INFO Johore Bar - August 2017

1

INFO JOHORE BAR

 JOHORE BAR HIGH TEA WITH HIS MAJESTY SULTAN IBRAHIM, SULTAN OF JOHOR –4  JUDICIAL INDEPENDENCE IS SACROSANCT ~ DATUK ROGER TAN

– 10

 SOLICITORS’ REMUNERATION (AMENDMENT) ORDER 2017 ~ YANG PEI KENG

– 13

 CONVERSION TO LIMITED LIABILITY PARTNERSHIP ~ YANG PEI KENG

– 15

 SOLICITORS’ REMUNERATION ORDER 2017 ~ YANG PEI KENG

– 21

 FOREIGN LIMITED LIABILITY PARTNERSHIP ~ YANG PEI KENG

– 26

 NEW ADMISSIONS TO THE BAR – 27  JOHORE BAR ACTIVITIES

– 29

 REFERENCE PROCEEDING

– 47

 ELEVATION OF JUSTICE COLLIN LAWRENCE SEQUERAH – 57  WHY YOUR LAWYER WON’T TAKE OR RETURN YOUR PHONE CALLS ~ ALLEN YU

INFO JOHORE BAR - AUGUST 2017

– 65

INFO JOHORE BAR

2

Message from the Chairman…

Dear fellow members of the Johore Bar, In January this year the Johore Bar was proud and happy to host a High Tea for His Majesty Sultan Ibrahim Ibni Almarhum Sultan Iskandar, the Sultan of Johor. It’s a first for the Johore Bar and judging from the record attendance of our members, it’s a tremendous success. We take pride in covering the historic event in this issue of Info Johore Bar. The recent controversial appointments of YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin as “additional judges” of the Federal Court and the extension of their tenure as the Chief Justice of the Federal Court (“CJ”) and President of the Court of Appeal (“PCA”) respectively, beyond the mandatory retirement age of 66 years and 6 S. Gunasegaran months for Judges as prescribed by Article 125(1) of the Federal Constitution have drawn adverse comments from various quarters and triggered a public debate on the constitutionality of the appointments.

At the Extra-ordinary General Meeting of the Malaysian Bar on 3rd August 2017, our members passed, inter alia, the following resolutions: (a) That the appointments of both YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin as additional judges and their continuance to hold the position of CJ and PCA respectively, beyond the mandatory retirement age of 66 years and 6 months is unconstitutional, null and void. (b) That YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin be called upon to decline the unconstitutional appointments, and to retire as CJ and PCA on 3rd August 2017 and 27th September 2017, respectively. (c) That if they do not decline the unconstitutional appointments and/or continue to hold office beyond the retirement age, the Malaysian Bar will no longer have confidence in them. (d) That so long as they remain in office after they attain 66 years and 6 months, YAA Tan Sri Dato’ Seri Md Raus bin Sharif and YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin shall not be invited to any social function of the Malaysian Bar or Bar Council, and Members of the Bar are encouraged to decline social invitations from them. (e) That the Bar Council be mandated to take any and all steps that it deems appropriate regarding the aforesaid unconstitutional appointments, including instituting legal proceedings, for and on behalf of the Malaysian Bar, to challenge the validity of the appointments.

The appointments are unconstitutional, and/or improper, inter alia, for the following reasons: (1) The term “additional judges” in Article 122(1) of the Federal Constitution which provides that the Federal Court shall consist of the Chief Justice of the Federal Court, the President of the Court of Appeal, the Chief Judges of the High Courts, eleven other judges “and such additional judges as may be appointed pursuant to Clause (1A)” can only mean judges who are appointed in addition to or supplemental to the other categories of judges named therein. They are distinct and separate from the rest of the judges who constitute the Federal Court. They serve only as additional judges and cannot simultaneously hold the position of CJ or PCA. (2) The plain and literal meaning of Article 122(1A) of the Federal Constitution which says that “…the Yang Dipertuan Agong acting on the advice of the Chief Justice of the Federal Court may appoint for such purposes or for such period of time as he may specify any person who has held high judicial office in Malaysia to be an additional judge of the Federal Court” is that to qualify to be appointed as an additional judge, a person should have “held” a high judicial office previously. In other words, he must be a retired judge. A sitting or serving judge certainly does not fit that bill.

(3) If it is the intention of the Federal Constitution to allow an additional judge to also serve either as the CJ or PCA, it would have said so in clear terms. The argument that whatever is not expressly prohibited is permissible, is erroneous, misconceived and mischievous as the appointment to all important constitutional positions such as the CJ and the PCA must be based upon clear and express provisions of the Federal Constitution and not on some imaginary implied powers.

(4) The appointments are in breach of the mandatory retirement age for judges set at 66 years and 6 months by Article 125(1) of the Federal Constitution.

(5) The right vested in the CJ under Article 122(1A) of the Federal Constitution to advise the Yang Dipertuan Agong to appoint additional judges must necessarily be exercised by a serving or sitting CJ and to take effect during his tenure of office, but in the present case that right was exercised by the outgoing CJ, YAA Tun Dato’ Seri Arifin Zakaria, a day before his retirement, and which was to take effect months after he had ceased to be the Chief Justice.

(6) In making these appointments the Government appears to have overlooked, ignored or sidelined the other 11 existing members of the Federal Court, all of whom are qualified and competent to be appointed to the top two positions in the Judiciary, thus giving rise to all sorts of perceptions and allegations and sending a wrong signal to the nation at large.

In the coming days the Malaysian Bar is expected to file a Suit in Court to challenge the said appointments, which though unpleasant is absolutely necessary to uphold the Federal Constitution as the supreme law of the Federation of Malaysia and to protect the independence and dignity of the Judiciary. As the courts are the last bastion of our rights, the persons who are appointed to helm the Judiciary should at all times command unquestionable public trust, confidence and respect and their appointments should not be mired in controversy.

S. Gunasegaran Chairman Johore Bar Committee 2017/18

From the Editor’s Desk Dear Members and Friends at law, As Editor, I take great pleasure in presenting to you the first edition of the INFO Johore Bar for 2017/2018, more so as it is the maiden issue during my term as Chairperson of the Publication & IT Sub Committee.

Shahareen Begum

This newsletter is a prized tradition of the Johore Bar and I shall strive to ensure that it continues to be one.

INFO Johore Bar is a collection of news, articles, event write-ups, photographs, all of which go towards creating a record of memories, to reminisce upon. To make this publication a reflection of the varied and individually interesting minds and personalities that make up the Johore Bar, greater participation and contribution from all of you is very much needed.

I, therefore, urge you to forward any articles, poems or other literary works to the Johore Bar Secretariat or to me at sbegumsubhan@ hotmail.com Meanwhile, my deepest gratitude to my brethren at law who have contributed to this issue of INFO Bar. I take this opportunity to thank Mr. S. Gunasegaran, Chairman of the Johore Bar for his guidance (I being a newbie to this portfolio), the members of the Publication & IT Sub-Committee and our secretariat staff for their effort in the production of this edition of the INFO Johore Bar. As was the last edition of the INFO, this newsletter too is also available online via the website issuu.com Members can go to info.johorebar.org. my via their devices to read this edition.

Alternatively, the INFO can be accessed by downloading the app “ISSUU” from the Google Play or Apple Store.

I eagerly look forward to receiving more literary contributions for the next INFO Johore Bar edition.

Sincerely,

Shahareen Begum binti Abdul Subhan INFO JOHORE BAR - AUGUST 2017

3

INFO A

Bulletin

of

the

JOHORE B A R

Johore

Bar

JOHORE BAR COMMITTEE 2017/2018

INFO JOHORE BAR

INFO JOHORE BAR welcomes articles, views and news (including photographs) be they legal non legal or extra-legal. The views of the writers of articles etc are not reflective of the views of the Bar Committee neither does the Bar endorse or adopt their views. However, the Johore Bar Committee reserves the right not to publish or to edit those published for content, clarity, style and space considerations. Contributions and enquiries may be directed to secretariat@johorebar.org.my

Chairman S. Gunasegaran

www.johorebar.org.my www.info.johorebar.org.my

Committee Members Lim Eng Siang Shahareen Begum Binti Abdul Subhan Hajah Norfaizah binti Hj. Zainuddin K. Meneka a/p E Kanasmoorthy Santhi a/p BalachandRan Punitha a/p Mariappan Roger Lo Ming Allen Loh Wei Cher Aimi Syarizad binti Datuk Hj. Kuthubul Zaman Khairul Asri bin Ahmad Danny Loo Kheng Soon (Co-opted)

Editorial Committee 2017/18 Info Johore Bar

Representative to the Bar Council R. Jayabalan Hon. Secretary Anis Syarizad binti Datuk Hj. Kuthubul Zaman JOHORE BAR COMMITTEE 2017/2018

Sitting (Left to Right): Khairul Asri bin Ahmad, Punitha Mariappan, Shahareen Begum, S. Gunasegaran (Chairman), R. Jayabalan (Bar Rep), Santhi Balachandran, Hajah Norfaizah binti Hj Zainuddin Standing (Left to Right): Roger Lo Ming, Lim Eng Siang, K. Meneka, Aimi Syarizad, Allen Loh Wei Cher Members not pictured: Anis Syarizad (Hon. Sec), Danny Loo Kheng Soon (Co-opted) INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

4

JOHORE BAR HIGH TEA WITH HIS MAJESTY SULTAN IBRAHIM, SULTAN OF JOHOR | 18TH JANUARY 2017 Following the Johore Bar Committee’s audience before His Majesty Sultan Ibrahim Ibni Almarhum Sultan Iskandar, the Sultan of Johor on 10th January 2016 during the Chairmanship of Mr. R Jayabalan, the Committee, with the consent of His Majesty, organized a High-Tea on 18th January 2017 at Thistle Hotel, Johor Bahru.

The event commenced with an opening speech by Mr. S Gunasegaran, who, on behalf of the Johore Bar, thanked His Majesty for the honour of his presence.

Mr. S Gunasegaran proceeded to regale the crowd with His Majesty’s achievements and contributions before introducing His Majesty to the history of the Johore Bar.

The event was a first for the Johore Bar, and testimony to the enthusiasm of the members of the Johore Bar to meet His Majesty, 240 of us were in attendance.

Following Mr. S Gunasegaran’s speech, the crowd was served the scrumptious High-Tea, which was enjoyed by all.

Having graciously accepted the Johore Bar’s invitation, His Majesty the Sultan of Johore, true to his moniker as the ‘People’s Sultan’, arrived at Thistle Hotel without much fanfare. His Majesty was greeted at the entrance

by Mr. S Gunasegaran, Chairman of the Johore Bar and members of the Committee, who then led His Majesty to the Reception Room, where His Majesty then amiably consented to an official photograph with the Johore Bar Committee.

The highlight of the event, however, came at the end, when His Majesty, ever so humbly, permitted members of the Johore Bar to take pictures of him and with him, even in the form of ‘selfies’.

His Majesty was escorted from the event by our members who were happily snapping shots of His Majesty who was happy to indulge.

His Majesty congratulated the Johore Bar for a job well done before departing from the event.

DYMM SULTAN IBRAHIM IBNI ALMARHUM SULTAN ISKANDAR

UCAPAN PENGERUSI JAWATANKUASA PEGUAM NEGERI JOHOR DI MAJLIS PERJUMPAAN DAN SANTAPAN PETANG PEGUAM-PEGUAM NEGERI JOHOR BERSAMA DULI YANG MAHA MULIA SULTAN IBRAHIM IBNI ALMARHUM SULTAN ISKANDAR SULTAN YANG DIPERTUAN BAGI NEGERI DAN JAJAHAN TAKLUK JOHOR DARUL TA’ZIM S. Gunasegaran

Pada hari Rabu 18hb Januari 2017 jam 5.00 petang di Hotel Thistle Johor Bahru

MENGADAP DULI YANG MAHA MULIA SULTAN IBRAHIM IBNI ALMARHUM SULTAN ISKANDAR, SULTAN YANG DIPERTUAN BAGI NEGERI DAN JAJAHAN TAKLUK JOHOR DARUL TA’ZIM AMPUN TUANKU, Patik, bagi pihak Peguam-Peguam Negeri Johor merafak sembah dan menjunjung kasih di atas perkenan Duli Yang Maha Mulia Tuanku berangkat ke Majlis Perjumpaan dan Santapan Petang PeguamPeguam Negeri Johor pada petang yang sungguh bermakna ini.

Sesungguhnya keberangkatan Duli Yang Maha Mulia Tuanku ke Majlis ini melambangkan keprihatinan dan kasih sayang Duli Yang Maha Mulia Tuanku yang

menaungi peguam-peguam Negeri Johor dan adalah paling bermakna kepada patik sekelian.

Pada kesempatan ini, patik, pohon limpah perkenan Duli Yang Maha Mulia Tuanku untuk menyembah maklum, bahawa penganjuran majlis ini yang julungjulung kali diadakan adalah bertujuan untuk patik, sekelian berjumpa secara lebih dekat dengan Duli Yang Maha Mulia Tuanku serta merapatkan hubungan antara patik sekelian dengan Duli Yang Maha Mulia Tuanku, Sultan Yang Dipertuan Bagi Negeri Dan Jajahan Takluk Johor Darul Ta’zim ini.

INFO JOHORE BAR - AUGUST 2017

5

AMPUN TUANKU, Patik, memohon limpah perkenan Duli Yang Maha Mulia Tuanku, untuk patik menyampaikan ucapan dalam Bahasa Inggeris.

YOUR MAJESTY, This is indeed a very special moment for the Johore Bar for it is the very first time that members of the Johore Bar are presented with this opportunity to meet Your Majesty over a cup of tea.

We have a total of 240 of our members attending this function. We have never had such a large number of members attending any event organized by the Johore Bar in the past. It shows how important our members consider this event to be. Your Majesty’s presence is such a great honour to us. On behalf of the Johore Bar I wish to express our heartfelt gratitude to Your Majesty for kindly accepting our invitation to this gathering.

Your Majesty is a fully trained army, navy and air force officer and has also studied diplomacy and international relations. Your Majesty has also attended the Fletcher School of Law and Diplomacy in Boston, Massachusetts, completing courses on South-east Asian Strategic Studies and International Laws of the Seas.

As the Sultan of Johor, Your Majesty is the Colonel-inChief of the Malaysian Army’s Group Gerak Khas and also the Commandant of the only state defence force in Malaysia, the Royal Johor Military Force with the rank of Major-General.

Your Majesty is an avid sportsman and has a deep passion for tennis, sailing, shooting, motorcycling, racing, parachuting and polo, which remains your favourite sport.

Your Majesty also has the honour of driving the last KTM train to pull out of Tanjong Pagar Railway Station in Singapore on 30th June 2011, ferrying some 600 passengers which included members of Johor royalty and officials, current and former KTM staff, KTM train enthusiasts and journalists.

But above all Your Majesty is well known and regarded

INFO JOHORE BAR

for your deep concern for the welfare, well-being and unity of your subjects. Your Majesty’s long-standing passion for motorcycling was given a new meaning when Your Majesty (whilst being the Tengku Mahkota of Johor) conceived the Kembara Mahkota Johor as an annual royal motorcycle tour program led by Your Majesty and participated by a group of motorcyclists, travelling over hundreds of kilometers through all 10 districts of Johor, to enable the Royal Family to meet fellow Johoreans and to strengthen the bond between the royal institution and the Johor people in the spirit of «Bangsa Johor» as well as to provide charity for the poor. According to Your Majesty this is in keeping with the practice in the olden days when the Sultan or the Crown Prince would embark on a voyage round the state to visit the rakyat on elephant back. The event has grown from strength to strength in the ensuing years. The 19th edition of this event in 2016 covered a total distance of 842 kms and saw Your Majesty leading the entourage in the custom made red, blue and white Mack truck from Australia.

Your Majesty has often taken the trouble to meet your subjects, the ordinary rakyat, or the «man in the street», to find out more about their lifestyles and living conditions. Last year, despite the scorching afternoon sun, Your Majesty took the unprecedented step of joining thousands of your subjects who were celebrating Thaipusam festival in Renggam and had lunch with them.

A month later Your Majesty created history by becoming the first Johor Ruler to attend the Annual Chingay Procession in Johor Bahru to mark the culmination of the Spring Festival in the state.

And more recently (on the 6th of this month) Your Majesty surprised patrons at a Halal-certified Chicken Rice shop in Malacca by dropping in unannounced, and leaving protocol aside, joining them for lunch.

Since ascending the throne of Johor, Your Majesty has taken a number of important decisions, among them the following: (a) declaring the town of Muar as the new royal capital of Johor w.e.f. 5th February 2012; (b) decreeing that Johor will move back its weekend to Friday and Saturday, effective 1st January 2014; (c) decreeing in August 2015, that the name of Kulaijaya district be reverted to its former name of Kulai, that Nusajaya be renamed to Iskandar Puteri

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

6

and renaming Ledang District to Tangkak District; (d) imposing a ban on vaping in Johor effective 1st January 2016 for the sake of the health of the Johor people, which move was later followed by Kelantan and Terengganu; and (e) imposing a ban on over-sized signboards for business that are not only unsightly but pose a danger to the public.

Your Majesty’s tireless effort to forge and to promote unity among your subjects under the banner of “Bangsa Johor” has not only inspired and motivated your loyal subjects, but has found admirers in other parts of the country, who hail it as a step in the right direction in a country that is presently fragmented by divisions along various lines. The concept of Bangsa Johor first evolved in 1920, when Your Majesty’s great-grandfather, Sultan Sir Ibrahim, felt the need to give thanks and unite the various races who had come together to open up Johor. And if I may be permitted to quote Your Majesty: “More than ever, the concept of Bangsa Johor is relevant today, especially looking at the issues of racial polarisation that keep coming up. Bangsa Johor means everybody is responsible for developing Johor while respecting everyone else’s culture and religion because we want everybody to live in peace and prosperity. Concord is a blessing.”

Your Majesty has great plans for the state and people of Johor, which will undoubtedly take the state to greater heights, among them, the following: (1) Rumah Johor housing scheme under the Sultan Ibrahim Foundation, a non-profit organization, with the aim of providing cheap and affordable houses to the rakyat of Johor, costing less than RM100,000.00 with a financing scheme that will provide 100 per cent end financing to first-time and qualified house buyers.

And Your Majesty will personally ensure that the units are fairly distributed to those who are really in need.

Pasir Gudang, Kempas, Iskandar Puteri and other areas which will not only provide for better transportation but also spur economic growth within the region.

There is also a plan to link Singapore which will ease the daily massive traffic jam at the Causeway.

(4) The Ibrahim International Business District (IIBD), launched in November 2015, targeted at pushing Johor Baru to become a world city and metropolis by 2020. The City of Johor Bahru is also set to become the next major Malaysian city, after Kuala Lumpur, like New York-Los Angeles, Beijing-Shanghai and Sydney-Melbourne.

(5) Effective Management of Johore’s Water Resources, that will redress and rectify past mistakes on this matter.

YOUR MAJESTY, If I may now be permitted to say a few words about the Johore Bar. Prior to 1947 the legal profession in the country was governed by different statutes for the different territories constituting the States of Malaya, namely: (a) The Federated Malay States of Perak, Selangor, Pahang and Negeri Sembilan. (b) The Unfederated Malay States of Kedah, Perlis, Kelantan and Terengganu. (c) The Straits Settlements of Penang, Melaka and Singapore. (d) Johor had her own Advocates and Solicitors Enactment.

After the Japanese Occupation, the Advocates & Solicitors Ordinance 1947 was enacted to replace all the statutes covering the FMS, UFMS, Johore and SS and to provide for a uniform law for the whole Malay Peninsula. The Ordinance itself was repealed and replaced by the Legal Profession Act 1976, which continues to be the governing statute for the legal profession in West Malaysia. The states of Sabah and Sarawak have their own separate laws governing the profession.

(2) Bank of Johor project which is linked to the Rumah Johor housing scheme, that will focus on providing loans to those in the low-income group.

The first Johore Bar Committee was created under the Advocates & Solicitors Ordinance 1947.

(3)

In the 1950’s, 60’s, 70’s, due to the close proximity of Johor to Singapore there was a very strong presence

The Maglev train project linking Johor Bahru,

INFO JOHORE BAR - AUGUST 2017

7

of Singapore lawyers in Johore. The fact that they had their weekend rest days on Saturday and Sunday, but the Courts in Johor were open on those days enabled many Singapore lawyers to set up offices here to fish in Johor’s legal waters. They were referred to by Johor lawyers, with some contempt, as “Sunday lawyers” or “weekend lawyers.” They even dominated the legal profession here for years. The Chairman and members of the Johore Bar Committee during that era were mostly from Singapore. Among the Singapore Chairmen were Tan Sri Syed Esa Almenoar, R Ramason and John Pillai.

In 1970 the late Dato’ Abdullah A Rahman, a Johorean, took over the reins as the Chairman of the Johore Bar, and held it for more than a decade due to his immense popularity. He later became the first member of the Johore Bar to become the President of the Malaysian Bar (1978-1980).

As a result of his efforts, in 1970 the Malaysian Parliament passed an amendment to the Ordinance permitting only citizens and permanent residents of Malaysia to be admitted to the Bar and to carry on practice in Malaysia. This effectively led to the closure of the weekend law offices and to allow the locals to take charge.

Since then the Johore Bar has seen a tremendous growth in numbers and is now the 3rd largest Bar in the country with 1,944 members on its list as of 31st December 2016.

INFO JOHORE BAR

“The Lawyer is not just a journey man, devoted to his own interests but he has a duty to his profession which includes his duty to contribute at least some of his talents to the public good through the organized Bar.” AMPUN TUANKU, Atas kepercayaan dan perkenan Duli Yang Maha Mulia Tuanku, patik dan peguam-peguam Negeri Johor sekeliannya berjanji dan berikrar akan sentiasa memastikan segala tugas-tugas yang diamanahkan kepada kami dilaksanakan dengan penuh tanggungjawap, tanpa rasa takut dan berpihak (“without fear or favour»), bagi memastikan keadilan dapat ditegakkan pada setiap masa, demi kemakmuran Negara Malaysia secara amnya dan Negeri Johor yang tercinta ini, khasnya.

Sesungguhnya patik dan Peguam-peguam Negeri Johor sekelian akan sentiasa taat dan setia kepada Duli Yang Maha Mulia Tuanku dan Negara, serta akan terus mencurah khidmat bakti yang terbaik demi melahirkan peguam-peguam yang beretika, berintegriti dan penuh beramanah.

Patik dan Peguam-peguam Johor mendoakan agar Duli Yang Maha Mulia Tuanku sentiasa berada di dalam perlindungan Yang Maha Esa dan dikurniakan kesihatan yang sempurna, agar dengan itu dapat terus memerintah negeri Johor yang tercinta ini dengan aman, makmur dan sejahtera.

We take pride in having contributed 3 Presidents to the Bar Council of Malaysia, so far.

AMPUN TUANKU,

YOUR MAJESTY, the members of the Johore Bar have always played a very active role in the affairs of the Bar both at the State as well as the National levels. We have paid heed to what Whitney Seymour said in the 1968 Benjamin Cardozo lecture:

Bagi mengakhiri sembah ucapan ini, patik sekali lagi merafak sembah, menjunjung kasih yang tidak terhingga di atas perkenan Duli Yang Maha Mulia Tuanku untuk berangkat ke majlis yang amat bermakna pada petang ini.

Sekian, Ampun Tuanku.

Rabu 18hb Januari 2017, S. GUNASEGARAN Pengerusi Jawatankuasa Peguam Negeri Johor 2016/17 INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

10

Judicial independence is sacrosanct

By Datuk Roger Tan Assaulting the judiciary is as crude and uncivilised as assaulting a referee who impartially and fearlessly applies the rules of the game.

Datuk Roger Tan

because from time to time he blows the whistle against one’s team-mate. There can be no justice for the people without independent judges as there can be no game without independent referees. Assaulting the judiciary is as crude and uncivilised as assaulting a referee who impartially and fearlessly applies the rules of the game.

“Those who stand by and do nothing to protect the independence of the judiciary will in the end get a judiciary they deserve – one powerless to stand between them and tyranny.”

Just and fair: When the judiciary decides against the authority it is simply doing its duty under the Constitution which expresses the will of the people just as when it decides for authority.

Judicial independence – a sacrosanct concept which I have written quite a bit over the years – has been much talked about again, lately.

What then is judicial independence? I believe this can be best explained by one of our most celebrated judges, Lord President Tun Mohamed Suffian Hashim when writing his foreword to The Role of the Independent Judiciary by Tun Salleh Abas on Dec 17, 1988 as follows: “When the judiciary decides against authority there is no question of its being superior to Parliament or the Executive; the three branches are co-equal partners, each branch being like the leg of a three-legged stool.

When the judiciary decides against the authority it is simply doing its duty under the Constitution which expresses the will of the people just as when it decides for authority.

“To accuse a judge of wanting to wrest power from the elected representatives of the people and thus destroy democracy is as absurd as accusing a football referee of wanting to take over the game and thus destroy football

This is echoed by the new Chief Justice, Tan Sri Md Raus Sharif in his inaugural speech at the recent ceremony celebrating his elevation that it is his duty as well as everyone’s to ensure that the independence of the judiciary is safeguarded.

“As an institution, the judiciary is not and should never be beholden to anyone but the Federal Constitution,” said Md Raus. In other words, not even to the Executive nor Parliament!

To the legally trained, this is also known as the doctrine of separation of powers where the three branches of state – legislature (Parliament), executive (government) and the judiciary are independent of one another so that each has separate powers to become a check and balance on the other.

As the French philosopher Baron de Montesquieu puts it: “Again, there is no liberty, if the judiciary power be not separate from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

INFO JOHORE BAR - AUGUST 2017

11

Hence in the State of Washington v Trump, 2017, the USA Ninth Circuit Appeals Court ruled that President Donald Trump’s executive order on travel ban is not unreviewable; otherwise, it will run contrary to the fundamental structure of a constitutional democracy which requires compliance with the US Constitution which is the supreme law.

The position is no different from ours in that our supreme law is also our Federal Constitution. Article 4(1) of the Federal Constitution provides that any law passed which is inconsistent with the Constitution is void.

It follows the three branches must be subordinate to the Constitution including the executive and Parliament. Our constitutional democracy is not entirely modelled upon the United Kingdom’s as unlike ours, the UK Parliament is supreme in that it can make, amend and unmake any law it likes, primarily because the UK does not have a single formal written constitution.

In fact, in Ah Thian v. Government of Malaysia, 1976 our apex court already declared that the doctrine of parliamentary supremacy as practised in the UK does not apply in Malaysia because we have a written constitution.

It follows the power of Parliament and state legislature in Malaysia is limited by the Federal Constitution as they cannot make any new law as they please.

So, on April 20, when the Federal Court decided to reaffirm the supremacy of the Federal Constitution and the concepts of judicial independence and separation of powers in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Hulu Langat, this was quickly hailed as a landmark decision.

In this case, one of the questions posed to the Federal Court was whether Section 40D(3) of the Land Acquisition Act 1960 (Act 486) is ultra vires Article 121 of the Federal Constitution.

Section 40D of Act 486, as inserted by the Land Acquisition (Amendment) Act 1997 (Act 999) on March 1, 1998, reads as follows: “(1) In a case before the Court as to the amount of compensation or as to the amount of any of its items the amount of compensation to be awarded shall be the amount decided upon by the two assessors.

INFO JOHORE BAR

“(2) Where the assessors have each arrived at a decision which differs from each other then the Judge, having regard to the opinion of each assessor, shall elect to concur with the decision of one of the assessors and the amount of compensation to be awarded shall be the amount decided upon by that assessor. “(3) Any decision made under this section is final and there shall be no further appeal to a higher Court on the matter.”

Hence, the crux of the matter is that the amount of compensation to be awarded “shall be the amount decided upon by that assessor” and not by the judge!

Constitutionally, it looks innocuous because Article 121(1) states that the High Courts shall have such jurisdiction and powers as may be conferred by or under federal law.

Hence, if the federal law here which is Act 486 provides so, then it is the assessor and not the judge who will have the final say on the amount of compensation to be awarded.

But Article 121(1) was amended during the Mahathir administration by the Constitution (Amendment) Act 1988 (Act A704) on June 10, 1988, and at the height of a constitutional collision between the judiciary and his administration. Prior to that, the original Article 121(1) stated that: “The judicial power of the Federation shall be vested in a Supreme Court (now Federal Court) and such inferior courts as may be provided by federal law.”

The words “judicial power” were expressly deleted.

Sadly, the Federal Court decided to take a narrow interpretation of Article 121(1) in the earlier 2008 case of Public Prosecutor v Kok Wah Kuan.

In delivering the majority decision of the Federal Court, the then President of the Court of Appeal who later became a Chief Justice, Abdul Hamid Mohamad said, “If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law. If we want to call those powers ‘judicial powers’, we are perfectly entitled to. But, to what extent such ‘judicial powers’ are vested in the two High Courts depend on what federal law provides, not on the interpretation the term ‘judicial power’ as prior to the amendment.”

In a display of judicial gumption at its best and departing from the earlier decision of Kok Wah Kuan, Justice Tan Sri Zainun Ali who delivered the unanimous decision of

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

12

the Federal Court in Semenyih, declared that the said Section 40D has effectively usurped the power of the court in allowing non-qualified persons including the assessor other than the judge to decide on the matter before the court. Hence, section 40D was struck down as being unconstitutional.

Zainun added that by removing judicial power from the inherent jurisdiction of the court, this has suborned the institution of judiciary to Parliament, thus making Malaysian Parliament supreme and sovereign over the Constitution.

This is inconsistent with the aforesaid Article 4(1) which states that no law must be inconsistent with the Federal Constitution.

In this respect, Zainun and her four other intrepid colleagues ruled that Parliament does not have the power to amend the Federal Constitution to the effect of undermining the concepts of separation of powers and judicial independence as this would be tantamount to establishing parliamentary supremacy when it is the Federal Constitution which is supreme.

Stressing that the concept of judicial independence is the foundation of the principles of the separation of powers, Zainun stressed that the discharge of judicial power by persons who are not judges would render the said exercise ultra vires Article 121 of the Federal Constitution as it has ignored the role of judges as defenders of the Constitution.

This landmark decision is now also the authority for holding that if any statute including one amending

the Federal Constitution should offend the basic structure and features of the Constitution such as the sacrosanct concepts of separation of powers and judicial independence, the judiciary has the inherent jurisdiction to strike it down as unconstitutional under Article 4(1).

“The judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary...This is essentially the basis upon which rests the edifice of judicial power. The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework”, wrote Zainun in the 87-page judgment of the Federal Court.

It is also apposite to be reminded by the words of the late Sultan Azlan Shah: “It is fundamental in this regard that the Federal Constitution is the supreme law of the land and constitutes the grundnorm to which all other laws are subject.”

In the light of this monumental decision of all time, it is also anticipated that those in the legal fraternity will start debating on the validity of statutory provisions which attempt to oust the jurisdiction of the court such as provisions which state that the decision of the minister who is a member of the executive is final and cannot be challenged or appealed against in any court, thus suborning the judiciary to the executive in contravention of the doctrine of separation of powers.

Likewise, the standing of the Syariah courts under Article 121(1A) as inserted by the aforesaid Act A704.

INFO JOHORE BAR - AUGUST 2017

13

INFO JOHORE BAR

Solicitors’ Remuneration (Amendment) Order 2017 - Implementing the 2016 resolution of the Malaysian Bar AGM [Part 1]

By Yang Pei Keng – 12 March 2017 P K Yang

[Note: The Bar Council Circular of 9 March 2017 indicates that the Solicitors’ Remuneration (Amendment) Order 2017 [SRAO 2017] was gazetted on 2 Mar 2017. It will come into effect on 15 Mar 2017 [see P.U.(A) 67/2017].

SRAO 2017 has amended the Solicitors’ Remuneration Order 2005 (“SRO 2005”) pursuant to the resolution adopted at the 70th AGM of the Malaysian Bar held on 19 Mar last year [2016].

Under the SRAO 2017, the scale fees for sales and transfers and charges or other security documents have been slightly increased. 25% discount is allowed. But no discount is allowed for attending to leases and tenancies, miscellaneous documents, Discharges of Charge, etc.]

Introduction

1.

At the Annual General Meeting of the Malaysian Bar held last year [2016], a resolution was adopted to introduce the 25% discount rule in the Solicitors’ Remuneration Order 2005 [“SRO 2005”].

It is pertinent to study the brief history of the Solicitors’ Remuneration Order.

The Bar Council Circular issued early this year intimated that the Solicitors’ Costs Committee had approved the amendments proposed by the 2016 resolution. But the approval has yet to be gazetted. Recently, we have been informed by the Bar Council that it has been gazetted, and the SRAO 2017 will come into force on 15 March 2017.

It is to be noted that the 2016 resolution was proposed by the Bar Council itself, and not by any member of the Bar. At the AGM, the Bar Council exercised its right to allow or disallow any further amendments voiced by members of the Bar. Steven Thiru, Chairman of the Bar Council rightly turned down several amendments proposed by some members at the AGM. Such move served to avoid spending too much time on dealing with arguments for and against the members’ several proposals to amend the amendments.

The resolution was finally adopted by a majority vote at the AGM. The SRAO 2017 is not to be confused with the SRAO 2016 which came into effect a few months ago. The SRAO 2016 has nothing to do with the 2016 resolution.

It merely touches on, among other things, the increase in the legal fees for leases and tenancies, miscellaneous documents, Discharge of Charge, etc.

Brief history of the SRO 2005

The SRO was first introduced about 26 years ago in the year 1991. It was known as the Solicitors’ Remuneration Order 1991 [SRO 1991]. About 14 years later, it was replaced by the Solicitors’ Remuneration Order 2005 (SRO 2005) which is currently in force.

The SRO 2005 was initially described as SRO 2006. Since it was gazetted on the last day of the year 2005, i.e. on 31 December 2005, the title was therefore changed to read Solicitors’ Remuneration Order 2005. It came into effect on 1 January 2006.

The SRAO 2017 will effect changes to the SRO 2005 that has been in force for about 12 years since its inception.

2.

Main features of the existing SRO 2005

Before we delve into the amendments introduced by SRAO 2017, it may be of help to note the main features of the existing SRO 2005. The introduction of the “no discount rule” for the first time, may be considered to be its most problematic feature. The main features of the current SRO 2005 are as follows: (1) “No discount rule” has been introduced for the first time since 12 years ago.

(2) The schedules of scale fees relating to land transfers, charges, discharges, tenancies, leases etc. [non-contentious matters] have been amended.

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

14

(3) An unusual feature introduced by SRO 2005 is that every housing developer’s transaction is entitled to enjoy a statutory discount (ranging from 25% to 35%) on the scale fees. Otherwise (say, a purchase by way of a sub-sale) the buyer is not entitled to such benefit.

3. “No discount rule” leads to malpractices Since the inception of the “no discount rule” some 12 years ago, it has given rise to various problems. It has led to serious malpractices among the legal profession. The malpractices persist until today. All efforts made by the Bar Council to eliminate them prove unsuccessful.

The “no discount rule” does not seem to go down well with the conveyancing practitioners. It does not serve the interests of the majority of the practitioners. At times, some members of the Bar felt that they were being put to unnecessary hardships. Some members were even under the impression that they were being singled out or victimized.

There is no denying that the implementation of the “no discount rule” has resulted in unhealthy practices among legal practitioners. Though attempts have been made by members of the Bar to abolish the rule since 2010, but they were to no avail. It is to be noted that at two AGMs of the Malaysian Bar held earlier before 2016, efforts had been made by some members to abolish the “no discount rule”, but they were unsuccessful.

The general feeling among the members of the Bar is that the system of providing scale fees ought to be maintained, but under some circumstances, a reasonable amount of discount on the scale fees ought to be allowed.

4. years

History of “25% discount rule” - in use for 58

The provision of the 25% discount rule is not a novel creation of the Bar Council. It is nothing new. In fact, there was a statutory provision allowing the giving of 25% discount under the Advocates and Solicitors Ordinance 1947.

The 1947 Ordinance was the principal legislation governing the legal profession at the material time. It had been in force for nearly 30 years until it was replaced by the Legal Profession Act 1976 (LPA 1976).

As mentioned earlier, the 25% discount rule was in fact first introduced by the 1947 Ordinance. The Ordinance

had been in force for nearly 30 years under the 1947 Ordinance. It was then replaced by the LPA 1976. Initially the LPA 1976 retained the 25% discount rule. The rule was operating reasonably well, but at the suggestion of the then Conveyancing Practice Committee, it was subsequently removed by the current SRO 2005.”

Under the 1947 Ordinance as well as during the initial stage of the LPA 1976, the 25% discount rule was maintained for a total period of 58 long years (19472005) until the advent of the “no discount rule” by virtue of SRO 2005.

Re-introducing the 25% discount rule It is timely to re-introduce the 25% discount rule. It may contribute towards the elimination of the unhealthy practices among some practitioners. They seem to be competing with each other in giving various rates of discount. They wantonly ignore or blatantly defy the “no discount rule”.

Such unhealthy rivalry among our members works against the interests of the legal profession as a whole. It is detrimental to the development of the legal profession, fast reducing the profession to a “business concern”.

5.

A boon to solicitors who adhere to professionalism The re-introduction of the 25% discount rule at this juncture is a boon to solicitors adhering to professionalism.

It will be a great relief to them (especially some senior practitioners) who have all along been acting professionally. Without any doubt, at times, they have incurred the displeasure of their clients, simply because of their strict observance of the no discount rule in scale fees. With the re-introduction of the 25% discount rule, they will no longer have to deal with grievances aired or complaints made by their long-standing regular clients.

They have rendered professional services to their clients conscientiously, strictly observing the “no discount rule”.

Some of them have faithfully served their regular clients for decades, perhaps for two or three generations. Their clients continue to retain their legal services simply because they have complete faith in the solicitors’ integrity and professionalism.

INFO JOHORE BAR - AUGUST 2017

[To be continued. See Part 2, page 21]

15

INFO JOHORE BAR

Conversion to Limited Liability Partnership (Limited Liability Partnership Act 2012 – Part 2)

By Yang Pei Keng P K Yang How to convert ordinary partnership to LLP

Effect of registration of conversion

An ordinary or conventional partnership may be converted to an LLP, but the LLP concerned must comprise all the partners of the conventional partnership, and no one else. Here “convert” means a transfer of the properties, interests, rights, privileges, liabilities, obligations, and the undertaking of the conventional partnerships to LLP: s.29

Upon registration, the LLP comes into existence. All properties, interests, rights, privileges, liabilities, and obligations, and the whole of the undertaking of the conventional partnership (or the private company), are automatically transferred to and vest in the LLP.

A statement has to be signed by all the partners. The Registrar may require such statement to be verified: s.31.

It must contain the name and registration number of the conventional partnership, the date of registration of the partnership business. The partnership must be able to pay its debts due in the normal course of business. And all statutory fees have been settled: s.31.

How to convert private company to LLP A private company may convert to an LLP if there is no subsisting security interest in its assets. All the shareholders and no one else can become the partners of the LLP: s.30.

Of course, a company has its advantages, but it is too expensive for a small business to maintain a company. To register a company, one may have to pay at least a fee of about RM2,000. After registration, it may incur annual expenditure of about RM2,500, as fees for the secretary, the auditor and the accountant.

The company must place an advertisement in at least one widely circulated newspaper, and publish a notification in the Gazette of its intention to convert to an LLP. All creditors of the company must have agreed to the application.

Registration of conversion - The Registrar may register the LLP and issue a notice of registration. The LLP is deemed registered on the date specified in the notice. He may refuse to register the LLP if he is not satisfied with the information furnished: s.32.

If any property is registered with a relevant authority, the LLP must as soon as practicable take all necessary steps to notify the relevant authority of the conversion: s.33.

All pending proceedings of the conventional partnerships (or the private company) may be continued by and against the LLP: s.34. Any conviction, ruling, order or judgment in respect of the conventional partnership (or the private company) may be enforced by and against the LLP: s.35.

Existing agreements - Every existing agreement signed by the ordinary partnership (or the private company) shall have effect as if the LLP were a party to the agreement: s.36. All existing contracts continue in force, and will be enforceable by and against the LLP. Examples of contracts are: deeds, contracts, schemes, bonds, agreements, applications, instrument and arrangements: s.37.

All contracts of employment will continue in force after the registration of the LLP. The LLP becomes the new employer: s.38. Every appointment will take effect and operate as if the LLP were appointed. Any power conferred will take effect as if it were conferred on the LLP: s.39.

But all approvals, permits or licences issued under any written law will not operate as if they were issued to the LLP: s.40. It would appear that the LLP has to apply for them afresh. If so, this provision operates to the detriment of the LLP unless the relevant authorities give special consideration to such applications as if they were merely renewal of the permits, licences, etc.

Liabilities and obligations of partners before conversion - Every partner of the ex-conventional partnership is

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

16

still personally liable, jointly and severally with the LLP for the liabilities and obligations incurred before the conversion. If a partner discharges any of the liabilities and obligations concerned, he is entitled to be fully indemnified by the LLP: s.41.

Notice of conversion to appear in invoices and correspondence For a period of 12 months commencing 14 days after the date of registration, the LLP must ensure that its invoices or official correspondence must bear a statement that it was converted from a conventional partnership (or private company); its name and registration. It is an offence not to comply with this provision. Maximum fine: RM10,000;.if a continuing offence, maximum fine: RM500 a day: s.42.

Existing statutory books, registers, records, etc. must be kept in the registered office of the LLP for a period of 7 years from the date of registration of the LLP. It is an offence not to comply with this provision. Maximum fine: RM10,000; if a continuing offence, maximum fine RM500 a day: s.43.

Annual declaration

Every LLP must keep accounting and other records. They must give a true and fair view of the state of affairs of the LLP: s.69. This is quite similar to the obligations of a company. It is an offence not to comply with this provision.

Maximum fine: RM50,000; maximum imprisonment: 6 months; or both.

The accounting and other records must be retained for 7 years – starting from the end of the financial year of the completion of the transaction. The records must be kept at the registered office. They may be kept at any other place, but the Registrar must be notified.

They must be open at all times for inspection by the partners. It is an offence not to comply with the above provisions. Maximum fine: RM10,000; if a continuing offence: RM500 a day: s.69(7).

The accounts of an LLP need not be audited, unless the LLP agreement provides otherwise. On the other hand, the accounts of a company must be audited.

The Registrar may require the LLP or any partner to produce them for his inspection. It is an offence not to comply with this provision. Maximum fine: RM50,000; maximum imprisonment : 6 months; or both.

Every LLP must lodge an annual declaration by any two of its partners as to whether the LLP appears to be able to pay its debts as they become due: s.68.

7.

DISSOLUTION, WINDING UP, AND STRIKING OFF of LLP

The annual declaration must be lodged within 90 days from the end of the financial year of the LLP. Currently, the filing fee is RM200.00. If it is the first annual declaration, it must be lodged within 18 months from the date of registration. The Registrar may grant an extension of time upon application.

Company law relating to receivership applies to an LLP. Company law relating to winding up also applies to LLP: s.49.

It is an offence not to file the annual declaration within the time limit. Maximum fine: RM20,000; if a continuing offence, maximum fine: RM500 a day: s.68(5). It is also an offence to make a declaration without having reasonable grounds for his opinon. Maximum fine: RM250,000. Maximum imprisonment: 2 years; or both.

Receivership and winding up by the court

Certain terms in the company law may be taken as referring to certain terms in LLP in the circumstances: s.49. For example: “company” is taken as reference to “LLP”; ‘director’ or ‘member’ of a company = ‘partner’ in the LLP; ‘memorandum’ and ‘articles of association’ = LLP agreement; ‘ Resolution’ = decision; and ‘Shares’ = interest of any partner.

Voluntary winding up of LLP

Any person furnishes false or misleading information in a material particular [directly or indirectly] (when he ought to have known that the information is false and misleading) commits an offence. Maximum fine: RM250,000. Maximum imprisonment: 3 years; or both.

If an LLP has ceased to operate and has discharged all its debts and liabilities, any partner may apply for a declaration of dissolution of the LLP after giving a notice of proposal to apply for dissolution. The application may be made within 7 days from the date of notification (or publication, whichever is later) of the proposal: s.50.

If the offence is committed with intent to defraud creditors, or for a fraudulent purpose, the hefty maximum fine is: RM1million; maximum imprisonment: 5 years; or both: s.69(8).

The application must be accompanied by a copy of the notice of proposal to apply for dissolution, and a statutory declaration made by one of the partners of the LLP. The S.D. is to state that the LLP has ceased to operate,

INFO JOHORE BAR - AUGUST 2017

17

and has discharged all its debts and liabilities [other than those owed to its partners], and the necessary notice has been given. A letter from the Inland Revenue Board [IRB] stating that it has no objection to the application must also be attached.

In other words, 3 documents are required: a statutory declaration, a notice of proposal for dissolution, and a letter from IRB. The notice must be published in at least one widely-circulated English newspaper and one Malay newspaper. It must be sent to each partner by registered post.

A partner or creditor may object to the proposed dissolution within 30 days of the date of publishing or posting of the notice [whichever is later]. The written objection must be made to the Registrar. On receipt of the objection, the Registrar must forthwith notify the applicant of the objection and make known the identity of the objector.

The Registrar will declare the LLP dissolved by notice in writing if there is no objection received, or the partner or creditor withdraws his objection, or the objection is without justification.

Upon declaration of dissolution of the LLP, the Registrar must notify the LLP to distribute the surplus assets among its partners. If there is an LLP agreement, then the distribution will be done according to the terms of the agreement. Within 14 days after the distribution is completed, the LLP must notify the Registrar accordingly.

The declaration of dissolution will only take effect upon the Registrar receiving the notification that the distribution of assets has been completed. Even though the dissolution and distribution have been completed, the liability of the LLP will continue and may be enforced as if the LLP has not been dissolved: s.50.

Assets of dissolved LLP to vest in the Registrar All interests in any property vested in the LLP are to be vested in the Registrar upon its dissolution. The approved liquidator can only make claims with the approval of the court or some other person, but the Registrar may make his claim without any court approval.

The Minister may prescribe the manner in which the Registrar should deal with the property, including its sale or disposal, defrayment of incidental costs and the commission to be paid to the Registrar: s.54(3). The moneys received by the Registrar in disposing of the property, must be applied in defraying all expenses [e.g.

INFO JOHORE BAR

costs, commission, fees, etc. Any surplus is to be dealt with as if it were unclaimed moneys: s.54(4).

The Registrar may strike off an LLP from the register The Registrar has power to strike off an LLP if he has reasons to believe that one of the following 5 matters has happened: (a) The LLP is not carrying on business or is not in operation; (b) It has contravened the Act; (c) It is prejudicial to the national interests; (d) There is no liquidator in cases of winding up by the court; (e) The affairs of the LLP are fully wound up, and there are no assets, or the assets available are not sufficient to pay the costs of obtaining a court order dissolving the LLP. The Registrar may serve a notice on the LLP, notifying that its name may be struck off the register, unless the LLP gives reasons for its name not to be struck off within 30 days of the date specified in the notice (or a longer period allowed): s.51(1) (e).

The Registrar may strike off its name after the expiry of the period specified in the notice (or any longer period as allowed. But he must have (a) received a confirmation from the LLP or its partner that it no longer carries on business, or it is not in operation; (b) received no reply from the LLP to the notice; or he is not satisfied with the reasons given by the LLP): s.51(2). When the LLP has been struck off the register, the LLP is deemed to have been dissolved. But the liability of every partner continues and may be enforced: s.51(3).

Duty to provide information. If the Registrar has reasonable grounds to believe that any person has information (or documents) relevant to the performance of the Registrar’s functions and powers, the Registrar may order him to do the following: (i) to give information; (ii) to produce the documents; (iii) to make copies of such documents and produce them; (iv) to give evidence (orally or in writing) at a private hearing before the Registrar, and to produce relevant documents; (v) a partner or employee of the LLP to appear at the private hearing to give evidence, and to produce relevant documents: s.55(1)(b).

Inspection. The Registrar is entitled to have access to any building to inspect documents kept by the LLP, and make copies of such documents, just to ascertain whether the LLP has complied with the Act: s.56.

He may request any partner or the compliance officer of the LLP (or any other person) to produce the documents in the custody of such person: s56(2). It is an offence not

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

18

to comply with this provision, or to obstruct or intimidate the Registrar in the exercise of his powers: s.56(3).

Revocation of dissolution If an LLP has been dissolved, any partner [creditor or aggrieved person] may within 2 years from the date of dissolution apply to the court for revocation of the dissolution on 2 grounds, namely, (a) the LLP has not discharged all its debts and liabilities; or (b) it is just and reasonable for the dissolution to be revoked: s.52(1).

The court may revoke the dissolution. Upon delivering a sealed copy of the court order to the Registrar, the LLP is deemed to have continued in existence: s.52(2). The court may give directions to place the LLP in the same position as if it had not been dissolved: s.52(3).

Registrar may represent dissolved LLP - The Registrar may represent the dissolved LLP in certain circumstances: s.53, that is, to do any administrative action to complete any matter which the LLP would be bound to complete.

When the Registrar signs any document, he must state that he has done so pursuant to this provision. It has the same effect as if the LLP had duly signed it. [s.53(2)] REGISTRAR’S POWER OF INVESTIGATION The Registrar may investigate the committing of any offence under this Act. He may exercise all the powers in relation to police investigation, except that he has no power to arrest without warrant: s.57.

Search and seizure without warrant If there is reasonable cause to believe that an offence has been committed under this Act on any premises, and that evidence may be found in the premises, the Magistrate may issue a warrant authorizing the Registrar to search and seize such evidence: s.58(1).

But the court cannot grant a warrant to search for a postal article, telegram or other document in the custody of the postal or telegraph authorities. [note: something is amiss in this sentence: nothing shall authorize any court other than the court to …..]

by another person of the same gender, and the search must be conducted “with strict regard to decency”: s.58(5). If it is not practicable to remove any matter from the premises, the Registrar may seal such matter in the premises concerned.

It is an offence to break or damage the seal, or remove the thing under seal. Maximum fine: RM50,000; maximum imprisonment: 6 months; or both.

Search and seizure without warrant - If the Registrar has reasonable cause to believe that the investigation would be adversely affected, or evidence is likely to be tampered with or removed, the Registrar may enter the premises and exercise the powers of search and seizure without warrant: s.59.

Computerized data - The Registrar is entitled to have access to computerized data. “Access” includes being provided with the necessary password, encryption code, decryption code, software, etc. and it has the meaning assigned to it by the Computer Crimes Act 1997: s.60(2).

Warrant admissible notwithstanding defects. Even if there is any defect, mistake or omission in the warrant, or in the application of such warrant, the search warrant is still valid and enforceable. Anything or document seized is admissible in evidence: s.61. If documents or things have been seized, the Registrar must as soon as practicable prepare the list of the documents and things seized and deliver a copy of the list (signed by him), to the occupier (or agent or employee) at the premises. If the premises are unoccupied, the list should be posted conspicuously on the premises:s.62.

Release of things seized. If the documents or things seized are not required, the Registrar may release them.

The Registrar will not be liable to any proceedings if the seizure and the release had been effected in good faith.

A record must be made by the Registrar, specifying the circumstances of the release and the reason therefor. He must send a copy of the record to the DPP and to IGP within 7 days of the release: s.63(2).

The warrant may authorize the search and seizure of any documents [including computerized data] containing information or evidence concerning the offence. The Registrar may search any person who is in the premises.

He may seize all things, but not the necessary clothing found upon the person.

Attendance of any person

The things may be detained until the person is discharged or acquitted. The search of the person can only be done

A statement made by the person must be reduced into writing wherever possible. He may sign or affix his

The Registrar may examine orally any person supposed to be acquainted with the fact and circumstances of the case. He is legally bound to answer all questions relating to such case. But he may refuse to answer any question which tends to expose him to a criminal charge.

INFO JOHORE BAR - AUGUST 2017

19

INFO JOHORE BAR

thumbprint, after it has been read to him [in the language he made it]. He must be given an opportunity to make any correction he may wish. If he refuses to sign or affix his thumbprint, the Registrar must endorse the fact of such refusal and the reason [Note: wrong word used: therefore?] stated by the person: s.65(6)

LLP to re-lodge it. Â The LLP must re-lodge it within 14 days after the service of the notice. The re-lodged document will have the same force and effect from the original date of lodgment. No fee is payable for re-lodging the document. It is an offence not to comply with this provision: s.72(5). The general penalty clause applies.

Admissibility of statement - If a person is charged with an offence, any statement made by him, is admissible in evidence at his trial. If the person tenders himself as witness, such statement may be used in crossexamination for impeaching his credit: s.66.

Service of electronic lodgment of documents. A document electronically lodged is deemed to have been lodged, if it is transmitted to the Registrar. Any copy of the document or an extract from the document under the hand and seal of the Registrar is admissible in evidence: s.73.

But a statement is not admissible if it has been caused by inducement, threat, or promise from a person in authority; or if it was made without caution after his arrest.

But a statement made before there is time to caution him, is not rendered inadmissible, if he is cautioned as soon as possible after that. Â An accused person is not bound to answer any questions after the caution:s.66(4).

No damages arising from seizure are recoverable A person is not entitled to recover costs or damages in respect of documents or things seized under this Act: s.67.

Registers kept by the Registrar. The Registrar must keep registers. On payment of the prescribed fee, any person may inspect any document lodged with the Registrar; or require a certified copy (or uncertified copy, or an extract of the document): s.70(2) Rectification of registers If an entry in a register about a person has been incorrect or omitted (or erroneously included), he may apply to rectify the register. The Registrar may require the person to give notice to any person who may have an interest in the business. The Registrar himself may also rectify any error in the register: s.70(4).

If the error does not arise in the course of the Registrar discharging his duties, he may refuse the application. Any aggrieved person may appeal to the court within 30 days of the decision of the Registrar. On appeal, the court may order the register to be rectified. The notice of the court order is to be served on the Registrar.

If the register contains any matter that is false, fraudulent or misleading, any person concerned may apply to the court to have the register rectified: s.71(9).

Re-lodging of lost registered documents. If a document lodged is lost or destroyed, the Registrar may direct the

If a document is electronically lodged, the Registrar will not be liable for any loss or damage suffered by any person because of any error or omission in any document made in good faith and in the ordinary course of his duties. He will not be liable either if the error or omission occurred as a result of any defect or breakdown in the service (or in the equipment used): s.73(5).

Information certified by the Registrar admissible in evidence Any information certified by the Registrar to be a true extract from any document is admissible in evidence: s.75. A document may be served on an LLP by leaving it at its registered office, or by sending it by post: s.76.

Failure to comply with circulars, guidelines, etc.

A person who fails to comply with this Act, any circular, guideline or practice note issued by the Registrar commits an offence. The Registrar may take any one of the following actions: (a) direct the person to comply with the circular, guidelines, etc.; (b) impose an administrative penalty up to RM10,000; (c) reprimand the person; and (d) direct him to remedy the breach or mitigate the effect of the breach, e.g. make restitution to the aggrieved person: s.78(2) If a person fails to pay the administrative penalty imposed, the Registrar may sue for it as a civil debt.

The Registrar must give him an opportunity to be heard. If the LLP or any partner fails to comply with the direction given, the Registrar may apply for a court order directing compliance with the direction, and for costs, etc.: s.78(4).

In determining whether restitution is to be made to the aggrieved person, the Registrar must have regard to the profits accrued to the person in breach; or whether any person has suffered loss or been adversely affected by the breach: s.78(6).

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

20

This section will not prejudice any other section imposing penalties for any failure under this section. The Registrar may charge a fee for any services rendered by him: s.79.

False and misleading statements. A person who authorizes the making of a false or misleading statement, or omission of any matter misleading in a material respect knowingly, commits an offence. Maximum fine: RM150,000; or maximum imprisonment: 5 years; or both: s.80. Any person in a meeting, votes in favour of making a false or misleading statement knowingly, is deemed to have authorized the making of such statement: s.80(2).

Destruction of records. It is an offence for any person who destroys, (conceals, mutilates or alters) any document or thing kept in the premises concerned, or attempts to send it out of Malaysia, with intent to defraud the Registrar: s.82. [No specific penalty is imposed, so the general penalty clause applies] Obstruction - It is an offence to (a) refuse the Registrar access to any premises concerned; or (b) assault, obstruct or delay the Registrar in effecting an entry in the execution of his duty; or (c) refuse to give the Registrar any information relating to an offence under this Act or any other information reasonably required of him: s.83.

Tipping off - It is an offence for a person, knowing that the Registrar is conducting an investigation, or knowing that a disclosure has been made to the Registrar, discloses such information to a third party, which may prejudice that investigation;: s.84.

[Note: Something is amiss in s.84(1)(b). Certain words are missing. This provision is hardly intelligible.]

Offences by body corporate If a body corporate commits an offence under this Act, any officer who is responsible for the management of its affairs, may be charged severally and jointly with the body corporate. Any “officer” here includes: any director, partner, chief executive officer [CEO], chief operating officer, manager or secretary.

employee in the course of his employment: s. 85(2).

General penalty - RM50,000; 1 year; or both [s. 86] If no penalty is expressly provided for any offence, the general penalty is a maximum fine of RM50,000 or maximum imprisonment of 1 year, or both.

With the consent of the Public Prosecutor, the Registrar may compound an offence upon payment of 50% of the maximum fine within a specified time: s.87(1). An offer of compound may be made at any time before any prosecution has been instituted. The compound must be paid within the specified time, otherwise prosecution may be instituted.

Once the offence has been compounded, the documents or things seized will be released by the Registrar. All sums received by the Registrar is to be paid into the fund established by the CCM: s.87(4).

A prosecution under this Act can only be instituted with the written consent of the Public Prosecutor: s.88. No action can be taken against the Registrar (or any person acting under his direction), so long as the act was done in good faith. s.89.

Disclosure made by partner, etc.- Any partner (or officer or employee) of the LLP may report to the Registrar any breach of this Act, or any serious offence involving fraud or dishonesty on the part of the LLP: s.90. He cannot be demoted or harassed or discriminated against by reason of the report. He cannot be sued, or subject to any disciplinary action so long as the report was submitted in good faith. “a serious offence involving fraud or dishonesty ” means an offence attracting a maximum jail term of 2 years.

The Minister may make regulations under this Act. Any subsidiary legislation made under this Act may provide any act to be an offence. The heavy penalties to be imposed are: maximum fine: RM500,000, or maximum jail term: 3 years, or both: s.91(2).

If the body corporate is found guilty of the offence, the officer is deemed to be guilty of the offence. But if he proves that the offence was committed without his knowledge or consent, and that he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence, then he is not guilty of any offence: s.85(1).

If any person is liable for punishment or penalty under this Act, he is liable for the act or omission of his employee or his employee’s agent, if it was committed by the INFO JOHORE BAR - AUGUST 2017

21

INFO JOHORE BAR

Solicitors’ Remuneration Order 2017 -Implementing the 2016 resolution adopted by the Malaysian Bar [Part II]

By Yang Pei Keng 13-3-2017 P K Yang

[Note: A resolution was passed at the AGM of the Malaysian Bar in March last year (2016). The Bar Council decided to introduce changes to the SRO 2005. The most significant change is to re-introduce the 25% discount rule. Now the 2016 resolution has taken the form of Solicitors’ Remuneration Order 2017 [SRAO 2017] which will come into effect on 15 March 2017]

The main changes proposed by the 2016 resolution of the Malaysian Bar are as follows: 1. The schedules of scale fees are to be retained, but a discount up to 25% on the scale fees for transfers, charges, etc. is to be allowed.

2. There is an increase in the scale fees for transfers and charges etc. under the First and Third Schedules.

3. There will be a maximum fee and a minimum fee for transfers and charges, after the discount of 25%.

(1)

4. No discount is allowed in scale fees for leases and tenancies, Discharges of charge, miscellaneous documents, etc.

SRAO 2017 and 2016 resolution In order to implement the resolution adopted at the 2016 AGM of the Malaysian Bar, the SRAO 2017 made the following amendments to the SRO 2005. The distinctive feature of the amendments is that a solicitor may give a maximum of 25% discount on the scale fee for any Sale and Transfer (First Schedule) and Charges and other security documents (Third Schedule).

Increase in the scale fees for Sales and Transfers

The new scale fees under the SRAO 2017 are slightly increased. They are as follows: Sale and Transfer (First Schedule) Consideration or Value as adjudicated (whichever is higher)

Scale of fee

First RM500 000

1% [minimum RM500]

Next RM500 000

0.8%

Next RM2 million

0.7%

Next RM2 million

0.6%

Next RM2.5 million

0.5%

If in excess of RM7.5 million

Negotiable (on the excess) but maximum 0.5% (on the excess)

What is the difference between the new and the old scale fees?

The Bar Council has clearly indicated the relevant changes in the scale fees for sales and transfers by the Table below:

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

22

Consideration or Adjudicated Value (whichever is higher)

Scale of Fees

For the first RM150,000 RM500,000

1.0% (subject to a minimum fee of RM300 RM500)

For the next RM850,000 RM500,000

0.7% 0.8%

For the next RM2,000,000

0.6% 0.7%

For the next RM2,000,000

0.5% 0.6%

For the next RM2,500,000

0.4% 0.5%

Where the consideration or adjudicated value is in excess of RM7.5 million

Negotiable on the excess (but shall not exceed 0.4% 0.5% of such excess)

Note: 1. The minimum legal fee for any sale or transfer of RM50,000 or below has been increased from RM300 to RM500.

2. The 1% scale fee is for the first RM500,000 [but there is a minimum fee of RM500.]

3. The legal fee for any transaction above RM7.5 million is negotiable, but it is only negotiable on the

excess above RM7.5 million [not on the total value of the transaction]. For example, if the value is 8 million, the legal fee on the excess of 0.5 million only [above 7.5 million] is negotiable.

4. The maximum legal fee on the excess cannot be more than 0.5%, but it can be less than 0.5%. For example, the negotiated fee can be 0.4% [i.e. less than 0.5%] and not 0.6% [i.e. higher than 0.5%].

Illustration 1 Below is an illustration of how the scale fees for sales and transfers work: Value as adjudicated First RM 500 000 Next RM 500 000 First 1 million Next 2 million First 3 million Next 2 million First 5 million Next 2.5 million First 7.5 million

1% 0.8% 0.7% 0.6% 0.5%

New rate [RM] 5 000 [minimum RM500] 4 000 9 000 14 000 23 000 12 000 35 000 75 000 110 000

Maximum of 25% discount is allowed on transfers and charges Under the 25% discount rule, a maximum of 25% discount is allowed on the scale fees on any transfer or charge. A solicitor may give a maximum of 25% discount on the legal fees. The discount can be less than 25%. This is because the giving of discount is discretionary, and not mandatory. A solicitor may therefore insist on payment of the full scale fee for any transaction if he so wishes. (Order 6 of the SRO 2005 is amended) Legal fees are slightly lower than the old ones after the 25% discount Though the new scale fees for transfers and charges have been slightly increased, if the solicitor chooses to give the maximum 25% discount, the end result is that the new legal fees are slightly lower than the old ones. See part of Appendix 1 of the 2016 resolution as shown below: APPENDIX I Scale fees under First Schedule and Third Schedule [old and new] INFO JOHORE BAR - AUGUST 2017

23

Purchase Price RM100,000.00

SRO 2005 RM1,000.00

SRAO 2017 RM1,000.00

Less 25% Discount RM750.00

RM500,000.00

RM3,950.00

RM5,000.00

RM3,750.00

RM1,000,000.00

RM7,450.00

RM9,000.00

RM6,750.00

RM2,000,000.00

RM13,450.00

RM16,000.00

RM12,000.00

RM3,000,000.00

RM19,450.00

RM23,000.00

RM17,250.00

INFO JOHORE BAR

Special discounted Scale fees for housing developers’ transactions Housing developers’ transactions are treated differently. The scale fees shown above do not apply. Special rates of discount are given for housing developers’ transactions, ranging from 25% to 35%, depending on the prices of the houses concerned.

Such special rates of discount are to be given regardless of whether the client is a seller or a buyer. [Note: A housing developers’ transaction refers to any transaction governed by the Housing Development (Control and Licensing) Act 1966 [Act 118] or any subsidiary legislation made under that Act], In all licensed developers’ transactions, the purchasers will be entitled to the following special discount on scale fees for sales and transfers: Discounted scale fees for housing developers’ transactions Consideration RM50,000 (or less) Above 50,000 (up to 250,000) Above 250,000 (up to 500,000) Above 500,000 …

Discount RM300 25% discount 30% discount 35% discount

The special discounted scale fees for housing developers’ transactions have been changed in the following manner [see SRAO 2017]l: Changes in discount for housing developers’ transactions Consideration

Discount

RM45,000 RM50,000 or below

fee: RM250 RM300

Above RM45,000 RM50,000 Up to RM100,000 RM250,000

25%

Above RM100,000 RM250,000 Up to RM500,000

30%

Above RM500,000

35%

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

24

Equality before the law?

One may tend to inquire: From the consumers’ point of view, is there any legal justification for allowing a special discount on the legal fee for purchase of property from a licensed developer, while at the same time denying such benefit to a purchaser of property from an individual seller (by way of a sub-sale)?

One wonders whether this is tantamount to “selective special benefit” granted to a privileged class of consumers, i.e. buyers in housing developers’ transactions. But a buyer of property from an individual seller by way of a sub-sale is not entitled to such benefit.

Is such “selective special benefit” akin to the “selective prosecution” in criminal law. Is there any reasonable ground for such discrimination against another class of consumers?

It is common knowledge that everyone is entitled to the fundamental right of equality before the law under the Federal Constitution. Would such unusual practice of “selective special benefit” amount to a form of “unfair discrimination” against a consumer merely because he buys a property through a sub-sale, and not from a licensed developer? Is it not puzzling why a buyer or property from, say, an individual seller, is not equally entitled to the benefit of special discount?

Increase in scale fees for charges or security documents There is an increase in the scale fees for attending to charges and other security documents [the Third Schedule] pursuant to SRAO 2017. The amended schedule of scale fees is as follows: Amount secured or financed

Scale of fees

First RM500,000 or less Next 500,000 or less Next 2 million or less Next 2 million or less Next 2.5 million Above RM7.5 million -

1% [minimum RM500] 0.8% 0.7% 0.6% 0.5% negotiable on the excess, but not more than 0.5% of excess Full scale 10% [minimum Rm300; maximum RM1 200]

Principal instrument Subsidiary instrument

One will note that legal fees for charges and security documents shown above are almost the same as those for sales and transfers, except for the following: 1. The legal fee for any subsidiary instrument is 10% of the scale fee.

2. In the purchase of a low-cost or medium-cost house from a licensed developer valued at RM50,000 or less, the minimum fee is RM300 instead of RM250.

No discount allowed for miscellaneous documents, etc.

No discount is allowed in the 4 schedules of scale fees shown below:

1. Leases and tenancies (2nd Schedule), 2. Discharges of Charge / Deeds of Assignment (4th Schedule) 3. Miscellaneous Documents (5th Schedule), and 4. where there is no fixed scale of fees (6th Schedule).

In other words, no discount can be given for the 4 categories of transactions. A solicitor must collect full fee for attending to any such transaction.

INFO JOHORE BAR - AUGUST 2017

25

Legal fees - based on the value of property as adjudicated At the AGM 2016, a proposal was made to add the expression “whichever is higher” after the words “consideration and adjudication value” in the Schedule of scale fees for sales and transfers.

This would mean that if there is a difference between the value as adjudicated and the price stated in the transfer form [or any other relevant document], it is mandatory for solicitors to charge legal fee based on the adjudicated value of the property (if any) [and not on the consideration or price stated in the transfer documents.].

This is a departure from the current practice.

Under the current practice, it is discretionary on the part of a solicitor to charge legal fees based either on the consideration (price) or the adjudicated value of the property. This is because the expression “whichever is higher” is absent in the First Schedule of scale fees for sales and transfers.

The consideration (price) for the transfer of the property may not be the same as the adjudicated value. The adjudicated value is always higher than the price paid, particularly when there is a boom in the property market. When the property market does not fluctuate, the adjudicated value is always the same as the price or consideration stated in the transfer form.

INFO JOHORE BAR

On or after 15 March 2017, a solicitor must only charge legal fees according to the value of the property as adjudicated [and not the price or consideration shown in the memorandum of transfer].

In the circumstances, it is a good practice to collect legal fees after the value of the property has been ascertained by the Valuation Office, since the adjudicated value may be higher than the consideration [price]. It is extremely unlikely that the adjudicated value will be lower than the consideration.

Conclusion The SRAO 2017 implementing the 2016 resolution of the Malaysian Bar adopted at the AGM last year [2016], will come into force on 15 March 2017. The slightly increased new scale fees for sales and transfers as well as charges or other security documents will apply. The “25% discount rule” will also come into effect.

It is hoped that with the introduction of the 25% discount rule, strict compliance with the SRO will be observed.

The image of the honourable legal profession battered by the current malpractices will hopefully be restored.

If the real estate agents are able to collect their prescribed commissions without much ado, is it not time for the legal fraternity to make concerted efforts to uphold the time-honoured legal profession by way of observing strict compliance with our SRO as amended? ###

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

26

FOREIGN LIMITED LIABILITY PARTNERSHIP (Limited Liability Partnership Act 2012 – Part 3)

By Yang Pei Keng P K Yang This part of the Act applies to an LLP registered in a foreign country. A foreign LLP must be registered in Malaysia before it can carry on business in this country. It is an offence not to comply with this provision. Maximum fine RM250,000 or maximum imprisonment: 3 years; or both: s.44.

Registration of foreign LLP. To register a foreign LLP, it must lodge a certified copy of its certificate of registration or the like, and a certified copy of its charter or its constitution [if any]. On payment of the prescribed fee, the Registrar will register the foreign LLP and issue a notice of registration: s.45.

Requirements to be complied with by Foreign LLP A foreign LLP must appoint at least one compliance officer from amongst its partners or persons qualified to be company secretaries. He must be a citizen, or a permanent resident of Malaysia ordinarily resident in Malaysia. His particulars and his consent to act must be lodged with the Registrar: s.46.

The compliance officer has to give a written notice to vacate his office if he intends to do so. He will cease to be a compliance officer on the expiry of 1 month from the date of lodging the notice. It is an offence if the foreign LLP fails to comply with this requirement.

It must have a registered office in Malaysia. The relevant documents to be kept in the registered office include a certified copy of the certificate of registration or other document of incorporation of origin, and a certified copy of its charter or constitution [if any].

It must lodge with the Registrar a declaration annually within 30 days (or longer period if allowed) of its anniversary of registration. It is an offence not to comply with this provision. Maximum fine RM20,000; if a continuing offence, maximum fine RM500 a day.

days after the date of cessation. The cessation will take effect only 6 months after lodging the notice, and the Registrar will remove its name from the register: s.47.

Liquidation or dissolution in its country of origin [s.48] If an FLLP goes into liquidation (or dissolved) in its place of origin, it must lodge a notice of liquidation [or dissolution] within 1 month after the commencement of its liquidation [or dissolution], and also a notice of appointment of foreign liquidator [if any] has to be filed.

If an approved liquidator has been appointed, the Registrar must forthwith endorse the appointment. If an approved liquidator has not been appointed, the Registrar will appoint one. The foreign liquidator will exercise the powers and functions of an approved liquidator.

[Note: s.48(3) – The sentence is incomplete. Something is amiss.]

Third Schedule – Circumstances under which a foreign LLP is not regarded as carrying on business [s.44] Generally, it is an offence for a foreign LLP to carry on any business in Malaysia if it is not registered. But, the Third Schedule stipulates that under the following circumstances, a foreign LLP is not regarded as carrying on business in Malaysia: The foreign LLP is a party to any proceedings, or it is settling a dispute. It carries on activities concerning its internal affairs. It maintains any bank account. It effects a sale through an independent contractor. It is getting an order which becomes a binding contract if the order is accepted outside Malaysia.

Cessation of Foreign LLP business in Malaysia

It creates a debt or a charge on property. It collects debts and enforces its rights under any securities relating to debts. It conducts an isolated transaction to be completed within 31 days, but not one of similar transactions from time to time.

If a foreign LLP decides to terminate its business in Malaysia, it must lodge a notice of cessation within 7

It invests funds or holds property. It imports goods only temporarily for exhibition, display or as trade

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

27

samples, which are to be exported subsequently within 3 months. The DG of Customs and Excise may extend the time limit.

First, Second and Third Schedules.

There are 3 schedules towards the end of the Act. The First Schedule pertains to 3 categories of professional practice, namely, chartered accountants, advocates and solicitors and company secretaries. These 3 categories of professionals may apply for the registration of the LLP: s.92.

The Malaysian Bar has been cited as the governing body of the legal profession in the States of Malaya or the Peninsular Malaysia. Sabah Law Association and Advocates’ Association of Sarawak regulate the legal

profession of Sabah and Sarawak respectively.

The Second Schedule provides the default provisions in the absence of an LLP agreement. These are the implied terms and conditions of an LLP if there is no LLP agreement entered into between the partners, and between the LLP and the partners. It is to be borne in mind that the LLP is a separate legal entity. There are 12 implied terms and conditions in the Second Schedule.

These default provisions have been mentioned above.

The Third Schedule lists the circumstances under which a foreign limited liability partnership (FLLP) is regarded as not carrying on business in Malaysia. In other words, these are the matters or things that a foreign LLP can do in Malaysia even though it has not been registered in this country.

[THE END]

CONGRATULATIONS TO THE NEWLY ADMITTED MEMBERS OF THE BAR (JOHOR) (AS AT TIME OF PUBLICATION) No

Name

Firm

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Hiew Ling Hui Ngu Zhen Wen Nur Sakinah Binti Hafiz Teo Hui Teng Chua Hian Yao Fatimah Azzahrah Binti Othman Jeremy Ng Boon Hao Lee Shing Nie Renuka A/P Rajendiran Anne Ng Yuin Yuin Christine Tay Yee Ching Chew Wei Ling Deborah Rohani Chow Li Chan Lim Man Hua Nur Fathin Binti Ab Gani Tang Pei Xin Wan Nur Hidayah Binti Wan Zulkifli Amelizatul Shuhada Binti Junus Kwang Qi Cai Nor Afiqah Binti Md Saif Aw Yong Lei Bin Tania Pillai A/P Velasamy Nor Izzatun Udda Binti Mohamed Muhammad Valantino Ifni Ho Bin Ridzuan Nurul Afiqah Binti Mohd Noh

Chiong & Partners Teo & Associates Abdul Rahman & Partners Tea, Kelvin Kang & Co Zaid Ibrahim & Co Lau Kok Guan Liana & Kuan Gan & Zul Gan & Zul Othman Hashim & Co Ranjit Singh & Yeoh Tay Kuan Teck & Son Lee & Tengku Azrina Tea, Kelvin Kang & Co Arthur Lee & Co Lim Soh & Goonting Chiong & Partners Azman, Wan Helmi & Associates Jamian & Associates Shook Lin & Bok Muhd Anuwar & Partners Chiong & Partners Zaid Ibrahim & Co M N Halim Syaffie & Associates Abdul Rahman & Partners

Date of Admission 27/10/2016 27/10/2016 27/10/2016 27/10/2016 09/11/2016 09/11/2016 09/11/2016 09/11/2016 09/11/2016 17/11/2016 17/11/2016 29/11/2016 29/11/2016 29/11/2016 29/11/2016 29/11/2016 29/11/2016 30/11/2016 30/11/2016 30/11/2016 04/12/2016 04/12/2016 08/12/2016 22/12/2016

V. M. Kumaran & Co

22/12/2016

25

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

28

No

Name

Firm

26 27 28 29 30 31 32 33 34

Fahrul Razi Bin Zainal Abidin Nur Arifah Binti Muhamad Azami Siau Yee Ting Suhaili Binti Sapun Andrew Twan Meng Kuan Tan Peck Chin Lim Sue Yee Low Yee Lin Mohammad Muzammil Bin Mohammad Hairiri Nor Atikah Binti Mohamed Amalia Aina Binti Zakaria Fairuz Hazwani Binti Abd Rahim Farah Binti Zulkapli Farah Filzah Binti Kamaruzaman Hanis Amirah Binti Mohd Nor Nur Shahidda Binti Muzamil Sharda Shienha Binti Mohd Suleiman Nadrah Binti Jamil Nor Azlina Binti Rozali Nur Shahida Azira Binti Yusoff Sharifah Salmah Binti Syed Mahdzar Steffi Fung Mei-Y Tan Song Yan Ahmad Syafiq Bin Mohd Ghazali Irwin Ng Jien Tark Neoh Eng Qi Noor Ain Binti Roslan Hilmi Sulaiman Bin Salahuddin Mohammad Naqib Bin Zahari Norliana Akmar Binti Ghazali Nur Shyamira Binti Abdul Hamid Sarilnezam Bin Salleh Fatin Nasihah Binti Jamaluddin Heng Wang Qianyou Shakhratul Asyran Binti Idris Oh Shi Yah Sangaran A/L Rawisandiran Amnah Binti Ismail

No Firm Akmal Saufi & Co K S Pang & Co No Firm Armiy Rais Armiy Rais ES Lim & Co Iqbal Hakim Sia & Voo Abdul Raman Saad & Associates

Date of Admission 05/01/2017 05/01/2017 05/01/2017 05/01/2017 12/01/2017 12/01/2017 15/02/2017 15/02/2017 15/02/2017

Syed Alwi, Ng & Co Sukhdev & Associates Enna Nadra Yacob Sahrihan & Hamdan Eidah Sulaiman & Co Mimirahayu Haniff Heng & Partners Chris Lee & Partners Azmi Su & Co Othman Hashim & Co Othman Hashim & Co Othman Hashim & Co Othman Hashim & Co Julie Lim, Vasanthan & Co Manian K Marappan & Co Raziyan Rahim & Associates Lau Kok Guan Liana & Associates Woon Wee Yuen & Partners H T Lim & Partners Anizah Salahuddin & Co Azmi & Associates Othman Hashim & Co Anandan Krishnan, Sahrihan & Partners Mohanadass Partnership Roger Tan & Partners Zainul Rijal Talha & Amir Ezzah Elia & Associates Lim & Hooi Meneka Kanasmoorthy & Associates Tan Hee Soon, Wong & Partners

15/02/2017 16/02/2017 16/02/2017 16/02/2017 16/02/2017 16/02/2017 16/02/2017 16/02/2017 19/02/2017 19/02/2017 19/02/2017 19/02/2017 16/03/2017 16/03/2017 26/03/2017 26/03/2017 26/03/2017 26/03/2017 16/04/2017 16/04/2017 16/04/2017 16/04/2017 16/04/2017 14/05/2017 14/05/2017 14/05/2017 16/05/2017 16/05/2017 16/05/2017

35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63

INFO JOHORE BAR - AUGUST 2017

29

INFO JOHORE BAR

JOHORE BAR ACTIVITIES ADVOCACY TRAINING COURSE | 14TH & 15TH OCTOBER 2016

Elegant advocates fresh after the training – smiles galore

On 14th – 15th October 2016, the Bar Council Advocacy Training Committee jointly with the Johore Bar Continuing Professional Development Sub Committee held the Advocacy Training Course for members of the Johore Bar. The course was conducted at the Johor Bahru Sessions Court, Jalan Ayer Molek.

The objective of the course was to educate members on the basis of advocacy based on the Hampel Method. Eighteen members participated in the course. The participants were divided into groups of six and were trained by two trainers per group. The trainers were Shahareen Begum, James Khong, Wong Keat Ching, David Matthews, Janice Selvanathan and Yudistra Darma Dorai.

The seasoned advocate leading with confidence from the front

WORKSHOP ON BASIC CONVEYANCING PRACTICE | 11TH OCTOBER 2016

On 11th October 2016, the Continuing Professional Development (“CPD”) organised a workshop that was conducted

by Mr. Andrew Wong at the Muar Traders Hotel, Muar Johor.

A total of 28 persons attended the workshop.

The passionate conveyancor, Andrew Wong

Someone doesn’t look very impressed here!

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

30

JOHORE BAR ACTIVITIES JOHORE BAR NORTH vs SOUTH GAMES | 22ND OCTOBER 2016 The Johore Bar Sports and North Johore Affairs sub committees jointly organised the north vs south Johore Bar games on 22nd October 2016 at Johor Bahru.

Three games were played namely golf, badminton and futsal.

Our golfers making an impression

The games ended with a prizegiving ceremony, followed by high tea at Street Arena Futsal, Kempas, Johor.

SEMINAR ON BASIC CRIMINAL LITIGATION | 18TH NOVEMBER 2016 On 18th November 2016, the CPD Sub Committee organised a seminar on basic criminal litigation.

Presented by Mr. Salim Bashir, the seminar was held at the Muar Traders Hotel, Muar, Johor with a total attendance of 26 participants.

INFO JOHORE BAR - AUGUST 2017

31

INFO JOHORE BAR

JOHORE BAR ACTIVITIES JOHORE BAR vs MAHKAMAH JOHOR (‘BBC GAMES’) | 9TH TO 12TH NOVEMBER 2016 The Johore Bar and Court Games this year was held from 9th to 12th November 2016.

The closing ceremony with prizes presented to the winning teams was held at MSC Cyberport, Johor Bahru on Saturday 12th November. Twelve games were played, namely futsal, sepak takraw, badminton, netball, volleyball, bowling, golf, soccer, tug of war, table tennis, darts and carom. This year for the first time the Courts had won the games and now the Judge’s trophy is kept by the Courts!

The Court’s secret weapon – The Puan Pengarah Mahkamah

How come we lost this year?

Judges in their best smiles savouring the long deserved win!

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

32

INFO JOHORE BAR - AUGUST 2017

33

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

INFO JOHORE BAR

34

JOHORE BAR ACTIVITIES PUBLIC FORUM: THE STATE OF HUMAN RIGHTS IN MALAYSIA TODAY | 8TH DECEMBER 2016 The Human Rights sub committee organised this forum in conjunction with World Human Rights Day on 8th December 2016 at Tropical Inn, Johor Bahru. Four eminent speakers were invited namely Mr. Tommy Thomas, Mr. Rama Ramanathan (PROHAM), YB Rafizi Ramli and YB Khalid Samad. The forum was moderated

by Dato’ Yeo Yang Poh. The forum kicked off at 7.45pm with welcoming remarks by Mr. Mathews George, Human Rights Chair and followed by the speakers. There was good attendance by members of the public although the members’ participation could have been very much better.

The host and the speakers

Senior lawyer in deep thought

and the question shall come!

WORKSHOP ON DRAFTING WRITTEN SUBMISSIONS AND CAUSE PAPERS ON CIVIL PROCEDURE | 12TH JANUARY 2017

KC the center of attention from the girls and guys too!

Better message boss I will be late!

On 12th January 2017, the CPD sub committee organised a workshop on drafting written submissions and cause papers on civil procedure. Presented by Mr. Foo Joon Liang, was held at Abdullah A. Rahman Auditorium with a total attendance of 94 participants.

INFO JOHORE BAR - AUGUST 2017

35

INFO JOHORE BAR

JOHORE BAR ACTIVITIES SEMINAR ON PRACTICAL CONSTRUCTION LAW FOR PRACTITIONERS | 19TH JANUARY 2017 On 19th January 2017, the Johore Bar CPD, together with the Bar Council Construction Law Committee, jointly organised a seminar on practical construction law for practitioners at the Abdullah A. Rahman Auditorium.Eight speakers were involved for the seminar namely T Kuhendran, Aniz Ahmad Amirudin, Chan Kheng Hoe, Choon Hon Leng, Darshendev Singh, Lim Hock Siang, Nadesh Ganabaskaran and Wallace Wong Hur Shiaw. A total of 86 persons participants were present.

Hmm, cute speaker!

That’s him!

PROFESSIONAL STANDARDS COURSE | 23TH & 24TH JANUARY 2017 On 23rd & 24th January 2017, CPD Committee organised the Professional Standards Course that was attended by 41 pupils. Senior Members of the Bar exposed these pupils to various aspects of practice such as maintenance of client accounts, conduct with clients, courts and fellow lawyers, and the good values of practice at the Bar. The following day was the exam, and the course ended with a memorable formal dinner with the High Court Judges and pupils’ masters at Grand Paragon Hotel, Johor Bahru. The guest speaker at the dinner was Datuk Hj. Kuthubul Zaman bin SNS Bukhari who shared his experience with the Bar and Bench.

The chambees looking impressive INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

36

JOHORE BAR ACTIVITIES PROFESSIONAL STANDARDS COURSE | 23TH & 24TH JANUARY 2017

WELCOMING HIGH-TEA IN HONOUR OF YANG ARIF DR CHOO KAH SING, JUDICIAL COMMISSIONER OF THE HIGH COURT IN JOHOR BAHRU | 7TH FEBRUARY 2017 On 7th February 2017, the Johore Bar Social Sub Committee organized a High-Tea at Double Tree Hilton, Johor Bahru to welcome Y.A Dr Choo Kah Sing, who had been posted as Judicial Commissioner in Johor Bahru on 16th October 2016. The event was attended by 76 members of the Johore Bar and three Judges and Judicial Commissioners of the High Court in Johor Bahru.

Aiyoo, have to give a speech after this?

A modest YA Dr Choo INFO JOHORE BAR - AUGUST 2017

37

INFO JOHORE BAR

JOHORE BAR ACTIVITIES SEMINAR ON ISLAMIC PRINCIPLE OF FAMILY LAW | 1ST FEBRUARY 2017 On 1st February 2017, the Johore Bar CPD and Shariah sub committees organised a seminar on Islamic Principle of Family Law presented by Puan Sa’adiah Din. The total number of participants was 40 persons.

The seminar ended with a token of appreciation presented to the speaker.

Alamak, boss send a message

Two roses among the …

DIALOGUE BETWEEN THE DIRECTOR OF PROSECUTION UNIT OF JOHOR AND THE JOHORE BAR | 6TH FEBRUARY 2017 Following the Inaugural Meeting between Tuan Roslan bin Mat Nor, the Pengarah Pendakwaan Negeri Johor and the Johore Bar Committee on 17th January 2017, a Dialogue Session has been arranged between the Pengarah (and his team of Deputy Public Prosecutors) and members of the Johore Bar to discuss and exchange views on the conduct of criminal cases in Johor. The dialogue was held on 6th February 2017 at Abdullah A. Rahman Auditorium

We must work together…

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

38

JOHORE BAR ACTIVITIES JOHORE BAR INFORMAL HI-TEA | 23RD FEBRUARY 2017 On 23rd February 2017, an informal gathering was organised by the North Johor Affairs sub committee chaired by Puan Shahareen Begum Abdul Subhan, at Marina Tanjung Emas, Muar Johor. The high tea gathering was attended by both senior and junior members of the Johore Bar.

47TH ANNUAL GENERAL MEETING OF THE JOHORE BAR | 24TH FEBRUARY 2017 On 24th February 2017, the Johore Bar’s 47th Annual General Meeting (AGM) was held at Berjaya Waterfront Hotel, Johor Bahru with 109 members in attendance. Mr. S Gunasegaran was re-elected as the Chairman of the Johore Bar and Mr. R Jayabalan as representative on the Bar Council.

Ten members were nominated and elected as Committee members namely Mr. Lim Eng Siang, Puan Shahareen Begum Abdul Subhan, Hajah Norfaizah Zainuddin, Ms. K Meneka, Ms. Santhi Balachandran, Ms. Punitha Mariappan, Mr. Roger Lo Ming, Mr. Allen Loh Wei Cher, Cik Aimi Syarizad Datuk Hj Kuthubul Zaman and Encik Khairul Asri Ahmad. Cik Anis Syarizad Datuk Hj Kuthubul Zaman was appointed as the Honorary Secretary and Mr. Danny Loo Kheng Soon was a co-opted member.

Mr. Chairman, I am very concerned, even Norman agrees with me.

INFO JOHORE BAR - AUGUST 2017

39

JOHORE BAR ACTIVITIES JOHORE BAR ANNUAL DINNER & DANCE 2017 | 25TH FEBRUARY 2017 The Johore Bar Annual Dinner and Dance, organised by the Social, Charity And Welfare sub committee, chaired by Mr Allen Loh Wei Cher, was held on 25th February 2017 at the Mutiara Hotel, Johor Bahru. The event was graced by the presence of the Guest of Honour, Chief Judge of Malaya, YAA Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin and his spouse Puan Sri Datin Seri Rohani binti Mohamed Kassim, Senior High Court Judge in Johor Bahru YA Dato’ Indera Mohd Sofian bin Tan Sri Abd Razak with his lovely spouse and others High Court Judges in Johor Bahru and their spouses, Director of the Johor Courts Puan Sabariah binti Atan, Mr George Varughese, Vice President of the Malaysian Bar, Secretary Ms Karen Cheah Yee Lynn and Tresurer Encik Abdul Fareed Abdul Gafoor.

The dinner commenced with an opening gambit-balloon blowdart by the Chairman Mr S Gunasegaran and a welcome speech

by Encik Fadhil Ihsan (Dale).

The night’s entertainment performances by a multi-talented artiste emcee R K Farid and a stand-up comedy act by international stand-up comedian Rizal Van Geyzel.

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

INFO JOHORE BAR

40

JOHORE BAR ACTIVITIES JOHORE BAR ANNUAL DINNER & DANCE 2017 | 25TH FEBRUARY 2017 MUTIARA HOTEL, JOHOR BAHRU Speech by the Chairman of the Johore Bar Committee Greetings (1) Guest-of Honour the Right Honourable Tan Sri Dato’ Seri Zulkefli bin Ahmad Makinudin, the Chief Judge of Malaya & Yang Berbahagia Puan Sri Datin Seri Rohani binti Mohamed Kassim (2) The Honourable Justice Dato’ Indera Mohd Sofian bin Tan Sri Abdul Razak & Datin Norhuda binti Hussin (3) The Honourable Justice Tuan Teo Say Eng & Puan Poh Hui Lin (4) The Honourable Justice Tuan Collin Lawrence Sequerah (5) The Honourable Judicial Commissioner Puan AlBaishah binti Abdul Manan (6) The Honourable Judicial Commissioner Dr Choo Kah Sing (7) Puan Sabariah Atan, Director of Johor Courts (8) Mr George Varughese, Vice-President of the Malaysian Bar (9) Presidents and Representatives of the Law Society of Singapore, Malaysian Medical Association (Johor), Malaysian Dental Association (Johor), Institution of Engineers Malaysia (Johor), Institution of Surveyors Malaysia (Johor), Malaysian Institute of Architects (Johor) and the Johor Master Builders Association (JMBA) (10) Members of the Judicial & Legal Service (11) My Fellow Members of the Bar (12) Distinguished Guests (13) Ladies and Gentlemen.

2. A very good evening to all of you and a warm welcome to the Annual Dinner & Dance of the Johore Bar 2017.

3. The Annual Dinner & Dance is the biggest social event in the calendar of the Johore Bar and the final event organized by the outgoing Committee.

4. The event today is very special in that it is being graced by a very special guest, the Right Honourable Tan Sri Zulkefli bin Ahmad Makinudin, the Chief Judge

of Malaya & his lovely spouse Yang Berbahagia Puan Sri Rohani binti Mohamed Kassim. It is not always that we have the CJM for company for Dinner. Yang Amat Arif, we are honoured and humbled by your presence today.

Ladies and Gentlemen, may I ask you to give a rousing welcome to Tan Sri and Puan Sri. I hope that you would enjoy the company and hospitality of the Johor lawyers.

5. In Johor we observe the tradition of holding the Annual Dinner and Dance just after our Annual General Meeting. Our AGM was held yesterday at the Berjaya Waterfront Hotel. It was a meeting unlike any other other meeting in the past. This AGM will be remembered as the meeting that was completed in record time. We started at 4.00 p.m. and ended at 4.55 p.m. It was all over within 55 minutes. In my 33 years at the Johore Bar I have never attended such a short meeting. Even the monthly Johore Bar Committee meetings take more than 2 hours. I suspect but am not sure that it may be the shortest meeting in the history of the Johore Bar. Perhaps the Ancient Mariners who are present here today such as Datuk Dr Wong Kim Fatt, Mr Reginald Vallipuram and Mr R.K. Menon may be able to confirm it. Looks like our members have decided, finally to be guided by the wise counsel of the Bard that “brevity is the soul of wit.”

6. The election of the new Committee also proceeded smoothly without the usual sparks. The entire Committee was elected unopposed. It is made up of 6 familiar faces from the outgoing committee and 4 new faces to replace the 4 members from the outgoing committee who have opted out. The new Committee is made up of 6 Ladies and 6 Gentlemen and is a blend of experience and youth. Ladies and Gentlemen, it is now my pleasure to

INFO JOHORE BAR - AUGUST 2017

41

introduce the newly elected members of the JBC for the year 2017/18: Chairman: S. GUNASEGARAN Committee members: 1. Shahareen Begum binti Abdul Subhan 2. Hjh Norfaizah binti Hj Zainuddin 3. Meneka Kanasmoorthy 4. Santhi Balachandran 5. Punitha Mariappan 6. Allen Loh Wei Cher 7. Lim Eng Siang 8. Roger Lo Ming 9. Aimi Syarizad binti Datuk Kuthubul Zaman 10. Khairul Asri bin Ahmad Johore Bar Representative: R. JAYABALAN 7. The past year had been a very active and eventful year for the Johore Bar. As a matter of policy the Committee gave top priority to the bread and butter issues faced by members in Litigation and Conveyancing work, which constitute the two main practice areas of our members.

8. The court issues that cropped up from time to time were resolved through regular meetings and consultations with the Judiciary. I take this opportunity to record my gratitude to the Honourable Justice Dato’ Indera Mohd Sofian bin Tan Sri Abdul Razak, the Hakim Utama or Senior Judge of the Johor Bahru High Court, for keeping his doors open for me throughout the year.

9. I am also grateful to Puan Sabariah binti Atan, the Pengarah Mahkamah Negeri Johor, for helping us with issues faced by our members in the Subordinate Courts.

10. As a result of the support and cooperation of the Hakim Utama and the Pengarah Mahkamah things were kept under control, there was no major discontent among our members, as a result of which my Committee and I sailed through smoothly and safely at the AGM yesterday.

11. Conveyancing issues were tackled promptly and effectively by a very efficient Sub-Committee headed

by Mr Andrew Wong. The Johore Bar Committee has benefitted tremendously from the expertise and contribution of Mr Andrew Wong for the past several years. He has given plenty of his time and effort in this

INFO JOHORE BAR

endeavour and has now decided to call it quits, but not without finding a successor. Mr Andrew Wong, thank you sir for your invaluable contribution.

12. Continuing Professional Development (CPD) continues to be the pride of the Johore Bar. I am proud to say, in the presence of the Vice President, Secretary and Treasurer of the Malaysian Bar that long before the Bar Council mooted the idea of a mandatory CPD scheme for all members of the Malaysian Bar, the Johore Bar had embarked on an ambitious venture to develop an active CPD program to enhance the professional knowledge and skills of our members. We have over the years expended a tremendous amount of energy to put a strong and active CPD scheme in place. Last year was no exception. We organized a total of 16 talks, seminars and workshops, of which 4 were held in Muar, for the benefit of our brethren in North Johor.

13. The Legal Aid Sub-Committee was preoccupied by the Yayasan Bantuan Guaman Kebangsaan (YBGK) that provides free legal aid in criminal cases.

14. The Human Rights Sub-Committee, among others, organized a Public Forum on the State of Human Rights in Malaysia, in conjunction with World Human Rights Day. 15. The Sports Sub-Committee organized 5 sporting events and even took our members to Kuantan for the inaugural Pahang Bar v Johore Bar Friendly Games.

16. Three years ago at the Annual Dinner & Dance of the Johore Bar on 22nd February 2014 at this very same venue, the Chief Justice of Malaysia, the Right Honourable Tun Arifin bin Zakaria, launched the Johor Bench & Bar Club, with the purpose of promoting friendship and goodwill between the Bench and the Bar. The importance of having a good working relationship between the Bench and the Bar cannot be over-emphasized. We are the twin pillars of Justice. Although we play different roles in court, we serve the common master, «Justice.» We are not adversaries but friends-at-law. Thus in furtherance of the common intention of the parties to strengthen the bond between the Bench and the Bar, the Johore Bar v Mahkamah Friendly Games were played under the banner of BBC. A total of 13 games were played.

And Team Mahkamah led by Puan Sabariah binti Atan emerged the overall winners to capture the Dato’ Haji Abdul Halim bin Aman Challenge Trophy.

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

42

17. Last year the government dropped a bombshell when it announced its plan to amend the Legal Profession Act 1976 (LPA). The proposals to include 2 government appointees to sit in the Bar Council and to alter the mode of election of the office bearers of the Bar Council were perceived as a sinister attempt to weaken and stifle the independence of the Bar. The Bar Council took various measures to oppose the said amendments. The Johore Bar on its part organized a briefing on the said amendments for own members followed by a Public Forum to create public awareness on the matter.

18. But perhaps the most significant event last year was the Johore Bar High Tea with His Majesty the Sultan of Johor on 18th January 2017. This was organized to enable members of the Johore Bar to meet His Majesty. It was the first time that such an event was held. The attendance of 240 members made it a huge success. A big thank you to our members for making it possible.

19. If I may now say a few words about our Guestof-Honour. Yang Amat Arif Tan Sri Zulkefli bin Ahmad Makinudin hails from Ipoh, Perak. His Lordship attended the St. Michael’s Institution in Ipoh and later the Maktab Tentera Di-Raja, Sungai Besi, Kuala Lumpur before proceeding to read law at the University of Malaya at Kuala Lumpur. His Lordship obtained the degree of Bachelor of Laws (LL.B) with Honours from the University of Malaya.

His Lordship also has a Master of Law (LL.M) from the University College, University of London.

20. Upon graduation his Lordship joined the Judicial and Legal Service in 1976. After serving in various capacities for 18 years, including a stint as State Legal Adviser, Johor from as 1988 to 1992, His Lordship was appointed as a Judicial Commissioner of the High Court of Malaya on 1.11.1994. On 12.1.1996 His Lordship was appointed as a Judge of the High Court of Malaya. He served as a High Court Judge for 9 years before being appointed as a Judge of the Court of Appeal w.e.f. 17.6.2005. 2 years later His Lordship was appointed as a Federal Court Judge. His Lordship was appointed as the Chief Judge of the High Court in Malaya w.e.f. 12.9.2011 and holds the position till today.

21. Yang Amat Arif has spent a lifetime in the pursuit and service of the law. The wealth of knowledge, experience and wisdom that he brought to the Bench has served him well in the discharge of his onerous judicial duties. We understand that Yang Amat Arif will be retiring from the Bench later this year. We will no doubt be missing you when that time comes but we shall always remember your kind and charming presence on the Bench and your enormous contribution to the law and the administration of justice. For all that a big thank you Yang Amat Arif. On behalf of the members of the Johore Bar, I wish you a happy and well-deserved retirement. And may you and Puan Sri be blessed with good health always.

22. This Dinner and Dance is our final and biggest event of the year. It is never easy to organize a function of this magnitude. A lot of effort has gone into it. I take this opportunity to thank the Organizing Chairman Allen Loh Wei Cher and members of his Organizing Committee for a job well done. If there be any errors and/or omissions please accept my humblest apologies.

23. In conclusion, I wish to thank the members of the Johore Bar Committee 2016/17 for your effort, contribution, support and co-operation in organizing the various activities organized by the Johore Bar. 24. My sincere thanks also goes to the Johore Bar Secretariat led by the energetic, ever willing and smiling Pn. Siti, our Executive Secretary, for taking care of all secretariat matters and all our activities, events and functions for the past year, including this function.

25. Finally I owe a debt of gratitude to my wife Chandrika for being understanding and for standing by me when I was busy running around, attending to Bar Committee and Bar Council work. May I implore you to tolerate me for one more year.

26. Thank You and have a pleasant evening.

S. GUNASEGARAN Chairman Johore Bar Committee 2016/17

INFO JOHORE BAR - AUGUST 2017

43

INFO JOHORE BAR

JOHORE BAR ACTIVITIES JBC COURTESY CALL ON THE JUDGES AND JUDICIAL COMMISSIONERS OF THE HIGH COURT AT JOHOR BAHRU | 12TH APRIL 2017 The Johore Bar Committee (JBC) took office after the AGM and the Bar elections on 24th February 2017. As a tradition, the new Committee paid a courtesy call on the three Judges and four Judicial Commissioners of the High Court in Johor Bahru on 12th April 2017.

A Courteous Bar paying respects to the Johor Bahru Bench

JBC COURTESY CALL ON THE JUDGE AND JUDICIAL COMMISSIONER OF THE MUAR HIGH COURT AT MUAR, JOHOR | 6TH APRIL 2017 The Johore Bar Committee paid its courtesy call on the Muar High Court Judge and the Judicial Commissioner on 6th April 2017 at the Muar High Court, Muar, Johor.

And to the Muar Bench INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

44

JOHORE BAR ACTIVITIES JOHORE BAR 11TH FUTSAL TOURNAMENT | 15TH APRIL 2017 The first activity of the year – 11th edition of Annual Futsal Tournament was held on 15th April 2017 at Street Arena Futsal, Kempas, Johor with participation of 10 groups. The Challenge trophy for the year of 2017 was won by the M/s Othman Hashim. The event was concluded with a prize giving ceremony headed by the Johore Bar Chairman, Mr S. Gunasegaran and Sports Committee Chairperson Encik Khairul Asri bin Ahmad, followed by an High tea.

INFO JOHORE BAR - AUGUST 2017

45

INFO JOHORE BAR

JOHORE BAR ACTIVITIES WELCOMING HIGH-TEA IN HONOUR OF Y.A TUAN COLLIN LAWRENCE SEQUERAH, JUDGE OF THE HIGH COURT IN JOHOR BAHRU AND Y.A DATO’ AHMAD KAMAL BIN MD. SHAHID, Y.A TUAN MAT GHANI BIN ABDULLAH, Y.A TUAN MOHD IVAN BIN HUSSEIN, JUDICIAL COMMISSIONERS OF THE HIGH COURT IN JOHOR BAHRU | 8TH MAY 2017 On 8th May 2017, the Social Committee organised a high tea at Holiday Villa, Johor Bahru, to welcome YA Tuan Collin Lawrence Sequerah, Judge of the High Court in Johor Bahru, the three newly posted Judicial Commissioners to the Johor Bahru High Court, YA Dato’ Ahmad Kamal bin Md Shahid, YA Tuan Mat Ghani bin Abdullah and YA Tuan Mohd Ivan bin Hussein. The event was attended by 88 members of the Johore Bar.

YA Tuan Collin

YA Dato’ Ahmad Kamal

INFO JOHORE BAR - AUGUST 2017

YA Tuan Mat Ghani

YA Tuan Ivan

INFO JOHORE BAR

46

JOHORE BAR ACTIVITIES BRIEFING SESSION ON E-FILING | EXPANSION OF E-COURT SYSTEM | 16TH MARCH 2017 The Bar Council Courts Liaison Committee organised a briefing to members on the expansion in the e-court system (Phase 2) on 16th March 2017 at Abdullah A. Rahman Auditorium, presented by Mr. Kenny Lai Choe Ken and Mr. Desmond Ho Chee Cheong.

The new e-filing is on the way guys, hence more headache for company. Be ready

CPD CAMP 2017 AT JOHOR BAHRU | 18TH MAY 2017 The Bar Council CPD organised nationwide on the CPD Camps 2017 at Johor Bahru.

The speakers were Mr. Gavin Jayapal speak on the Basic Company Law and Basics of Criminal Litigation presented by Mr. Salim Bashir Bhaskaran.

INFO JOHORE BAR - AUGUST 2017

47

INFO JOHORE BAR

JOHORE BAR ACTIVITIES REFERENCE PROCEEDING | 22ND MAY 2017

IN MEMORIAM We record with deep regret the death of the following members of the Johore Bar: 1) Sethu a/l Arumugam who passed away on 24 February 2015 2) Santharan a/l Ganapathi who passed away on 4 August 2015 3) Veera Kumara Singham who passed away on 31 July 2016 4) Najwa Izzatty binti Abd Razak who passed away on 2 September 2016 5) Lee Kew Fin @ Lee Ah Heng who passed away on 5 October 2016 A Reference in their memory was held at the Muar High Court, Muar, Johor on Monday, 22nd May 2017 at 9.00 a.m.

The proceedings were presided over by the Honourable Judicial Commissioner Tuan Muhammad Jamil bin Husin and with his Lordship on the Bench was the Honourable Justice Datuk Wira Halijah binti Abbas.

Senior Federal Counsel Puan Asliza binti Ali represented the Attorney General’s Chambers and Mr Roger Chan represented the Bar Council. Members of the Bar and family members of four departed lawyers were present at the proceeding. The Reference Proceedings was followed by light refreshments at Bilik Raflesia at the Muar Court Complex.

Speech by Mr S. Gunasegaran, Chairman of the Johore Bar Committee Dengan Izin Yang Arif - Yang Arif, Saya S. Gunasegaran, selaku Pengerusi Jawatan Kuasa Peguam Negeri Johor mewakil ahli-ahli Badan Peguam Negeri Johor, Rakan bijaksana saya Encik Roger Chan, Setiausaha Kehormat Majlis Peguam Malaysia mewakili Presiden dan ahli-ahli Bar Malaysia Rakan bijaksana saya Puan Asliza binti Ali, Peguam Kanan Persekutuan mewakili Yang Berbahagia Peguam Negara Malaysia dan Penasihat Undang-Undang Negeri Johor.

Yang Arif - Yang Arif, saya pohon kebenaran untuk melanjutkan ucapan saya dalam Bahasa Inggeris.

My Lady and My Lord, I rise with a heavy heart today to address you on this solemn occasion to pay our last respects to five members

of the Johore Bar who have left us for a better world, namely: (1) the late Sethu a/l Arumugam; (2) the late Santharan a/l Ganapathi; (3) the late Veera Kumara Singham; (4) the late Najwa Izzatty binti Abd Razak; and (5) the late Lee Kew Fin @ Lee Ah Heng.

A Reference is special sitting of the High Court convened for the purpose of honouring the memory of departed members of the Bar. It is one of the few occasions when the court is convened other than to hear cases.

A Reference Ceremony is a long-standing tradition of the Bar and something that is unique to the legal profession.

This event is organized by the Bar with the assistance, support and co-operation of the Bench and the AttorneyGeneral’s Chambers. My Lady and My Lord, on behalf of both the Johore Bar Committee and the Malaysian Bar I wish to express our sincere gratitude to you for graciously consenting to hold and to preside over this morning’s Reference Ceremony.

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

48

My Lady and My Lord, this Reference Ceremony provides us with an opportunity to reflect, recollect and trace the late member’s life at the Bar and his or her contribution to the profession and to the cause of justice.

The four gentlemen and one lady for whom this Reference is being held have not only led honourable lives but have also adopted the highest professional standards in the practice of law. They have done the profession proud and have left a lasting impression on those of us who were privileged to have come into contact with them both professionally and socially. The Malaysian Bar is truly proud of our departed colleagues and will always remember their contribution to the Bar and to the cause of justice that this profession proudly stands for.

My Lady and My Lord, the families of the departed members are in Court today and seated in the front row. I take this opportunity to record the deepest condolences of both the Malaysian Bar and the Johore Bar to the members of the bereaved families and to pray for eternal peace for the departed souls.

Rest assured that you are not alone in your pain and suffering. Your loss and sorrow is as much a loss and sorrow for us. Shed tears if it is necessary but do not grieve too much. Just be reminded that Death is the common destiny that awaits all of us. Death is the inevitable consequence of birth. It is as natural and common as life. All life leads to death. And that the journey begins at birth. William Shakespeare described death as follows: “Thou know’st ‘tis common; all that lives must die, Passing through nature to eternity.

(Hamlet, Act I, scene 2, line 72)

My Lady and My Lord, we take solace in the thought that though the dead and gone, our departed colleagues will always remain in our memory. As George Eliot said: “Our dead are never dead to us, until we have forgotten them.

My Lady and My Lord, I must confess that of the five departed members, I have had the privilege of personally knowing only the late Veera Kumara Singham, whom I would describe as a perfect gentleman and was devoted to the profession till the end. But whether known personally or not, as members of the Bar we are tied by a very special bond and the passing away of any one of us is always a matter of grief and pain to the rest of us My Lady and My Lord, with your kind consent, my colleagues at the Johore Bar will proceed to pay their tributes to our departed members: (1) Mr. Sasedharan a/l V Raghavan will speak about the late Sethu a/l Arumugam; (2) Puan Shahareen Begum Binti Abdul Subhan will speak about the late Santharan a/l Ganapathi; (3) Mr. K. Sila Dass will speak about the late Veera Kumara Singham and the late Lee Kew Fin @ Lee Ah Heng; and (4) Puan Misliyah binti Haji Mahfoz will speak about the late Najwa Izzatty binti Abd Razak.

This will be followed by the addresses of Mr Roger Chan for and on behalf of the Malaysian Bar and Puan Asliza binti Ali for and on behalf of the Honourable Attorney General of Malaysia and the Johor State Legal Advisor.

In conclusion, My Lady and My Lord, I respectfully move that the record of these proceedings be preserved in the archives of this Honourable Court and that a copy thereof be extended to each of the bereaved families.

And Euripides said: “Death is a debt we all must pay.”

Much obliged My Lady and My Lord.

I am painfully aware that whilst words may provide some comfort in our hour of need, they will not remove the grief and pain completely, and that Time alone is the ultimate Healer. In the meantime may you have the strength and fortitude to face and overcome your present calamity serenely and swiftly.

S. Gunasegaran Chairman Johore Bar Committee

INFO JOHORE BAR - AUGUST 2017

49

INFO JOHORE BAR

Speech by Mr. Roger Chan, Secretary, Malaysian Bar Dengan Izin Yang Arif-Yang Arif, I, Roger Chan Weng Keng appear on behalf the Bar Council and the Malaysian Bar. My Lady and my Lord – I acknowledge the presence of my learned friend Mr S Gunasegaran representing the Johore Bar Committee and the Johore Bar and my learned friend Puan Asliza Binti Ali representing the Honourable Attorney General.

I acknowledge too my learned friends Mr Sasedharan a/l V Raghavan, Puan Shahareen Begum Binti Abdul Subhan, Mr K Sila Dass and Puan Misliyah binti Haji Mahfoz who will be speaking about our departed colleagues.

May I on behalf of the Bar Council and the Malaysian Bar express my heartfelt condolences to each of the families of our deceased colleagues who have departed for their Maker. Their loss is also a loss to the Malaysian Bar. I will not repeat what has already been expressed by my learned friend Mr S Gunasegaran. I respectfully associate myself with the tributes and sentiments conveyed by my learned friend in respect of each of the deceased members.

May I, my Lady and my lord by way of soothing the pain recite two excerpts of a poem by Henry Scott-Holland:

My Lady and my Lord – We are assembled in this Honourable Court before Your Lordship to formally record and mourn the passing of our colleagues who have left us for death has intervened at some point in their lives.

Death is nothing at all It does not count I have only slipped away into the next room Nothing has happened

Permit me at this junction to say that the Bar Council and the Malaysian Bar are obliged to Your Lady and your Lordship for presiding over this Reference Proceedings and in the process maintaining what has long been the tradition of the Bar.

Everything remains exactly as it was I am I, and you are you, And the old life that we lived so fondly together is untouched, unchanged.

Whatever we were to each other, that we are still.

It is common knowledge that the legal profession is the only profession where a new member is formally accepted into the fraternity at an admission ceremony (commonly called “Called to the Bar“) in the High Court, and upon a member’s passing his/her departure is acknowledged and formalised by a ceremony called “The Reference Proceedings”, such as this. It is a tradition the legal fraternity cherishes because it recognises the contribution of members to the rule of law, profession and the community from the point of admission till departure, though each of them may have hailed from diverse backgrounds and areas of practice.

On that note, my Lady and my Lord, may I conclude: In accordance with time honoured tradition may I move for the record of these proceedings be preserved in the Archives of this Honourable Court and a copy thereof be given to each of the families of the five departed members of the Malaysian Bar.

Roger Chan Weng Keng Secretary, Malaysian Bar

Mr. Sasedharan a/l V Raghavan paid his tribute to late Sethu a/l Arumugam as follows: My Lord and My Lady, It is indeed a privilege to have been called upon by the Johore Bar Committee to pay this tribute to Mr. Sethu Arumugam in this Reference being held before your Lordships.

My Lord and My Lady, Sethu Arumugam popularly known as A. Sethu an Advocate and Solicitor practicing under the name and style of Syarikat A . Sethu of Segamat, Johor passed away peacefully on the 24th of

February 2015, aged 69.

My Lord and My Lady, In a call to the Bar we state the virtues of the petitioner but in a reference we speak of the antecedents and virtues of our deceased brethren as a lawyer.

Sethu a/l Arumugam

A.Sethu a Segamat lad who received his secondary education in the High School Segamat, graduated initially from the University

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

50

of Malaya with Bachelor of Arts (Hons) degree in 1978 and embarked on a career with the Ministry of Education of Malaysia as a teacher.

Nottingham University and Shankar Sethu an engineer, their spouses and several grandchildren to mourn his loss. The funeral took place in segamat.

Whilst in the teaching profession, his desire to further his education, Mr. Sethu pursued a Bachelor of Law programme and graduated with the LLB (Hons) from the University of London in 1985, he then obtained the Certificate in Legal Practice (CLP). He was admitted and enrolled to the Malaysian Bar on 28th may 1988 at the age of 42. He then practiced in sole- proprietorship in his home town Segamat ever since and was essentially a litigator.

My Lord and My Lady, Mr. Sethu was a humble, polite and was admired for his advocacy skills by his opponents and colleagues, he was a fierce and vocal litigator always standing up for the rights of his clients. He was knowledgeable, always composed and polite in court.

My Lord and My Lady, The late lawyer who was a member of the Rotary Club of Segamat leaves behind his beloved wife K. Sarojah who is my unty, a retired teacher and 3 children, Ir. Raj Sekar sethu a principle engineer with a multi-National company, Dr. Vasanthi sethu an Associate professor in

The Johore Bar’s condolences are accorded and conveyed to the bereaved family of A. Sethu with a quote from the 1st Non –European to win the Nobel Prize for Literature, Sir Rabindranath Tagore who wrote: “Say not in grief that he is no more But say in thankfulness that he was A death is not the extinguishing of a light But the putting out of the lamp Because the dawn has come” -Tagore Now that his labours have ceased may the late Sethu Arumugam rest in everlasting peace in God’s bosom and embrace.

My I pray my lords that a copy of these proceeding be preserved in the archives of this court and a copy thereof be dispatched to the family of the late Mr. A Sethu.

Much Obliged my Lord, My Lady.

Sasedharan a/l V Raghavan Member of Johore Bar

Puan Shahareen Begum binti Abdul Subhan paid the tribute to late Santharan a/l Ganapathi as follows: My Lady, My Lord It is indeed a privilege to have been called upon by the Johore Bar Committee to pay this tribute to the late Santharan a/l Ganapathi in this Reference being held before your Ladyship and Lordship.

Mr. G. Santharan (usually known among friends as Sanjay), a Senior Member of the Johore Bar passed away on 4.8.2015. His funeral was in Kluang, on the same day.

G. Santharan was from Guthrie Estate, Ladang Ulu Remis, Layang-Layang, Johore. He received his early education at Diamond Jubliee Primary School at Rengam and later, his secondary school education at Sekolah Menengah Dato. Hj. Hassan Yunus, Rengam.

After completing his Sijil Pelajaran Malaysia (SPM), he worked as a Medical Assistant at the Government Hospital and simulatneaously pursued his Bachelor of Laws, degree by distance learning with the University of Wolverhampton.

His diligence and perseverance was rewarded when he obtained a Bachelor of Laws Degree and CLP. He was admitted to Malaysia Bar on 3.11.1997.

He then became and remained a partner of Messrs Manian K. Marappan & Company until the time of his demise.

He handled Civil and Criminal, litigation, runner matters and medical negligence claims. He was very dedicated in discharging his duties as an advocate and solicitor.

He leaves behind his beloved parents, wife and two daughters. Both daughters follow their paths as doctors.

The love and devoted care that his wife and mother bestowed upon him during his remaining years were a source of great solace to him.

In conclusion, I offer my deepest condolences to the family members of Santharan. I also humbly move that a record of this proceeding be preserved in the archives of

INFO JOHORE BAR - AUGUST 2017

51

INFO JOHORE BAR

this Court, and a copy thereof be sent to his widow and children.

Much obliged My Lady and My Lord.

Shahareen Begum binti Abdul Subhan Member of Johore Bar Mr. K Sila Dass paid his tribute to late Veera Kumara Singham as follows: May it please you My Lady & My Lord, The Chairman of the Johore Bar, Mr Gunasegaran, The Representative of the Bar Council, Mr Roger Chan, The Representative of the Attorney General Chambers, Puan Asliza Binti Ali,

Court of Malaya on 15th August, 1969. He started his own practice at Kluang, where he continued to do so until his demise on Sunday 31st July, 2016.

Before entering the legal practice, the late SVK Singham began his working career as a teacher. He taught at the High School in Batu Pahat and Kluang. Probably not seeing enough We are gathered here this morning to pay S.V.K Singham challenges in the teaching profession, he had tribute to the memory of two members of the joined the Royal Malaysian Police force as a Bar. One is the late Veera Kumara Singham and cadet officer rising to the rank of Assistant Superintendent the other is Lee Kew Fin @ Lee Ah Heng (KF Lee), both of Police. Perhaps there too the challenges did not seem were senior members of the Bar, and had been practising to satiate his vibrant ambition, hence he read law and in Johor for more than 9 decades put together. I shall became an advocate & solicitor, a profession which go by the seniority of the two senior practitioners. The offers varied challenges with lots of pitfalls if one is not late Veera Kumara Singham, who was known to many careful. as SVK Singham, was 82 years old when he passed away.

The late SVK Singham was married to Mdm Maheswari The late Lee Kew Fin, who was also known to many as Muttiah, who was formerly attached to the Ministry William Lee, was 74 years old when he passed away. of Education. They were blessed with a daughter Dr Going by their respective calls to the Malayan Bar, the Anusuya who is a senior doctor at the Pejabat Kesihatan late SVK Singham takes precedence as he was called to Kluang. Dr Anusuya is here today with us, however, Mdm the Bar in 1969, and the late Lee Kew Fin in 1973.

Maheswari could not make it as she is unwell.

We lawyers follow tradition. Following the best tradition The late SVK Singham was an avid sportsman who played of the Bar, I will deal with SVK Singham first, followed by cricket, squash, tennis, football, hockey, table tennis, golf Lee Kew Fin. and badminton. He was also a very active member of Kluang Hash House Harriers until recent years; however, My Lady & My Lord, age never slowed him down as I would always see him The late SVK Singham was born on 26th March, 1934 walking every evening around our housing area and he in Sungkai, Perak to Mr V.Somasundram and Mdm never failed to stop to have a chat if he sees me around Sivapackyam. The Somasundram family were blessed my garden. with 5 children and Singham was the fourth. His Besides sports, the late SVK Singham also had a keen father, the late Somasundram, was a well-respected gentleman in society having held various positions in interest in languages. He could speak fluently in English, civil organisations in Kluang.

Tamil, Malay, Mandarin, Hindi, Punjabi and German. He always amazed his clients when he would converse with The late SVK Singham had his early education in Ipoh them in their mother tongue and that was an advantage and completed his secondary education at Anderson to any lawyer as it would ensure that the lawyer would be School. He then proceeded to study at the University able to take instructions clearly and accurately, without of Singapore where he obtained a Bachelor of Science it being lost in interpretation.

(Hons) degree. Later on, he read law at The Honourable Society of Lincoln’s Inn, England. After his pupillage, he I have personally known the late SVK Singham from was admitted as an Advocate & Solicitor of the High INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

52

the time he started practice in Kluang. There had been occasions where we were both on the same side acting for common clients and there had been occasions where we were on the opposite sides of the pole. I always found him to be very meticulous and his knowledge in law was profound. It was pleasant to work with him either as an opponent or otherwise.

The late SVK Singham was counsel for the respondent in the case of Tan Swee Hoe Co. Ltd. v Ali Hussein Bro.

[1980] 2 MLJ 16, which was a landmark case involving payment of tea-money and tenancy. The Federal Court held that an equity had been created and upheld the tenancy.

K. Sila Dass Member of Johore Bar

Puan Misliyah binti Haji Mahfoz paid the tribute to Allahyarhamah Najwa Izzatty binti Abd Razak as follows: Allahyarharmah Najwa lzzaty Binti Abdul Ratak dilahirkan pada 31.8.1989 di Muar, Johor, mempunyai 6 orang adik beradik dan merupakan anak sulung dalam keluarga Encik Abdul Razak Bin Khamis dan Puan Zainah Binti Jupri.

Allahyarhamah Najwa Izzaty mendapat pendidikan awal di Sekolah Rendah Sultan Abu Bakar (1) di Muar, Johor dan apabila mendapat keputusan yang baik dalam peperiksaan sekolah rendah, beliau telah melanjutkan pelajaran di Sekolah Agama Maahad Muar, Johor.

sebagai Peguambela dan Peguamcara pada tarikh 6.3.2014 di Mahkamah Tinggi Muar dan telah bekerja di dua (2) pejabat guaman sebelum menjadi Pembantu Undang-undang di pejabat guaman Fatimah Zahrah & Co., di cawangan Muar, Johor pada 4.8.2014. Sikap Allahyarhamah Najwa Izzaty yang lembut, mudah tersenyum dan tenang, sangat di senangi oleh majikan, rakan-rakan sekerja serta staff di bawahnya.

Allahyarhamah Najwa lzzaty banyak mengendalikan bahagian litigation dan Najwa Izzatty conyeyancing serta telah menjalankan tugasAllahyarhamah telah mendapat keputusan tugasnya dengan baik. yang baik dalam Sijil Pelajaran Malaysia (SPM) dan telah mendapat tawaran belajar di Matrikulasi Universiti Islam Allahyarharmah telah mendirikan rumahtangga dengan Antara Bangsa dan kemudian menyambung di peringkat Encik Abdul Latif Bin Modiono. Kematiannya pada tarikh Sarjana Muda Undang-undang juga di Universiti Islam 2.9.2016 amat mengejutkan majikan, rakan-rakan kongsi Antarabangsa di Gombak, Selangor. di Fatimah Zaharah & Co., staff-staff dan rakan-rakan sekerja. Pada masa kematiannya, beliau telah meninggalkan Allahyarhamah telah memperolehi Ijazah Sarjana Muda suami, ibu bapa, adik beradik serta rakan-rakan yang sentiasa Undang-Undang dengan kepujiaan pada tahun 2013 dan mengingatinya dan menyayanginya. Al-Fatihah. telah menyempurnakan Latihan Dalam Kamar di Tetuan J. A Nathan & Co., di Muar, Johor dan tarikh 9,5.2013 sehingga 8.2.2014.

Misliyah binti Haji Mahfoz Member of Johore Bar Allahyarhamah Najwa Izzaty telah di terima masuk

Mr. K Sila Dass paid his tribute to late Lee Kew Fin @ Lee Ah Heng as follows: My Lady & My Lord, Now turning to the late Mr Lee Kew Fin @ Lee Ah Heng.

Mr Lee Kew Fin was born on 23rd March, 1942 in Pontian.

His parents were blessed with 8 children and Lew Kew Fin was the fourth. His parents owned a small provision shop in Pontian and were well-respected in town.

The late Lee Kew Fin had his primary education in Pontian and continued his secondary education at the Chinese

High School at Tanjong Laboh, Batu Pahat. He obtained his first degree in Chinese Education from Nanyang University, Singapore and he read law at National University of Singapore. He was admitted as an advocate & solicitor of the High Court of Malaya on 28th February, 1973. His initial practice was in Batu Pahat before he moved to Kluang, where he continued until his demise on Wednesday 5th October, 2016. He was married to Mdm Teng Sok Chin, a retired teacher. They were blessed with 3 sons and 1 daughter. His youngest son read law however

INFO JOHORE BAR - AUGUST 2017

53

did not follow his father’s footsteps to practise law. The late Lee Kew Fin was an active member of MCA in the 1980s and he was also a Legal Advisor to various Chinese Associations in Batu Pahat and Pontian. He hardly went to Court, but his knowledge in law was impeccable and he would advise very effectively and honestly. He was a nice man to deal with.

INFO JOHORE BAR

I am sure both of them in their own way have left behind beautiful and fond memories cherished by those who were close to their hearts.

My Lady & My Lord,

I have known the late Lee Kew Fin since the time he was called to the Bar. When he started his practice at Batu Pahat, he shared his office with one of the most senior members of the Bar at that time, the late CPS Wong, and I had the privilege of meeting and sharing our thoughts on both legal and social matters.

My Lady & My Lord, Both these members of the Bar have had a satisfying life, and comfortable legal practice; and most importantly good families.

We are travellers between life and death, said poet William Wordsworth.

Both SVK Singham and Lee Kew Fin have completed their journey.

My Lady & My Lord, I propose that the minutes of these proceedings be deposited in the archives of this Honourable Court and a copy be given to the families of the late SVK Singham and Lee Kew Fin respectively.

K. Sila Dass Member of Johore Bar

Senior Federal Counsel Puan Asliza binti Ali in her tribute to the departed members said: Dengan Izin Yang Arif,

opportunity for us to commemorate and honour the lives and memories of these 5 members.

Pada hari ini, kita sama-sama berkumpul untuk menghormati dan memperingati Allahyarhamah dan mendiang ahli-ahli Majlis Peguam Malaysia yang telah meninggalkan kita buat selama-lamanya.

Sehubungan itu, saya hadir prosiding pagi ini bagi pihak YB Tan Sri Peguam Negara Malaysia. Saya diwakilkan untuk menyampaikan rasa dukacita beliau atas ketidakhadiran beliau pada istiadat hari ini atas desakan tugas rasmi.

Saya juga hadir bagi pihak kesemua pegawai Perkhidmatan Kehakiman dan Perundangan bagi melahirkan perasaan sedih kami di atas pemergian Allahyarhamah dan mendiang ahli-ahli Majlis Peguam Malaysia ini serta menyampaikan ucapan salam takziah kami kepada keluarga mereka.

Yang Arif, dengan rendah diri saya memohon izin Yang Arif untuk meneruskan ucapan saya dalam Bahasa Inggeris.

Yang Arif, Today’s proceedings should not be treated as a solemn and melancholic occasion. Instead it should be an

We thank God for their presence in our lives and we ask for God’s blessing for their departed souls and the families they left behind.

Yang Arif.

On behalf of the Honourable Attorney General and the officers of the Judicial and Legal Service, I extend our heartfelt condolences to the families and friends of the members we honour today. I would also like to associate myself wholeheartedly with the sentiments and tributes expressed by my learned friends throughout today’s proceedings.

Yang Arif, Akhir kata, saya dengan rendah diri mengusulkan supaya Rekod Prosiding hari ini disimpan di Arkib Mahkamah yang Mulia ini dan sesalinan diserahkan kepada setiap keluarga Allahyarhamah dan mendiang ahli-ahli Majlis Peguam Malaysia yang kita kenang dan ingati hari ini.

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

54

Sekian, terima kasih.

Asliza binti Ali Ketua Unit Guaman Pejabat Penasihat Undang-Undang Negeri Johor Sebagai wakil YB Tan Sri Peguam Negara.

In reply, the Honourable Judicial Commissioner Tuan Muhammad Jamil Bin Hussin said: Bismillahirrahmanirrahim; Assalamualaikum w.b.t.

Salam Sejahtera.

Yang Arif Datuk Wira Halijah bt Abbas, Hakim Mahkamah Tinggi Muar, Encik S. Gunasegaran, Pengerusi Jawatan Kuasa Peguam Negeri Johor dan Ahli-ahli Jawatan Kuasa Peguam Negeri Johor, Encik Roger Chan Wakil daripada Majlis Peguam Malaysia, Ahli-Ahli Keluarga mendiang dan Allahyarhamah peguampeguam untuk upacara peringatan ini, Puan Asliza binti Ali Wakil daripada Y. Bhg Peguam Negara Malaysia dan Penasihat Undang-undang Negeri Johor, Tuan-tuan dan puan-puan sekalian.

Prosiding pada pagi ini adalah untuk memperingati 5 orang sahabat kita, mendiang dan Allahyarhamah peguambela dan peguamcara yang telah pergi mendahului kita, iaitu mendiang Encik Veera Kumara Singham, mendiang Encik Lew Kew Fin@Lee Ah Heng, mendiang Encik Santharan A/L Ganapathi, mendiang Encik Sethu A/L Arumugam dan Allahyarhamah Najwa Izzatty Binti Abd Razak.

Prosiding peringatan adalah tradisi yang melibatkan Mahkamah dan Jawatankuasa Peguam Negeri bagi menghormati dan mengenang penglibatan, pengorbanan dan pencapaian oleh para peguam yang telah meninggal dunia. Sebentar tadi, kita telah mendengar ucapan pembukaan daripada Encik S. Gunasegaran, Encik Roger Chan bersama dengan ucapan-ucapan penghormatan oleh Encik Sasedharan a/l V Raghavan, Puan Shahareen Begum Binti Abdul Subhan, Encik K Sila Dass, Puan Misliyah Binti Hj. Mahfoz yang mewakili Puan Fatimah Zahrah Binti Baharim serta ucapan daripada Puan Asliza binti Ali. Mendiang Encik Veera Kumara Singham adalah salah seorang ahli Jawatankuasa Peguam Negeri Johor yang paling “senior”, di mana beliau telah berkhidmat selama

47 tahun. Beliau juga dikenali sebagai peguam yang “prim and proper” yang sentiasa mematuhi peraturan, etika dan amalan dalam bidang perundangan. Sebelum penerimaan masuk beliau sebagai Peguambela dan Peguamcara Mahkamah Tinggi Malaya, mendiang Encik Veera Kumara Singham telah berkhidmat sebagai seorang guru dan pegawai polis. Beliau amat meminati aktiviti sukan dan telah terlibat secara aktif dalam acara sukan tahunan yang melibatkan Mahkamah dan Jawatankuasa Peguam Negeri Johor.

Mendiang Encik Lew Kew Fin @ Lee Ah Heng juga terlibat dalam bidang pengajaran sebelum menjadi Peguambela dan Peguamcara. Beliau telah mendapat biasiswa untuk mempelajari undang-undang di Nanyang University, Singapura. Setelah tamat pengajian, beliau telah bekerja keras dengan membuka firma guamannya sendiri di Batu Pahat dan kemudiannya di Kluang.

Mendiang Encik Santharan A/L Ganapathi pula telah memulakan karier sebagai Peguam di Tetuan Manian K Marappan & Co, dimana beliau telah mengendalikan kes-kes sivil dan jenayah, kes-kes tuntutan kemalangan dan “medical negligence”. Beliau merupakan seorang Peguamcara yang berdedikasi terhadap kerjayanya.

Seterusnya, mendiang Encik Sethu Arumugam, telah berkhidmat sebagai peguam dengan menubuhkan firma sendiri di Segamat, Johor. Walaupun memulakan karier dalam bidang perundangan pada usia 42 tahun, beliau telah mempunyai banyak pencapaian sebagai “litigator”.

Allahyarhamah Najwa Izzatty binit Abdul Razak berusia 27 tahun semasa meninggal dunia, telah diterima masuk sebagai Peguambela dan Peguamcara pada 06.03.2014 di Mahkamah Tinggi Muar. Allahyarhamah telah banyak mengendalikan litigasi dan conveyancing serta telah menjalankan tugas-tugasnya dengan baik.

Allahyarhamah Najwa Izzatty telah berkhidmat sebagai

INFO JOHORE BAR - AUGUST 2017

55

peguam di beberapa firma guaman termasuk Fatimah Zahrah & Co. YA Datuk Wira dan saya tidak berkesempatan untuk mengenali mereka dengan lebih baik tetapi kami faham dan percaya pemergian lima (5) orang Peguam ini adalah satu kehilangan besar kepada Jawatankuasa Peguam Negeri Johor, kepada ahli keluarga dan kepada para peguam yang berkaitan dengan mereka dalam profesion ini. Kami mengucapkan takziah kepada ahli-ahli keluarga mendiang dan Allahyarhamah atas pemergian mereka.

Pencapaian dan pengorbanan mereka akan sentiasa diingati dan dihargai oleh kita semua.

INFO JOHORE BAR

Seperti yang dipohon oleh pihak-pihak dengan ini, diperintahkan bahawa salinan rekod prosiding ini dibuat oleh Timbalan Pendaftar dan disimpan dalam arkib Mahkamah ini serta satu salinan diserahkan kepada setiap keluarga mendiang dan Allahyarhamah.

Sekian, Mahkamah ditangguhkan.

(TUAN MUHAMMAD JAMIL BIN HUSSIN) Pesuruhjaya Kehakiman Mahkamah Tinggi Muar [2] Johor

RECEPTION AFTER REFERENCE PROCEEDINGS IN THE MUAR COURT COMPLEX, MUAR, JOHOR

Ahem, do we look officious enough folks?

The Bar Solidarity with the grieving families INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

56

IN MEMORIAM

CHONG LUNG FEI (27/10/1977 – 30/12/2016)

The late Chong Lung Fei passed away on 30th December 2016 AT THE AGE OF 39. He was born on 27th October 1977. He obtained his CLP in 2003 and was admitted as an Advocate & Solicitor on 6th November 2003. He practised as a sole proprietor under the name of Messr L F Chong & Co in Johor Bahru.

The Johore Bar Committee and the members of the Johore Bar convey their deepest condolences to the bereaved family.

Dato’ Abdul Rahman Bin Abdullah (26/04/1946 - 05/05/2017)

Allahyarham Dato’ Abdul Rahman bin Abdullah passed away on 5th May 2017. He was born on 26th April 1946. He was called to the Bar on 21st September 1985.

Allahyarham Dato’ Abdul Rahman was the Chairman of the Johore Bar Committee from 2005 to 2007.

His firm, Abdul Rahman & Partners; had offices in Batu Pahat, Pontian, Johor Bahru, Melaka and Kuala Lumpur.

ALLAHYARHAM DATO’ ABDUL RAHMAN BIN ABDULLAH PASSED AWAY at the age of 71 AND LEAVES BEHIND HIS WIFE, TWO SONS AND DAUGHTER. The Johore Bar Committee and the members of the Johore Bar convey their deepest condolences to the bereaved family.

INFO JOHORE BAR - AUGUST 2017

57

INFO JOHORE BAR

JOHORE BAR ACTIVITIES ELEVATION CEREMONY AND DINNER IN HONOUR OF YA TUAN COLLIN LAWRENCE SEQUERAH | 24TH MAY 2017 The Johore Bar takes great pleasure in congratulating YA Tuan Collin Lawrence Sequerah on his elevation to the Bench of the High Court of Malaya as a Judge. The appointment took effect on 30th January 2017. The elevation ceremony was held at the High Court Criminal (2) of Johor Bahru on Wednesday, 24th May 2017, followed by dinner hosted by the Johore Bar at the KSL Resort Johor Bahru.

The elevation commenced with Mr. S Gunasegaran, Chairman of the Johore Bar Committee, offering his felicitations welcoming His Lordship to the Bench, followed by addresses by Encik Abdul Fareed Abdul Gafoor, Vice President of the Malaysian Bar, and Puan Thalha binti Bachok, Senior Federal Counsel, representing the Attorney General of Malaysia. In reply, YA Tuan Collin Lawrence Sequerah expressed his sincere appreciation for the kind words said about him. For the benefit of our readers, we reproduce here the speeches made at the Elevation Ceremony.

Y.A Tuan Collin Lawrence Sequerah

Speech by Mr. S Gunasegaran, Chairman of the Johore Bar Committee May it please you My Lord, I, S. Gunasegaran represent the Johore Bar Committee and Members of the Johore Bar.

S. Gunasegaran

My learned friend Encik Abdul Fareed Abdul Gafoor, VicePresident of the Malaysian Bar represents the Bar Council and Members of the Malaysian Bar.

Your Lordship’s appointment is undoubtedly a fitting and deserving one. The success that you have achieved did not come overnight but is the result of a long and distinguished service in the law spanning almost 3 decades and bears testimony to Your Lordship’s vast knowledge, experience and qualification to be appointed to this august office.

My Lord, kindly permit me at this juncture to trace the path that you had trodden to reach your present position.

My learned friend Puan Thalha binti Bachok, Senior Federal Counsel, represents the Honourable AttorneyGeneral of Malaysia and the State Legal Advisor, Johor. ​ My Lord, it is truly an honour, pleasure and privilege to appear before Your Lordship this morning to congratulate and to welcome you on your elevation as a Judge of the High Court of Malaya.

Your Lordship was born on 21st October 1960 in Petaling Jaya, Selangor.

On behalf of the members of the Johore Bar I extend our heartiest congratulations to Your Lordship on the honour that has been bestowed upon you by His Majesty the Yang Dipertuan Agong.

In 2006 Your Lordship obtained the post-graduate qualification of LL.M. (With Distinction) from the University of Malaya.

Your Lordship read law in the University of London and obtained the degree of LL.B. Hons in 1984.

The following year Your Lordship qualified as a Barristerat-Law from Lincoln’s Inn, London.

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

58

Your Lordship’s career began as a Legal Assistant with M/s Collin Goonting & Co in 1986. Two years later, in 1988 Your Lordship set up the firm of C.L. Sequerah & Co and practised as the principal partner of the said firm for six years. The years 1994 to 1995 saw a short stint as a Legal Assistant with N.K.Tan & Rahim, and the years 1995 to 1996 saw a return to C.L. Sequerah & Co as a Partner.

In 1996 Your Lordship joined M/s Zain & Co, a well-known firm in Kuala Lumpur, as a Partner and practised for eight years, until your appointment as a Judicial Commissioner of the High Court of Malaya on 20th June 2014.

As Judicial Commissioner, Your Lordship was first posted to the Shah Alam High Court, where you served for six months. On 1st January 2015 Your Lordship was transferred to the Penang High Court and stayed there till 31st August 2016. On 1st September 2016 Your Lordship was posted to the Johor Bahru High Court.

On 30th January 2017 Your Lordship was appointed as a Judge of the High Court by DYMM Yang Dipertuan Agong and remains posted in Johor Bahru.

My Lord, the appointment of a member of the Bar to the Bench is always a matter of great pride and pleasure to the Bar. We are confident that the wealth of knowledge and experience that you bring with you and the humility and exemplary judicial temperament that you posses, will serve you well in the discharge of your onerous judicial functions both on and off the Bench.

My Lord, it is customary on an occasion like this to say a few words of counsel to the newly minted Judge. I understand that this is the only occasion when the Bar advises the Bench, and I shall not miss the opportunity to do so.

My Lord, what does it take to be a good judge? According to Chief Judge Richard Posner, US Federal Judge and eminent law professor, the obvious things to look for in a candidate for a Judgeship are: “intelligence, relevant experience, integrity, energy, maturity.”

John W. Morde, former Associate Chief Justice of Ontario, Canada, in his paper entitled “THE GOOD JUDGE” said: “I suggest that the good judge is a person who has passion to do justice combined with the knowledge and skills necessary to give effect to this passion.”

Judges work within the closed confines of a courtroom.

Everyday they see litigants in all shapes, sizes and colours coming to plead their cases. Litigants do not come to court in vain. They come there to seek justice. They have a load of grievances and expect the court to resolve them. Their problem is very big to them, though it might not appear to be so for others. They hold the court in high esteem and reverence. To them the courts are the last bastion of their rights and liberties. The courts have a duty to hear them and dispense justice. Every litigant, however big or small, must be given his day in court. A good judge is one who knows this very well and strives to help the litigants as best as he can. He will not do anything that would dent or dash their hope. And as someone very wisely said, the most important person in the courtroom is not the judge or the lawyer, but the person who is going to lose the case. So it is important that he be heard fully and fairly and be seen leaving the court with the knowledge of why he lost his case.

A good Judge also ensures that all throughout the process, the focus remains on the litigants and does not shift to the adjudicators.

A good Judge must also possess courtesy, compassion and patience as the essential components of his personality.

These qualities constitute what is popularly referred to as “good judicial temperament.” We have no doubt that Your Lordship has been blessed with an abundance of these fine qualities.

My Lord, when you took the oath of office as a Judge of the High Court, you pledged to “discharge your judicial duties to the best of your ability, to bear true faith and allegiance to Malaysia and to preserve, protect and defend its Constitution.”

The Constitution is the supreme law of the land and it is the sacrosanct duty of all judges to uphold and protect it all times, without fear or favour.

Although we practice a system of Parliamentary democracy based upon the Westminster model, our Parliament, unlike the British Parliament, is not supreme and does not have unlimited powers to legislate. In fact, no other body or organ of government in Malaysia is.

To quote the late Tun Mohamed Suffian bin Hashim, a former Lord President of the Federal Court of Malaysia and a highly respected jurist, in his book, “An Introduction to the Constitution of Malaysia, 3rd edition, p.17: “In Malaysia only the Constitution is supreme.”

INFO JOHORE BAR - AUGUST 2017

59

As His Majesty’s Judge, Your Lordship has been charged with the sacred duty of preserving, protecting and defending the Constitution. That duty requires you to ensure that the tenets of the Constitution are respected and observed by all and sundry and to strike out any breaches from wherever it may arise, however high and mighty, and without fear or favour. This is by no means an easy task as it demands not just commitment but an abundance of stamina, endurance and above all, courage.

Next, in order to discharge his functions properly, a Judge must at all times be free and independent. Independence of the Judiciary means that the Judiciary is separate and independent from the other branches of government and will not lend itself to improper influences from the other branches of government, or from private or partisan interests. It serves as a safeguard against executive and legislative encroachments upon the rights and privileges conferred on citizens by the Constitution. Citizens of the country will feel secure that their rights will not be trampled upon or usurped by any power. It also serves as the foundation for the rule of law and the democratic system of government.

But Independence of the Judiciary is not something that can be taken for granted. The Judiciary, throughout the world is vulnerable to intrusions and invasions from various quarters. Unless continuous efforts are taken to nourish and nurture it and unless we remain steadfast and vigilant in preserving it, it may slip away from us. In 1991 the Australian Bar Association in a Statement on “The Independence of the Judiciary” stated, inter alia, that even in Australia with its rich democratic tradition it could not be assumed that the foundations of her liberties were impregnable; on the contrary those foundations were necessarily fragile, and although not now in danger of direct attack, they are susceptible to many corrosive influences; and that these in turn are made the more dangerous by the complacency that follows an absence of a present and immediate threat.

It would perhaps be opportune to be reminded of the salutary advice given by former Chief Justice of Malaysia, Tun Zaki bin Tun Azmi, to newly appointed Judges of the High Court on 11th May 2011, and I quote: “...let me remind all judges that you have heavy duties on your shoulder. In cases that you hear you shall decide matters before you impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”

INFO JOHORE BAR

My Lord, the Malaysian Bar is fully committed to the Independence of the Judiciary and will do all within its means to preserve, nourish, protect and promote it.

Finally, the administration of justice in Malaysia has undergone a dramatic transformation over the past decade. We have moved away from the slow, inefficient and lethargic ways of the past and are proceeding at a rather furious pace today in disposing off cases. This is both a boon and a bane. Boon because the public can hope to see a quicker resolution of their disputes, bane because in the eagerness to expedite the disposal of cases, justice may sometimes be sacrificed at the altar of expediency. Once again, the timely advice of the Immediate Past Chief Justice of Malaysia, Tan Sri Arifin Bin Zakaria (as he then was), given on the occasion of his appointment as Chief Justice of Malaysia on 14th September 2011 is salutary: “Dengan terlaksananya perancangan-perancangan yang saya sebutkan di atas, saya percaya, kita akan dapat mencapai tahap kecekapan yang setanding dengan Badan Kehakiman di negara-negara maju. Namun begitu, kita perlu ingat, kecekapan bukanlah segalagalanya. Apa yang perlu dititik beratkan juga ialah kualiti penghakiman kita. Perlu diingat, tugas kita yang utama ialah untuk melaksanakan keadilan di antara pihak-pihak yang bertelagah. Oleh itu, keputusan kita hendaklah dibuat dengan adil dan saksama, tidak kira dalam apa jua keadaan sekali pun. Ringkasnya, keadilan hendaklah di utamakan tanpa sebarang kompromi.

Integriti dan kebebasan Kehakiman hendaklah sentiasa dipertahankan, kerana Badan Kehakiman merupakan banteng terakhir bagi rakyat mendapat keadilan. Dalam hubungan ini juga, setiap lapisan masyarakat hendaklah diberi akses yang tidak terhad kepada keadilan tanpa sebarang halangan.”

My Lord, may I once again congratulate you on your Elevation to the Bench. On behalf of the Johore Bar I pledge our fullest support and co-operation to you in the discharge of your judicial functions and duties. I also wish you good health and a long and distinguished career on the Bench and look forward to reading your learned judgments.

Thank you.

S. GUNASEGARAN Chairman Johore Bar Committee 2017/18

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

60

Speech by Encik Abdul Fareed Abdul Gafoor, Vice President of the Malaysian Bar Dengan Izin Yang Arif, Nama saya Abdul Fareed Bin Abdul Gafoor dan saya mewakili Majlis Peguam Malaysia dalam prosiding pada pagi yang berbahagia ini.

Yang Arif, saya memohon keizinan untuk meneruskan ucapan saya Abdul Fareed Abdul Gafoor dalam bahasa Inggeris.

My Lords, It is my great privilege and honour to represent the Malaysian Bar at this ceremonial sitting in conjunction with the elevation of YA Tuan Collin Lawrence Sequerah as a Judge of the High Court of Malaya.

The announcement of Your Lordship’s elevation came as no surprise within the legal fraternity in Malaysia. The elevation is a fitting recognition of Your Lordship’s legal skills, accumulated over many years in both branches of the profession, first as a member of the Bar and since June 2014 as a member of the Judiciary.

Your elevation is a proud moment for the Malaysian Bar, as yet again, another of our former member had been honoured and elevated to the Judiciary.

Your Lordship was born in Petaling Jaya, Selangor in 1960. Your Lordship read law at the University of London and was later admitted to the Honourable Society of Lincoln’s Inn in 1985. Thereafter Your Lordship obtained the Masters degree in Law, LLM (with distinction) for University Malaya in 2006.

Your Lordship was in private legal practice from 1986 until Your Lordship was appointed as a Judicial Commissioner of the High Court of Malaya in June 2014 and was posted to Shah Alam, Penang and Johor Bahru.

Coincidentally, I was the Chairman of the Penang Bar Committee when Your Lordship was posted to Penang in 2015. As the usual practice, upon Your Lordship’s arrival in Penang, I made a courtesy call on Your Lordship to welcome Your Lordship to Penang.

Let me share a little anecdote of what transpired during the courtesy visit.

Your Lordship expressed your concern about the notorious reputation of some Penang lawyers of yesteryears, stories, which I understand were passed on by members of the Bench who were leaving Penang to those who were being posted Penang. I do not know

whether there is any truth to it, but that has been often shared by the Judges of the past.

Notwithstanding, I reassured Your Lordship that even if there were such lawyers in the past, either they have all passed on or rode into the sunset. And I believe Your Lordship wasn’t too concerned about that when Your Lordship was posted to Johor Bharu as the Johor Bar is reputed to be a very courteous and cooperative Bar. Your Lordship’s friends and colleagues attribute many fine qualities to Your Lordship, all befitting your elevation to judicial office. Your Lordship had always been courteous to counsels and witnesses and is known to conduct matters in a very fair and judicious manner.

The Bar Council and the Malaysian Bar has every reason to belief that your Lordship will carry out the duties entrusted upon you in the most diligent manner in the pursuit of justice, to uphold the rule of law and the Federal Constitution.

Your Lordship is also known to be a keen sportsman and I have personally watched Your Lordship playing football for the Malaysian Bar during the Annual Bench & Bar Games with Singapore some years ago.

In passing, I would like to take this opportunity to congratulate the Johor Bar Committee, under the stewardship of my colleague, Mr S. Gunasegaran for maintaining this time honoured tradition of holding a ceremony to honour the elevation of a member of the Judiciary. Sadly, ceremonies of this nature, is no longer held in other states and I urge the other state Bars to emulate this effort of the Johor Bar. Finally, Your Lordship YA Tuan Collin Lawrence Sequerah, on behalf of the Bar Council, and on behalf of the Malaysian Bar, I would take this opportunity to extend to you my congratulations on your elevation as a Judge of the High Court of Malaya and wish you every success and good health. The members of the Malaysian Bar would render their utmost cooperation to your Lordship in discharging your Lordship’s judicial functions.

Sebagai penutup izinkan saya mengakhiri ucapan saya dengan dua rangkap pantun.

TAJUK JOHOR TANJUNG PUTERI TUMPUAN RAMAI JADI TARIKAN TUAN COLLIN YANG ARIF BISTARI

INFO JOHORE BAR - AUGUST 2017

61

INFO JOHORE BAR

SYABAS TAHNIAH KAMI UCAPKAN UNDANG-UNDANG ADALAH SEJAGAT TUGAS HAKIM ADIL SAKSAMA USAH GENTAR TERUS BERSEMANGAT MAJLIS PEGUAM SENTIASA BERSAMA ABDUL FAREED ABDUL GAFOOR Vice President, Malaysian Bar

Speech by Puan Thalha binti Bachok, Senior Federal Counsel Yang Arif, Saya Thalha, Peguam Kanan Persekutuan Negeri Johor mewakili Peguam Negara Malaysia.

Yang Arif, Dengan izin saya memohon untuk berucap dalam Bahasa Inggeris.

Thalha binti Bachok

Mr S Gunasegaran, Chairman of Johore Bar Committee

Mr Abdul Fareed Abdul Gafoor, representative of the Bar Council Officers of the Judicial and Legal services Members of the Johore Bar Ladies and Gentlemen;

May it pleases the Honourable Court, My Lord I rise to speak on behalf of the Attorney General Tan Sri Apandi Ali, the Head of Civil Division Dato’ Amarjeet Singh, Johor State Legal Adviser, Dato Ishak Bin Shaari, Director of Prosecution for the State of Johor, Tuan Roslan Bin Mat Nor and officers of the Judicial and Legal Services. The Attorney General, The Head of Civil Division, the Johor State Legal Adviser and Director of Prosecution for the State of Johor have asked me to extend their deepest humble apologies and regrets for not being able to be part of today’s most memorable event.

With humbleness, it gives me great pleasure to be here on this day to commemorate the elevation of the Honourable YA Tuan Collin Lawrence Sequerah to the bench as Judge of the High Court of Malaya. Being in the family of our judicial and legal system, it has been

our utmost nobility to congratulate the Honorable YA Tuan Collin Lawrence Sequerah for this tremendous accomplishment and recognition.

In the eyes of Civil and Prosecution Division, it is our humble believe that the epitome of Justice is a fair trial and the presiding judge to do justice according to the law.

These are twin pillars of justice, one would never tire of stressing this point, and that is what the rule of law is all about. In order to uphold this rule, it is important to the judicial and legal system as to who is to be appointed to the bench. With this elevation, we believe Your Ladyship has what it takes to be a Judge.

With sincerity and conviction, I must say that I have not known YA Tuan Collin Lawrence Sequerah personally, but when it comes to work, we must admit that people talks and the Law Journals do reports. From our own experiences of YA Tuan Collin Lawrence Sequerah, we found that our Lordship is a formidable judge to argue but is always reasonable. When confronted with any subjects or legal issues, it is in her nature to leave no stone unturned, no grass untouched but to solve or tackle it. Whatever his Lordship does he is always a very conscientious and hard worker. His Lordship’s knowledge and acumen is the most valuable assets not only to our judicial system but also to the public at large. Enclosed with attributes, qualities and experiences, with most humbleness, we believe our Lordship had earned the respect of the Legal community and had discharge Your Lordship divine judicial obligation successfully.

My Lord, on behalf of the Attorney General, the Head of Civil Division, Johor State Legal Adviser, Director of Prosecution for the State of Johor, my colleagues and officers of the Judicial and Legal Services, I wish to offer our heartfelt felicitation of the elevation of Your Lordship as Judge of High Court of Malaya.

I rest my speech with a quote from Lord Nolan, in his lecture titles “Certainty and justice. The demands on law

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

62

in a changing Environment”, as food of thought.

“if I may be permitted a quite general personal observation, based on my acquaintance with judges from most parts of the common law world, judges are not interested in the pursuit of power. If they were, they

would not have been become judges” Much obliged. Thank you.

THALHA BINTI BACHOK Peguam Kanan Persekutuan Negeri Johor

In reply, speech by YA Tuan Collin Lawrence Sequerah Mr S. Gunasegaran, the Chairman of the Johore Bar Committee, En. Abdul Fareed Abdul Gafoor, Vice-President of the Malaysian Bar Council and Representative of the Malaysian Bar Council, YA Collin Lawrence Sequerah

Puan Thalha binti Bachok, Senior Federal Counsel and Representative of the Attorney General Chambers,

Distinguished members of the Bar, Legal Officers of the Judicial and Legal Service, ladies and gentlemen.

I wish to express a heartfelt thank you for all the speeches just given. The elevation of a judge is a solemn occasion.

This is manifested in the manner in which the proceedings are conducted this morning. The elevation ceremony of a judge was an integral part of the legal and judicial calendar in times past. Due to certain reasons, it fell into desuetude in more recent times. Fortunately, the Johore Bar, which is a bar deeply steeped in tradition, saw fit to resurrect this time-honoured ceremony. I also understand that it is the only Bar in this country to have done so. I rightfully commend them for this achievement.

I am therefore indeed blessed and privileged to be honoured by this elevation ceremony. Once again, I express my profound thanks to Mr S. Gunasegaran, his able committee and the Johore Bar for this.

The office of a judge is held in high esteem. With this elevated status however, comes also onerous responsibilities and the weight of expectation of the various stakeholders in the administration and dispensation of justice. This places a heavy mantle on the shoulders of the judge.

I was humbled but at the same time proud to have been appointed by His Majesty, the King, the Yang Di Pertuan Agung of Malaysia as judge of the High Court of Malaya on the 30th January 2017. This came after serving as Judicial Commissioner for about more than two years.

My first posting was at the Criminal Division at the High

Court at Shah Alam for six months followed by one year and eight months at the High Court at Penang after which I was posted to Johor Bahru.

At my swearing in ceremony as judge on 7th February 2017, I took a solemn oath of office before the Chief Judge of Malaya to among others, protect, defend and preserve the Constitution of Malaysia.

In the Constitution resides the provisions relating to the protection and well-being of the citizens of this country.

Among these sacrosanct provisions are Article 5, liberty of the person, Article 8, equality before the law and Article 10, freedom of speech, assembly and association.

These rights however, are not absolute but are subject to other considerations.

Therefore, the right to liberty or even the life of a person may be deprived in accordance with the law of the land relating to criminal offences, the right to freedom of speech is subject to laws governing libel and slander, and the right to freedom of association is subject to the right not to cause a breach of peace.

In the execution of his or her duties, a judge cannot therefore mechanically apply the provision in the Articles but must play a vital and important role in interpreting and ensuring that the rights enshrined in the Constitution are not violated to the detriment of any other the citizens of this country. A no less important duty of a judge is also to uphold the rule of law and the independence of the judiciary.

The judiciary is often the last resort for obtaining redress of grievances. The judge therefore who adjudicate upon disputes must do so with complete impartiality, independence and courage. Certain qualities are therefore expected of a judge. It was Socrates who said that a judge must listen courteously, answer wisely, consider soberly and decide impartially. A judge must also like Cesar’s wife, be above suspicion. In modern terms, this illustration reflects the expectation of society that a judge should be free of any hint or allegation of partiality, bribery or corruption.

INFO JOHORE BAR - AUGUST 2017

63

It is said that in the final analysis, the ultimate guide must be the judge’s conscience. However, it has also been said that conscience is not always invulnerable and therefore not a reliable guide. This of course recognises the human frailties of a judge who is after all a human being and not free from fallibility.

With all of this in mind, I can only pledge that I will strive to perform my duties to the best of my ability and to be fair and impartial to all who appear before me, possessed of the realisation that one day beyond the realms of this lifetime, I will have to account for the trust reposed in me by this office to a higher court from which there is no appeal should it be held that I have failed in my duty.

I practised at the bar for some 28 years before sitting on the bench. During that time, I was beset by the ever present tension and anxiety to win my cases. To paraphrase what Lord Denning said in a similar vein, now that I am a judge, the tension is gone, the anxiety to do right, remains.

Having said all of that, however conscientious and diligent a judge is in the performance of his or her duties, he or she cannot succeed in the dispensation of justice without the support and cooperation of members of the Bar and the Judicial and Legal Service. They play an integral and indispensable part in the administration of justice. For we are all stakeholders in the administration and pursuit of justice.

In this respect I wish to say that in my rather short time on the bench in the Johor Bahru High Court, I am indeed blessed that my task in administering justice has been made somewhat infinitely lighter and more enjoyable by the unstinting support and cooperation of members of the Johore Bar and officers from the Judicial and Legal

INFO JOHORE BAR

Service. I look forward to many more years of support and cooperation from all of you.

I also wish to say that I am blessed to be able to serve in the office of judge only because of the infinite Grace and favour of Almighty God from whom all good and perfect things come from. I pray that He will grant me many more years of good health and the wisdom to perform my duties.

I also wish to make special mention off and to express my heartfelt thanks to my wife Florence Yesudian and my son Miguel Sequerah, (although they are not present here this morning), for their sacrifice, understanding and support in enduring my absence from them for long periods of time. Without their understanding and support, I would not be able to effectively perform the duties entrusted to me. Even when physically present with them, I sometimes have to take leave of their company to write judgements or read files.

In conclusion, I once again express my profound thank you to the Johore Bar Committee for organising this ceremony. I truly am privileged and honoured. Thank you also to all of you who have taken time off from your onerous responsibilities and busy schedules and for braving the inclement weather conditions and resulting traffic congestion to be present here this morning. It is now my pleasure to invite all of you to partake of some modest refreshments. With this, the proceedings are adjourned.

COLLIN LAWRENCE SEQUERAH Judge High Court of Malaya Johor Bahru

RECEPTION AFTER ELEVATION CEREMONY AT JOHOR BAHRU COURT COMPLEX

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

64

JOHORE BAR ACTIVITIES PICTURES AT CEREMONY AND DINNER IN HONOUR OF YA TUAN COLLIN LAWRENCE SEQUERAH | 24TH MAY 2017

INFO JOHORE BAR - AUGUST 2017

65

INFO JOHORE BAR

WHY YOUR LAWYER WON’T TAKE OR RETURN YOUR PHONE CALLS – TOPS REASON

By Allen Yu Allen Yu I am a Facebook addict and just the other day I received this posting entitled as the same as the above title and written by pfeifer1 on February 29, 2010 from the webpage, “The Stubborn Writer”. I loved the article and the way it was written. Perhaps it was because my style is similar. Nevertheless please excuse me if I plagiarize some of his sentences.

activity but also include many times of little or no activity.

For example you sent your affidavit to the opposing party or a draft agreement, there is nothing going on until they filed their affidavit in reply or comments on the draft agreement. If there is nothing to tell you, your call inquiring about the status of the case may not get returned.

The most frequent complaint about lawyers is that they won’t take or return phone calls. Articles on this subject are usually sugarcoated, giving some blah blah blah about professional responsibility or tried to wrap up in a feel good win-win conclusion. No one really wants to tell the clients what is really going on. So here are the top 10 truths why your lawyer won’t return your calls.

My experience- I have clients who told me to call the other party every day until we get a reply. Sometimes just to please them, I did get my staff to do that and the other side would inform us that they will give the same reply every time we called. It did work on one occasion when we wanted the redemption sum for a property from Danaharta. We sent a letter every week until they called us to stop. We replied that we will stop when they give us the redemption sum. They did so immediately.

10. Your lawyer is busy on something more important.

While you may think and act like you are your lawyer’s only client, the reality is that a lot of other people hired the same lawyer as you. Your business alone will not pay your lawyer’s bills. Lawyers have to meet crucial deadlines. They spend standing around in courtrooms, and more hours researching and preparing for their cases. They are in meetings with clients, interviewing witnesses, preparing affidavits and a million other things.

Your whiney question about a case that won’t be going to trial for six months or more is not as pressing as the case set for trial tomorrow.

My experience- Yup. I have them. Lots of them. Makes me wonder whether I the only miserable lawyer getting these clients? Answer- Nope. My fellow lawyers told me they had it worse. Then we laughed at how our clients tortured us.

9. There is nothing new to tell you.

Many people believe that there are always new developments in the case, or that there should be. In reality, most cases involve many periods of intense 1

http://stubbornwriter.com/2010/02/19/16/12/25/law/ legal-profession/why-your-lawyer-wont....

What I would now do is to reject the calls to my handphone and then SMS to them that I am busy and asked them to SMS back what they wanted. If it is something new, I would call back otherwise I would just SMS a reply.

8. You talk too much.

Some people act like a lawyer has all the time in the world and want to chat endlessly about trivial matters that just aren’t relevant. Lawyers are busy, they only have a limited number of hours in a day. It’s nothing personal, you are just a waste of time.

My experience – When I heard enough or heard repetitions I would tell the client, “Okay. I think that’s all the time I have for you. I will …”

7. Your lawyer has issues.

Surprising few people do much research before hiring a lawyer. Some lawyers may have health issues or are just plain dishonest.

My experience- early in my career there was a lawyer who was facing many lawsuits and disciplinary action.

His troubles were known quite widely in town.

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

66

Yet one member of the public who later complained to 3. You are an idiot. me, appointed this lawyer because he gave big discounts This one is pretty self explanatory. You are a dumbass in a conveyancing matter. The lawyer who doesn’t understand anything you Askhole embezzled the proceeds of the sale. You are told or who disregards it to do might say it was a case of the vendor whatever you want to do anyway. Your - A person who being a penny wise a pound foolish. lawyer is tired of telling you what to do, constantly asks for only to watch you disregard it to indulge 6. Your lawyer screwed up. your impulses or because you think you your advice, yet Your lawyer could be avoiding telling are smarter than everyone else. always does the you the unpleasant truth that your case has already been lost. How can this My experience- Yes I have a few of these opposite of what you happen? The most common way is that too. One case was particular annoying. told them the lawyer missed a filing deadline.

An accident left a man and his baby son dead. There was insurance money from He exposes himself to a malpractice law suit if he tells his client the truth. the man’s estate. The father of the deceased brought the crying daughter in law to my office to get her to sign 5. Your lawyer is an ass. away all her rights in the claim to him. His justification Most lawyers are not as bad as the reputation of the he lost his son and grandson. I countered that she lost profession would lead one to believe. In fact, most are her husband and son too. I then told him that if he ordinary people who just happen to be in a job that turns wanted any of that money he had better be nice to her them into a bitter, cynical asses who hate what they do because in law he had no rights. This was the Distribution every day. Most started out with high aspirations for all (Amendment) Act 1997. That since the doctor are not the good they could do in the world as a lawyer, only to able to determine who died first, the law will presume discover so much of the job is just doing the bidding of the elder died first, leaving his property to the wife and some of the sorriest S.O.Bs on the planet. This is very son. Thereafter when the son dies, his only beneficiary hard on one’s soul, and overtime it can turn lawyers into was the mother. He ignored my advice and used another rather unpleasant people. lawyer. When he met my mother and brother a few years later, he claimed that I lost the case for him.

It could also be that he was already an ass before becoming a lawyer, in which case joining the legal profession is like 2. You won’t listen. living a dream for him.

This one overlaps with “you are an idiot”. No matter how many times something is explained to you, you ask the My experience - I have seen many such lawyers from same questions over and over because you don’t like both classes of people. It will be a miracle for any lawyer the answers you received. You think that if you ask the to go through so much unpleasantness in the profession same questions over and over at some point the answer without getting a scar or two after a few years in practice. will change into something you want to hear. Since the One lawyer told me that he was not a racist when he lawyer doesn’t want to tell you again, he just won’t started his practice. But after just over five years in bother talking to you. practice, he became one because of a certain race that My experience- I had a conversation with a client which made his life difficult. went something like this4. You are not the client.

Client- lawyer can this be done?

It is absolutely amazing how many people think they Me – Yes have a right to know what is going on in other people’s Client- sure? cases. Parents, grandparents, aunts and uncles, cousins, Me- Yes neighbours, ex wives, employers- the number of people Client- you are sure, hoh? who call lawyers wanting to know “what is going on” Me- Yes would surprise most people. If you aren’t the client, Client- quite sure? mind your own business.

Me- Yes Client- no problem? Can be done, correct?

My experience- I had one such incident where a friend Me- Yes of the deceased wife wanted to know how big was the Some time when I don’t really like the client, my next estate and who was getting what. I just told her to ask answer would be the client.

INFO JOHORE BAR - AUGUST 2017

67

Me- What’s the matter with you? How many times must you ask? Yes mean Yes. And of course I have just lost a client. (To my readers- it’s all right to laugh) Another old client was thinking of leaving one of his son’s out of his will because of he considered his immoral behavior which was only rumoured. I advise him not to as the last will is also a last message to his son. Let it not be one of anger or reprimand. He hesitated in making his will and came quite often to discuss it. And he will asked me whether he should leave his son out. I would tell him each time, “don’t”. I think he was hoping that I would just once say “yes”.

INFO JOHORE BAR

1. You are an ass.

The client is rude, demanding, pushy, arrogant, whiney and annoying. They should try to be pleasant and polite so that they can have better communications with their lawyer. They instead believe in the power of the ringgit.

That the money they pays you entitled them to be rude, demanding, pushy, arrogant, whiney and annoying.

My experience with them- I have to remind them that I am not their foreign maid who have to endured their behavior and that I do not need their business.

INFO JOHORE BAR - AUGUST 2017

INFO JOHORE BAR

68

JOHORE BAR STATISTICS AS AT 31ST MAY 2017 LAW FIRMS Towns

LAWYERS

31.05.2017

Increase/Decrease

31.05.2017

Increase/ Decrease

(1)

Johor Bahru

425

-12

1407

52

(2)

Batu Pahat

74

2

149

-1

(3)

Muar

68

-2

136

17

(4)

Kluang

47

-2

79

0

(5)

Segamat

20

1

38

-6

(6)

Kulai

20

2

39

2

(7)

Kota Tinggi

17

2

23

0

(8)

Masai

16

3

29

7

(9)

Pontian

14

0

18

-1

(10) Yong Peng

6

0

6

-1

(11) Tangkak

6

0

9

0

(12) Pasir Gudang

5

0

8

1

(13) Mersing

3

0

6

2

(14) Ulu Tiram

2

-1

2

-1

(15) Gelang Patah

3

0

7

1

(16) Simpang Renggam

1

-1

1

-2

(17) Pekan Nanas

1

0

1

0

(18) Labis

1

0

1

0

729

-8

1959

68

In the State of Johor Total Membership

As at 31st May 2017, the total membership of the Johore Bar is 1959. There has been an increase of 68 members since the last statistics (on 31st October 2016). The total membership of the Johore Bar constitutes 11% approx. of that of the Malaysian Bar. Lawyers in Johor Bahru There are 1407 members practising in the city of Johor Bahru. They account for 71% of the total membership in the State of Johor (i.e. 1407/1959 members).

Law Firms in the State of Johor The total number of law firms in the State of Johor is 729. There has been a decrease of 8 law firms since October 2016. The number of law firms in Johor Bahru has decreased (from 437 to 425). They constitute 58% approx. (i.e.425/729) of the law firms in the State of Johor.

INFO JOHORE BAR - AUGUST 2017