Parilitas Pro Lex

Happy Chinese New Year

2012-01-19T07:43:00.000-08:00

RWY wishes all our friends, a good Chinese New Year break and a good time with your family and friends.

RWY will be closed from 23rd January to 26th January 2012. We will re-open on the 27th January 2012

The Construction Industry Payment and Adjudication Bill 2011 (CIPA): What is the fuss?

2012-01-18T01:55:00.000-08:00

There is much interest generatedin the construction industry of late what with the proposed ConstructionIndustry Payment and Adjudication Bill 2011 (CIPA). Many professional bodieshave jumped on the bandwagon in offering courses and seminars to keyconstruction industry officials to try to explain the Bill of Parliament andhow the Bill when passed in Parliament will affect them. It has been hintedthat the Bill will be passed this March 2012. This would mean that companies inthe construction industry should arm itself and be ready for the new regime of statutoryadjudication. This is the era of adjudication in the construction industry.

Why CIPA? The constructionindustry themselves have been pushing the government to enact this piece oflegislation since 2003 to address the cash flow problems plagued by theindustry. The primary objective of the proposed Act is to address critical cashflow issues in the construction industry. It aims to remove the practice ofconditional payments (‘pay when paid’ and ‘pay if paid’) and reduce paymentdefault by establishing a cheaper, speedier system of dispute resolution in theform of adjudication. According to the provisions of CIPA every construction contractmade in writing that relates to construction work carried out in Malaysia wouldbe affected by the regime of adjudication. This would essentially mean that ifyou have entered into a construction contract and there is a problem withregards to payment, an adjudication process can be commenced either by you oragainst you. A construction contract can be a construction work contract and ora construction consultancy contract.

To this extent, the parties willbe subjected to compulsory adjudication or statutory adjudication. This wouldmean that both parties will be dragged into the adjudication process which isdictated by the provisions of CIPA. The provisions of CIPA does not howeveraffect natural persons entering into a construction contract in respect of abuilding wholly intended for his own occupation and is four storeys and below.

Be that as it may, wouldadjudication stop your right to arbitration or to go to court to litigatematters? The answer is No. The purpose of adjudication is to hurry along cashflow and facilitate payment in the construction industry. Parties are free toopt for arbitration or court litigation to deal with the legal mattersconcerning the same. CIPA simply provides a statutory right for the parties todemand payment for work done and to create a simple process to ensure that adecision and payment is made. This of course is in the form of adjudication asa process. In fact, the partiescan commence adjudication and concurrently arbitrate or litigate the matter aswell. Of course, common sense would dictate that the adjudication process willbe terminated if the dispute is decided by arbitration or the court before theadjudication decision can be made. If however, the adjudication decision comesfirst then it is a binding decision and payment must be made.

In summary, the statutory adjudicationhas the following characteristics -

1. Itis a mandatory and statutory process that does not require the agreement of theparties’ to commence the process.

2. Itoffers a much faster process compared to arbitration and court litigationbecause the time frame is as prescribed by the proposed CIPA itself. It is theonly form of dispute resolution that has a statutory time period in which thedispute must be resolved in forty five (45) working days.

3. Itprovides a binding decision on a payment dispute.

4. The parties can choose their own adjudicator or request for Kuala Lumpur Regional Centre of Arbitration [KLRCA] to choose anadjudicator on their behalf.

There are many procedures to becomplied with by the parties and the time frame is dictated by the provisionsof CIPA. The entire adjudication process including the time required to decidethe case would take approximately one hundred (100) working days. So how do you go about starting theadjudication process? The adjudication process can be summarised by thefollowing steps -

1. Payment Claim - The unpaid party servesa Payment Claim on the non-paying party. The non-paying party would then servethe Payment Response on the unpaid party in reply to the claim within 10working days. (Either party has a right to refer the dispute to adjudication)

2. Initiation of Adjudication - Theadjudication proceeding is thereby initiated by the serving of a Notice ofAdjudication served by the claimant on the respondent.

3. Nomination of Adjudicator - Anadjudicator is thereby nominated by the agreement of both parties in thedispute within 10 working days from the service of the notice or to request forthe adjudicator to be nominated by the Director of the KLRCA. The KLRCA has 5working days to nominate the same.

4. Adjudication Claim - Once theadjudicator is nominated and has accepted the terms and conditions and relevantfees, the claimant is to serve the Adjudication Claim on the respondent within10 working days upon receipt of the acceptance by the adjudicator whereupon therespondent is to then serve the Adjudication Response on the claimant within 10working days; the claimant may then serve a further Adjudication Reply within 5working days.

5. Commencement of Adjudication - Theadjudication would then begin. KLRCA shall be informed of the commencement. Theadjudicator shall direct that reasonable proportion of the adjudicator’s feesin equal shares be deposited in advance to the Director of KLRCA as security. Partiescan represent themselves or choose to be represented namely by a lawyer.

6. Decision - The Adjudicator has to reacha decision not later than 45 working days from the service of the AdjudicationResponse or Adjudication Reply, whichever is later. An adjudication decisionwhich is not made within the specified period is void. The adjudicator may alsodirect full payment of the fees and expenses to be deposited with the Directorof KLRCA prior to the release of the adjudication decision to the parties. Acopy of the decision shall be provided not only to the parties but a copy mustbe served on the Director of KLRCA as well.

Hence it is important to nominatethe correct adjudicator and if in doubt, reliance should be placed on the KLRCAto appoint one on your behalf. The KLRCA has been appointed the adjudicationauthority in Malaysia by virtue of Part V of CIPA, thus setting the standardterms of appointment, fees for adjudicators and setting the competencystandards and criteria for adjudicators.

It is notclear whether CIPA would effectively address the cash flow problems in theconstruction industry but Malaysia is one of five countries who have opted toadopt this form of legislation. The other countries are the United Kingdom,some States and Territories in Australia, New Zealand and Singapore. We canonly wait and see.

Lines Back in Action

2012-01-12T07:57:00.000-08:00

Following from our last posting, we are pleased to say our telephone and internet lines are back in action.

Thank you.

URGENT NOTICE

2012-01-02T20:07:00.000-08:00

Dear readers,

Kindly be informed that our office lines are currently down.

If you have any enquiries, kindly contact the below numbers and we shall attend to you:-

Yip Huen Weng - 012 311 1580
Richard Wee - 016 275 0025
Sarah Kambali - 012 657 8275
Yip Xiaoheng - 012 235 1912
Ng Chia How - 016 368 8578
Salvindar - 012 255 0821
Shahril (EO) - 016 202 2184

Thank you.

Thank You Team RWY

2011-12-23T00:30:00.000-08:00

RWY hosted its 2nd Annual Dinner recently. The firm, a merger of 2 firms in 2009, has grown since then.

In fact, RWY can be traced to Messrs T.S Wee & Co formed in 2003 and Messrs Yip Huen Weng & Co, formed in 2004. In 2013, RWY would have had roots dating back 10 years.

The partners wish to thank our colleagues who put in great effort in RWY's drive to be amongst the better firm around. 2012 will be another formidable year, but the good team spirit cultivated in 2010 and 2011 will ease the hurdles before us.

Thank You to the Team members of RWY.

The Team of 2011. Johnson Lim was also part of the team till June 2011.

Merry Christmas & Happy New Year

2011-12-21T09:15:00.000-08:00

To our readers and our friends, RWY wish you Merry Christmas and Happy New Year.

Bar Council 2012/13

2011-12-01T09:08:00.000-08:00

Our Richard Wee was re-elected to the Bar Council for the 2012/13 term. Congrats. We hope Richard will continue to serve the Bar well.

Flashback : PP v Nee Siang Yee

2011-10-26T01:00:00.000-07:00

An old case reported in Bernama back in 2008, where our Richard Wee and Edward Saw were appointed by the High Court to defend Nee Siang Yee, an accused facing the death sentence of Section 39B of the Dangerous Drugs Act.

________________________

link:-

http://mstar.com.my/berita/cerita.asp?file=/2008/8/13/TERKINI/Mutakhir/Peniaga_dibebaskan_daripada_pertuduhan_edar_dadah&sec=mstar_berita

Peniaga dibebaskan daripada pertuduhan edar dadah

KUALA LUMPUR: Seorang peniaga hari ini dilepaskan dan dibebaskan oleh Mahkamah Tinggi di sini atas tuduhan mengedar dadah seberat 52.16 gram kira-kira enam tahun lepas.

Hakim Lim Yee Lan melepaskan dan membebaskan Nee Siang Yee, 35, selepas mendapati pendakwaan gagal membuktikan adanya kes prima facie terhadap Nee di akhir kes pendakwaan.

Dalam penghakimannya, Lim berkata terdapat percanggahan antara keterangan pegawai polis yang menangkap Nee dan keterangan Chee Wee Lin iaitu orang yang berada di dalam kereta bersamasama Nee berhubung tempat dadah itu dijumpai di dalam kereta.

Katanya pendakwaan juga gagal membuktikan dadah yang ditemui dalam kereta yang dipandu Nee adalah miliknya. Terdapat dua orang lain dalam kereta itu iaitu Chee dan seorang warga Indonesia Adi Umar.

Beliau berkata dalam keterangannya, pegawai polis itu berkata dadah itu ditemui atas lantai dekat dengan pedal kereta di depan tempat duduk pemandu manakala Chee dalam keterangannya menyatakan beliau nampak dadah itu dikeluarkan dari bawah tempat duduk pemandu.

Nee didakwa mengedar dadah jenis methaphetamine di sebuah tempat cuci kereta di No 6, Jalan Mahmud, Kampung Baru, Kuala Lumpur pada 11.45 malam, 8 Okt 2002.

Dia didakwa mengikut Seksyen 39 B (1) Akta Dadah Berbahaya 1952 dan boleh dihukum mengikut Seksyen 39 B (2) akta yang sama yang membawa hukuman mati mandatori jika sabit kesalahan.

Nee, Chee dan Adi telah dihadapkan ke Mahkamah Majistret atas tuduhan itu tetapi pendakwaan kemudiannya mengugurkan pertuduhan terhadap Chee dan Adi.

Pendakwaan dijalankan oleh Timbalan Pendakwa Raya Ahmad Fuad Othman manakala Nee diwakili peguam Richard Wee. BERNAMA

Happy Deepavali

2011-10-24T22:11:00.000-07:00

The Festival of Light dawns upon us

Happy Deepavali to our Malaysian Hindu friends from RWY.

May the light shine on all Malaysia!

Thank you Chai Hong

2011-09-14T01:46:00.000-07:00

RWY wish to express thanks to Teow Chai Hong, who was attached for 2 months at RWY. Chai Hong is a law student based at KDU Law School.

RWY wish you all the best.

Chai Hong also showed great talent of taking photos

My Experience as an Intern at RWY (Michele Tung Hui Qi)

2011-09-05T00:24:00.000-07:00

21DAYS IN THE FIRM

First time doinginternship, I was more afraid than excited. With my limited knowledge on legalpractice, I began my internship in August right after I finished my first year.On my first day, I was briefed shortly by Mr Wee on his expectations from me. Sincethis is my first step into the legal working life, I was not really used to thenew environment and got quite stressed. Anyhow, it got much better after aweek.

I was introducedto the basics first, such as doing clerical work, and of course, learning howto draft letters. Besides that, I had the opportunity to read and do researchon some interesting cases in a few areas of law.

I guess what I enjoyed the most in these 21 days would be courttrips with Mr Wee and Mr Yip, especially to the Palace of Justice in Putrajaya.I got to see how lawyers submit their cases and how judges respond. It isdefinitely very enlightening and intrigues me to see the real world of thelegal profession and how justice is upheld.

However, I wasnot assigned with much work to do mainly due to my limited knowledge as I hadmerely finished my first year of my LLB course. Hence I was only able to helpout a little on litigation files but could do none on conveyance. There wasonce Mr Wee gave me an insight on how they handle and prepare for their case. Littledid I realise that litigation work is far too complex and requires much moreskills and greater legal understanding as every document must be analysed indetail and research had to be done thoroughly.

Nonetheless, I wasalso given a chance to participate in the discussions with clients to see howmeetings are being convened.

There were timeswhere I was not paying attention on my work and consequently made carelessmistakes. Nevertheless, Mr Wee was very patient with me despite his busyschedule. I lamented for not doing my best.

Interning at RWYmade me feel at home. I am truly grateful and that Mr Wee and Mr Yip offered me a chance to intern in RWY.

The experienceof being an intern in RWY is definitely eye-opening. It made me think againwhat I really want to achieve when I become a lawyer. Many things that I wouldnever have thought about at this age of mine, crossed through my mind in these21 days of exposure. I have realised that there are so much more for me tolearn, to be more ambitious and courageous, and improve myself to strive forthe better. Looking back, I ponder and search again my enthusiasm and dreamsfor this profession that was once lost.

21 days ofinternship may be too short a time for me to gain much in terms of legalexperience, but it was definitely enough for me to feel inspired, and start mysecond year with a new mindset.

BYMICHELE TUNG HUI QI

AUGUST2011

SELAMAT HARI RAYA

2011-08-25T22:40:00.000-07:00

SELAMAT HARI RAYA FROM RWY

ICCPR : International Convention on Civil & Political Rights

2011-08-15T09:44:00.000-07:00

In recent times, Malaysia sees numerous comments and announcements made by Politicians and Leaders of Organisations which borders on insults and threats based on religious and racial lines. This is somewhat unfortunate and strongly discouraged.

What is more disturbing is the reliance by the makers of these insulting comments; on the Civil Liberty to Freedom of Speech, when making these unfortunate comments.

The Federal Constitution allows and in fact guarantees the freedom of speech. Parliament has however curtailed that with the Sedition Act, which if a statement is defined to be seditious based on that Act, a person can be charged in Court.

This is somewhat an unhealthy position of the Law.

The right to free speech ought to prevail at all times. However, the person relying on that right to free speech, must also be responsible. Sedition Act may be one way to control the kind of speech and comments a person can make, but the better way though is to educate the person and the people on respecting people. It would be ideal to educate the people that if one does not like to hear an adverse comment of himself/herself; that person ought not to the same to others.

Also, freedom of speech by logic cannot mean to insult or to bully. It is incorrect to rely on the right of freedom of speech to insult or to threaten another person. And it is also incorrect to gag the person by imposing the Sedition Act.

Instead this Government, being an elected government of the people, by the mandate of the people should inspire the people and take responsible steps to ensure people are accountable and responsible when making careless and inconsiderate comments.

The ICCPR, a Convention of the United Nations also recognises that people who incites hatred, can be taken action against. Article 19 mandates sanctions against people who incites hatred. So, even the progressive organisations like UN which heavily advocates human rights through its documents like the UNDHR acknowledges that the freedom of speech does not include the right to incite hatred.

You may read more of ICCPR here.

In time, we hope the Government of Malaysia will take the lead of appointing leaders who will make responsible comments and would not tacitly promote comments by irresponsible leaders of Organisations, which is calculated to incite hatred and division amongst the people.

In Memoriam: Yang Mulia Raja Aziz Addruse

2011-07-12T02:07:00.000-07:00

Our distinguished Past President, Yang Mulia Raja Aziz Addruse, passed away peacefully earlier today at the age of 75.

Allahyarham was called to the Malaysian Bar on 8 Jan 1966. From Lincoln’s Inn, Allahyarham was the first President of the Malaysian Bar to serve three terms — 1976-1978, 1988-1989 and 1992-1993. A leading advocate, Allahyarham continued to be active in Bar Council work, and appeared regularly in the Appellate Courts as a senior counsel. He had led and argued many of the difficult and controversial cases for the Malaysian Bar.

Better Lawyers makes Better Bar (From The Star 8/7/2011)

2011-07-11T21:57:00.000-07:00

by Richard Wee

http://www.thestar.com.my/news/story.asp?file=%2F2011%2F7%2F8%2Ffocus%2F9056215&sec=focus

THE National Young Lawyers Committee of the Bar Council recently held its Young Lawyers Convention on July 1-3 in Malacca. The convention, which takes place once every three years, saw about 140 lawyers from all over Malaysia in attendance.

The theme for the convention was “Towards a Better Bar”, which is consistent with the NYLC’s project to push our lawyers, particularly the young ones, to continue improving themselves.

The logic of this is that better lawyers will likely lead to better interpretation and implementation of the law. Higher standards incorporated into our legal profession and our legal system would result in Malaysia becoming an attractive regional legal hub like Hong Kong and Singapore.

The theme also included a holistic improvement of Malaysian lawyers, to not only advocate for intellectual progress, but also for moral and benevolent development.

In fact, many times at the convention, speakers reminded lawyers to maintain the highest ethical standards, and to conduct themselves with integrity and responsibility.

The convention impressed upon the delegates that being a lawyer signifies an important professional position in society, where elements of trust and principles are intertwined with the need to maintain high intellectual capacity when discharging their duties as advocates and solicitors.

In short, it isn’t easy to be a lawyer, but if you are one, you strive to be a good lawyer and an honest one, too.

With the theme in mind, the NYLC worked closely with the Bar Council’s Continuing Professional Develop ment (CPD) Committee.

The convention discussed the need to increase the quality of the content of the CPD at the Bar. Young lawyers were urged to attend CPD classes to acquire extra knowledge on practical aspects of legal practice.

Further to this theme of self improvement, the NYLC is proposing to form Work Practice Groups (WPGs), where young lawyers can join small groups under the mentorship of senior practitioners in specialised areas of the law like international arbitration or cross-border transactions.

The aim is for young lawyers to learn better and quicker under experienced mentors.

Going global

Young lawyers were also encouraged to attend conferences and conventions overseas. Subject to costs, these international law conferences would be a gateway to international networking and learning.

Other aspects of improvement would be for the NYLC to assist young lawyers to set up their own legal firms and to learn the proper way to do so.

The NYLC will be working with a department in the Bar Council which organises the “Getting Started” seminars. These seminars provide excellent insight into the “how and what” of setting up legal firms.

The NYLC also recognises that to ensure young lawyers continue to strive for excellence, the work conditions must also be commensurate with that desire.

The prospect of better remuneration and a better working environment at legal firms would be a good driving force to ensure that young lawyers will want to improve, and to continue staying in legal practice.

Bar Council statistics show that more than 60% of the lawyers in Peninsular Malaysia are in practice for less than three years. The principal reasons for many lawyers leaving practice after the third or fourth year are usually the high level of work stress and uncertain remuneration.

It would be difficult to urge young lawyers to improve themselves when they cannot see a bright future in terms of career advancement and better remuneration.

With that in mind, the NYLC will conduct a national survey on remuneration and career advancement within the next six months to obtain statistics on the views of young lawyers on their work conditions. The results of that survey may lead to forums and dialogues with the employers of the young lawyers.

The convention also saw the re-visiting of section 42 of the Legal Profession Act 1976 (LPA) which states that lawyers have a duty to uphold the cause of justice without regard to their own interests, without fear or favour, and that there is a duty to protect and assist the public in all matters ancillary or incidental to the law.

The delegates at the convention, in subscribing to the spirit and intent of the theme, spoke of their moral duties to uphold justice at all times. Section 42 of the LPA became a battle-cry in one of the sessions at the convention when discussing activism at the Bar.

When the Statement of the Con vention was issued at the end (as further described below), the delegates added a provision in the statement calling for the authorities in this country to adhere to the Federal Constitution and that the young lawyers are prepared to stand up and defend the law if the law is incorrectly and improperly implemented.

At first glance, the convention may look like a stew with too many spices or like a plate too full for the NYLC to handle. To the contrary, many spices are required to make the stew better and the varied ingredients will ensure the Bar remains progressive and at the cutting edge of the law.

A five-point statement was issued at the close of the convention. Fondly dubbed the “Malacca Statement”, reflecting the location of its birth, it reflects the theme of the convention, calling for the implementation of projects towards achieving a better Bar.

There are many classy and intelligent lawyers in Malaysia, and the Malaysian Bar is a strong Bar. Of course there may be a few bad apples among the Bar but the NYLC will focus on the strengths of the Bar and harness that quality to ensure the Bar strives forward.

The NYLC intends to challenge young lawyers who join the Bar to move outside their comfort zone and to push them to persevere and persist towards progress.

__________________

> The writer is the Chairman of the National Young Lawyers Committee. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visitwww.malaysianbar.org.my

My Experience As An Intern at RWY (By Nicholas Er)

2011-07-06T04:17:00.000-07:00

1st July 2011

My name is Nicholas Er, a current LLB (UOL) undergraduate in KDU University College. Firstly, I would like to thank Mr. Richard and Mr. Yip, the partners in RWY for accepting me as an attachment student in their legal firm. Whatever I have learnt here, it is beyond my LLB course.

The first thing that I have learnt is to send a letter of demand (LOD). It is called ‘precedent’ but not ‘sample’ if I am requesting for a previous LOD. It is not easy to write a LOD as it must be clear and easy to understand by the reader. Liability and quantum have to be clearly stated. Then, I have also come across with different modes of sending a mail such as Certificate of Posting, AR Registered and etc.

The next thing that I have learnt is that all the files must be kept tidy. “A messy file means a messy lawyer” is the advice from Mr. Richard. Then, the first thing to be read in a file is correspondence to understand the facts. Be prepared before going for hearing or trial is needed as the judge would ask all kinds of questions. To be a good lawyer, we must understand our facts and plan our strategy well. This is the advice from Mr. Yip.

I have gone to the High Court thrice with the partners to see how lawyers debate in the court. Thanks to Xiao Heng, he had explained to me how the court works and brought me to various places in the High Court. Although there are not many litigation cases in this month which enable me to go to the court frequently, I am feeling glad that I have learnt many things in the office including to do research on s. 232 Companies Act 1965 involving liquidators, meeting client, and also to read the high-profile cases which have involved drugs. This is the time when I have to study s. 39(B) of the Dangerous Drugs Act 1952 carefully.

In addition, I have also learnt on how superior courts and subordinate courts work in Malaysia. Different courts hear different civil matter which is based on the monetary amount of the claim. And then what steps should be taken if an appeal is to be made and what rules have to be complied with were explained to me by Ms. Salvindar. I certainly have a clearer picture on the Judiciary of Malaysia after the explanation.

There are times when I think that I am not good enough while having my internship in RWY especially when I was careless and not being initiative enough. There was once when I was asked to read a few files, and after I have read it I was just waiting for the further instructions. Subsequently I was told that I have to approach my senior once I have read the files and ask whatever questions that I do not understand. That was the time I realized I have to be more initiative in future. Moreover, I was advised to make two changes to myself: talk confidently and improve my English language.

Lastly, I would like to thank all the professionals in RWY for guiding me patiently and have treated me as if I am one of the family members here. I apologized if I have said or done anything wrongly in this period and I wish all the best to everybody in RWY.

Young Lawyers Convention 2011

2011-06-16T00:21:00.000-07:00

Young Lawyers Convention 2011 @Everly Beach Resort, Malacca

Richard Wee & Yip supports the Young Lawyers Convention, and is proud to announce the sponsorship of 2 young legal eagle.

We urge the younger members of the Bar attend this Convention which takes place, once every 3 years.

Resulting Trust

2011-05-23T11:01:00.000-07:00

Many Klang Valley road users, purchase the service of Touch & Go (T&G). T&G, usually associated with Toll Roads, are also now used to pay car park entry and to get a ride on the LRT trains.

How it works is that a person will pay a certain credit amount, and whenever the user touch the T&G card on the T&G panels, certain money will be taken up.

Unlike Singapore, where the cash card is virtually owned by the Singapore Government, T&G in Malaysia is privately owned. This leads to an interesting question; If that Company which owns T&G is wound-up, who owns the money paid by the consumer of the T&G (but yet to be credited)?

So if you have RM100 balance in your T&G card, and if the owner Company collapses tomorrow, do you have a claim over that RM100 or, can the Receiver/Liquidator of that Company claim that the unused credit belongs to T&G?

Using the concept in Law of Trust, particularly Resulting Trust; it is likely that the said money should be returned to you. The logic would be that the PURPOSE and INTENT of that money paid to T&G is for you to use the services of T&G. So until such time you use that services, the money you paid is merely an upfront money, which is basically kept on Trust by that company. So long as you have not used T&G's services, it can be contended that the said money is still yours.

*kindly take note, this is merely an academic example, for purposes of discussion and understanding of the Law of Trust, particularly the concept of Resulting Trust. In no way are we insinuating that Touch & Go or any company related to it is wound up or will be wound up.

Putik Lada : Malaysia, Our Unique Home!

2011-04-14T11:11:00.000-07:00

*featured in The Star's Putik Lada on 14th April 2011

TO over 20 million people, Malaysia is home. In this home, we have beautiful beaches, exotic islands and gorgeous landscape.

Our country is blessed with natural beauty.

If we wish to have a beautiful holiday on a beautiful island, we have Langkawi, Pangkor, Tioman and Sipadan, among others.

If we wish to scale the highlands of the country, Mount Kinabalu is waiting for us to conquer.

Taman Negara awaits the adventurous ones to come hike and camp.

We have our own casinos like those at Vegas. We have beautiful towers as well as the tallest twin towers, in Kuala Lumpur.

From Penang to Johor Baru; from Kota Kinabalu to Kuching, we find beautiful colonial and old buildings built by our forefathers.

Food is special in Malaysia.

The mix of all the races in the country makes our own “rojak” when it comes to food.

And yes, we all love our Malaysian food. When we go abroad, we will always miss our food.

If a foreign friend asks for an honest description of our country, the above will probably be what you will tell the friend.

However, since the friend requested an “honest description” of our country, we cannot stop at just culture, food and nature.

We ought to inform the friend of our system and people, too.

This is where our discussions may vary and change.

We ought to inform our foreign friend that in Malaysia, politics and the system of administration are big issues.

Almost every day, news on these topics will be reported.

To the foreigner reading such news, it would appear that while we are united in our love for our food and our natural beauty, we are, however, not united on many issues in this country.

This is of course normal, as no country in the world has a population entirely united in all views.

A real concern of Malaysians today is not just the difference in views, but rather, the attempts by certain groups in Malaysia to divide the people and instigate a clash.

We see people who constantly attack and bully others.

Talk-down or fiery comments are made without responsibility and care for the feelings of the other person.

It is fine if people cannot agree, but it is another thing to speak in confrontational and intimidating tones.

While people may be free to speak, as they have freedom of speech, this freedom comes with responsibility and accountability.

It is odd that while our Prime Minister strives for a united country via his 1Malaysia concept, there are people who choose to divide the country with their divisive views.

Back to this “honest description” to the foreign friend.

A description of our country would also not be complete without detailing our love for sports.

Thousands will watch a local football match, and our world-class badminton and squash champions.

When we meet, other than politics, sports is certainly one subject Malaysians love to discuss.

We have our own Formula 1 team.

It hasn’t won a race yet, and it does spend quite a large chunk of money (some from taxpayers), but the fact is we have our own Formula 1 team. We ought to inform our foreign friend of the many sports facilities we have in Malaysia.

Some are not well maintained, but the fact is, we have those facilities. Perhaps in time we will improve on the maintenance aspect.

Our great infrastructure must also be mentioned – the highways, the airports and the trains that traverse all over peninsular Malaysia.

Of course our roads have many potholes, our luggage sometimes get lost at our airports and our trains sometimes break down, especially the LRT in Kuala Lumpur; but the fact remains, we have these facilities.

The foreign friend would also be happy to know that Malaysia does not have volcanic mountains; our country is not sitting on nearby tectonic plates which may cause earthquakes or tsunamis. In this sense we are truly a blessed country.

Any advice or comment to the foreign friend is also incomplete without the story of the people.

Malaysians are patient and forgiving people.

We will hear illogical comments from people claiming authority, or even Members of Parliament making silly comments.

But time has shown that Malaysians will always forgive these comments and sometimes re-elect the very same Members of Parliament who made those silly comments.

Malaysians are also calm people. When facing racist and absolutely bewildering comments, we remain calm and steady.

We do have some protests and demonstrations but these are regularly extinguished by our police force.

But Malaysians, above all else, will always be Malaysian.

We can take a Malaysian out of Malaysia, but we can never take Malaysia out of a Malaysian.

We will always love our food, we will always enjoy our country’s beauty and we will always hope our sportsmen/women will win the next world championship.

The above will probably be an honest description of our country to any foreign friend who wishes to visit us or to migrate here.

> The writer is chairman of the National Young Lawyers Committee of the Bar Council. Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visitwww.malaysianbar.org.my

Will written for remuneration, ought to be done by Lawyers

2011-03-13T09:20:00.000-07:00

The proposed motion by RWY lawyers was passed unanimously at the recent Malaysian Bar AGM.

The logic of the Motion is this:-

Lawyers in Malaysia are covered by the Professional Indemnity Insurance (PII). If we are negligent, you can sue us, and if you win; the Insurance will pay you.

On the other hand, non-lawyer Will-writers are not covered by PII.

Apparently the Malaysian Bar is aware of complaints by Lawyers that they have received poorly drafted Wills to file Probate or Letters of Administration. Most of the time the beneficiary of the Will, is not even aware that the Will is poorly drafted. And the nature of the Will is such, that we will only know the Will is bad; after the creator is dead; as only when the creator dies, will the Will come into effect and come into attention.

Most people; after executing a Will; thinks that they are safe, and will not check the Will. So it is too late, by the time we find out that the Will is bad.

Of cos, RWY is not at all suggesting that lawyers will always get the Will right. In fact lawyers have made mistakes too. But the probability of a Lawyer making mistakes are far lesser than a non-legal Will writer due to the nature of the legal work.

In addition, (as stated above) we have PII. That way, if the Will is defective, can that defect is caused by a Lawyer, then the beneficiary can sue the Lawyer and get damages via the PII.

So in the unfortunate event that the Will is wrongly drafted by a Lawyer; and that Lawyer is successfully sued for negligence; the beneficiary of the Will may be able to gain some compensation from the PII Insurance.

The Motion reads:-

Proposed motion calling upon the Government of Malaysia to regulate the will writing enterprises/agencies in Malaysia
(Proposed by Richard Wee Thiam Seng and seconded by Sarah bt Kambali, dated 3 Mar 2011)
Preamble:-

Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;

Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;

Recognising the current practise where Will Writers may not be necessarily legally trained.

The Motion

The Malaysian Bar calls for the abolishment of section 38(2) of the Legal Profession Act 1976, effectively disallowing unauthorised persons, as defined in the Legal Profession Act 1976, to drafts wills for remuneration.

*The motion, as amended, was unanimously carried.

Regulate Will Writing Industry

2011-03-04T10:47:00.000-08:00

This is a proposed motion to be tabled at the 65th Malaysian Bar AGM on 12th March 2011.

Proposed Motion calling upon the Government of Malaysia to regulate the Will Writing Enterprises in Malaysia.

Preamble:-

Recognising the fact that writing a Will is a crucial and significant, financial and personal decision that someone may make;

Recognising the need to protect consumers keen in engaging Will Writers in Malaysia;

Recognising the current practise where Will Writers may not be necessarily legally trained.

The Motion:-

The Malaysian Bar calls upon the Government of Malaysia to effectively regulate the Will Writing Industry in Malaysia.

The Malaysian Bar calls upon the Government of Malaysia to impose a rule that a Will Writer ought to have Legal Qualification, as a minimal standard;

Alternatively the Malaysian Bar suggests that the Government of Malaysia conduct Trainings and Courses leading to a Diploma or Certificate in Will Writing, which may be held at our Institutions of Higher Learning; to train the current and future Will Writers.

Dated : 3rd March 2011

RWY on Radio : BFM - Rights of an Arrested Person

2011-02-21T04:23:00.000-08:00

Right of Any Person To Legal Counsel (Part 4)

2011-01-16T09:48:00.000-08:00

This is the final part for this subject matter. (click here for Part 1; Part 2 & Part 3) Does a person who is not arrested; but called by Police or any other relevant authority to assist a criminal investigation; has a right to have a lawyer beside the person during the interview with the said authority?

In this final part, we look at the Malaysian Position. We have perused the situation in UK, USA & Australia thus far, and we we find in Malaysia; the law is silent on this issue.

We have Section 28A of the Criminal Procedure Code (Act 593) [“CPC”] but that provision relates to an arrested person's rights NOT the right of any person who was invited by the relevant authority to assist an investigation.

Logically, although the CPC is silent on this area the right to a solicitor should be extended to any person, not just an arrested person. It would be odd to find a person who is arrested & a suspect has more rights than a person not arrested.

If we refer to Article 5(3) of the Federal Constitution of Malaysia [“FC”]; we shall find that it states

“where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice”.

In the case of Trans Huu Tho & Ors v. PP and Another Case [2009] 3 CLJ 102; David Wong Dak Wah J finds that the omission to inform the accused of the right to appoint legal practitioner as outlined in the Article 5(3) of the FC gives grounds to set aside the proceeding as there may be miscarriage of justice. The Honourable Judge states the following:-

“What we have here is this. Every accused person has both a constitutional and statutory right to be defended by counsel of his or her choice. I have in the case of Hock Huat Chan SdnBhd v. Assan Mohammad & Others [2008] 4 CLJ 512 stated that constitutional rights must be guarded zealously by the courts and in the context of this case it is my view that the applicants, as accuseds, should have been told by the learned magistrate that they are entitled to legal representation and if they so wish the court will adjourn the matter for them to engage counsel to act for them. My reason for such requirement is simple. If the constitutional right to engage counsel is to have any meaning, the accuseds must be informed of this right. I have said on previous occasions that the court and the law cannot presume that citizens of this country, let alone foreign citizens, know their rights. The reality is that most do not know and unless they are informed of these rights, they are meaningless rights. … This issue depends on the court's finding whether this failure to inform has resulted in a miscarriage of justice in the circumstances of this case. … Accordingly it is my view that, because of the omissions mentioned above, it would be unsafe to accept the plea of guilty of the accuseds and hence I set aside the whole proceedings …”

The importance of informing the accused of their right to appoint lawyer in their proceedings in this case; illustrates how important it is for the accused or “any person” to be allowed for the appointment of lawyer in custodial situation by police officer or official person given power to detain and question. As such, the presence of a lawyer is crucial to ensure that the possibility of miscarriage of justice does not occur in the due process of law.

We would submit that though the law is silent on this issue, but the liberty of an innocent person must always prevail and therefore any person arrested or otherwise ought to have access to legal representation when dealing with Police or other relevant authority.

(thanks to Sarah Kambali & Yip Xiaoheng with the research & write up on this topic)

Right of Any Person To Legal Counsel (Part 3)

2011-01-12T21:53:00.000-08:00

This is the 3rd part of this series (click here for Part 1, and here for Part 2). RWY continue to do a comparison study on how other countries approach the rights of a person (not arrested) called to help the Police or relevant authorities.

We look at Australia this time around:-

AUSTRALIA

In Australia, in particular at New South Wales [“NSW”], a similar code to the Code of

Practice C of the PACE 1984 was enacted to improve the accountability of the NSW Police service to the community it serves.

The Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence), entails such practice.

At page 44 of the Code, it is the duty of the police to treat people who are voluntarily at a police station to help with an investigation with no less consideration than those in custody.

Person voluntarily assisting should be offered refreshments at appropriate times, entitled to obtain legal advice, communicate with anyone outside the station or leave at any time.

A fourth (& final) part of this series of discussion will be posted soon.

Right of Any Person To Legal Counsel (Part 2)

2011-01-10T02:01:00.000-08:00

Continuing our series on this issue (click here for earlier posting) ; we discuss the position in US. This series features comparison of Laws related to rights of a person (not arrested) but called upon by Police to assist investigation. Does this person have a right to Legal Representation? We now see what US Laws suggests.

UNITED STATES OF AMERICA

We refer to the United States Constitution [“USC”]. In the Fifth and Sixth Amendment of the USC, in criminal proceedings, the accused is given the right for assistance of counsel:-

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”

The Fifth Amendment of the USC guarantees the right of the victims, witness, suspect of the crime when in custody of the police officer. The Fifth Amendment states as follows:-

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

This lead to the famous case of Miranda, leading to what is now known as the Miranda warning in US. The Court in that case held:-

“the prosecution may not use statements … stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way… Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has right to the presence of an attorney, either retained or appointed.”

The Chief Justice Earl Warren had classified the warning to be “Miranda Warning” and is to be delivered by police interrogations.

A denied legal representation, or even a violation of such right to counsel by the police or any officers given the power to interrogate, shall be remedied by excluding from the evidence at a trial hearing of the statements obtained therein.

It is clear that the assistance of counsel, as of one many due process of law, evokes the general America’s system of support towards fair play and reflects the centrality of attorneys in the adversarial tradition of the Common Law Countries.

It is hoped Malaysian Laws will adopt a similar approach.

Pleading your case, Bargaining your way through

2011-01-06T22:14:00.000-08:00

What is Plea Bargaining? It is a process of negotiation in criminal litigation between the Prosecutor & the Accused. It is common to see Plea Bargaining in TV series about lawyers and police. So, we may have our own perception on how plea bargaining works. But the reality in Malaysia, is a little different than what you see on TV.

Usually Plea Bargaining is used to avoid a Trial, and at the stage of plea bargaining; both the Prosecution and Defence, can gauge their respective strengths. If one of the parties feel they may not have a strong case, plea bargaining may be an option. For the Prosecution, so long as a conviction is recorded, they may have done their part; and conversely for the Defence, if they can lower the sentence of the Accused (or in some cases, secure a release) that would be a moral victory to the Accused.

In Malaysia, as a matter of practise, lawyers defending the Accused, would usually write to the Prosecution, what is normally called a “Letter of Representation”. Very much like Plea Bargaining, the Letter of Representation would present the views and proposals of the Accused to the Prosecution. Usually the said Letter would urge the Prosecution to either release the Accused; or charge the Accused for a lower offence.

The proposed Plea Bargaining procedure by the Malaysian Judiciary, recently reported in the media, suggests that the judiciary wish to have in place a specific procedure to allow both parties to negotiate an acceptable conclusion before presenting the same to the Judge. From the Judge’s point of view, this would mean quicker end to the case; which would also mean lesser costs and more judicial time to hear other cases.

There is much benefit to have this system in place, but caution must be placed in its implementation. As the President of the Bar, Ragunath Kesavan, was quoted to say in another daily, Plea Bargaining is not a new concept in Malaysia. In fact, what the judiciary proposed, seems to formalize what is already in place, in practice.

But the implementation must be carefully studied, so as to avoid the possibility of abuse and corrupt practise. The current practise of sending in Letter of Representation can be a slow and sometime cumbersome process. But it has its merits, in that it minimize the possibility of corruption. The Letter of Representation from the Accused is usually studied by the State Prosecution Headquarters, and after some discussion between the prosecution and the Police or other relevant agencies, the Prosecution will decide which way they wish to take.

Plea Bargaining, done in Court itself, would see both parties having direct communication and discussion on the matter. Some kind of discretion would have to be given to the Prosecution Officer at that Court to decide which way the case may go. This would be much faster than the current system, but there must be check and balance so as to avoid the parties involved, abusing the plea bargaining process.

We have to take into account another silent party in the entire Plea Bargaining, and that would be the victim of the crime (or in some cases, the family of the victim).

The victims, would normally wish to have their day in court, and would usually demand the maximum sentence on the Accused. If Plea Bargaining is too loosely applied, leading to (for example) lower sentences in many cases, then we would have a fair amount of unsatisfied victims, who may feel that justice was not done.

In most instances, plea bargaining would lead to a lower sentence for the Accused. That being the usual conclusion of Plea Bargaining, the victims of the crime may feel that they were denied an opportunity for their day in court & also, as mentioned, the sentence meted out was an injustice to them.

However, any proposed move to improve the delivery of legal services to the people is much appreciated. Hopefully, Plea Bargaining can go some way to help clear the backlog in Criminal Courts.

TBH Inquest : The Verdict

2011-01-05T09:53:00.000-08:00

The Teoh Beng Hock (TBH) Inquest was held to investigate the death of TBH on 16 July 2009.

At the Inquest, these facts emerged:-

TBH was interviewed at the Selangor State Government building in the afternoon of 15 July 2009 by the Malaysian Anti-Corruption Commission (MACC). He was then asked by MACC officers to follow them to the Selangor MACC Office at Plaza Masalam, Shah Alam on the same day. On 16 July 2009, about 1 o’ clock in the afternoon, TBH’s body was discovered at the service corridor of Plaza Masalam.

The judge in such an Inquest is called a Coroner. The Coroner in these Inquests will try to ascertain on how a person died. The Coroner may conclude that the deceased was killed or the death was accidental. In some instances, the Coroner may conclude suicide.

On 5 January 2011, the Coroner in the TBH Inquest made the following conclusions:-

1. Was it suicide?

The Coroner first considered if TBH had committed suicide. The Coroner ruled suicide out. He felt that the testimony provided by TBH’s brother, Teoh Meng Kee revealed that TBH was supposed to get married and had no psychological illness. Further, the so-called suicide note was inconclusive. The Coroner pointed out that the said note has not been ascertained to contain TBH’s handwriting. Secondly, no sample of TBH’s writing was obtained for purposes of investigation and examination.

The Coroner also pointed out that no psychiatrist report was provided on TBH’s state of mind. On these evidences, the Coroner felt that if he was to conclude suicide as the cause of death, it would have been some form of guess work. He refused to do so and ruled out suicide as mentioned above.

2. Was there homicide?

The Coroner referred to the evidences provided by the medical experts at the Inquest. He concluded that there exists sufficient evidence to confirm that TBH suffered a pre-fall injury. The pre-fall injury was the neck injury. However, the Coroner felt that there was lack of evidence to confirm that the neck injury facilitated or resulted, or contributed to the demise of TBH.

The Coroner also took into account the medical evidence that the neck injury most likely caused TBH to be in such a state that would render TBH incapable of exiting the window on his own. The medical evidence suggest that the neck injury on TBH may have rendered him unconscious or in a state of confusion. Apparently the neck injury could have caused a reduction in the level of oxygen reaching the brains of TBH. However the Coroner felt the evidence before him was not sufficient beyond reasonable doubt, that there exists homicide.

3. Verdict

In conclusion, the Coroner felt that the only decision that he can come to is a finding of an Open Verdict. An Open Verdict would mean that the cause of death cannot be determined in the Inquest.

(See alternative posting at www.loyarburok.com)

*RWY is solicitors on record, holding a watching brief at the said Inquest for and on behalf of the Malaysian Bar

Right of Any Person To Legal Counsel (Part 1)

2010-12-16T23:40:00.000-08:00

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 21^st 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.”

Bar Council 2011 election

2010-12-04T10:21:00.000-08:00

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

1	Hendon Mohamed	1803
2	Haji Sulaiman Abdullah	1783
3	Christopher Leong	1381
4	George Varughese	1365
5	Datuk Kuthubul Zaman Bukhari	1324
6	Andrew Khoo Chin Hock	1265
7	Low Beng Choo	1237
8	Steven Thiru	1225
9	Dato' Yasmeen Shariff	1196
10	Syamsuriatina bt Ishak (Tina)	1087
11	Richard Wee Thiam Seng	1052
12	Anand Ponnudurai	1042

Will - Documents living beyond you

2010-11-22T21:46:00.000-08:00

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.

Bar Council 2011 election

2010-11-16T10:33:00.000-08:00

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.

http://www.malaysianbar.org.my/bar_council_elections/pool_of_candidates_for_bar_council_2011/2012_election_shrinks_to_26.html

RWY supports Richard's effort to be elected.

RWY welcomes Sarah Kambali

2010-11-02T00:01:00.000-07:00

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!

RWY in the news : Court rules in favour of SIS

2010-11-01T03:08:00.000-07:00

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.

Source : The Star

Innocent until Proven Guilty

2010-09-21T23:16:00.000-07:00

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.

Alliance Law Firms

2010-09-14T10:24:00.000-07:00

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.

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

2010-08-17T11:05:00.000-07:00

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

Return of Yip Xiaoheng

2010-08-16T02:39:00.000-07:00

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.

Amendments to the Subordinate Courts Act 1948

2010-07-30T03:46:00.001-07:00

Press Release: Proposed changes to Subordinate Courts Act are too drastic and require proper study

The 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

Section 218 Companies Act 1965

2010-07-21T03:06:00.000-07:00

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.

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

2010-07-13T20:49:00.000-07:00

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

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

2010-06-13T23:07:00.000-07:00

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.

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

2010-05-27T01:57:00.000-07:00

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.

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

2010-05-13T22:20:00.000-07:00

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 :-

http://www.miea.com.my/frame.php?page=faq.php

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"

Liquidated & Ascertained Damages

2010-04-27T08:32:00.000-07:00

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).

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

2010-04-11T22:21:00.000-07:00

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:-

http://shih.blogspot.com/2010/04/forcing-suffrage-to-end-suffering.html

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

A Student's Guide to Malaysian Legal System (By Foong Cheng Leong)

2010-04-03T10:57:00.000-07:00

Taken with permission from www.xes.cx, a blog by Foong Cheng Leong; an Advocate & Solicitor in Malaysia.

The link to the article below is here:-

http://xes.cx/?p=4450

Recently, I received an email from one Yii Zhu, a Law / Commerce student from Australia asking me for guidance about the legal profession in Malaysia. Yii Zhu wants to return home to practice but do not know where to start. After advising him, I thought it would be useful to share this with other law students or those who wants to practice law in Malaysia.

My legal life started off as an attachment student in a small firm in Kuala Lumpur. After my attachment, I joined a large firm and stayed on until now. I currently a Senior Associate in one of the largest law firms in Malaysia.

When a student is qualified to start his chambering, he has 3 choices namely a large, medium or small law firm. There is no exact definition on amounts to a large, medium or small law firm. But based on my own view, a large firm has around 20 lawyers, medium has less than 20 lawyers whereas small law firm has 5 or less lawyers.

The allowance a student gets would range from RM800 to RM2500. A large firm generally pays higher allowance.

Generally, large and medium firms (let’s call them larger firm) can expose a student to various types of work. Most of the larger firms have separate departments where a student will be expose to matters relating to corporate, conveyancing, litigation, intellectual property, employment etc. Some larger firms have a rotation system where a student will be rotated to different departments. Also, larger firms pay more. When I was chambering, my allowance was RM1500. My friends in the small firms were getting RM800 – RM1000.

A small firm may not expose a student to many types of work. However, some small firms are boutique firms which specialize in certain types of law. For example, there are some law firms in Kuala Lumpur who specialise in Intellectual Property. They are very reputable and highly recognised in the Intellectual Property industry. They also have the best clients and the best work. With this, joining a smaller firm does not mean a student will learn less things.

Also, in a small firm, a student may be able to handle files on their own (most of the time under a partner’s supervision). A student may also get to shadow the partner.

In larger firms, it will take time for a student to be able to handle files of their own. A student usually starts off with menial work (e.g research, translation). Substantive work will probably come at a later stage. A student in a large firm may find themselves doing less important work than their counterparts in a small firm.

Also, in a smaller firm, a student may be given more opportunity. When I was an attachment student in a small firm, the bosses decided to send me to Japan for an assignment. This may not happen if I had been attached in a large firm.

My awesome free trip to Tokyooooo

When I wanted to look for a place to chamber, I couldn’t decide whether to join a larger firm or go back to the small firm to chamber. I emailed a family friend and asked him where to go.

He advised me to join a larger firm to take advantage of the networking opportunities. Initially I did not understand what he meant by “networking opportunities” but after a few years, I began to understand.

In larger firm, a student will get to know many people. In the legal profession and as a basic business principle, to make money, it is not “what you know”, it is “who you know”. Of course, legal knowledge is very important but if you do not have the necessary connections, the legal knowledge will be not utilized. There will be no food on your table if you do not have the necessary connection to bring in business.

A student’s friends and colleagues may eventually become legal advisers in companies, businessmen, directors and even politicians. They may become your source of referral for businesses in the future.

But this doesn’t mean that a small firm would lose out in business. There are of course many ways to get business. For example, give talks, join associations etc and recently, through social media networking.

If a student finds that chambering in a larger firm / small firm is not his cup of tea, he may always switch.

Once a student finishes chambering, he may or may not be retained in his firm as a legal assistant/associate (different title but same position). A first-year legal assistant/associate’s pay in Kuala Lumpur firms may range from RM2000 to RM4000.

Lastly, if you aim to have lifetime career as a lawyer, you should always aim for partnership (in a larger firm) or alternatively, set up your own firm (as a sole proprietor or a partnership). A partnership in a larger firm may take a longer time as most of the time, there are many people ahead of you. Even if you are made partner, it will take time to be an equity partner (a partner with shares in a firm thus gets a share of the profits). Most of the time, young partners in a larger firm are only salaried partners. It will take time to be an equity partner. However, such situation in a small firm may vary. Some small firms are known not to take new partners.

I hope the above is of assistance. If you have any comments that are helpful, please share.

By Foong Cheng Leong

RWY in the News : Lawyers rap Dr M for questioning court power (Malaysian Insider)

2010-04-02T02:41:00.000-07:00

Related Articles
Contempt — Dr Mahathir Mohamad
Bekas pegawai Tun Mahathir enggan bayar denda, rela dipenjara
PM needs to press reforms, says Mahathir
Hadi: MEB kembali dasar ekonomi Mahathirisme
New lamps for old — The Malaysian Insider
Dr M hopes MCA members will accept Dr Chua as leader
Government will update data on wealth distribution
Malays have the right to support Perkasa, says Rais
Lawyers rap Dr M for questioning court power

By Yow Hong Chieh and Boo Su-Lyn

KUALA LUMPUR, April 2 — Lawyers today weighed in on Tun Dr Mahathir Mohamad’s latest blog post, in which he questioned the court’s power to issue contempt citations.

The former prime minister was referring to the contempt charges levelled against his ex-political secretary, Matthias Chang.

Chang was charged with “contempt in the face of court” on March 25, after he refused to apologise for arguing with the judge and a lawyer during his defamation suit against American Express (Malaysia) Sdn Bhd.

He was sentenced to a month in jail after refusing to pay the RM20,000 fine.

Murelidaran Navaratnam, Penang Bar chairman, said it was well within the rights of the judge to issue such citations.

“The power to charge someone with contempt (of court) has been there since time immemorial,” he said, citing the British roots of Malaysia’s legal system.

“The judge has the power to charge any person with contempt. Whether or not the judge should or should not do that is another question.”

Lim Chee Wee, vice-president of the Malaysian Bar, explained that Article 126 of the Federal Constitution vested power in the court to punish acts of contempt.

Nevertheless, Lim assured that the law also provided safeguards for people to defend themselves against contempt citations, including the right to appeal a conviction.

He questioned why Chang did not seek an appeal, but cautioned against speculation as there were conflicting accounts of what transpired that day.

In a similar vein, lawyer Malik Imtiaz Sarwar said it was premature for anyone to claim that there was a miscarriage of justice in this case.

“There are many different accounts (of what happened),” he said. “We have not heard the version from the judge yet.”

Malik Imtiaz, who is also president of Hakam, added: “Those who seek to criticise the judge should do so with the appropriate deference and sincerity.”

“(At the same time) the judiciary should not consider itself beyond criticism. Mutual respect between the Bench and the Bar is essential for the system of justice to work.”

Legal practitioner Phillip Koh said judges should exercise restraint when it comes to contempt of court but also stressed that witnesses should behave with “measured proportionality.”

He pointed out that Chang was in court not as a lawyer but as a witness, and that lawyers do not deserve special courtesy when it comes to contempt.

Richard Wee, another lawyer, while declining to comment specifically about Chang’s case, said he found contempt of court “slightly one-sided” because the judge and prosecutor was the same person.

He did, however, take the opportunity to point out the irony of Dr Mahathir’s post.

”From Mahathir’s point, I find it amusing that this is the very person who created this judicial system. He created the system and (now) he is complaining about it.”

Privacy Laws in Malaysia

2010-03-24T09:38:00.000-07:00

A friend of RWY, Foong Cheng Leong wrote a great article on his Blog about this. With his consent, we re-produce his write up here. The link to his blog is here.

Lew Cher Phow @ Lew Cha Paw & Ors v Pua Yong Yong & Anor
(Johor Bahru High Court Suit No. MT4-22-510-2007)
In this case, the Plaintiffs and the Defendants were neighbours. The High Court had dismissed an application by the Plaintiffs who applied for an order for interlocutory injunction to restrain the Defendants from installing any CCTV cameras at the Defendants’ house which faced the Plaintiffs’ house as well as also for an order to compel the Defendants to remove their CCTV cameras that were installed facing the Plaintiffs’ house.
The Plaintiffs alleged that the act of the Defendants installing the CCTV cameras had intruded their livelihood and daily activities. The Defendants on the other hand alleged that the CCTV cameras were for security reasons as their house had been intruded before and also that the CCTV cameras only showed the Plaintiffs’ house as background.
The grounds given by the High Court in dismissing the Plaintiffs’ application are, among others, as follows:
(a) there is no evidence to show that the CCTV cameras intruded the livelihood and daily activities of the Plaintiffs. Further, there is no evidence in the Plaintiffs’ affidavit to show that the CCTV cameras recorded the Plaintiffs’ activities.
(b) the Defendants are entitled to install CCTV cameras for security and safety purposes.
(c) if the interlocutory injunction is granted this will bring a legal implication to the general public especially when CCTV cameras are installed at residential and commercial premises to protect the safety of the general public.
(d) there is no right of privacy in Malaysia thus the Plaintiffs do not have the right to institute an action against invasion of privacy rights.

Richard Wee & Yip - Bridging Gaps

2010-03-23T04:39:00.000-07:00

Richard Wee & Yip - Bridging Gaps.

RWY has adopted this motto for our Firm.

We offer our client a bridge to solutions through law and justice.

Like a Bridge, we act as a link.
Like a Bridge, we fill the gaps.

RWY - Bridging Gaps

Sir Dennis Byron at Bar Council on 22/3/2010

2010-03-18T04:15:00.001-07:00

* Do click on the image above for a better view of the contents

Right to Legal Advise

2010-03-13T10:39:00.000-08:00

People of Malaysia may not be fully aware that they have a right to a Solicitor when detained by the authorities. Under Article 5 of the Federal Constitution, the Federal Constitution guarantees the right to a detained person to see his/her Solicitor.

A more specific area of law is Section 28A of the Criminal Procedure Code (CPC). In Section 28A, the law explains at which point does a person detained, can call upon a solicitor. Quoted below is the entire Section 28A of the CPC.

Section 28A CPC

(1) A person arrested without a warrant, shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest.

(2) A police officer shall before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may :-

(a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts;

and

(b) communicate or attempt to communicate and consult with a legal practitioner of his choice.

(3) Where the person arrested wishes to communicate or attempt to communicate with the persons referred to in paragraphs (2)(a) and (b), the police officer shall, as soon as may be, allow the arrested person to do so.

(4) Where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time-

(i) for the legal practitioner to be present to meet the person arrested at his place of detention;

and

(ii) for the consultation to take place.

(5) The consultation under subsection (4b) shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be over heard

(6) The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication under paragraph 2(b) or the consultation under subsection (4), has been made;

(7) The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilities provided shall be free of charge.

(8) The requirements under subsections (2) and (3) shall not apply where the police officer reasonably believes that-

(a) compliance with any of the requirements is likely to result in-

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.

(9) Subsection (8) shall only apply upon authorization by a police officer not below the rank of Deputy Superintendent of Police.

(10) The police officer giving the authorization under paragraph (9) shall record the grounds of belief of the police officer that the conditions specified under subsection (8) will arise and such record shall be made as soon as practicable.

(11) The investigating officer shall comply with the requirements under subsections (2), (3), (4), (5), (6) and (7) as soon as possible after conditions specified under subsection (4) have ceased to apply where the person arrested is still under detention under this section or under section 117.

The General rule is very simple - a person arrested, can always call upon a Lawyer. The people must be made aware of this fundamental right. The moment a person is arrested by the police, the person must firstly be informed that the person is arrested, and for which crime (if any); and immediately must be accorded that right to meet a Solicitor.

The Police may deny the arrested person that right, only if Section 28A (8) above applies.

Nonetheless, Section 28A (8) is an exception to the said general rule above.

So, if you are ever arrested by (for example) the Police, inform the Police you wish to activate your rights under Article 5 of the Federal Constitution and you wish to meet a lawyer as soon as possible, as per S28A CPC. If the Police deny you that right, you may demand to lodge a Police Report against the Police, or later upon release, lodge a complaint with SUHAKAM. You may also contact the Bar Council.

Powers of the Malaysian Bar

2010-03-01T11:49:00.000-08:00

Recently, the news highlighted comments by Dato Mukriz, where he had urged Parliament to curtail the powers of the Bar.

The Malaysian Bar is not a body created by lawyers, but is created by an Act of Parliament. You will hear lawyers calling the Bar a 'Statutory Body', for it is by way of a Statute, ie the Legal Profession Act 1976, that the Bar was created.

The Bar Council on the other hand; is a council of 36 lawyers elected by lawyers in a 2 tier election to manage the administration of the Malaysian Bar. So it is incorrect to say lawyers are members of the Bar Council, as the Council is our 'Cabinet' and lawyers are members of the 'Malaysian Bar' not the Bar Council.

Sabah and Sarawak have separate Bars, and the lawyers practicing there are not members of the Malaysian Bar (notwithstanding the name).

The powers of the Bar are also governed by Section 42 of the Legal Profession Act.Section 42 (in summary) states the powers of the Bar to include:-

1. to uphold justice without due regard to its own interest;

2. to maintain and improve the standard of the legal profession;

3. where requested, to express views on matters affecting the legislation;

4. to protect and assist the public in matters related to the Law.

There are a few more powers listed in Section 42.

Even without Section 42, due to the nature of the legal profession, the powers listed above would be inherent in the Bar, for if the lawyers dont uphold justice, dont maintain their standards, dont protect the public (for legal matters), who else can and who else will?

Habeas Corpus

2010-02-28T11:47:00.000-08:00

Article 5 of the Malaysian Federal Constitution guarantees the citizen of their right to liberty. Article 5(1) makes it clear that no person shall be deprived of their life or personal liberty.

Articles 5 (3) - (4) enshrines our right to be informed of the reasons of arrest (if arrested) as soon as possible and that one shall be brought before a Magistrate within 24 hours upon arrest.

Article 5 (2) gives the Courts the power to release a citizen who is wrongfully detained. This application is called Habeas Corpus. The phrase Habeas Corpus is Latin, which literally means 'you shall have the body'.

The full phrase is actually Habeas Corpus ad Subjiciendum. It basically means to demand the release of a person who was wrongfully arrested.

In Malaysia the process to file the Writ of Habeas Corpus is provided for in Sections 365 - 375 of the Criminal Procedure Code. A quick summary of a habeas corpus application :-

1. File a Motion with a supporting Affidavit from the arrested person at High Court. The applicant may file at any High Court in Malaysia.

2. The affidavit must contain:-

a. where and by whom the person is detained;

b. the facts (within the detainee's knowledge) of the detention;

c. issues to persuade the Court that person is detained against his will without just cause.

3. The Applicant to serve Motion and Affidavits to the Government.

4. After all Affidavits are exchanged, the Court will fix a hearing date.

5. If the Applicant succeeds, he/she will be released, but if he fails, he can appeal directly to the federal Court (Section 374 CPC)

There are many cases to refer to when submitting before the High Court Judge, but Judges have been known to set a person at liberty if (inter alia):-

1. the person detained was not given proper advice/instructions on the reasons for detention;

2. the Authorities failed to comply with all relevant procedures when detaining the person;

The Writ of Habeas Corpus is a powerful tool to protect one's liberty and acts as a check and balance of the power to detain a person, particularly when the Government exercises their powers to detain a person without trial (like ISA, Emergency Ordinance arrests)

Happy Chinese New Year

2010-02-14T18:13:00.001-08:00

Dear readers,

We wish you Happy Chinese New Year.

RWY will be closed on Wednesday, 17th February 2010. We shall be back in action on the 18th February 2010.

Just a mini update, RWY is in the midst of transferring our write-ups formerly at our former blog at Richard Wee Lopez. In time, our website of www.rwy.com.my will also be up and running.

Thank you for visiting us.

Regards,

RWY

RWY's Legal Associate

2010-02-02T02:39:00.000-08:00

Johnson Lim joins RWY. We welcome him aboard.

Johnson was actually part of Richard Wee Lopez just a few weeks before that firm changed name to our current name of Richard Wee & Yip. He will add steel to the firm, as RWY continue to invest in talents.

Welcome to RWY, Johnson.

Video : Police & Your Rights Part 4

2010-01-06T03:37:00.000-08:00

Video : Police & Your Rights Part 3

2010-01-05T03:37:00.000-08:00

Video : Police & Your Rights Part 2

2010-01-03T03:36:00.000-08:00

Video : Police & Your Rights Part 1

2010-01-02T03:35:00.000-08:00

Recently, Malaysiakini TV and e-Lawyer.com.my invited our Richard Wee to speak about Police powers. Here is the Video:-

Civil Procedure - Summary Judgment

2009-12-23T22:17:00.000-08:00

In the Rules of High Court 1980 and Subordinate Courts Rule 1980, one will find provisions which allow parties with claims to pursue a quick Judgment against the other side. This is referred to as Summary Judgment. You will find it in Order 14 and Order 26A, respectively.

A party with a claim would usually refer to the Plaintiff suing a Defendant, but a Defendant with a Counter Claim against the Plaintiff may also apply the same.

Basically the party seeking Summary Judgment would have to show the Judge that they have a claim so good that a Trial is not necessary. Usually Banks suing defaulting borrowers will use this procedure for a quick Judgment.

The party facing this application would need to show at least one of these in Court:-

1. that there are issues which can only be ventilated and decided in a Trial, or

2. some other reason which the Court deems fit to call for a Trial.

In DCB Bank v NS Bahtera [1999] 2 AMR 1790, the High Court held that a party seeking summary judgment has to show at least a prima facie case against the other party, before the other party is expected to show one of the 2 above rebuttals.

Lawyers in training (The Star)

2009-12-07T08:01:00.000-08:00

Lawyers in training

KDU College’s Law Society organised a Law Day on campus recently with the aim to produce ‘Generation Y’ lawyers who are instilled with awareness of current legal and humanitarian issues.

Three esteemed speakers were invited to share their views with the students. Rev Prof Michael Tate, a lecturer in International Humanitarian Law from the University of Tasmania, Australia, former state senator and former ambassador to The Hague, spoke about various international humanitarian issues including genocide, the Darfur crisis in Sudan, as well as the proceedings of the International Criminal Court.

A mock trial in session at the college’s moot court. The Law Day organised recently saw an exhibition of wit and wisdom by accomplished lawyers, ably assisted by students as junior counsels. — File photo

He discussed the need for young lawyers to be the agents of change within the local and international framework and prescribed the means of achieving those ideals.

The next speaker, human rights lawyer and activist Roger Chan, pushed forward issues that were closer to home. Chan, who is also deputy chairman of the Environmental and Humanities Committee of the Kuala Lumpur Bar Council, gave a compelling speech which argued that human rights was the inherent right of every citizen.

The crowd listened intently as Chan contextualised his speech in light of a series of protests that took place in the Klang Valley.

Both Rev Prof Tate and Chan’s speeches were followed by lively question and answer sessions.

Evidently, the students were susceptible to this new idea of change, but being curious legal students, their questions raised various levels of arguments that were dealt with admirably by both speakers.

Chairman of the KL Bar Constitutional Law Committee Edmund Bon took a proactive approach to the question and answer sessions. He engaged with the audience on contentious issues such as the abolishment of the Internal Security Act (ISA) and the opening of Universiti Teknology MARA (UiTM) to non-Malay citizens.

That sparked a debate amongst the students who either defended the status quo or spoke up against it. And in his stinging words, “the worst place in hell is reserved for those who do not take a stand”.

Compelling arguments were made on both sides, which saw differing views and opinions vocalised. At the end of the session, Bon enlightened the audience with the current state of Malaysian law and a prospective look into the legal system.

The day came to a close with a moot exhibition (a mock trial set up to examine a hypothetical case).

Accomplished lawyers, Richard Wee and Sunil Lopez from the firm Richard Wee Lopez amazed the audience with their wit and wisdom as counsels.

Assisting them as junior counsels were University of London final year students Faraz Ali Rojid and Yip Xiaoheng.

The exhibition was riveting, as not only did the lawyers put on an excellent show in educating the lawyers-in-the-making, but they also made it fun to watch as it was given a generous dose of humour.

— By RANJANI DHANABALAKRISHNAN
(second year law student)