Innocent until Proven Guilty

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

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

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

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

Alliance Law Firms

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

1. Messrs Benjamin & Co at Bukit Mertajam, Penang

2. Messrs Choong Meng Sze & Lai at Ipoh, Perak

3. Messrs Chee Hoe & Associates at Kuala Lumpur

4. Messrs Ermiey, Nizam & Ho at Melaka & Johor Bahru

5. Messrs Damian SL Yeo & LC Goh at Melaka.

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

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

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

Dear RWY,

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

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

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

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

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

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

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

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

Regards,

Bryan

Return of Yip Xiaoheng

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

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

Amendments to the Subordinate Courts Act 1948

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

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.