Islam and wanted to prevent the organisation from using the name in any pamphlet, correspondence (letters), publications and/or statements on the Internet, and in the print and electronic media.

It is also seeking an order to force the respondent to remove the name from its website, printed materials and publications.

Apart from asking for costs and further relief deemed fit by the court, it wants to prevent the respondent from circulating printed materials in such a manner.

In an affidavit filed in support of the application, its executive director Mohd Taqiuddin Abdullah said a check with the Companies Commission of Malaysia (SSM) revealed that the respondent was registered under the name of SIS Forum (Malaysia) and not Sisters In Islam.

He added that the memorandum of association of the respondent did not state that the purpose of setting it up was for Muslim women but was in support of equal rights for men and women.

The use of the word Islam was controlled and limited by the Registrar of Companies and could only be used upon getting permission from the SSM and related government agencies, he added.

Mohd Taqiuddin claimed that the respondent had many times issued statements that contradicted Islamic teachings.

He contended that the actions of the respondent in using the name and identity had confused people locally and abroad.


27 May 2010

RWY in the news : Court allows boy to challenge banishment order

Link from Malaysian Insider
KUALA LUMPUR, May 26 — The High Court here today granted exiled schoolboy Jiegandran Panir Selvam the right to challenge a home ministry order which had placed him under detention without trial earlier this year.
Jiegandran, who turned 18 four days ago, was arrested last year on suspicion of having a stolen motorcycle.
He was later detained using the Restricted Residence Order under the Emergency Ordinance (EO), an archaic law used to combat communism in then-Malaya, from January to March this year.
The home ministry, represented by federal counsel Mohd Zain Ismail from the Attorney-General’s Chambers, did not object to the teen’s court bid, said Jiegandran’s lawyers.
The case has been fixed for mention on July 5, before judge Datuk Mohd Zawawi Salleh.
Jiegandran was not in court for his case, which was heard in chambers.
A group of some 10 lawyers were acting for the boy, including Syahredzan Johan, Daniel Albert, Yohendra Nadarajan and Richard Wee.
The fifth-former from Selangor has been exiled to neighbouring Negri Sembilan for two years under the Restricted Residence Order, issued by the home ministry resulting from his earlier detention under the Emergency law.
“He cannot leave the district of Linggi without the written consent of the police chief,” Yohendra told reporters outside the courtroom.
He added that Jiegrandran, who must also report to the police station every Monday for the next two years, has been put under curfew and was effectively house-bound from 8pm to 6am the next day.
“It’s a very draconian order against a child,” Wee cut in.
“As a minor, he has no capacity to sign the EO order given to him,” he added, referring to the document issued by Deputy Home Minister Datuk Wira Abu Seman Yusop for the ministry.
The lawyer explained that Parliament had passed the Child Act in 2001, protecting the rights of persons under 18 years old.
Wee also highlighted the United Nations’ 1989 Convention on the Rights of the Child (CRC), an international treaty which Malaysia had signed and was committed to uphold.
Jiegandran and his father, M. Panir Selvam, 53, who is also named as an applicant in the court papers, want the High Court to lift the home ministry’s restrictive orders and allow him to return home to his family in Semenyih.
The deputy home minister, the Inspector-General of Police, the Negri Sembilan police chief and the federal government were named as respondents in the suit.

14 May 2010

Buying a Property in Malaysia ; Who is an Estate Agent?




An Estate Agent is actually a Negotiator to assist parties to sell or buy properties in Malaysia. The Official organisation for these agents is Malaysia Institute of Estate Agents.

They usually impose a fee of around 3% of the purchase price. You may see the scale fee of an Estate Agent at their webpage, particularly at the FAQ page. Please see link at :-


Additionally you may also read this 2007 article placed at Iproperty.com. The link is at http://www.iproperty.com.my/news/654/Who-Are-Estate-Agents.

Below is an extract of that article:-


"The Malaysian Institute of Estate Agents (MIEA) is the recognised body representing all registered estate agents in the country. Formerly known as the Malaysian Association of Real Estate Agents (MAREA), it was formed in 1974 but officially registered in April 1977 with the Registrar of Societies. The name was changed on 3 May, 1989 to reflect a more professional image of the organisation.

The MIEA's vision is to unite all registered estate agents in Malaysia as an independent body to promote greater excellence and professionalism in the real estate industry, so that it achieves higher ideals and creates more profitability.
Among its objectives are to:
  • Address critical issues that affect the industry
  • Cultivate a positive public perception of the profession
  • Safeguard and protect the interests of its members and the general public
  • Uphold high professional standards, ethics and integrity among its members
  • Commit to continuous education to keep its members progressive and up-to-date to remain competitive
  • Raise public awareness and encourage them to only use the services of registered estate agents
Useful Contacts:-


The Board of Valuers, Appraisers and Estate Agents Malaysia
Suite 3B-10-3A, Level 10 Block 3B,
Plaza Sentral, Jalan Stesen Sentral 5,
Kuala Lumpur Sentral,
50470 Kuala Lumpur.
Tel : 03-2273 7839/7862/ 5584
Fax : 03-2273 1808
Website : http://www.lppeh.gov.my/index.htm


The Malaysian Institute of Estate Agents (MIEA)
88-B, Jalan SS 21/39, Damansara Utama
47400 Petaling Jaya
Selangor Darul Ehsan
Tel: 03-7727 7477
Fax: 03-7729 3693
Website : http://www.miea.com.my"



27 April 2010

Liquidated & Ascertained Damages


Parties entering into a Contract may at the outset, agree to a certain amount of damages. This is usually referred to as 'Liquidated & Ascertained Damages' (LAD).

In laymen language, before you agree to a contract and before you sign that contract, you can agree with the other party, how much money you will pay or receive as compensation, if one party did not respect the terms of the contract. When talking in legal language, this kind of compensation is called 'damages'.

A common place to find LAD is in Sale & Purchase Contracts of Properties. LAD is a useful and quick method to ascertain the quantum of damages to pay.

The Courts have however decided in some cases, that the LAD ought to be a reasonable amount and not punitive in nature. As stated above, LAD is meant to compensate, not to enrich or punish the party who breached the contract.

Next time you enter into a contract, you may consider discussing the insertion of a clause to quantify the LAD, in that contract. Your lawyer would be able to advise you whether that said contract can include an LAD clause (as not all contracts can have LAD).



12 April 2010

COMPANY LAW : Forcing Suffrage to End Suffering (By Lee Shih)


Below is an article written by a friend of RWY, Mr Lee Shih, a lawyer in Malaysia. This article was originally featured in Skrine's Legal Insights : Issue 1/2010.

You may find the same at this link:-

RWY wish to thank Mr Lee for graciously allowing us to reproduce his article here.



One of the important ways in which the members of a company can express their views and concerns about the management of the company is at the general meetings of a company. Ordinarily however, the power to convene an extraordinary general meeting ("EGM") vests in the directors of the company (for instance, Article 44 of Table A of the Fourth Schedule of the Companies Act 1965 (“Table A”) allows any director to convene an EGM). The members themselves do not have a common law right to compel the directors to convene an EGM.

Sections 144, 145 and 150 of the Companies Act 1965 (“the Act”) provide different mechanisms for the members to convene an EGM. In a majority of cases, such an EGM is convened to allow the members to vote on the removal and replacement of the directors. As a riposte, whether by an opposing shareholder faction or the directors themselves, legal challenges may then be made based on whether the procedural requirements have been adhered to.

This article therefore analyses the three different modes and their requirements for convening an EGM as provided for under sections 144, 145 and 150 of the Act.

SECTION 144 – SHAREHOLDERS REQUISITION DIRECTORS TO CONVENE AN EGM

Section 144 of the Act allows members, holding not less than 10% of the voting rights, to requisition the directors to convene an EGM of the company. Section 144(1) of the Act makes it clear that this statutory right of the members is preserved notwithstanding anything in the Articles of the company. The reason for the 10% shareholding threshold under section 144 of the Act, which is also present in section 145 of the Act, is necessary to prevent frivolous convening of meetings which would disrupt the administration of the company.

(i) “Members”

It is likely that notwithstanding the term “members” under section 144 of the Act, even a single member, holding not less than 10% of the voting rights, can rely on the provision. The High Court in Granasia Corporation Bhd & Ors v Choong Wye Lin & Ors and another case [2008] 4 CLJ 893 held that a single member could requisition under section 144 of the Act and the Court referred to the Australian decision in South Norseman Gold Mines No Liability v MacDonald [1937] SASR 53.

(ii) Requisition Requirements

Section 144(2) of the Act lists the requirements of the requisition notice in that it must state the objects of the meeting, it must be signed by the requisitionists and deposited at the registered office of the company. It is sufficient if the requisition is sent by post to the registered office of the company (Hup Seng Co Ltd v Chin Yin [1962] MLJ 371).

Upon the deposit of the requisition notice, the directors have 21 days from that date to issue a notice to convene the EGM (section 144(3) of the Act). Further, the EGM must be held within 2 months from the date of the deposit of the requisition notice (section 144(1) of the Act).

It is likely that a meeting requisitioned by the members cannot deal with a resolution not included in the objects for which the meeting was requisitioned (Scottish authority of Ball v Metal Industries 1957 SC 315). However, there is the alternative view that any business can be transacted at such a requisitioned meeting if sufficient notice of the necessary resolutions is given (Holmes v Life Fund of Australia Ltd [1971] 1 NSWLR 860).

(iii) Directors Fail to Convene EGM

In the event the directors fail to convene the EGM within the 21-day period from the date of requisition, then section 144(3) of the Act gives the requisitioning members a remedy of self-help in that the requisitionists themselves can convene the EGM.

Nonetheless, if the directors were to issue the notice to convene the EGM after the 21-day period and the EGM were to be held after the 2-month period from the date of requisition (without objection from the requisitionists), such an EGM would not be void. Such was the case in the High Court decision of Dato’ Hamzah Abdul Majid & Anor v Wembley Industries Holdings Bhd [1998] 4 CLJ Supp 471 where the directors who had been removed at such an EGM had tried to seek a declaration that the EGM was void for breach of section 144 of the Act. It was held that the duty on the directors to convene an EGM under section 144 of the Act was owed to the requisitionists. If the meeting was held on a late date, and the requisitionists had not sought to convene one on an earlier date, it would be because it still suited the requisitionists’ purposes. Nonetheless, holding a late EGM would still expose the directors to the general penalty provisions under section 369 of the Act.

(iv) Members Convene the EGM

In exercising their right to convene an EGM under section 144(3) of the Act, the requisitionists also face a deadline in that the EGM must be held within a period of 3 months from the date of the requisition (Court of Appeal decision of HL Nominees (Tempatan) Sdn Bhd v SJA Bhd & Anor and Another Appeal [2005] 1 CLJ 23).

The rationale for this time limit is to maintain good order in a company. The requisitionists having been conferred the power to convene the EGM, must not delay in holding the meeting (Dato’ Hamzah Abdul Majid & Anor v Wembley Industries Holdings Bhd [1998] 4 CLJ Supp 471).

As long as requisitionists holding one-half of the total voting rights of the original requisitionists convene the EGM, it is valid (section 144(3) of the Act). Therefore, the withdrawal of some of the requisitionists does not affect the right of the others to call the EGM (Canopee Investments Pte Ltd v Landmarks Holdings Bhd [1989] 2 MLJ 469).

(v) Expenses

An advantage of requisitioning a meeting under section 144 is that if the requisitionists convene the EGM, then all reasonable expenses they incur shall be paid to them by the company (section 144(4) of the Act).

SECTION 145 – MEMBERS CONVENING MEETING THEMSELVES

Section 145 of the Act allows two or more members, holding not less than 10% of the issued share capital (or if the company has no share capital, not less than 5% in number of members) to directly convene a meeting of the company.

Instead of relying on the section 144 mechanism which necessitates waiting for the directors to decide to call an EGM, section 145 of the Act gives the advantage of allowing the members to call for such a meeting themselves and this route can be a lot faster. However, section 145 of the Act does not give the members a right to be repaid any expenses incurred by them in holding such a meeting.

(i) “Two or more members”

While it is likely that a single member can rely on section 144 of the Act, section 145 makes it clear that two or more members are required in order to convene a meeting under this provision.

(ii) Statutory Right?

Section 145 of the Act does not contain the wording “notwithstanding anything in its articles” which is present in section 144 of the Act. A question arises as to whether there can be a contracting out of section 145 of the Act i.e. whether the Articles can exclude members relying on section 145 of the Act.

The Court of Appeal in Indian Corridor Sdn Bhd & Anor v Golden Plus Holdings Bhd [2008] 3 MLJ 653 (“Indian Corridor”) had to deal with a question related to such an issue. The facts involved the two appellant-shareholders convening an EGM pursuant to section 145 of the Act and the respondent-company challenging the convening of the EGM. Article 55 in the respondent’s Articles provided that the directors may convene an EGM and that EGMs “shall also be convened on such requisition, or, in default, may be convened by such requisitionist, as provided by Section 144 of the Act.” One of the main issues in the appeal was whether Article 55 had the effect of contracting out of section 145 of the Act.

The Court of Appeal held that on a construction of Article 55, there had been no contracting out of section 145 of the Act. The wording of Article 55 did not state that the shareholders shall not resort to their right under section 145 of the Act.

Nonetheless, the decision leaves open the question if the Articles of a company expressly exclude members from seeking recourse to section 145 e.g. the inclusion of a phrase along the lines of “EGMs may be convened by such requisitionist only by way of section 144 of the Act and section 145 of the Act is expressly excluded.”

The Court of Appeal in Indian Corridor distinguished the equivalent Australian provision (section 242(1) of the Australian Companies Code) as that section has the wordings “so far as the articles do not make other provision” which the Australian courts have held allow for the contracting out of the statutory provision (LC O’Neil Enterprise Pty Ltd v Toxis Treatments Ltd [1986] 10 ACLR 337). The Court of Appeal found that while the Australian provision permits a contracting out of its provisions, section 145 of the Act has no equivalent. This question may therefore still be open to interpretation by the courts.

(iii) Notice Period

Section 145(2) of the Act makes clear that in relation to a meeting of a company, the minimum notice in writing must be not less than 14 days or such longer period as provided in the Articles. In the specific case of the convening of an annual general meeting of a public company, section 145(2A) of the Act requires that notice in writing of not less than 21 days or such longer period as provided in the Articles.

(iv) Service of Notice

Section 145(4) of the Act also requires that if the Articles do not make provision for service of the notice on every member having a right to attend and vote at the meeting, then the notice must be served in accordance with Table A.

Unlike under section 144 of the Act, where the primary obligation is on the directors to issue the notices to call for the EGM, the members relying on section 145 of the Act must carry out the issuance of the notices themselves. In planning the calling of a meeting under section 145, the members can rely on section 160 of the Act to inspect or to obtain a copy of the register of members of the company to obtain the names and addresses of all the members.

SECTION 150 – COURT ORDERED EGM

There may be situations where it is difficult or almost impossible to hold a meeting of the company, even if there is reliance on sections 144 or 145 of the Act. For example, an opposing shareholder may refuse to attend the meeting and the quorum requirement under the Articles cannot be met. The Court is empowered under section 150 of the Act to order a meeting of a company to be called where it is impracticable to call or to conduct a meeting in the manner prescribed by the Articles or the Act.

(i) Applicant

The Court may make an order to convene a meeting on its own motion or on the application of a director or any member who is entitled to vote or the personal representative of such a member.

(ii) “Impracticable”

The onus is on the applicant to show that it is impracticable to call for a meeting of the company in any manner whatsoever or to conduct the meting in the manner prescribed by the Articles or the Act. The word ‘impracticable’ is not synonymous with impossible (Re El Sombrero Ltd [1958] Ch 900 at 904).

The Court can also exercise its power under section 150 if the meeting cannot be conducted properly, even though it may be called. In both the High Court cases of Low Son Siang v Lee Kim Yong [1999] 1 CLJ 529 andPhuar Kong Seng v Lim Hua [2005] 2 MLJ 338, there were only two shareholders and the quorum requirement for a meeting was two. There had been a failure on the part of one of the shareholders to attend the EGM and the Court allowed the application under section 150 of the Act to call for an EGM and directed that the quorum at the meeting be one member.

(iii) Requirement to Attempt to Requisition Meeting under Section 144 or Section 145 first?

Before applying to the Court under section 150 of the Act, members who wish to convene a meeting of the company may have to try to resort to section 144 or section 145 of the Act first. In the High Court case ofKemunting Tin Dredging (M) Bhd & Ors v Baharuddin Ma’arof & Ors [1985] 1 CLJ 442, the Court dismissed the application under section 150 and held that it was not impracticable for the members to call a general meeting. It was held that the members still had two avenues open to them, either in reliance of the procedures under section 144 or section 145 of the Act.

CONCLUSION

The statutory right for members to call for meetings allows members to express their views and to influence corporate governance. Where the members wish to replace the directors, they then need not rely on those same directors to call for the necessary meeting. The right to call for meetings is therefore a safeguard to corporate democracy in allowing members the opportunity to vote on company matters.

By : Lee Shih