INFO Johore Bar - January 2019 by INFO Johore Bar

For Members Only Private Circulation

INFO A

B u l l e t i n

o f

t h e

JAN 2019

JOHORE B A R

J o h o r e

B a r

(1947-2019)

IN THIS ISSUE A Tribute To One of Our Own S. Balarajah - 4 -K. Sila Dass Remembering S. Balarajah -Chandra Sekran

-6

Relatively Recent Bar Councll Rules and Rulings (Part 1) -Yang Pei Keng

-8

Affidavit And Grant of Probate -Yang Pei Keng

- 14

Defence of Insanity in Malaysia -K. Segaran

- 15

Nagative Pledge -Roger Lo

- 22

How Much Do You Value Your Services -Allen Yu

- 26

Relatively Recent Bar Council Rules and Rulings (Part 2) -Yang Pei Keng

- 28

Reference Proceedings

- 33

Johore Bar Activities

- 44

New Admissions to the Bar

- 58

Read this edition of the INFO online!

Scan the following code with your phone or tablet or visit www.johorebar.org.my

Cha irman’s Message

From the Editor’s Desk

Fellow members of the Johore Bar, Mr S. Balarajah, a senior member of the Bar and former Chairman of the Johore Bar passed away in his sleep recently on 9th January 2019 The news of his passing came as a shock to all of us. It was only a few weeks before that, he accepted the Committee’s invitation to attend the 50th year celebration of the Johor Police - Bar Bench Games at the Johor Cricket Ground. I recall him there sharing with the members, judicial officers and police top brass about how proud he was that the Games that he was involved in since in since the early years of his practice had reached 50 years and he fondly shared with us anecdotes from the previous years of the Games. When I told him that the Committee had resolved to win the Games after almost 30 years, he encouraged us to seriously go for it. A week later when we had won the Games, he insisted on attending the closing dinner despite not being in his best health and he thoroughly enjoyed himself there. He stayed long and was one of the last to leave after the dinner. Sadly, that was the last we saw him at a Bar event. Mr Bala was extremely passionate about the Bar. The workings and direction of the Committee and the Bar Council was always a matter of great concern for him. Although in recent years he was not actively involved in the Committee, he had always been one of the first to offer advice and constructive thoughts on the decisions and developments at the Bar. His contributions to the Johore Bar, to the Committee in particular and to the operations at the secretariat are well o n record and will forever be remembered. The Info Johore especially had always been close to his heart. He had not only regularly contributed by way of writings but was also very involved in the preparation and publication of Info Johore for many years - at times single handedly. He had cared deeply for the continued survival of Info Johore and its quality. He was probably one of the reasons why Info Johore had survived over the years and came to be considered as one of the best State Bar publications. The Committee extends our condolences on behalf of the Johore Bar to the family of the late Mr Bala. He will be fondly remembered, and dearly missed at the Bar. In due course, reference proceedings will be held to recall and cherish his life at the Bar. The current term of the Committee is reaching its end. On behalf of the Committee, I would like to extend our appreciation and gratitude to members for giving us the opportunity to serve the Johore Bar. It has been a year to remember for us. On a final note, I would like to thank Mr Roger Lo, En Fadhil and the Publications and IT Sub-Committee for their tireless work in publishing this 2nd issue of INFOJohore Bar. Ilook forward to the pleasure of reading this issue. Thank you. R. Jayabalan Chairman JohoreBar Committee 2018/19

Roger Lo

Dear Members and Friends at law, It is with great pleasure that I present to you the first edition of the INFO Johore Bar for this term. I would like to thank the members of the Publication & Information Technology Sub-Committee and our secretariat staff for their efforts and dedication in producing this edition of the INFO. I would also like to thank my brethren at law who have contributed to this issue of INFO. I invite members of the Johore Bar to share your views, knowledge or experiences by contributing articles, news, poetry, etc to the INFO. I also welcome suggestions from members of the Johore Bar on how to improve the contents of the INFO and also the Johore Bar website. Members can go to info.johorebar.org.my via their devices to read all INFO publications online. Alternatively, the INFO can be accessed by downloading the app “ISSUU” from the Google Play or Apple Store. As always, the Sub-Committee look forward to receiving contributions of articles, news, poetry etc. for the next INFO Johore Bar edition. Sincerely, Roger Lo Ming

INFO JOHORE BAR - JANUARY 2019

INFO

JOHORE B A R

A Bulletin of the Johore Bar

johore bar committee 2018/2019 chairman r. jayabalan committee members lim eng siang shahareen begum binti abdul subhan k.mohan santhi a/p balachandran puntiha a/p mariappan roger lo ming danny loo kheng soon allen loh wei cher aimi syarizad binti datuk hj. kuthubul zaman khairul asri bin ahmad hajah norfaizah binti hj. zainudin (co-opted) fadhil ihsan bin mohamad hassan (co-opted) representative to the bar council

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 reďŹ&#x201A;ective 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 www.johorebar.org.my www.info.johorebar.org.my

Editorial Committee 2018/19 Info Johore Bar

s. gunasegaran hon. secretary anis syarizad binti datuk hj. kuthubul zaman

JOHORE BAR COMMITTEE MEMBERS 2018/19

Sitting (Left to Right): Aimi Syarizad Zaman, Shahareen Begum Abdul Subhan, E S Lim, R. Jayabalan (Chairman), Hajah Norfaizah Zainuddin, Punitha Mariappan, Anis Syarizad Zaman (Hon Sec) Standing (Left to Right): Danny Loo Kheng Soon, Roger Lo Ming, Allen Loh Wei Cher, Khairul Asri Ahmad Members not pictured: S. Gunasegaran (Bar Rep), K.Mohan, Santhi Balachandran, Fadhil Ihsan

INFO JOHORE BAR - JANUARY 2019

BALARAJAH S/O SUBRAMANIAM (16/2/1947 - 9/1/2019)

Balarajah s/o Subramaniam, popularly known as Bala or Balarajah with in the legal fraternity, was one of the most popular names associated with the Johore State Bar; be it in the field of Johore State Bar Committee’s administration, or relating the development of legal literature. So much so the name Balarajah became synonymous with the Johore State Bar.

town with the famous railway station serving coffee and toast which continues even today. Balarajah’s early education began in earnest at Government English School, Kluang. He then moved to Johore Bahru to continue his education at St. Joseph’s Primary School, and from there went to St. Joseph’s Secondary School. He was an Interactor at St. Joseph’s in 1964.

Balarajah was born on 16th February 1947 in Muar. His father Kandiah Subramaniam, fondly known as Telekom Maniam, was an employee of Telekoms. His mother was Maniccam, a housewife. Telekom Maniam’s family had seven children and Balarajah was the fourth.

He then proceeded to England to pursue a career at law. He was admitted as a Barristerat-law of the Honourable Society of Middle Temple in 1969.

When the time arrived for his initiation into education his father moved to Kluang, the

On returning to Johore Bahru, he did his pupillage with the late Paramjothy Chelliah of Wong & Paramjothy a doyen of the legal profession.

INFO JOHORE BAR - JANUARY 2019

He was admitted as an advocate and solicitor of the High Court in Malaya on 17th March 1971. He started his practice with M/s. Allen & Gledhill, and later joined Arthur Lee & Co. Subsequently he started his own legal practice Balarajah & Co. From the time he was called to the Bar, Balarajah seemed to possess insatiable interest in the affairs of the Johore State Bar Committee. He served as its Secretary, and from 1990 to 1993, he served as its Chairman, and served as Acting Chairman from 2004 to 2005 and 2010 and 2011. He has also served as a member of the Bar Council from 1990 to 1993 and from 2010 to 2011. Apart from serving the Johore Bar in the administrative capacity he was also well versed with the legal literature. His articles, poems and humour have adorned the Johore Barâ&#x20AC;&#x2122;s Official publication INFO since 1979. His articulation of the thoughts he had marshalled were superb, and pleasant to read. Balarajah was a man of many talents and interests. Aside associating himself deeply in law, he also saw the necessity to serve the

community. This led him to be a Rotarian. He was a chartered member of Rotary Club of Tanjung Putri in 1987 and served as its President in 1992, and was made Paul Harris Fellow in the same year. To fulfil his literary ambitions he found himself to be the editor of District Governorâ&#x20AC;&#x2122;s Newsletter (Rotary Club). His constant devotion to God was detectable from the various video clips he sent to me during the last couple of years. He always believed in sharing his thoughts and experiences. Balarajah and his spouse and companion Gan Ee Peng have two children, a daughter Vishalini Balarajah, married to Ron Chan, and a son Veejay Balarajah. Balarajah passed away peacefully in his sleep at the age of seventy one on 9th January 2019. He has left behind many friends aside his beloved ones to mourn his sudden death. The Bar has indeed lost a colourful character, who has made its tradition glow. It is a sad loss.

K. Sila Dass Johore Bar 31st January 2019

INFO JOHORE BAR - JANUARY 2019

REMEMBERING BALARAJAH S/O SUBRAMANIAM (16/2/1947-9/1/2019) My friend Balarajah passed away a few weeks ago. The news came through a WhatsApp msg. A police car was seen in front of his house. That he had died came as a shock to me. We do not expect the death of family and friends, although it is always there as a shadow over all of us.

I had heard that he was seriously ill but the news was that he was getting better and then he was not and then he was. Although we had stopped having regular weekday lunches, as we used to for over 3 years, we were in touch with each other regularly online. About 4 months ago, a mutual friend arranged lunch for Tan Hock Kim, a retired lawyer, who had come in from Singapore. Balarajah was there when I came in early. Apart from a swollen lower jaw he assured me that he was better. He assured me that the swelling was �luid retention and his doctor had said it would disappear in due course. He was rather quiet but appeared alright.

A couple of months ago there was a photo of lawyers at a cricket match uploaded onto one of the social media. This was the annual Police -Bench & Bar Games. He is there looking exceptionally thin and supporting himself with a walking stick. I messaged him as to whether he was alright and as usual he responded positively. But then a few weeks later I learnt that he had died. In the last few years, I had witnessed the passing away of a number of lawyers who were my friends. In the midst of our hustle at work, we overlook keeping in touch with our friends. In addition, the implementation of the court “KPI” system with the equal, if not greater emphasis, on the expeditious disposal of cases and meting out of justice, has retarded the social interaction of lawyers at the Bar. The greater emphasis on speed in the management 6

and disposal of cases meant that there were less time in sitting around in “warongs” to discuss cases and goings on at the Bar and with judicial of�icers between sips of sweetened teh tariks. The cost to the legal community is that it is slowly ceasing to be a close community with shared values and attitudes but rather a disparate group whose members scurry and rush to elevators to the designated �loors of the respective courts giving a hurried and preoccupied “hi” to friends and acquaintances in the lift while staring at the electronic display of the �loor numbers changing. For me, the death of Balarajah was another blip disappearing on the radar screen.

I met Balarajah �irst when I came to practise in Johor Bahru in 1976. He was then a legal assistant practising with Messrs Allen & Gledhill. He was also then the Secretary of the Johore Bar Committee. I was advised to make a courtesy call on him. He was aloof and reserved. He advised me to make a call on each and every one of the committee members, which I did not and on the resident judge, the late Justice Dato Syed Othman bin Ali, which I did. That was that and our paths did not cross for some time.

Later I heard he was involved in a serious accident along Jalan Tebrau, Johor Bahru and was in a semi coma state. He was warded at the Sultanah AminahHospital Johor Bahru and later transferred to Tan Tock Seng Hospital, Singapore (I think). He was in a critical state, lapsing into coma and back to consciousness. There was a general feeling that he would not make it. But he did. In later years he would have “vertigo” and would take a day or two off. He said it was a consequence of the accident. As the years went by, we started to meet regularly.

INFO JOHORE BAR - JANUARY 2019

Initially he would call me up to have lunch at his home, a bungalow along Jalan Mariamah. He would pick me from my of�ice in AIA Building in his beige coloured mercedes benz. He was a very slow driver (his car had to be specially tuned by his mechanic because of this). His mother was a superb cook and I still remember the meals, Jaffna Tamil cuisine, the curries and the vegetable side dishes with the right amount of tamarind juice, tumeric and chillies. She was a very neat and tidy person and was very welcoming to us when we stepped into the house. His father had a quiet personality and Bala was equally taciturn in his presence.

In time we became good friends and when his mother passed away, we became regular lunch “kakis”. He was fun to be with, open to jokes and ribbing. In the middle of a conversation he would come out with non sequiter statements like “what colour?” or “at the end of the day?” in the middle of a serious discussion. If you are unfamiliar with his ways, you would be nonplussed and would not know how to respond.

He left Allen & Gledhill when he realized that a partnership there was not in the of�ing. He went on into partnership twice both of which did not last too long. Finally he set up practise as a sole proprietor as Messrs Balarajah & Co. and he had a sound practice thereafter. He was involved in Bar activities, including the Police - Bench & Bar Games and setting up the Bar Bulletin - the Info Johore. The Info Johore was an interesting and unique bulletin and Bala was largely responsible for it.

A knack for editing and an ability to inject tedious, dry and lengthy legal articles with snippets of quotes, cartoons and news clippings, he made the Info Johore an interesting read. When queried he said he had his training, while reading law, with the AA of UK working part-time on their monthly bulletins. He arranged to have the Info Johore issues sent to the Judges who sat or had sat at the High Court in Johor Bahru, past and present. He had a lot of pride in the Info Johore and inevitably clashed with the Bar Committee members over some article which they felt were not too prudent and would open the Bar to libel suits. His anger stayed not too long and he was quick to forgive and move on.

Everyday at about 4 pm he would make a call to my of�ice and we would have a long chat which was a good respite from the work. He was on the phone most of the time and his legal assistants had a tough time trying to have a discussion with him on a pending matter.

He thrived on being part of an organization, be it the Bar Committee or the Rotary or Freemasonry. He undertook these jobs with a zealous commitment, notwithstanding how pedestrian the job was. In Court he was always calm, often with a sweet in his mouth, the only tell-tale sign that there was a turbulence within the calm exterior. His deportment and poise in court as well as on public occasions were impressive.

Balarajah was of a generation of lawyers who studied law as mature students. That is to say they worked �irst and then after a few years decided to take up law. Thus their personalities were to a degree already ingrained before they started practice, unlike those of us who come out from school straight to law school and come out, without �irst being buffed by the real world, as lawyers. He was a teacher before he did law. What more can I write of him? He was my friend. I still see him in his usual pose, tall, with his arms crossed and a �inger over his lips, listening to whoever was addressing him, with his usual politeness and courtesy. I shall miss him.

Life goes on. Soon many who have passed on, will be forgotten. Balarajah, CKG Pillay, Abdul Razak Ahmad, L.M. Ong and many more. What will be remembered will be their various contributions. As to their unique personalities, this will be etched only in the memories of those who knew them and who in time will pass on.

Chandra Sekran Johore Bar 8th February 2019

INFO JOHORE BAR - JANUARY 2019

Recent Bar Council Rules and Rulings [Part 1] By Yang Pei Keng - 1 October 2018

Bar Council Rules and Rulings were updated recently on 12 March 2015. The latest booklet containing the Rules and Rulings was published by The Malaysia Current Law Journal Sdn. Bhd.It is available at the Bar Council. Most of the Rules and Rulings introduced over the years largely remain intact. But some have been amended, while somenew rulings have been addedin view of the changing times and circumstances. Updating of the Bar Council Rules and Rulings Towards the end the 1990s, the Bar Council Legal Practice Committee decided to update the rules and rulings compiledby the Bar Council in the early years.The writer was assigned the task of compiling the rules and rulings made by the Bar Councilat its monthly meetingsheld from 1997-1999.[See Bar Council Rulings 19971999 in the Info Johore Bar, Oct 2000 issue,pp.18-24] The Bar Council Rules and Rulings were updated again in 2015, about 15 years after the previous updating. [Some of the relatively recent amendments and new rulings are shown below. For the sake of brevity, the term “you”is used in this article to refer to an advocate and solicitor. For example, a ruling: “an advocate and solicitor may act for a partner in his law firm….” Is modified to read“You may act for a partner in your law firm…” It makes for easy reading.]

It is to be noted that the numbering of the BC Rules and Rulings has been totally changed. As a result, some efforts have to be madein order to trace the previous rules and rulings,because of the complete change in the numbering of the2015 BC Rules and Rulings. For example, a simple ruling requiring “prompt reply to solicitors or clients, which has existed for the past 15 years or so, now you may have to go through the booklet from page to page in search of such a ruling. It reminds one of the new Companies Act 2016 which has repealed the previous Companies Act 1965.Under the previous Companies Act 1965, one isso familiar with the provisions and forms [e.g. Form 49] which had been in use for about 50 years or so. Now one is faced with the enormous task of learning afresh the numbering of the provisions and forms in the new Companies Act 2016. For ease of reference, some notes of the recent or new rulings are given below: 1. Firm name- must use own personal name: rule 2.01 You have to use your own name [as shown in your identity card] as your firm name. But you may apply to the Bar Council for variation of your firm name: s.85(3) LPA. If your law firm is dissolved, no partner can use the firm name, unless all partners have given their consent.

INFO JOHORE BAR - JANUARY 2019

If a sole proprietor of a law firm dies, the executor/ administrator of his estate may sell off his law firm, or transfer it to other solicitors. If you retire from your law firm, and sell off your law firm, but you still intend to carry on your legal practice, you are not allowed to use your previous firm name. You must use a new firm name. Neither can you use a firm name that may give rise to confusion: 2.01(3). You are NOT allowed to exhibit in your firm name your academic qualifications, awards or titles: 2.03.Neither can you use the descriptions such as “Articled clerk, Counsel, High Court Lawyer or Senior Advocate and Solicitor” on your letterhead or stationery: 3.04. [Comment: As to the prohibition of the use of the Chinese characters 大律师 ”: ruling 3.07, theactualmeaning of the expression seems to have been misunderstood. T r u e , i t s l i t e r a l meaning is “big lawyer”.In reality, it is meant to refer to a “barrister” or “advocate”. It is widely used in Hong Kong. A Google search on the Net may help clarify the matter. The Chinese character “大”, by itself, means “big” or “great”. This might have created the erroneous impression that it is meant to bea “business puff”, and that is not permitted in our legal profession.] 2. Inserting a notice in a newspaper on behalf of a client: 5.02 You ought not to publish a notice in any newspaper on behalf of a client for an indefinite period of time. This may be construed as a form of advertisement for yourself. The notice must be for a reasonable period only 3. Advertisement for sale of property: 5.02(2)

4. Congratulatory or condolence message by law firm or practitioner: 5.02(3) Your law firm may publish a congratulatory or condolence message to a person or company. You may also publish such message in your personal capacity, but without the description “advocate and solicitor”. 5. Press statement on outcome of litigation: 5.04 You may publish upon your client’s instructions a press statement on the result of any litigation, BUT you should not mention your name or your firm name in that statement. 6. Application for placement on any panel of solicitors: 5.05 You may write to any potential client [eg. a bank], requesting that you or your law firm be placed on the panel of his solicitors. But it must be done in a manner compatible with the dignity of the legal profession. This is a departure from a previous ruling. Under the previous ruling, you wereprohibited from writing to a potential client for placement on his panel of solicitors UNLESS you have been requested by the client to do so. But it is unlikely for a client [eg. a bank] to request you to write for placement on his/its panel of solicitorsif are a stranger to the client. 7. Holding a reception for opening new office: 5.06 When your open a new office, you may invite your friends, relatives and clients to a reception held by you. Again, you must keep in mind the dignity of the legal profession.

You may on behalf of your client, advertise in a newspaper for the auction sale of any property, but such advertisement must be compatible with the dignity of the legal profession. INFO JOHORE BAR - JANUARY 2019

8. Solicitors and property developers: 5.07 You are allowed to be present at a housing developer’s promotional site, launching site, booking or sales office IF you are acting for the developer in the sale of the property or housing units. But you must display a public notice [45cm x 15cm] at such site; you must make known to the buyer of his right to appoint his own solicitor; and that you are not acting for him, since you are the developer’s solicitor. A proviso to s.84 of the Legal Profession Act allows you to act for the buyer if he has certified that he does not need an independent solicitor to represent him. This proviso has in reality nullified the original intent of s. 84 that each party should have its own solicitor. 9. Not to write to buyer on developer’s instructions: 5.08 You should not write to any buyer on your own volition or at the request of a developer, requesting the buyer to appoint you or your law firm as his solicitors. 10. Advertising in various publications: 5.09 You are allowed to publish advertisements in the current Approved List of Publications. The approved list is available from the Bar Council Secretariat upon request. 11. Publication of photographs of solicitors in brochure etc.: 5.10 You may have your photograph published in a brochure or other publicity material. But keep in mind the compatibility with the dignity of the profession.

12. Solicitor’s name appearing in company’s letterhead: 5.14 Your name may be published on the letterhead or stationery of a company or a business institution. But you must NOT describe yourself as an advocate and solicitor. 13. Legal Adviser to “will package company”: 5.15 Your name [or your firm name] may appear on the package of a “will package company”, if you have prepared the wills concerned. Otherwise, it is improper as it is a breach of the Rules and Rulings. 14. “Approved Information” widened in scope: 5.15 The “approved information” can be found in the interpretation clause of the Publicity Rules 2001 [rule 2]. It includes: the year of your Call to the Bar [year of admission]; the year your law firm was established; admission as a legal practitioner in another jurisdiction; area of practice; historical data of your firm. The approved information may be published in any newspaper, book, directory or other publication; as well as in any brochure, business card, nameplate, or stationery used for professional purposes; and stored in any electronic media accessible to the public. With the new update, more categories have been added to the original approved information. The new additions are: academic and professional qualifications eg. firstclass honours, merit, nonlaw qualifications] ;work experience eg. voluntary and advisory work, teaching or lecturing positions [but not work experience in any law firm]; books and articles written; information about crossborder transactions or otherwise; arbitrator or mediator.

INFO JOHORE BAR - JANUARY 2019

15. Awards to the law firm: 5.18 If awards are given to your law firm, you may publicise them in your firm’s profile, greeting cards, or website. 16. Giving second opinion solicitor’s client: para 6.02

another

Under the Etiquette Rules 1978 [Rule 42],you are not allowed to communicate with a person who is represented by another solicitor.

Similarly, if you hold a current retainer for a particular client, you should not act for the other party: 6.05(2). 20. Panel lawyer of a company may sue the company concerned: 6.06 If you are on the panel of lawyers for a company, you may act for another party in a suit against the company.

BUT, if that person requests youto give a second opinion,it is in order for you to do so.This is an exception to the general rule.

But you must inform the other party in writing beforehand, that you are on the panel of lawyers for the company. [A company here includes a body or organisation.]

17. Acting under a client’s Power of Attorney – not to appear for him: 6.03

21. Not to act in litigation involving an agreement drafted by you: 6.07

If a client appoints you as a donor under a power of attorney, and you issue proceedings pursuant to the power of attorney,then you should not appear for him as solicitor in the proceedings concerned.

If you have acted for both parties to an agreement drafted by you, you should not act for either of the parties in any litigation arising from the agreement.This is a situation where a conflict of interests will certainly arise.

18. You may act for another advocate and solicitor in the same firm: 6.04

22. As directoror substantial shareholder of a company – not to act for any party in a transaction involving the company: 6.08

If a personal claim is made against another advocate and solicitor in your law firm, it is in order for you to act for him. In other words, you are allowed to act for a colleague in your firm. He may be your partner or your legal assistant. 19. Litigation against your own client: 6.05 Even if you have been acting for a client in various suits, you may still represent another party in an unrelated suit against that client. In other words, you may sue your own client though you may be acting for him in other pending matters: 6.05(1) But you should not act for the other party if a conflict of interest situation arises. For example, you are not to usecertain information obtained by you from your own regular client.

If you are a director or substantial shareholder of a company, you should not act for any party in a transaction involving your company. 23. Maintaining an office: 7.01 You must open your office for at least 5 days a week [except public holidays] ,and must keep usual office hours. 24. Not to carry on legal practice in client’s office: 7.02 You should not maintain an office or carry on your practice within your client’s office [eg. a housing developer’s office] This is because you are not allowed to share office or premises with another person. See also rule 7.03 [item 25 below]

INFO JOHORE BAR - JANUARY 2019

But this ruling has been amended by the most recent Legal Profession Group Law Practice Rule 2018. It came into force on 30 June 2018 Small firms in Group Law Practice may have shared premises. 25. Sharing office or premises: 7.03 If you share an office or premises with another person, the office or premises must be partitioned off, and each office must have a separate entrance. There should be no connecting door between the partitioned premises. But this rule has recently been amended to cater forgroup law practice. Solicitors may have shared premises and facilities under the group law practice. 26. Not to allow another person to use your name or your firm name: 5.13A You should not allow your name or your firm name to appear on the signboard of another person (Ruling 5.13). But ruling 5.13A makes an exception to such Ruling. If you or your law firm owns the business of another person [or has a controlling interest in another person], you may allow your name or your firm name to be used by that person. In such circumstances, sharing of premises is allowed: 7.03(b). But the business must be compatible with the dignity of the legal profession. (A “person” means a legal person eg. a company or corporation.) A relatively recent ruling also allows you to share your premises with a law firm which is a part of the international partnership: 7.03(c) 27. Admission of new partners: 7.07 (1) If you intend to have a new partner, you must notify the Bar Council in writing. The notice must be signed by the managing partner [or by all existing partners] as well as the incoming partner. 12

28. Unauthorised person not to operate solicitor’s account: 8.01 An unauthorised person is any person who is NOT an advocate and solicitor on the Roll having a practising certificate. He cannot operate any bank account maintained by you or your firm. 29. Not to operate “client’s account” in foreign currency without instructions: 8.02 You must not operate a client’s account in any foreign currency in a local bank without the specific instructions from your client, and it must be in compliance with the exchange control legislation. [Comment: A “Client account” is the general account operated by a law firm for all his clients, whereas a “client’s account” is a specific account opened for a particular client only. It is extremely unlikely for a law firm to operate a general “client account” in foreign currency upon the specific instructions of a particular client. There-fore, “client account” used in the ruling should read “client’s account”. “Client account” should be replaced with the correct expression “client’s account”. The wording of Ruling 8.02 ought to be reviewed and amended. ] 30. Dishonoured cheque issued from client account: 8.04 If you come across a dishonest client account cheque issued by another advocate and solicitor, you are required to report to the Bar Council. BUT you may have been operating several client’s accounts. By a genuine mistake, you might have issued a cheque from a different client’s account. Such mistake ought to be excusable.

INFO JOHORE BAR - JANUARY 2019

31. Not to issue post-dated cheque from client account: 8.05

36. Miscellaneous matters: 9.01(5)

Under no circumstances, should you issue any post-dated cheque from your client account.

Miscellaneous charges for contentious matters [litigation cases] should not exceed RM100. They include local phone calls, photocopying etc. not specifically recorded.

You must make sure that your client has already paid the necessary sums into your client account before you make out any cheque from the account. 32. Client to initiate taxation proceedings: 9.01(1) It is for the client to initiate taxation proceedings. You are not to initiate such proceedings on your own. 33. Gross-sum bill and detailed bill: 9.01(2) In the absence of an agreement about costs, a bill of costs may be a gross sum bill or a detailed bill. But a detailed bill is contemplated or necessary if you have to file a petition for an order for taxation: s126 LPA. 34. Not to demand for costs in letter of demand: 9.01(3)

chargesfor

contentious

Of late, miscellaneous charges for noncontentious matters have also been increased, from RM50 to RM 100. It is the maximum fee you can charge; you may charge less than RM100: SRAO 2016 In practice, some law firms still maintain miscellaneous charges at RM50. 37. Solicitor’s lien for costs and right to set off: 9.02 You should not retain a client’s documents or files as lien for costs if his subsequent advocate and solicitor undertakes to settle your fees or taxed costs. If there is no undertaking from the subsequent solicitor, you may retain the documents concerned, pending settlement of your bill of costs.

In a notice of demand issued on behalf of your client, you should not demand your costs or fees in the notice for issuing such notice. But, if there is an agreement to the contrary between your client and the addressee, you may do so.

To be continued…

35. Photocopying charges: 9.01(4) Photocopying charges should not be more than 50 sen per page. If your client needs additional or extra copies of correspondence, cause papers, or any other documents, you may charge your client accordingly.

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AFFIDAVIT AND GRANT OF PROBATE By P K Yang No affidavit is required for petition of grant of probate - O.71r.9 RHC This is a letter addressed to any advocate and solicitor involved in the petition for grant of probate. Under the existing law, no affidavit is required in support of a petition for grant of probate. [See O.71 r.9 Rules of the High Court [RHC], now known as Rules of the Court 2012] To whom it may concern In any petition for grant of probate of a will, it is specifically provided in O.71 r.9 of the Rules of the High Court [now known as the Rules of the Court 2012]: “No affidavit is required unless the attestation clause is absent or insufficient”: O.71 r. 9. In other words, under the current law, an affidavit is not necessary in support of any petition for grant of probate of the will before the Registrar of the High Court. The said O.71 r.9 merely says that if there is no attestation clause in the will concerned, an affidavit is not necessary in any petition for grant of probate. Similarly, if the attestation clause is insufficient, for example, it is lacking in any vital element in the procedure for the due execution of the will, thenan affidavit is needed in any petition for grant of probate. If a will does not contain any attestation clause, it is perfectly in order for the registrar to insist upon the filing of an affidavit in support of the petition in a probate matter. Similarly, if the attestation clause in the will is insufficient, for instance, it does not contain enough details of the procedure in the execution of the will, it is then incumbent upon the registrar to require such an affidavit. [See O.71 rr.9 and 13] No affidavit is required if the will has proper attestation clause On the other hand, if there is a proper or sufficient attestation clause in the will, the affidavit is redundant or superfluous. It was held in the Federal Court case of Dr K Shanmugunathan[1997] FC that, where there is an attestation clause, the presumption of due execution of the will may apply. Even though there is no requirement of an attestation clause under the Wills Act, it is highly desirable to have an attestation clause. This is because an attestation clause facilitates the grant of probate.

Throughout my years of active practice since 1970, none of the High Court Registrars have ever required any affidavit in support of any probate matter, so long as there is a proper attestation clause. Not to file an affidavit unnecessarily These days, it would appear that a solicitor, without any valid reason, just prepares an affidavit in every petition for grant of probate, even though there exists a proper attestation clause in the will concerned. This is redundant and it causes inconvenience, time and expense to the parties concerned, that is, the client and the law firm acting for him. The solicitor, who attested in the due execution of the will perhaps some decades ago, was also roped in such futile exercise. A registrar may not be aware of O. 71 r.9 of the RHC, or may omit to pay due attention to nature and effect of the said Order. The solicitor concerned therefore owes a professional duty to bring O.71r.9 to the attention of the registrar. Registrar to exercise discretionary power judiciously and not capriciously A registrar may have a discretionary power in certain circumstances, but such discretionary power ought to be exercised judiciously, and not capriciously. Where there is a proper attestation clause in the will, the registrar ought not to insist upon the filing of an affidavit in support of the petition. It is only when there is tenable evidence giving rise to suspicion of fraud, forgery, etc. does it warrant such requirement. In the absence of any such evidence, to demand for an affidavit may create the undesirable impression that there is an abuse of power. In such circumstances, it will be an appropriate case for the solicitor concerned to bring such an unsatisfactory state of affairs to the attention of the Bar Committee for their action. Failure to do so may be looked upon as dereliction of duty on the part of the solicitor concerned as a member of the legal profession. It should be borne in mind that the paramount object of the Malaysian Bar is “to uphold justice without fear or favour”[See Legal Profession Act 1976s. 42 (1a.)].

INFO JOHORE BAR - JANUARY 2019

DEFENCE OF INSANITY IN MALAYSIA PP v SHALIMA BI - CASE COMMENTARY By K. Segaran Introduction The defence of unsoundness of mind is legislated at s. 84 of the Penal Code and it reads: Act of a person of unsound mind 84. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. To succeed, the accused has to establish that at the time of the commission of the act, by reason of unsoundness of mind, was incapable of knowing the nature of the act, or incapable of knowing what he was doing as wrong or contrary to law. The question whether the accused was suffering from such an affliction at the time of the commission of the act was determinable not only by medical evidence and expert opinion, but also by his conduct and the state of his mind before and after the crucial time. This legal insanity defence depends very much on the evidence. In John Nyumbei v PP [2007] 2 CLJ 509, it was held: [1] The test for insanity under s. 84 of the Penal Code is a legal and not a medical test. Legal insanity under s. 84 is of such a kind that impairs the cognitive faculties of a person. It must make the offender incapable of knowing the nature of his act, or that what he is doing is wrong or contrary to law. [2] Where the defence of insanity is raised a court must consider the following matters: (i) whether the accused person has successfully established, as a preliminary issue, that at the time of committing the act he was of unsound mind; and (ii) if he was of unsound mind, whether he has proven that his unsoundness of mind was of a degree to make him incapable of knowing the nature of his act as being wrong or against the law.

The court should also consider the circumstances which come after the crime which is a material consideration in deciding whether the appellant had satisfied the test under s. 84. [3] The burden of proof rests upon the person who raises the defence of insanity, viz the accused. However the requisite standard/degree of proof is on a balance of probabilities as in a civil case. The onus being on the accused to satisfy the court on a balance of probability, in order to succeed in a defence of unsound mind, in the sense required by s.84 of the Penal Code, that was needless to say a correct statement of law (PP v Zainal Abidin Mohd Zaid [1993] 1 CLJ 147 FC; Rajagopal v PP [1976] 1 LNS 122 FC; Goh Yoke v PP [1969] 1 LNS 48 FC). That onus is not a heavy one. The burden is no higher than which rests upon a party in civil proceedings. Where the defence of insanity succeeds a bare killing without proof of intention, it will not amount to murder. Trial at the High Court The accused person, Shalima Bi was charged at the Johor Bahru High Court for the murder of one Garanurharba bt Abdul Shukur (the deceased).The facts of the case can be seen in the Court of Appeal decision at PP v Shalima Bi [2016] 2 CLJ 231. At the end of the trial at the High Court, Justice Halim bin Aman acquitted and discharged the accused on the ground that she was insane at the time she committed the act. On appeal by the public prosecutor, the Court of Appeal set aside the order of acquittal and discharge, convicted and sentenced her to death. On 29 September 2016, the Federal Court allowed the appellantâ&#x20AC;&#x2122;s appeal against the order of the Court of Appeal and affirmed the order of the High Court. Only the Court of Appealâ&#x20AC;&#x2122;s judgment was reported, supra. The Federal Court, presided by Justice Suriyadi Halim Omar did not provide a written judgment ([2016] 1 LNS(0) 8). In the interest of the legal fraternity, I produce the salient parts of my submission, both oral and written at the High Court, the Court of

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Appeal and before the panel at the Federal Court which I verily believe to the best of my knowledge had persuaded the apex Court to reverse the Court of Appeal’s decision. The Prosecution case At the close of the prosecution’s case, fifteen witnesses had given evidence to establish a prima facie. The defence did not dispute the actus reus of the charge and the line of defence which the defence attempted to establish during crossexamination of the prosecution witnesses was one relating to insanity which is dealt under section 84 of the Penal Code. During the prosecution’s case itself, the accused took a course of action to rely on the evidence of Dr. Badi’ah Yahya, consultant forensic psychiatrist from Hospital Permai Tampoi (SD2) through her report (exhibit D29) to satisfy the trial court that she was insane. The said report was tendered as a defence exhibit through the Investigation Officer (SP13) during the prosecution case itself. The purpose of tendering D29 was without any doubt an attempt by the accused to establish the fact that at the time of the commission of the offence the accused was insane and did not know the consequences of her act, i.e. her mental condition was unstable at the time of the killing. Brief facts The accused is the second wife to Mohd Kassim Abu Hussein while the deceased was his first wife. At the time of the incident, the accused was alleged to have poured hot oil from the pan from the kitchen on the deceased. The children of the deceased who were asleep were awoken from the shouts of the deceased asking for help. When the children woke up, the deceased was seen bleeding and suffered burns on her body. One of the deceased’s daughter, SP2 told that the deceased informed her that the accused poured hot oil on the deceased and that the accused had warned SP2 not to make noise otherwise she too would be killed while pointing a knife towards SP2. The prosecution relied on circumstantial evidence and also to the evidence of SP2, who did not witness the incident as she was asleep then but was told by the deceased as follows :-

“Selepas itu saya terdengar ibu menjerit. Saya terkejut dari tidur. Ibu saya masuk ke dalam bilik saya dahulu. Saya lihat ibu berdarah dan berlumuran minyak. Ibu kesakitan dan berlari menjerit berlari dalam bilik. Masa itu, pintu bilik saya tak berkunci, tapi tertutup. Saya dengar ibu menjerit kesakitan. Selepas itu, saya tanya ibu kenapa jadi begini. Dia jawab masa dia nak pergi ke toilet, dia lihat Shalima duduk atas sofa. Selepas dia keluar dari toilet, ibu lihat atas dapur gas ada 1 periuk. Selepas itu ibu berlalu dan sebelum masuk ke bilik, ibu tertoleh ke belakang. Shalima ambil periuk yang ada atas dapur gas dan curah atas ibu saya. Sebelum ibu mati, ibu beritahu saya hal ini …” The medical report of the consultant forensic psychiatrist (D29), inter alia states: It is obvious that the accused had a long history of mental illness way back in her home country Myanmar where the accused’s mother and brother suffered from mental illness (sakit jiwa) and had been in treatment in Myanmar. And since 2004 the accused had been admitted many times in Hospital Permai for severe psychotic depression including short term psychosis. The accused received electroconvulsive therapy (using convulsive response to electric shocks) in 2007 and was prescribed medicine each time she was admitted to hospital. After her discharge from hospital, the accused was told that she never takes the medicine as instructed. The severe psychotic depression (kemurungan teruk) is a major depressive episode with delusion affecting the accused with tendency of severe risk in committing suicide. The doctor also reported that the accused had difficulty in controlling her physical acts and emotions and her behavior which is unexpected could endanger her life also. SP2, the daughter of the deceased, in no uncertain terms had testified that she was scared of the accused immediately after the incident. SP2 testified:TPR : Masa itu, kamu berdiri di pintu, Shalima berdiri lebih kurang dekat almari itu, ok. Dan kamu nampak dia pegang pisau. Dia buat apa masa itu? Berdiri dengan pisau apa dia buat?

INFO JOHORE BAR - JANUARY 2019

Jawab : Dia nak tikam saya. Jarak dia dengan saya dalam anggaran 3 kaki. TPR : Tadi kamu kata Shalima pada masa itu hendak tikam kamu Dia ada cakap apa-apa? Jawab : Dia bagi tahu saya, dia tak nak dengar suara ibu saya, suruh ibu saya tutup mulut dan tidak bagi saya cakap apa. Kalau tak dia tikam ibu saya. Lepas itu saya nampak dia, dia rambut Shalima terkembang, tak ikat, kembang, matanya sangat merah, saya pun takut. Saya terlalu takut, saya terus masuk ke dalam bilik tidur saya dan kunci bilik. TPR : Kamu, jadi kamu takut sangat, jadi kamu masuk dalam bilik dan kunci bilik? Masa, masa kamu berdiri dekat pintu ini ok, nampak Shalima, apa acu pisau nak tikam kamu ini semua. Masa itu adik-adik kamu di mana? Jawab : Dalam bilik. Mereka menangis, depan, dekat ibu saya. Masa itu ayah, sebab tadi kamu kata ayah keluar kan, ayah dah balik? Selepas pintu saya tutup 5 minit, saya dengar ayah saya balik. TPR : Lepas kamu tutup pintu, kamu kunci kan? Masa itu ada Shalima buat apa-apa? Jawab : Shalima kata diam. Shalima menjerit diam. Tutup mulut kamu semua, kalau tak aku bunuh kamu semua. Kami pun duduk dalam bilik, dan kami pun nangis. SP4, daughter of the deceased testified that the accused had undergone treatment for 3 – 5 months in Hospital Permai and frequently held in Pekan Nenas camp and behaved like a mad person (orang gila) until the police were forced to send her to Hospital Permai. SP4’s father had also visited the accused at hospital. SP4 said:Mah : Dia ditahan di mana? Shafika : OKT ditahan di Kem Pekan Nenas Yang Arif. Begini Yang Arif, bila OKT di tahan dengan polis semasa meminta sedekah, pihak polis akan menghantarnya

ke Kem Pekan Nenas. Kemudian ketika di penjara Yang Arif, OKT berkelakuan seperti orang gila dan polis tidak tahan lalu OKT di hantar ke Hospital Permai untuk rawatan, Yang Arif. Dan pihak hospital akan hubungi bapa saya. Masa di rumah biasa sahaja, bila di rumah dia tidak makan ubat. Mah : Berapa kali dia kena tahan dekat Pekan Nenas? Shafika : Ada 2, 3 kali. Mah : 2, 3 kali ditahan dekat Pekan Nenas, baik. Kalau di tahan dekat Pekan Nenas, dia di hantar ke Tampoi, berapa lama dia di dalam? Shafika : Saya pun tak tahu la, ada 2, 3 bulan pun ada. Kadang-kadang 5, 6 bulan pun ada. Nanti hospital lepaskan dia, ubat yang hospital bagi, dia makan itu saje. Nanti dia tak sambung makan ubat, dia ok saje. Nanti dia minta sedekah ok saje. Nanti dia ditangkap dia buat macam orang gila balik. Nanti polis hantar dia hospital balik. Masa itu dia makan ubat apa. Kalau minta sedekah dia ditangkap, dia baru buat macam orang gila pergi hospital. Insp Nora (SP14) also testified that she had knowledge of the accused’s mental state and was kicked by the accused during interrogation. The accused also had used vulgar words at SP14 “Polis bodoh”. SP13 agreed that the accused was insane due to mental disorder. And His Lordship had also made observations of the demeanor of the accused during trial. From the evidence of the witnesses for the prosecution as above, it is evident that the accused was not her usual self at any time and that the accused was seriously depressed before the incident. The accused’s senses and rational behavior had left her. The acts and conduct of the accused during the relevant period in question had determined a case of brief reactive psychosis. Further the fact that the accused was also shouting during police interrogation and during the trial showed that she is certainly not capable of deep thought. SP2, SP4, SP9 and SP14 are not interested witnesses. Their evidence of the major depressive episodes of the accused together with

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D29, after being scrutinized by His Lordship and matched against the objective evidence, particularly the conduct of the accused before and after the incident showed that the accused suffered from severe psychosis (psychotic depression) that amounted to a mental illness properly characterized as an abnormality of mind and that it was a defence that substantially impaired her mental responsibility at the time of the killing.

The crucial question nevertheless arises, assuming the judge was satisfied on the balance of probabilities that the accused was suffering from insanity was the abnormality such as substantially impaired his mental responsibility for his act in doing or being a party to the killing? This is a question of degree and essentially one for the judge, a matter upon which the judge may quite legitimately differ from doctors.

Based on the above report coupled with the evidence of SP2, SP4, SP9, SP14 and the demeanor of the accused observed during trial, on the question that the accused did suffer from unsoundness of mind at the time of the commission of the act, it is trite on an act of a person of unsound mind that :-

The mental illness of the accused The Court of Appeal held that the accused was not medically insane and only suffering from Borderline Personality Disorder (BPD) which was not even a major mental illness. However, according to SD2, the accused did suffer from psychotic disorder, severe depression, hallucinations and delusions apart from borderline personality disorder (BPD). It was the opinion of SD2 that the accused was suffering from mental illness which would substantially impair her mental responsibility for her acts; BPD was not the only disorder the accused suffered. Obviously the accused’s mental illness had impaired her cognitive faculties as she was described by SD2 as an abnormal person and her brain function constitutes only 10% of a normal person.

1) Whether accused at the time of the killing suffering from any “abnormality of mind” in the broad sense is a question for the judge. On this question medical evidence is of importance but the judge is entitled to take into consideration all the evidence including the acts or statements of the accused and his demeanor. He is not bound to accept the medical evidence if there is other material before them which, conflicts with it and outweighs it. The etiology of the abnormality of mind (whether it arose from a condition of arrested or retarded development of mind or any inherent causes or was induced by disease or injury) does seem to be a matter determined on expert evidence. 2) Inability to exercise will power to control physical acts is sufficient to entitle the accused to the benefit. Difficulty in controlling his physical acts, depending on the degree of difficulty, may be sufficient. It is for the judge to decide upon the whole of the evidence whether such inability or difficulty has not as a matter of scientific certainty but on the balance of probabilities, been established and in the case of difficulty whether the difficulty is so great as to amount in their view to a substantial impairment of the accused’s mental responsibility for his acts. 3) In law the burden of proving insanity which is on a balance of probability, rests on the accused. This is a question of fact which must be decided in light of all the evidence before the Court, including medical opinion.

The treatment given to the accused in the hospital since 2004 till the date the appeal in the Federal Court is similar to that of an acute exacerbation of schizophrenia supervision (SD2 testified that the accused’s mental state is “ke arah gila”) and also treatment with antipsychotics. The accused could not control her acts as SD2 testified that the appellant had in fact poured hot coffee to other patients in the hospital. Although there are no witness to the incident on 2 February 2011 the evidence being entirely circumstantial, the inference that the appellant may have lost her control of her cognitive faculties and lack of intent on to kill could not be dismissed totally. The cause of death of the deceased was due to burns as a result of hot oil being poured on her face. It may be described as an attack ‘at random at anyone in his way’ and not a ‘focus attack’. The accused in his way’ and not a ‘focus attact’. The accused asserts an affirmative defence of insanity and therefore entitled to a liberal rule of admissibility. SD2 also testified.

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“OKT menghidap psikosis jangka pendek yang boleh berlaku secara berulang dan sifat impulsivenya disifatkan sebagai patologi (tidak normal) dan ini boleh berlaku ketidaknormalan fungsi otak SD1 di mana tidak boleh mengawal emosi dan impulsive SD1 telah mencurahkan air panas kepada pesakit lain di hospital tanpa fikirkan kesannya. Impulsif merupakan daya tindak fungsi psikologi manusia melalui mekanisma kognifik dan tingkah laku”

Legal and Evidential Burden

has a number of exceptions. For example, if the accused is relying on one of the exception, as in this case where the defence is relying on section 84 of the Penal Code, then the accused has the evidential burden of proving that he comes within one of the exceptions stated in the section. This does not mean that the prosecution’s burden of proving the guilt of the accused shifts to the accused. The accused merely has to establish insanity. Section 105 of EA 1950 states that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any part of the same Code, or in any law defining the offence, is upon him, and the court shall presume the absence of those circumstances. It is a cardinal principle of criminal law that every accused person is presumed to be innocent until his guilt is established. This section is an important qualification to the general rule that in a criminal trial, the burden of proving everything essential to establish the charge against the accused lies upon the prosecution. The English law on these points have been clearly laid down by the House of Lords in the leading case of Woolmington v DPP. The House of Lords held that the prosecution not only must prove the guilt of the accused beyond doubt and that it had also to prove the mens rea for the offence, even if that accused was unable to establish his innocence. If at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given either by the prosecution or by the prisoner as to whether the accused killed the deceased with a malicious intention, the prosecution has not made out the case, and the prisoner is entitled to the benefit of doubt and he must be acquitted.

The Court of Appeal held that the learned trial judge was thinking of the ‘reasonable doubt test as laid down in Mat v PP [1963] 29 MLJ 263, and not of rebuttal evidence which has no application to the present case as the accused had a legal burden and not merely an evidential burden to discharge. In reply to this, attention was brought to the Federal Court on ss. 101 and 105 of the Evidence Act 1950 with particular reference to the defence of insanity. By virtue of s.101, the prosecution has the legal burden to prove its case beyond reasonable doubt (Balachandran v PP [2005] 1 CLJ 85). This rule

The Indian law is also the same as laid down in Woolmington case. The burden of proving any exception as to liability is thrown on the accused by section 105. However it does not relieve the prosecution of its burden to establish the guilt beyond doubt. That burden is never shifted. (Dayabhi v State of Gujarat AIR 1964 SC 1563). In Dayabhi the Supreme Court of India set out the following proposition in respect of doctrine of proof in the context of the plea of insanity: (a) the prosecution must prove beyond reasonable doubt

In the premises it was contended that the accused was medically insane and the next issue to be determined was whether the accused was legally insane. Motive The Court of Appeal held as the clearest and hard evidence on the presence of motive on the part of the accused based on SD2’s report at exh. D29, in that the accused was envious of the attention the husband was giving to the deceased. The presence of motive negates the accused’s defence of insanity and equally the lack/absence of motive is an important indication of insanity. (Yeo Ah Seng v PP [1967] 1 MLJ 231 FC; PP v Jong Chin [1995] 4 MLJ 300). In reply to the Federal Court it was submitted that from the evidence the relationship between the accused and the deceased and her children who only stayed with the accused for two weeks prior to the incident was on friendly terms with one another. The accused had said repeatedly “saya suka dia (si mati). It is pertinent to note that the prosecution throughout the prosecution case and/or during the cross examination of the defence witness did not establish any evidence of motive for the killing of the deceased.

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that the accused had committed the offence with the requisite mens rea and the burden of proving that always rests on the prosecution from the beginning to the end of the trial; (b) there is a rebuttal of presumption that the accused was not insane when he committed the crime. The accused may rebut it by placing before the court all the relevant evidence: oral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to a civil proceeding; (c) even if the accused was not able to establish conclusively that he was insane at the time when he committed the offence, the evidence placed before the court may raise a reasonable doubt in the mind of the court as well as regards to one or more of the ingredients of the offence including mens rea and in that case the court would be entitled to acquit the accused. Para (c) supra was specifically highlighted to the Federal Court and the following point raised would have created a reasonable doubt in the minds of the panel as to whether the accused was in command of her mental facilities when she killed the deceased person: It was the evidence of the accused, her husband and SP4 that the accused does not take the prescription while at home. The accused was discharged from hospital on 24 November 2008 and did not visit further the hospital until 10 August 2010. The incident occurred on 2 February 2011, about 6 months after the accused’s last visit to the hospital. In the specific context of the affirmative defence, the expert (SD2) was trying to explain how she could determine retrospectively what the accused’s mental state or condition was at the time of the crime when she did not observe her condition then. Mental disease is a highly complex area in which diagnosis depends heavily in subjective judgment. The accused said she was “gila”. During the trial she had off-the-wall behavior and chaotic speech as observed by the learned trial judge. She was given medication before attending court to calm her mental state. She had once even stripped her clothes while being brought to the Magistrate’s Court in Kulai, Johor. Due to her continual behavior and treatment during trial it can be reasonably inferred from the circumstances and upon a proper evaluation of the psychiatrist’s opinion, the appellant was legally insane. The acts

by the accused immediately after the incident was more consistent with the fact that the accused was insane (tak siuman) and not as expressions of anger, motive and revenge as held by the Court of Appeal. Her insanity described as above exempts her from criminal responsibility as the specie of insanity suffered by the accused as addressed by section 84 Penal Code is the one that impairs the cognitive faculties of a person. SD2 had testified that the accused’s brain function is not normal. Pertaining to the mainstream defence the accused had testified that at the material time of the incident as she had not taken her prescription, she could not really remember what had happened. By implication due to that failure the tendency for the psychosis suffered by her could have occurred. This statement is pertinent to the accused’s defence as SD2 had said that the prescribed drugs are to reduce the illness and the brief reactive psychosis without which the accused does acts without thinking of the consequences. Since the prosecution stance was that the accused was of sound mind on 2 February 2011, it then become incumbent on the prosecution to establish that the accused had indeed taken her medication. This the prosecution had failed to do so. To a question by Justice Suriyadi on whether the prosecution had challenged/rebutted the accused had not taken her prescribed drugs, the learned DPP agreed no challenge had been made. Thus there was no rebuttal evidence of the statement that the accused did not take her medication. The Court was then adjourned for decision. The following was brought to the attention of the Federal Court: “Without there being any evidence adduced to establish that she took the prescription and the prescribed dosage on 2 February 2011, via-a-vis the substantive evidence available to indicate that she most probably did not take the medicine whether by inference or otherwise, a reasonable doubt had arisen as to whether she was in command of her mental facilities when she killed the deceased person (by analogy see Mat v PP [1963] 29 MLJ 263). On that premise we submit that it is therefore satisfied on a balance of probability that the accused had established her defence of unsoundness of mind and thus not capable of knowing that her act was wrong or contrary to law.”

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Justice Suriyadi said that there is a doubt whether the accused was normal and took the prescription/medicine and remarked that the substantive evidence indicating that the accused did not take any medicine on or around the time of the incident was not challenged by the prosecution. The decision was unanimous. The appeal was allowed and all orders of the High Court reinstated.

to have used and this evidence, accordingly to the Court of Appeal, and contrary to the finding of the High Court Judge, was sufficient to raise a reasonable doubt on the cause of the deceased’s death. In reference to expert evidence, the Court of Appeal held that the trial judge “not entitled to venture his own opinion on a matter which was clearly ‘outside the learning of the Court’.

[In Saeng-Un Udon V PP [2001] 3 SLR 1, the Singapore Court of Appeal held that the evidence of the pathologist who testified that the murder weapon used by the appellant was a heavy instrument and not the one the appellant confessed

K. SEGARAN Advocate & Solicitor Johor Bahru

VERSE & WORSE Just to share thoughts after the 3rd year On the day when I was called to the Bar, I was full of enthusiasm and hopes for the wealth and wonders of life’s lessons which I thought, would be found in the little legal amphitheatre. Now, after three years at the Johore Bar, the experiences taught me a gravely important lesson on humanity AND I solemnly affirm:“And tongue is a fire. The tongue is an unrighteous world among our members, staining the whole body, setting on fire the cycle of nature and set on fire by Gehenna. “For every kind of beast and bird of reptile and sea-creatures can be tamed and has been tamed by humankind but no human being can tame the tongue sometimes it’s full of deadly poison.” The finale: ODE TO THE UNLEASHED TONGUE May you be wild like the winds of the desert May you wrangle, taggle and be entangled In knots, snares and like bumbles You fumbled and bungled Shedded tears and torn hearts Jiggery-pokery livens your arts; Tales taller than Eiffel you spun Alas! woe betide: tis’ wits drought The clouds of doubts disperse And away slowly slides the haze over the discerning eyes but before the allusive veil is torn apart you simply tipped out. ~ Extracted from INFO January 1987 INFO JOHORE BAR - JANUARY 2019

Contributed by JULIE LIM 21

NEGATIVE PLEDGE By Roger Lo Ming When a bank agrees to grant a loan to a borrower, the bank has the option of requiring the borrower to execute certain documents in order to protect the bank's interest in the event of default by the borrower. The principal document is usually a facility agreement supported by secondary documents such as a legal charge, debenture, assignment, power of attorney, guarantee, etc. In addition to the principal document and secondary documents, the bank may also require the borrower to execute a letter of undertaking, negative pledge, statutory declaration, etc as additional protection to the bank. This article will discuss the meaning and legal effect of a negative pledge. For easy reference, any refence to ‘bank/lender’ and ‘company/borrower’ are used interchangeably.

in the dealing.3 However, it has become a trend that is followed by many banks in Malaysia over the past few years to require a borrower to execute a negative pledge in addition to existing securities such as a legal charge, debenture, guarantee, etc. The main intention for adopting such practice is to monitor the financial standing of the borrower. Legal Effect of Negative Pledge Since a negative pledge is a form of contract between the lender and the borrower, the borrower is bound to comply with the terms stipulated in the negative pledge strictly. In Muhibbah Engineering (M) Bhd v Pemungut Duti Setem4, the Court of Appeal held that: “The true legal effect of the negative pledge given by the appellant is that it merely created an obligation not to encumber. It does not provide an obligation to repay any sum or sums of money in any way whatsoever.”5 “…a negative pledge by its very nature does not represent any guarantee that the sum or sums of money can be demanded from the appellant. It is merely a pledge to abstain from creating any form of charge, encumbrance or security. It is clearly not a ‘security for any sum or sums of money repayable on demand’, unlike a guarantee or a charge.”6

Meaning of negative pledge A negative pledge clause is defined by Black’s Law dictionary1 as: 1. A provision requiring a borrower, who borrows funds without giving security, to refrain from giving future lenders any security without the consent of the first lender. 2. A provision, usu. in a bond indenture, stating that the issuing entity will not pledge its assets if it will result in less security to the bond holders under the indenture agreement. It is also described as “a form of quasi-security under which the lender relies on the terms of the contract to preserve his position as against subsequent lenders, and to prevent the covenantor’s assets being disposed of by and to third parties.”2 In short, a negative pledge is a contract between the lender and the borrower where the borrower promises not to create further liabilities without the prior approval of the lender. It is suggested that a negative pledge is generally used by an unsecured creditor to protect its interest Bryan A. Garner (1999), Black’s Law Dic�onary (7th Edi), West Group: St. Paul, Minn at p 1055. 2 Halsbury’s Laws of Malaysia (2004) Vol 24 at p 159 1

In the event the borrower breached the terms of the negative pledge, i.e., the borrower created a new liability in favour of a third party without the prior approval of the lender, what is the remedy of the lender against the borrower and the third party? As against the borrower, the lender can terminate the contract and recover the outstanding loans together with interest and costs from the borrower. As against the third party, it is suggested that a “negative pledge will bind a third party not in contract but in tort. There is no action in contract due to the absence of privity between the lender Ibid at p 160 [2017] 6 MLJ 564 at p 582 5 Ibid at p 582 6 Ibid at p 584 3 4

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and the third party. Thus, whilst the convenantee/lender may be successful in suing the third party in tort for knowing and intentionally interfering with the convenantee’s contractual rights under the contract with the covenantor, the covenantee will not be able to enforce the covenant against that third party…” 7 However, action against a third party in tort is not as straight forward as action against the borrower in contract. To be successful, an “action in tort for interference with contractual rights occurs where a third party interferes, without justification, in the performance of contractual obligations which results in the person to whom that performance was owed suffering loss. To be actionable the defendant must have had sufficient knowledge of the terms of the contract being breached and have intended to interfere. In some cases it will be enough if the defendant had been recklessly indifferent or willfully blind. However, the general approach is that actual notice is required to found the tort. Further the rights of the covenantee must be in respect of specific items of property that have been identified.”8 Whether the third party has been given sufficient notice of the existing negative pledge between the lender and the borrower is a question of fact that needs to be proven in court. In practice, a third party may conduct a company charges (details) search with the Companies Commission of Malaysia to find out what kind of liabilities the borrower has created in favour of existing creditors in the past. However, since a negative pledge need not be registered with the Companies Commission of Malaysia as elaborated below, the third party has to rely on the information provided by the borrower. In summary, if the lender intends to bring an action against the third party in tort, the lender must establish that: 1) the negative pledge covenant does not create a proprietary interest; 2) the covenant creates a mere equity which may be effective against the third party merely by that party’s notice of the covenant; 3) the mere equity is the preliminary interest in the acquisition of an equitable proprietary interest; this proprietary interest vests in the floating chargee when the charge crystallises; and 4) hence the covenant protects the anticipated proprietary interest; so that 7 Halsbury’s Laws of Malaysia (2004) Vol 24 at p 160 8 Ibid at p 160

5) the result is that the party who takes with notice (here actual or constructive) of the protective covenant, where it is anticipated the covenantee will perfect the interest by crystallization, will be bound.”9 It is suggested that the remedies which the lender can seek against the third party include: 1) a right of summary judgment against the covenantor; on default of satisfaction of a judgment debt, the covenantee could take execution process against the assets of the covenantor (if any); this remedy will be time consuming, and could be expensive where it is ultimately unsuccessful; 2) an injunction to prevent breach of the negative covenant; this requires the covenantee to be able to monitor the activities of the covenantor, and to take timeous action where it looks like a third party is about to intervene; this remedy is the best and the quickest if taken in good time, and the conditions for the grant of an injunction are observed; 3) action in tort for knowingly intending to interfere with the contractual obligations of the borrower; it may be difficult to prove that the third party had actual knowledge of the covenant. 4) applaication to the court for the appointment of a receiver; no proprietary interest is required to give status to seek this remedy but the covenantee will need to prove to the court that damages for breach of the covenant would not be adequate and that appointment of the receiver is the appropriate action in the circumstances.” 10 Whether the borrower is required to register the negative pledge with the registrar of Companies Commission of Malaysia? Section 352(1) of the Companies Act 201611 requires a company that creates a charge over its property or any of its undertakings to lodge the particulars with the Registrar within 30 days from its creation. Therefore, a bank should ensure that the borrower complies with this statutory requirement before or after the release of the loans as failure to do so will result in the charge be void against the liquidator and the borrower’s creditors.12 In other words, “the effect of non-registration is that vis a vis the Ibid at p 161 Halsbury’s Laws of Malaysia (2004) Vol 24 at p 161 11 Previously sec�on 108 of the Companies Act 1965 12 Sec�on 352(2) of the Companies Act 2016 9

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liquidator and the creditors the charge is void; that is, for practical purposes the chargee is unsecured if the company goes into liquidationâ&#x20AC;?.13 The types of charges that required to be registered are stipulated in section 353 of the Companies Act 2016 as follows: (a) a charge to secure any issue of debentures; (b)

a charge on uncalled share capital of a company;

(c)

a charge on shares of a subsidiary of the company which are owned by the company; a charge or an assignment created or evidenced by an instrument which if executed by an individual within Peninsular Malaysia and affecting property within Peninsular Malaysia, would be invalid or of limited effect if not filed or registered under the Bills of Sale Act 1950; a charge on land wherever situate or any interest in the land; a charge on book debts of the company; a floating charge on the undertaking or property of a company;

(d)

(e) (f) (g) (h) (i) (j)

(k)

a charge on calls made but not paid; a charge on a ship or aircraft or any share in a ship or aircraft; a charge on goodwill, on a patent or licence under a patent, on a trade mark, or on a copyright or a licence under a copyright; and a charge on the credit balance of the company in any deposit account.

Pursuant to section 353 of the Companies Act 2016, a negative pledge is not one of the charges that is required to be registered with the Registrar of the Companies Commission of Malaysia. Having said that, it is not uncommon to find the records of negative pledge being registered with the Companies Commission of Malaysia and reflected on the company charges (details) search result as some banks in Malaysia still require their borrowers to register the negative pledge with the Companies Commission of Malaysia. Walter Woon (2003), Company Law (2nd Edi), Sweet & Maxwell Asia: Malaysia at p 529

It can be understood that the banks want to notify all future creditors of the negative pledge given by the borrowers to the banks and in the absence of any official mechanism to publish such message, the banks make use of the requirement under section 352 of the Companies Act 2016 to register the negative pledge. In doing so, the borrowers have to bear the cost for registering the negative pledge with the Companies Commission of Malaysia. It is also interesting to note that the Companies Commission of Malaysia accepts the registration of a negative pledge outside the scope of the Companies Act 1965 and Companies Act 2016. To overcome the above issues, it is submitted that the Companies Commission of Malaysia should either: 1) reject the registration of a negative pledge since it is not required under section 353 of the Companies act 2016; or 2) relevant authorities propose to the legislature to amend the law to allow the registration of all kind of liabilities created by a borrower as an official mechanism to notify the public of its existing liabilities and reduce the registration fees to lessen the financial burden of the borrower. Whether a negative pledge is a form of security The issue of whether a negative pledge is a form of security was discussed in detail in the case of Muhibbah Engineering (M) Bhd v Pemungut Duti Setem14. In that case, the appellant was granted a loan by Maybank Islamic Bhd and a facility agreement with a negative pledge was executed by the appellant. The appellant applied for the remission of stamp duty for the facility agreement pursuant to paragraph 2 of the Stamp Duty (Remission) (No 2) Order 2012 (â&#x20AC;&#x153;the Remission Orderâ&#x20AC;?) which reads as follows: The amount of stamp duty that is chargeable under sub sub-item 22(1)(b) of the First Schedule to the Act upon a loan agreement or loan instrument without security for any sum or sums of money repayable on demand or in single bullet repayment under that sub sub-item which is in excess of zero point one per cent (0.1%) is remitted. Therefore, the issue before the Court of Appeal was whether a negative pledge is a security within the meaning of paragraph 2 of the Remission Order. If the Court finds that a negative pledge is a security, then the appellant is not entitled to a. 14

[2017] 6 MLJ 564 at p 581

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remission of stamp duty and is liable to pay ad valorem stamp duty for the facility agreement.

“…in the event of default by the appellant, Maybank will be considered as an unsecured creditor and will be equal in right of payment ie pari passu vis a vis the other creditors. It is therefore incorrect for the learned judge to hold the view that the negative pledge by the appellant assured or guaranteed Maybank of payment in the event of default.”16

If on the contrary, the Court finds that a negative pledge is not a security, then the appellant is entitled to a remission of stamp duty pursuant to the Remission Order. The Court referred to the definition of ‘security’ from Lexis Nexis’ Words, Phrases and Maxims which stated that: “A security is an encumbrance, vested in a creditor, over the property of his debtor, for the purpose of securing the repayment of a debt. It is a right in the property of another, which enables a person, who is entitled to receive a definite value from that another is default of so receiving it, to realise it from that property. The purpose of a security is to ensure, of [sic] facilitate, the fulfilment, or enjoyment, of some other right vested in its owner. Securities may be classified into: (i) mortgages. (ii) pawns. (iii) floating charges. (iv) lien. This word has a variety of meaning: (i)

the general name for all mortgages, charges, debentures, etc, whereby repayment of money is assured or secured;

(ii)

any document by which any claim may be enforced.”

In deciding that the negative pledge is not a security, the Court held that: “…the negative pledge by the appellant is certainly not a security as it is not an encumbrance vested in Maybank over the properties of the appellant, nor does it vest in Maybank a right over the properties which enables Maybank to realise the loan amount from the properties in the event of default by the appellant. Being a mere pledge not to encumber properties and nothing more, there is no property for the respondent to realise in the event of default.

Conclusion The process of obtaining consent from a bank whenever a borrower wants to apply for new loan from a different bank is slow and cumbersome. It may take weeks or even months for the bank to issue such consent after evaluating the borrower’s financial status and determining whether the securities created by the borrower in favour of the bank is sufficient in the event of default by the borrower. In the commercial world where businesses try to compete with each other locally or globally, being efficient is crucial to stay competitive. Any delay in obtaining finances may result in losing contracts or fail to meet deadlines. Therefore, it is important for the bank and the borrower to negotiate the terms of the financing to ensure that the borrower obtain the loan it wanted to operate and expand its business and at the same time the bank’s interest is fully protected.

Roger Lo Advocate & Solicitor Johor Bahru

The true legal effect of the negative pledge given by the appellant is that it merely created an obligation not to encumber. It does not provide an obligation to repay any sum or sums of money in any way whatsoever.”15 The Court further held that: 15

Ibid at p 582

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HOW MUCH DO YOU VALUE YOUR SERVICES? By Allen Yu

I read a book recently, entitle “The Lazy Way of Becoming a Millionaire” and I came to realize that one of the reasons why I did not make a lot of money from my practise was that I had undervalue my services. I had that problem throughout my practise. When I started practise in 1986 in this law firm which specializes mainly in conveyancing. I was to take charge of the litigation department. When I asked about the firm’s legal charges, the chief clerk then told me to use the fixed cost in the Subordinate Court Rules as a guide. But when I charge RM5,000 for an injunction, my employer thought it was too high. I made some enquiry and found that another law firm that specialises in litigation charged RM7,000 for an injunction and lawyers in Johor Bahru then were charging more than RM10,000. Every today if I charge my clients RM15,000 for an injunction, they would jump. But in divorce case I could not bring myself to charge that much for the poor wives who were assaulted or harassed by their husbands. When I took my first drug possession case back then in the 1980’s, I charged the brother of the accused just RM800. He came back to ask whether it was for an initial deposit or for the whole thing. I told it was for the whole thing and the reason I charged him such a low sum was that it will be my first drug possession case. He took the risk in trusting me and I won my first drug case. And after I did my first drug trafficking case also in the 1980’s , I was pulled aside by a senior lawyer. I was told that the market rate for our fees was RM35,000 and I should not charge be low that. However, in later in later years when we acted for our clients in joint trial trial, I discovered that he charged less than that. One lawyer told me in the 1990’s that he charged just RM10,000 for a murder case. I thought it was too low since murder cases could take a long time to complete What if the prosecution had 40 witnesses? I once charged RM1,000 a day for holding a watching brief for the family of the victim in a homicide case. Where civil cases were concerned some lawyers will not quote a sum but instead told their clients that it would be reasonable. They would then take an initial sum. And from time to time will ask for more. 26

In many cases when the clients could not pay any more, the lawyers would discharge themselves. I do not do this. I prefer to quote a figure for the job to be done. Appeals and applications would be extra. I prefer to do civil defences and I am now more selective in my cases. After many years of charging low fees just so that I would be given the case, I believe my years of experience entitled me to higher fees now. A lawyer I know took a lot of cases to the point that he ended up having a heart bypass He told me that he did not charge any legal fees for 40% of his cases. I told him that it was a stupid thing to do. I suspected then that he charged his fees only on winning. Although not permitted, contingency fees of 25% to 30% is not uncommon in “runner” cases i.e. motor accidents. Some lawyers even gave advances to their clients and when they received the payments form the insurance companies, charges interest on the advances. My charges for High Court cases now would be in five figures. But recently I quoted a six-figure sum to a party, who was very persistent in suing even when I told him that he had only a 5% chance of winning his case. I did not get the case. My colleagues told me that I should have given him a better chance of winning and take the money. No wonder you are not rich, they chided me. One young lawyer dared to charge higher than most of her seniors. Her reason is that she did not want to ask for further fees if the matter went to the appellant court. She will just proceed with the appeal if she loses the case. It will be her good fortune if she wins the case at the court of 1st instance without an appeal there after. With the judges having to comply with their Key Performance Index (KPI) and to complete a case within a year from the date of its filing, lawyers should not take too many cases and should charge higher to cover their expenses and standard of living. I used to charge RM100 for a simple will. Will writers change that. They were charging RM500 to RM600 for a simple will. I increased my charges to RM350

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and now charges RM500 for a simple will. And because of that I don’t have many wills to make. My previous law firm was popular at preparing simple agreements. The agreements could be just 2 to 3 page long. I used to enjoy doing the drafting but I realised now that the time I spend preparing it and the amount I charged for it was not right. I decided to charge a minimum of RM1,000 for a simple agreement. Again Again because of that I do not do many agreements. One of my clients living in Australia was suprised of my charges. In Australia, the lawyers would have charged him AUD8,000 for a simple agreement. Hmmm...... maybe I could ask the lawyers in Australia to outsource the work to me. Where Joint Divorce are concerned, I heard some lawyers in north Johor region were charging RM2,000 or less. I was taken a back. Since the doubling of court fees, I charged RM3,500 for a joint petition and a minimum of RM10,000 for a unilateral petition, if it goes for trial. I heard some lawyers do charged over RM15,000 for contested petitons. I did charge one client RM25,000 for a divorce case in Penag. But it was because of the plane fares and hotel charges and lost of time. I had to take it because all the charges quoted by the Penang lawyers were unreasonable. One lawyer wanted to charge my client 20% of the amount the Petitioner wife was claiming. She was claiming RM2 million and all five of my client’s properties. My client did not have the RM2 million claimed and he inherited all five of the properties. There was one occasion I charged a client for counselling in a divorce case. He kept coming with his son’s problems, and because of his old age, i endured the sessions. He endured the sessions. He did not mind my charges. I understand a psychiatrist charges RM300 for an hour session. Perhaps I should charge that sum for those who overstayed their consultation sessions. I do not charge anything for consultation as I see it as part of my social responsibility. But I do charge RM1,000 for opening a file. However, many law firms do charge for consultation and it is quite common now for clients to ask me in advance whether I charge for consultation before they make an appointment to see me. I even give free consultation on divorce matters by phone.

How much do you charge for a Probate or Letters of Administration? This is a tricky one. I was told that there is a Probate and Administration Legal Fees Rules (or something like that) providing a schedule of fees to be charge. For the first RM25,000 in value of the estate it was 5%. For the next RM225,000 it was an additional 3%. And the next RM250,000 it was 2% and 1.5% for the next RM500,000. Thereafter any sum above RM1m it was 1%. So , the estate was worth RM2m, the legal fees would be RM30,500. However, I could not locate these rules. And since Probate Applications no longer requires the value of the estate to be stated, i t would be difficult to fix our legal fees. I believe the charges in the North Johor region is roughly RM5 -6,000 for Probate and L.A and another RM 5-6,000 for the Order of Distribution. One lawyer told me that charges are in the Legal Profession Act. But I could not locate that. Another lawyer charges according to conveyancing fees for the transfers according to the order of distribution. This makes it very expensive for the clients. One law firm had a policy of not letting any potential client from leaving his office without first paying something. I no longer bothered that out of five clients who came to see in a day, only one will eventually use my service. Some of these clients are not worth the fees they pay. So, if I do not like them, I refuse to negotiate my fees. But I have to be careful in not being too compassionate with the others. There will always be other lawyers who will take up the case for a smaller fee. Where conveyancing is concern, I am not surprised to find some law firms giving discounts of between 50% to 75%. But in the big cites where cost is much higher, law firms are often found to be overcharging. One lawyer told me that he was accused by another law firm of giving big discounts and gave the name of the informant - a client. When the lawyer questioned the said client, the client admitted he told the accusing lawyer, BECAUSE the accusing lawyer could not give more that their 35% discount offered. So let’s not be too quick in pointing fingers at others. It would be like “the pot calling the kettle black” At the end of the day, we can make a good living but one has to work hard and be patient, to hervest what we sow. Haiz... who needs a Ferrari anyway!

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Recent Bar Council Rules and Rulings [Part II] By Yang Pei Keng - 15 October 2018

[Note: This is Part ll of the article - Recent Bar Council Rules and Rulings] 38. Pupil to be in main premises under master’s supervision: 10.03 A pupil must read in chambers in his master’s main premises under the supervision of the master. A pupil cannot be stationed at any branch office without his master’s supervision. 39. Pupil’s right of audience: 10.05(3) If a pupil has been granted the right of restricted audience in one State, he need not apply for the same in another State. This is because there is only one High Court of Malaya sitting in any part of West Malaysia. Some practitioners refer to such . pupil’s right as one enjoyed after a “short call” 40. Notice to act in person filed after being represented previously: 11.02 If you come across a party who had been represented by another advocate and solicitor previously, you must obtain prior consent from the pervious solicitor even if the party has filed a “Notice to act in person”. Alternatively, you must ensure that the previous solicitor has been paid the proper remuneration. 41. Raising preliminary objections - prior notice must be given: 11.04 If you intend to raise a preliminary objection at any hearing before the court [tribunal or body], you must give a written notice at least 4 clear working days before the hearing, to all advocates and solicitors acting for the other parties in any litigation: 11.04(02). 28

In exceptional circumstances, you may raise a preliminary objection during the hearing without giving any written notice. But the advocates and solicitors acting for the other parties are entitled to request for an adjournment, and you cannot object to such request: 11.04(4). 42. Entitlement to copy of pleadings: 11.07 Any person having a legal interest in an action, or a right to intervene in that action, is entitled to a copy of pleadings from the solicitors acting for the parties to the action, upon payment of reasonable photocopying charges. [Special circumstances may warrant a higher charge.] 43. Titles not to be used in court, judgment or order: 11.08 You need not address another advocate and solicitor by the title conferred upon him. Titles or awards will not be mentioned in the judgment or order since they are not part of a person’s name. 44. Service of written submission on another solicitor: 11.09 If you tender any written submission in court, you must serve a copy of the same to the other solicitor at the same time. 45. Engagement in other business or trade: 12.01 You or your law firm may engage in a business or trade on a part-time basis. But it must be compatible with the dignity of the legal profession. A legal assistant may also do so if it does not infringe upon his full-time employment.

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46. Cessation of practice / change or practice: 13.01 If you wish to change your address or place of practice, you must now notify the Bar Council in writing within 14 days of such change: 13.01(1)(a), using the approved form. If you cease practice as a partner of a law firm, but you intend to continue to practise [whether as a sole-proprietor, consultant, or partner] in another law firm, you must give written notice to the Bar Council with in 14 days of such change, using the approved form. You have to use the prescribed forms, i.e. Notice of Cessation of Practice [Appendix 1], or Change of Address of Practice [Appendix 1A] to be accompanied by a Statutory Declaration [Appendix 1b]. If you intend to cease practice, whether for the time being or permanently, you have to complete the relevant part of the Notice of Cessation (Appendix 1). For change of address or place of practice [eg. leaving your law firm to join another law firm] you have to use the simple form Change of Address of Practice (Appendix 1A). 47. Show courtesy when making phone calls; and to give prompt reply: 14.01 If you call another advocate and solicitor on the phone, as a matter of courtesy, you must be on the line FIRST and you must be ready to speak once the call is put through. You must give a prompt reply to correspondence from other advocates and solicitors, the Bar Council, Council, State Bar Committees, clients and former clients. You must accept all correspondence from another law firm: 14.01(2)(3). 48. Who may sign law firm’s letters? : 14.02 A law firm’s letterhead must be signed by an advocate and solicitor. It is improper to issue an unsigned letter of demand. Therefore, you should not use a computer-generated letter of demand that requires no signature: 14.02(1). But you may send reminders of unpaid bills by using computer-generated letters [with no signature].

If you are a sole-proprietor, during your absence, you may request another advocate and solicitor to sign a letter on your behalf. But, as a matter of courtesy, you should give prior notice to him before you arrange to have your letter signed by him. A letter purely administrative in nature, not containing advice on law, may be signed by a duly authorised person who is not an advocate and solicitor. But the name and designation of the signatory must be stated below his signature: 14.02(2). Receipts of a law firm may be signed by a duly authorised person. He may not be an advocate and solicitor: 14.02(3). 49. Solicitor must accept service or delivery of documents: 14.05 You must not refuse to accept or acknowledge receipt of any letter or document delivered to your law firm during office hours, unless you have valid, sufficient and reasonable grounds to do so. 50. Not to accept service of documents on a “without prejudice” basis: 14.06 You should not accept service of documents on a “without prejudice” basis. BUT you may do so for good reasons disclosed in writing at the time of service. 51. Not to attest Transfer or Charge pending issue of title: 14.07 You should not prepare or attest any Transfer or Charge document where the individual or strata title has yet to be issued: 14.07 If you are attending to a Transfer/Charge where the title has yet to be issued, you are not to collect any stamp duty from your client until the title is issued: 16.01(6). 52. Clients entitled to receive documents in closed files: 14.08(2) Your client is entitled to receive the original cause papers, the originals or file copy of all correspondence and all original or stamped copies of documents executed by him, when the file is closed. BUT you may keep the receipts signed by your client client, and may keep a photocopy each of the documents concerned.

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53. To return documents promptly if unable to honour undertaking,: 14.09

57. Attesting solicitor to state his name under his signature: 14.24

It is professional misconduct if you fail to honour an undertaking. Therefore, when you receive payments or documents subject to an undertaking unacceptable unacceptable to you, you must promptly return them to the sender: 14.09(b).

When you attest or witness a document, you must insert your name and your Malaysian Bar membership number [eg.Y/004] under your signature.

Alternatively, you may request a letter from the other solicitor releasing you from the undertaking forthwith before you decide to return him the document or payments. 54. Not to impose unreasonable undertakings or conditions: 14.09(2) You should not impose any unreasonable undertaking on another advocate and solicitor, or request him to perform an undertaking which is beyond his control. “Do not do unto others what you do not like others do do unto you.” It is, for example, unreasonable to impose and undertaking on another solicitor that the bank must release the loan within 14 days or any other specified period of time. This is because the bank in not under the control of any solicitor. He can only advise the bank to release the loan as soon as possible. 55. Improper to insert disclaimer of undertaking given in emails: 14.09(3) If you give an undertaking by email, you cannot add a disclaimer clause in the email, to the effect that it is not valid unless confirmed by a letter from your law firm signed by you or your partner. 56. Solicitor must pay interest on monies held as stakeholder: 14.10 If you hold money as a stakeholder, you must pay interest [in accordance with the Solicitors’ Accounts (Deposit Interest) Rules 1990] to the person receiving the stake money, unless agreed otherwise. But you are entitled to charge a fair and reasonable fee for acting as a stakeholder.

Such practice has been made compulsory by the Land Registry for transfers, charges, and other documents attested by solicitors. 58. Improper to issue threats of criminal proceedings: 14.13 It is improper to issue threats of criminal proceedings as a means to press for recovery of a civil debt from any person. But you may draw his attention to the fact it may constitute an offence if he fails to comply with a statutory requirement. 59. Disclaimer for liability by advocate and solicitor: 14.14 You cannot disclaim liability or responsibility as an advocate and solicitor for your act or omission. 60. To use a senior’s chambers as venue for meetings between solicitors: 14.15 If a meeting is to be held between or among advocates and solicitors, the chambers of the most senior advocate and solicitor should be the venue of the meeting, unless it is agreed otherwise. 61. Acceptance of payment by credit card is allowed: 14.16 Previously you were not allowed to accept credit card payments from your clients. Now, you may accept your client’s credit card for purposes of payment of fees, subject to the following conditions: Your contract with the credit card company must prohibit disclosure of your client’s confidential information, dealings, or communication with you as solicitor [UNLESS the disclosure is required by law or your client has given his prior consent]. Confidential information may be disclosed to an employee or agent of the parties or the bank concerned: 10.16(1).

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But you cannot participate in any advertisement or promotion campaign of any nature. You may only display a small notice of acceptance of credit cards in your office premises: 10.16(2). Bona fide “service charges” or “commissions” payable to the credit card company are not regarded as “sharing of fees” with the company: 10.16(3) 62. Unrepresented purchaser - s84 of the LPA: rule 14.18 As solicitor for a housing developer, if you attest the signature of an unrepresented purchaser, you must obtain from him a certificate duly signed under s84, and inform him in writing that you are not acting for him: 14.18(4). This is in fact a subtle form of circumventing the provision of s84 prohibiting a solicitor from acting for both parties in a developer’s transaction. 63. To furnish copies of agreement upon request by the parties: 14.19 If you prepare an agreement for a client, you must upon request deliver a signed and stamped copy of the agreement to each of the parties concerned, even though they are not your clients, and even if your client gives you instructions to the contrary. 64. Credit reference agencies: 14.21 You must not disclose information to credit information information agencies, eg. CTOS, not with standing any instructions from your client. 65. Payment to another solicitor for introducing clients: 14.23 If you introduce a client to another solicitor, you cannot accept any payment from that solicitor. This seems seems to be regarded as a form of touting. Comment: This appears to be inconsistent with the long established practice of “sharing of fees” among professionals. Difficulties may be encountered in enforcing such ruling. This is because, in normal circumstances, “sharing of fees” among members of the legal profession or any other profession is an accepted practice.

Before a solicitor introduces a client to another solicitor, he would have rendered professional services to the client, such as taking instructions from the client; going through the case, discussing the case the case perhaps in depth with the client; giving professional advice or legal opinion; spending time and expense on the client concerned, etc. In the circumstances, is he not legally entitled to share professional fees with his fellow solicitor who takes over the matter? The issue of “touting” for another solicitor does not arise at all. 66. Response from the Bar Council/State Bar Committee not to be produced in court or tribunal: 14.25 You must not produce in any court or tribunal as evidence any letter or electric communication from the Bar Council or State Bar Committee or Committee from the Bar Council in response to your query or complaint from any person. 67. Money lending by solicitors is prohibited: 14.26 It is conduct unbefitting to be involved in the business business of money lending, whether directly or indirectly. You should not charge interest on moneys expended on your client’s behalf, or on moneys advanced for his use. But there is an exception. If you have advanced any disbursements specifically for any matter that you are acting, you may charge interest there on after 30 days of issuing bill of costs [or invoice] to the client, in case of his default in payment of the bill. 68. Affidavits in support of application for probate: 14.27 If you have prepared a will and attested the testator’s signature for a fee, you are not entitled to claim any further legal fees for affirming an affidavit in support of the application for probate. But no affidavit is necessary in normal circumstances. An affidavit is only required when there is no attestation clause in the Will, or the attestation clause is insufficient [see o.71 r.9 RHC].

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A solicitor must make every effort to convince the High Court Registrar that the affidavit is only required pursuant to the said o.71, and not otherwise. He should not request the attesting solicitor to solicitor to affirm the affidavit in every case at his whims and fancies. 69. Fees for vetting developers’ documents: 16.01(1) As a developer’s solicitor, in vetting (including withessing) documents relating to any property under a sale and purchase agreement (eg. vetting developer’s consent for the assignment; for r e a s s i g n m e n t from a financial institution; or for assignment to a financial institution), you are entitled to charge RM200 for vetting any of those documents. If you have to attend to more than one document, then you are entitled to charge a maximum fee of RM400 for vetting all the documents involved. 70. L i e n o v e r d o c u m e n t s o r r e l e a s e o f documents: 16.01(4) You may collect the scale fee or appropriate fee before you are discharged in a conveyancing matter: 16.01(4)(a). You have a lien over your client’s documents until your fees are paid.

In the early years, some sellers’ solicitors were not aware of their legal duty. Confusion was also created created by a non - conveyancing law book writer. It is now specifically provided in the developer’s standard agreement that a seller’s solicitor must forward 3 copies of the SPA to the purchaser’s solicitor. 73. Solicitor or law firm may maintain a website: 17 You may maintain a website containing approved information about you or your law firm. “Approved information” includes area of practice, year of admission, books or articles written by you, academic and professional qualifications, titles, awards etc., and such other information with the prior written approval of the Bar Council: see rule 2 (interpretation clause), Publicity Rules 2001. Additional approved information has been allowed: rule 5.17 You may also publish a journal magazine or newsletter in your website. A visitor to your website may contact you for inquiries or comments: 17.05 (e). ###

Alternatively, the new solicitor taking over the matter must give you an undertaking to pay your fees: 16.01(4)(b). 71. Fixed deposit interest - not to charge fees on a percentage basis: 16.01(5) For attending to the interest accrued from fixed deposits, you are not to charge fees for administrative work on a percentage basis, (unless your client has agreed in writing). But you may charge a reasonable fee [pursuant to the Sixth Schedule of the SRO]. 72. Vendor’s solicitor not to charge fee for SPA: 16.01(7) It is the duty of the seller’s solicitor to prepare the sale and purchase agreement, unless otherwise mutually agreed upon between the solicitors. He cannot charge any fee for supplying the SPA.

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JOHORE BAR ACTIVITIES REFERENCE PROCEEDINGS │7TH MAY 2018

We record with deep regret the passing of the following members of the Johore Bar; Renganathan a/l Letchumanan passed away on 31 August 2016 Chua Chen Cher passed away on 17 September 2016 Chong Lung Fei passed away on 30 December 2016 Dato’ Abdul Rahman bin Abdullah passed away on 4 May 2017 Mohd Hilmy bin Samsudin passed away on 8 November 2017 Dato’ Joseph Singaram Pillay passed away on 20 February 2018 A Reference in their memory was held at the Johor Bahru High Court on Monday, 7th May 2018. The proceedings were presided over by the Honourable Justice Puan See Mee Chun and with Her Ladyship on the Bench was the Honourable Judicial Commissioner Tuan Mohd Ivan bin Hussien. Senior Federal Counsel Puan Thalha Bachok represented the Attorney General’s Chambers and Mr. Roger Chan Weng Keng represented the Bar Council. Members of the Bar and family members of the six departed members were present The proceedings was followed by a reception at conference room

Speech by Mr. R. Jayabalan, Chairman of the Johore Bar May it please the Court, Yang Arif-Yang Arif, my name is R. Jayabalan and I appear for the Johore Bar Committee. We are here to recall the memory of our departed colleagues at the Bar and to pay our respect as professional colleagues. They are the late Mr Renganathan Lechumanan, Mr Chua Chen Cher, Mr Chong Lung Fei, En Mohd Hilmy Bin Samsudin, Dato’ Joseph Singaram Pillay and Dato’ Abdul Rahman Bin Abdullah. May I now introduce the parties. Mr Roger Chan the Secretary of the Malaysian Bar is representing the Bar Council, Senior Federal Counsel Pn Thaiha Bachok is representing the Attorney- General’s Chambers. My learned friends Mr N Mariappan, En Fadhil Ihsan, Puan Nurul Safwaty, Encik Hafez, Dato’ Mohd Haziq and Mr. K Mohan will appear to recite the tribute to the departed members respectively. I also would like to acknowledge the presence of members of the Bar, relatives and friends of the departed at the gallery to witness this solemn proceedings.

Before we commence, on behalf of the Johore Bar I would like to place on record our appreciation to Yang Arif–Yang Arif for granting the Bar’s request for this reference and for kindly presiding the proceedings. Reference proceedings for deceased members is an ancient tradition of the Bar. It is also unique to the legal profession. Whilst we welcome a new member at the Bar in the presence of the Bar, the Bench and the Attorney General, later when he is called upon to meet his God, the same stakeholders once again gather to recall his life and contribution at the Bar and bid him a fond farewell for the final time. I said earlier that reference proceedings is unique and an ancient tradition. Sadly it is also a dying tradition – as with many other traditions of the Bar. It is joint efforts like this today between the Bar and the Bench that is keeping such traditions going and in the process add value and prestige to the legal profession. The significance of reference proceedings was aptly summarized by learned counsel Mr Cyrus Das at the reference held for another eminent counsel the late Dato’ Ronald Khoo before the Federal Court Judge

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Tan Sri Dato’ Edgar Joseph Jr on 24.4.1998. This is what he said “The practice of references for deceased judges and lawyers served to remind us that we belong to one body with one objective, namely, the pursuit of justice through the legal process. In that collective effort, governed by the unwritten rules of etiquette and tradition which are just as important as the written ones, the death of one of us R. Jayabalan Chairman, Johore Bar

diminishes the whole, and so we gather to mourn the loss, to pay tribute and remind ourselves that the journey must be made and the faith must be kept”. We are here today for that very purpose. My learned friends will now begin with their respective tribute.

Speech by Mr. Roger Chan Weng Keng, Secretary of the Malaysian Bar Yang Arif -Yang Arif, nama saya Roger Chan Weng Keng yang mewakili Badan Peguam Malaysia. Encik R Jayabalan, Pengerusi Badan Peguam Johor. Puan Thalha Bachok, Peguam Persekutuan Kanan yang mewakili Pejabat Peguam Negara. Rakan-rakan yang bijaksana, Tuan-tuan dan Puan-puan. Yang Arif - Yang Arif, izinkan saya meneruskan ucapan saya seterusnya dalam Bahasa Inggeris. Yang Arif-Yang Arif, may I begin by thanking Yang Arif-Yang Arif for agreeing to preside at today’s reference proceedings for departed members of the Malaysian Bar. The Malaysian Bar hereby express their sympathies to the family members who are gathered here this morning in order to pay tribute to the memories of our departed members namely:1. The Late Renganathan a/l Letchumanan 2. The Late Chua Chan Cher 3. The Late Chong Lung Fei 4. Allahyarham Mohd Hilmy Bin Samsudin 5. The Late Dato’ Joseph SingaramPillay 6. Allahyarham Dato’ Abdul Rahman Bin Abdullah Yang Arif-Yang Arif, The Legal Profession in Malaysia has points of entry and exit for a lawyer. The point of entry is triggered when a person who aspires to practise law qualifies to be an advocate and solicitor under the Legal Profession Act 1976 (“the LPA”) But to arrive at that point of entry a person would have to possess the basic legal qualifications, undergo 9 months of pupillage and comply with the stringent requirements of the LPA before he or she 34

can petition the High Court to be admitted into the Rolls of Advocates and Solicitors. He or she thus becomes a fir and proper person to be admitted into the Legal Profession. The said point of entry often described as “Called to the Bar”, is an honourable one. One just have to peruse the many legal requirements on the LPA relating to this point of entry to appreciate why this is so. And once having arrived at that point of entry, an advocate and solicitor become a member of an honourable profession. All of our departed members have gone through that same process, they were once members of our honourable profession. Strangely, it is the point of exit that is seldom talked about or described in the LPA save perhaps for a number of provisions to deal with taking over the files of a deceased member. Yet to the Malaysian Bar the point of exit is important, solemn as well as meaningful. The point of exit is normally known in legal parlance as the reference proceedings. The reference proceedings reflect the finest traditions of the Malaysian Bar to pay tribute to our departed members who had in one way or another done the profession proud and contributed in their distinct ways to the rule of law and society. and society. This morning’s reference proceedings for our departed brothers of the law before Yang Arif - Yang Arif is no different. We have not forgotten them. We are here to honour them even though at some point in their lives, death has overtaken. Their passing, I must say, is a great loss to the Malaysian Bar.

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All of the departed members came from different background. They hailed from different areas of practice. Yet they share one commonality in diversity in that they have in their own unique ways made many contributions and rendered invaluable services to the Bar and society, for which the Bar on this solemn occasion, hereby now expressly acknowledge.

My Lady, may I now respectfully support the motion for the record of these proceedings to be preserved in the archives of this honourable court, and a copy of it extended to each of the families of the said departed members. I am obliged.

Roger Chan WengKeng Secretary, Malaysian Bar Tribute to the Late Renganathan a/l Letchumanan by Mr. Mariappan Nachimuthu Yang Arif-Arif Hakim-Hakim, Mr.Jayabalan, Chairman of the Johore Bar.

At the age of 42, he had obtained his Bachelor of laws (London) (External) and then passed the threshold for the CLP, read in chambers of Matthew Varughese of Varughese & Co, Johor Bahru and was called to the Malaysia Bar on 04.12.1988.

Tuan on behalf of the Federal Counsel, Members of the Bar, Judicial & Legal Officers, Mrs.Renganathan and family. I have been honoured by the Chairman of the Johore Bar to move this eulogy. We have gathered here to honour the memory of Renganathan Letchumanan who passed away in August 2016. The Johore Bar is once again distressed to record the passing of yet another one of its senior members the the late Mr Renganathan a/l Letchumanan (fondly known as “Renga”) who passed away in Johor Bahru on the 31st day of August 2016. The funeral took place according to Hindu rites on the 1st day of September 2016. Born in Taiping, Perak, Renga grew up in the little town of Kuala KubuBharu in the foothills of Frazer Hill. He had his early education in Tamil School in Kuala KubuBaru and in Rawang and later on in the Methodist Boys School, Kuala Lumpur. That Renga was to a large extent a self made successful lawyer is plain from his antecedents. On completing secondary schooling Renga joined the Rubber Research Institute (“RRI”) as a Research Assistant. Whilst working and yearning to uplift and upgrade his status in life, he attended evening classes and passed the Higher School Certificate Examination and then read law as an external student.

He worked as a Legal Assistant in M/S John Ang & Jega, M/S Nijar Kumar Netto & Partners and finally in Vincent Lai & Co before embarking on in a partnership with Loh Song Chuan (who passed away on 04.11.2014). They formed the firm of Loh & Renga which firm has 2 branches with the late Mr Loh’s nephew Loh Shu Peng running the same presently Renga was an ardent sportsman and contributed his talents to the Johor Bench & Bar vs Police games and other Bar games. He was a footballer and an athlete. As a youth he played for the “Under 23 Burnley Cup” for the State of Selangor. He played for the State of Negeri Sembilan (whilst attached to RRI, Port Dickson) for the Malaysia Cup. He was active as a registered Malaysian football referee and was also a qualified official of the Malaysian Amateur Athletic Federation. At the Bar in Johor, Renga was a rather quiet unassuming personality who did not court trouble. Renga could well be described as a plain speaking provincial personality. Rather private in his ways he took on the took on the position of “speak when spoken to”. He carried on a quiet practice mainly as a litigator in running down matters whereas his late partner Loh was a conveyancer. With his fellow lawyers he was never difficult. He was accommodating and forgiving.

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Renga attended most Bar functions connected with sports. And when sports injury took a toll on his kness he switched on to golf which he leisurely enjoyed. He was also loving, caring and gentle husband to his beloved wife. Renga leaves behind his beloved wife Madam S. Thevanayaki a/p Selladurai a retired Nursing sister of SultanahAminah Hospital’s, Paediatric Ward and his only child a son Agilan a/l Renganathan, an Engineer. They miss him and would continue to miss him forever. I know the late Renga when I was an interpreter in Johor Bahru Courts in late 80’s and early 90’s. He was one of the few lawyers who encouraged me to N. Mariappan Member of Johore Bar

take up law externally and was instrumental in my career development. He was the one who offered me to join his Law firm as a Legal Assistant after I successfully completed my law studies in 1996 where I had served for 4 years mostly doing running down matters. The Bar expresses its deepest condolences to the loved ones of the football and sports loving lawyer. He was born in Taiping Perak, grew up in Kuala KubuBharu and Rawang, worked in Kuala Lumpur and finally established his nest in Johor Bahru to practise law and live out his last days. May God grant Renga the peaceful and everlasting rest he deserves.

Tribute to the Late Chua Chen Cher by Mr. Fadhil Ihsan If it may please the Court, I appear on behalf of the family and friends of the late Chua Chen Cher. My lady, Mr Chua, or more affectionately known as “Sean” by his family and friends, left us on 17 September 2016 at the young age of 32. He succumbed to leukemia. 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. Today I am here to speak of my friend and former classmate, Sean. The late Sean hailed from Tampoi, Johor Bahru, having had his early education at Sekolah Menengah Taman Perling. After finishing secondary school, Sean pursued his law degree at Multimedia University and graduated in 2009. After his pupillage under the auspices of the late Ms Neoh Lay Choo, he was called to the Bar on 10th June 2010. For a brief period, Sean worked as a legal assistant at the firm of Ong Ban Chai & Co and later opened Loh, Chua, Chai & Co. with his friends Allen Loh and Elvis Chai. 36

His demise came as a shock to many of us, towards his last days in court, he walked the halls of this very court with smile and joked with lawyers exhibiting no sign that he was going to leave us anytime soon. My fondest memory of Sean is sometime in 2010, when Sean and I, being poor chambering students at the time, pooled money to go to KL to retake our Ethics Exam (which we both had failed). Having limited funds, we opted to stay at a budget hotel right across the Bar building. To our surprise the hotel was questionable in its own right with questionable noises being heard. We stayed no more than a few hours, leaving very early in the morning for fear of our safety. During our trip back to JB, we joked at what may have happened to us had we stayed, vowing never to let me choose hotels again. Of course, our fears may have been unfounded, but an adventure it was for memories sake. This event, in its own right, was always a recurring joke whenever our group of friends would meet. Sean would always joke about the ordeal that I had put him through. But that was reflective of the person Sean was. He was always humble, polite and was admired for always being in good spirits. We could never recall a time where he lost temper or even got angry. This is why he was adored and loved by many.

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Sean only told a select few of his illness. He may not have wanted to inconvenience us and make us worry. Sean was a beautiful spirited soul and I can now vouch for that saying “Only the good die young.” His untimely demise is indeed very sad but we take solace in knowing that Sean had a job he liked, travelled often around the world and led a cheerful and happy life during his short duration in this world. My Lady, It has been a privilege to be his friend and he will be missed. I would like to end with a poem by Henry Scott Holland, Canon of St. Paul’s Cathedral - London entitled “Death is Nothing At All.” Fadhil Ihsan (Dale) Member of Johore Bar

Death is nothing at all. I have only slipped away to the next room. I am I and you are you. Whatever we were to each other, That, we still are. Life means all that it ever meant. It is the same that it ever was. There is absolute unbroken continuity. Why should I be out of mind Because I am out of sight? My Lady, as custom would have it, today’s reference proceedings ought to be preserved. I therefore move for the record of these proceedings to be kept in the archives of this Court and a copy to be extended to the beloved family of the deceased.

Tribute to the Late Chong Lung Fei by Puan Nurul Safwatybinti Salleh My Lady and My Lord,

The last time I came here was in early December of 2016. Who knew that it was going to be the last time I would see him alive? More 380 days ago my best friend passed away. People say that time heals all wounds, but today I can tell you that’s not true. I thank you Peter Chong for those years of friendship that you gave me.

The Late Peter Chong Lung Fei as follows: 1. Date of birth - 27/10/1977 2. Deceased date: 30/12/2016 – at age 39 3. Date of Admission (Call to the Bar) 6/11/2003 (CLP) 4. Having 5 branches in Johor Bahru - in the style name of ‘L F Chong & Co.’ Peter Chong was my loyal friend , my confidant, my mentor for more than 10 years. He was more like my older brother. We had many experiences during that time. I can go on for hours talking about the kind of person he was but, I think many of you here already know. Peter Chong was the friendliest, sweetest, most compr ehensive, and humble person I ever met in my life. Always worrying about the welfare of others. His favorite quote was as follows:

Thank you for everything that you did for me. I want you to know my friend, that I love you with all my heart and that I always remember you. You will always be my friendly friend. In conclusion, I offer my deepest condolences to the family members of Peter Chong. I also humbly move that a record of this proceeding be preserved in the archives of this Court, and a copy there of be sent to the family members.

“Saya akan meninggalkan dunia ini , apa-apa kebaikan yang boleh saya lakukan, atau apa-apa kebaikan yang boleh saya tunjukkan kepada mana-mana orang , biar saya lakukan sekarang, saya tidak menangguhkan atau mengabaikannya, kerana saya tak tahu bila boleh lakukan lagi.

Farewell my friend Greet the Lord for me Being your friend Has been an honor.

I almost forgot his Feng Shui. He was crazy about that.

Nurul Safwaty Binti Salleh Member of Johore Bar

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Tribute to the Late Dato’ Abdul Rahman bin Abdullah by Mr. K Mohan I would like to start this recitation by giving the family’s appreciation and gratitude to the High Court of Malaya at Johor Bahru and Johore Bar Committee for this service to the late Dato’ Haji Abdul Rahman bin Abdullah. The late Dato’ Haji Abdul Rahman bin Abdullah married Datin Eshah binti Ariffin in 1974 and were blessed with two sons, Ezam Shah and and Edham Reza Shah and a daughter, Ena Suzanna. His two sons followed his footsteps and went on to join the legal fraternity as Advocates & Solicitors in 2000 and 2005, respectively. The late Dato’ Haji Abdul Rahman bin Abdullah was born in Batu Pahat on 26 April 1946 and had his primary education at Coronation Primary School, Batu Pahat and his Secondary Education at High School, Batu Pahat. The late Dato’ Haji Abdul Rahman bin Abdullah was the founder of the firm of Messrs Abdul Rahman & Partners for more then 30 years. Prior to legal practice, the late Dato’ Haji Abdul Rahman bin Abdullah held a senior government position as the Superintendent of Customs in the Royal Malaysian Customs Department. During his service with the Royal Malaysian Customs Department, he was tasked with various criminal prosecutions and attended management courses both locally and abroad and has delivered numerous lectures upon invitation at the Customs Staff Training Academy. The late Dato’ Haji Abdul Rahman bin Abdullah graduated with a Bachelor of Arts in Economics (Hons) in 1972 from the University of Malaya. After which, he pursued part time legal studies through the University of London and then read law at the University of Canterbury, New Zealand and was admitted as an Advocate and Solicitor of the High Court of Malaya on 21 September 1985. In addition to obtaining degrees in Economics and Law, he was also professionally qualified in Marketing Management and Public Relations. His career in Syariah commenced subsequent to obtaining a Diploma in Syariah Law (DSLP) from the International Islamic University Malaysia. In 1985, the late Dato’ Haji Abdul Rahman bin Abdullah commence of his legal practice under the name of Messrs Abdul Rahman & Partners. 38

Messrs Abdul Rahman & Partners, as what it is today, rose from its humble beginnings as a sole proprietorship in the small district of Batu Pahat in 1985 to a commendable outfit via branches spanning the southern states in Peninsula Malaysia, namely Pontian in 1988, Melaka in 1999, Johor Bahru in 2001 and Kuala Lumpur on 2007, largely due to the hard work and credibility built up by its founder. Dato’ Haji Abdul Rahman bin Abdullah. The late Dato’ Haji Abdul Rahman bin Abdullah built Abdul Rahman & Partners embracing his philos ophies, approaches and fortune of experience in rethinking legal complexities and crafting solutions that meet the clients’ commercial objectives. Despite the busy practice the late Dato’ Haji Abdul Rahman bin Abdullah never refused to serve the Johore Bar In 2003/2004 he served as the Chairman of the Human Rights Committee. In 2004/2005 he served on Chairman of the North Johore Bar Committee. In 2005 to 2007 he served as the Chairman of the Johore Bar Committee. I had the privilege of serving in the Johore Bar Committee during his tenure as Chairman. The late Dato’ Haji Abdul Rahman bin Abdullah had always been very supportive of the Bar Activities and it was during his tenure that the 1st Games between the Law Society of Singapore and Johore Bar took place. The late Dato’ Haji Abdul Rahman bin Abdullah was a good husband, daddy to his children, the “ Boss ” to his staff, a mentor to those who knew him. He has many social friends since he has a deep passion for orchids, Mother Nature, classic cars and music. He established the first Volkswagen Club in Johore back in 1988. He was also an active member of the History Association of Batu Pahat and also the Orchid Society of Singapore. The late Dato’ Haji Abdul Rahman bin Abdullah was also a music lover. He had his own band in Batu Pahat called ‘Fontana’. His music idol was Elvis Presley and Cliff Richard. The late Dato’ Haji Abdul Rahman bin Abdullah had also performed Elvis songs at the Johore Bar and Malaysia Bar Annual Dinners.

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He was loved and feared by equal measures by his staff but one thing he was not unkind. His kindness inspired fierce respect and loyalty in even the humblest of his staff and his circle of friends. He was direct in his speech and when you least expect it, would be laden with his own brand of humour. His critics made people around him feel uncomfortable but it was all done in a positive manner. Conversations with him would always be educational, be it in matters of life or legal practice.

In ending, I would like to offer my deepest condolence to the family members of the late Datoâ&#x20AC;&#x2122; Haji Abdul Rahman bin Abdullah. I also humbly move that a record of this proceeding be preserved in the archives of this Court, and a copy there of be sent to his widow and children.

K. Mohan Member of Johore Bar

Tribute to the Late Mohd Hilmy bin Samsudin by Mr. Hafez bin Zalkapli Assalammualikum dan selamat sejahtera semua Saya Hafez Bin Zalkaplidari Mohd Amin, Ng & Associates, yang boleh dikatakan orang yang dengan arwah Mohd Hilmy Bin Samsudin. Mohd Hilmy Bin Samsudin telah dilahirkan pada 1/3/1969 di Muar, Johor. Bapa beliau adalah seorang pensyarah maktab perguruan dan ibunya adalah seorang surirumah sepenuh masa. Arwah adalah anak sulung dari 3 beradik yang kesmuanya lelaki. Setelah tamat persekolahan di Sekolah Tinggi Melaka, arwah pernah bekerja sebagai seorang guru agama sementara di sekolah agama kerajaan Johor. Dalam banyak segi, arwah banyak mewarisi gaya dan minat bapanya. Beliau kemudian telah melanjutkan pelajaran dalam bidang undang-undang di Uitm Shah Alam setelah mendapat keputusan yang baik dalam STPM. Arwah menghabiskan pengajian Ijazah Undang-undangnya di Uitm dan kemudian telah menjalani latihan dalam kamar di Tetuan Abdul Rahman Saad di Melaka. Arwah yang kita kenali adalah seorang peguam jenayah yang terkenal dan amat rapat dengan Mahkamah di Melaka. Beliau telah mempelajai selok belok sebagai pegauam mengendalikan kes-kes jenayah ketika bekerja di Tetuan Yusof Rahmat. Beliau juga rajin menimba ilmu dan amat fokus dengan kerjayanya. Beliau amat dikenali dikalangan kakitangan Mahkamah Melaka dan ramai dikalangan Hakim-Hakim Mahkamah Tinggi juga amat menghormati beliau kerana kepakaran dan professionalisma beliau dan kesungguhan dalam menjalankan kes-kesnya walaupun dalam beberapa tahun terakhir beliau agak kurang sihat.

Alha m du lila h s a ya ba nya k b erpeluang mengendalikan kes-kes jenayah bersama-sama beliau dan banyak yang saya pelajari dari arwah tentang selok belok dan ilmu-limu yang tidak dapat dalam buku teks, dan hanya boleh diperolehi dilapangan sahaja. Beliau merupakan seorang yang amat penyabar, tekun dan cermat dalam mengendalikan kes, walaupun kadangkala kesihatannya agak mengganggu kerjayanya. Sejak pemergian arwah, rutin menemuduga anak-anak guam di Ulu Choh dan Sungai Udang dijalankan saya seorang dimana ianya rasa amat ganjil sekali terutama ketika diawal kematiannya kerana saya kehilangan seorang rakan sekerja dan teman rapat sekaligus, yang mana ianya tidak galang gantinya. Beliau sebenarnya bukan sahaja seorang sahabat, tetapi boleh dikatakan seperti abang. Kehilangan beliau amat dirasai bukan sahaja oleh mahkamah, rakan-rakan bijaksana lain, kakitangan pejabat, malah juga ahli keluarga saya yang memang mengenali beliau dengan rapat. Semoga rohnya ditempatkan dikalangan orang-orang yang beriman dan para solehin. Alfatihah. Akhir sekali, saya memohon supaya nota prosiding ini disimpan di dalam arkib Mahkamah Tinggi dan satu salinan diserah kepada waris Allahyarham Hafez bin Zalkapli Member of Johore Bar

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Tribute to the Late Dato’ Joseph Singaram Pillay by Dato’ Mohd Haaziq bin Abdullah Her ladyship, Puan See Mee Chun, Judge, High Court of Malaya Johor Bahru PuanThalhaBachok , Senior Federal Cou nsel representing the Attorney General Chambers The Secretary of the Malaysia Bar, Mr. Roger Chan Weng Keng and The Chairman or the Johore Bar, Mr. R Jayabalan May it please My Lady, The late Dato’ Joseph Singaram Pillay, JOE as he was affectionately known to his friend and colleagues at the Johor Bar was born on the 4/9/1957. He read law in the United Kingdom and subsequently did his certificate in legal practice (CLP). He was called to the Malaysian Bar on the 28/11/1987 after completing his pupillage in the auspicious chambers of the Late Mr. Harold Livera Tennakoon, one of the pioneers at the Bar in the State of Johor then. I believe from a brief recollection of my memory that after his admission to the Bar the Late Dato’ Joseph Singaram Pillay joined Messrs. Ong Ban Chai & Co as a legal assistant where his area of practice was mainly in commercial litigation. After a short stint with the firm, he moved to Messrs. Muthu & Co before becoming a partner in Messrs. Zaibuddin Ambak & Associates for about 2 years. He subsequently set up his own practice under the name and style of Messrs. J.S. Pillay & Co sometime in early 1991. I had the privilege of knowing the late Dato’ Joe during his chambering days. I was then a senior clerk with the firm of Messrs. Sault & Co. Sometime late in the year 1991, the late Dato’ Joe suggested that I join his firm as a manager. During the course of my employment, I found something extraordinary about the personality of this man. He was strict but nevertheless kind and compassionate. I vividly remember how the late Dato’ Joe offered a very Senior Member of the Johor Bar whom I shall not name, a space to share at his office premises then situated at Bangunan Foh Chong Credit for no rental at all. His words to this man was “Pay me when you can and only if you can”. This kindness which was inherent in him was something that many colleagues of his at the Bar may not have been aware of as he was not in the habit of flaunting the help he offered others. 40

While the late Dato’ Joe was very driven to succeed, he never lost sight of other people’s need for success and recognition. He made it a point to nurture others. He was quite often unassuming, humble and I must confess a very witty man full of humour. Those who know him will attest to this. The late Mr. S. Sagadeva who was a dear friend to both me and the late Dato’ Joe would I am sure, have shared this view. I have the greatest admiration and respect for this man. His capabilities, tenacity, energy and public relations skills with clients were just extraordinary beyond one’s imagination. This fire and desire in the late Dato, Joe probably explains and justifies how his firm was able to places on bank legal panels - a feat which in earlier years was only within the reach and domain of the “big boys” in Johor Bahru. I am proud to say that the late Dato’ Joe had in his stable 3 banks in the early 1990’s despite the firm only operating as a sole proprietorship. It was history in the making. Dato’ Joe’s untimely demise is personally a big loss to me. I know the other lawyers and staff of our firm miss him as well. He undoubtedly leaves a deep void in the lives of his family and friends. I not only lost a friend but a master and a very compatible, trustworthy and capable partner under whose resilient stewardship the partnership has been able to weather all storms for the last 20 plus years. The lawyers and staff of the firm are committed to keeping the lagacy of their founding partner alive and strive to ensure that the firm of JS Pillay & Mohd Haaziq continues to grow from strength to strength. The late Dato Joe leaves behind his widow Datin Nirmala Nair, formerly a corporate lawyer in Singapore, his 2 lovely daughters Dr. Monisha Pillay and Roshnie Pillay, his loving brothers and sisters, other relatives and friends including members of his firm to mourn his loss. All of us present here today and those who were not able to come will always cherish his memory.

May God Bless his soul. Thank you. Dato’ Mohd Haaziq Pillay Member of Johore Bar

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Speech by the Senior Federal Counsel Puan Thalha Bachok in her tribute to the departed members Dengan izin Yang Arif, Yang Arif, Nama saya, Thalha Binti Bachok, Peguam Kanan Persekutuan dari Pejabat Penasihat Undang-Undang Negeri Johor dan bagi pihak Peguam Negara Malaysia Yang di hormati, Pengerusi Johore Bar, Encik R. Jayabalan, Setiausaha Malaysian Bar, Encik Roger Chan, Penolong Kanan Pendaftar, Tuan Mohd Nazri Bin Omran, Rakan- rakan peguam yang bijaksana, Para hadirin yang di hormati. Pada hari ini, kita sama-sama berkumpul untuk menghormati dan memperingati Allahyarham dan mendiang ahli-ahli Majlis Peguam Malaysia yang telah meninggalkan kita buat selama-lamanya. Sehubungan itu, saya hadir prosiding pagi ini bagi pihak YBhg Tan Sri Peguam Negara Malaysia. Saya diwakilkan untuk menyampaikan rasa duka cita 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 diatas pemergian Allahyarham 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, Todayâ&#x20AC;&#x2122;s proceedings should not be treated as a solemn and melancholic occasion. Instead it shou be an opportunity for us to commemorate and honour the lives and memories of these 6 members of the Bar. We thank God for their presence in our lives and we ask for Godâ&#x20AC;&#x2122;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, ldI 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 todayâ&#x20AC;&#x2122;s proceedings. Yang Arif, Saya dengan rendah diri mengusulkan supaya Rekod Prosiding hari ini disimpan di Arkib Mahkamah yang Mulia ini dan sesalinan diserahkan kepada setiap keluarga mendiang ahli yang kita kenang dan ingati hari ini. Saya akhiri ucapan saya dengan serangkap pantun, Buah delima buah berangan Di buat berdagang saudagar paman, Jasamu tuan jadi kenangan, Di ingat kami zaman berzaman. Sekian, Terima kasih. Thalha binti Bachok @ Embok Mok Peguam Kanan Persekutuan Pejabat Penasihat Undang-Undang Negeri Johor Sebagai wakil YB Tan Sri Peguam Negara Malaysia

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Speech by Mr. R. Jayabalan, Chairman of the Johore Bar Yang Arif-Yang Arif, The Johore Bar fully associates with the sentiments expressed by my learned friends. These six members will live long in our memory, their comradeship and contribution to the Bar will be cherished. Having said that I wish to add a few words on behalf of the Johore Bar. The late Datuk Rahman was a former Chairman of the Johore Bar. He was humble, non-assuming and always had time for all of us. His leadership brought the Johore Bar to greater heights. Notwithstanding his busy practice he was a good servant of the Bar and gave his time and effort for the betterment of the Bar – and plus the occasional Elvis Presley song and groove as well. He not only led us, he also entertained us along the way. The late Dato’ JS Pillay and Mr Renga were senior members who had always been kind and generous to the Bar. They were there always whenever the Johore Bar needed any assistance – be it the benefit of their wisdom, presence and at times financially. The Johore Bar is grateful to them.

Sadly I do not have the benefit of knowing Chua Chen Cher, Chong Lung Fei and Mohd Hilmy personally. Nevertheless, from what I have heard, these were good members of the Bar who had gone too soon, too young and will be dearly missed. The Johore Bar is indeed proud to acknowledge these six members as one of our own. To the families of the departed members, the Johore Bar shares the pain of your loss and grief. Our words would perhaps be of little consolation as compared to your loss but you will leave here today with the pride that your loved ones not only lived a good life at the Bar but had also contributed to the betterment of the Bar and that they will forever be cherished by the Johore Bar. May their soul rest in peace. The Johore Bar supports the motion that the records of this proceedings to be kept and preserved in the archives of this Honourable court, and that a copy thereof be extended to the bereaved families respectively. Much obliged, Yang Arif-Yang Arif. R. Jayabalan Chairman, Johore Bar

Speech by the Honourable Justice Puan See Mee Chun, Judge of the High Court of Malaya, Johor Bahru Justice Mohd Ivan bin Hussein Judicial Commissioner, High Court Johor Bahru, Puan Thalha bte Bachok Senior Federal Counsel, representing the Honourable Attorney General, Mr Roger Chan Weng Keng, Secretary of the Malaysian Bar, Mr R Jayabalan, Chairman of Johore Bar, Mr Mariappan Nachimuthu, Mr Fadhil lhsan bin Mohamad Hassan, Puan Nurul Safwaty binti Salleh, Encik Hafez bin Zalkapli, Dato' Mohd Haaziq bin Abdullah and Mr K Mohan on behalf of the departed members of the Bar in whose memory the reference proceedings are held, 42

Family members of the late Mr Renganathan a/I Letchumanan, Mr Chua Chen Cher, Mr Chong Lung Fei, Mr Mohd Hilmy bin Samsudin, Dato' Joseph Singaram Pillay and Dato' Abdul Rahman bin Abdullah, Members of the Judicial and Legal Service, Members of the Johore Bar, Ladies and Gentleman. Today we from the Bench, Bar and the Attorney General Chambers have come together to pay tribute to the lives of the late Mr Renganathan a/l Letchumanan, Mr Chua Chen Cher, Mr Chong

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Lung Fei, Mr. Mohd Hilmy bin Samsudin, Dato' Joseph Singaram Pillay and Dato' Abdul Rahman bin Abdullah. I may not have the privilege of knowing any of the deceased personally but I have listened attentively to the speeches made by their friends and colleagues. Such warm and moving tributes were paid that one can feel the loss felt by them. All the deceased were held in high regard and affection and all were true legal professionals in every sense of the word. The late Mr Renga was a self made man who rose steadily and with determination through the ranks. He was also known for being a keen and talented sportsman, particularly as a footballer and athlete. We are thankful he chose to practice law instead of being a professional footballer. Mr Sean Chua and Mr Peter Chong passed away at a relatively young age. Both accomplished so much prior to their untimely demise. Who knows how much more they could have gone on to accomplish? They struck me as both having enjoyed life to the fullest while continuing to work hard. The late Mr Mohd Hilmy specialized in criminal law and was one who knew the selok belok. Despite his busy schedule he found time to share his knowledge and skills and was looked up to by many as not just a friend but an abang. The late Dato Joe was a kind, compassionate and generous person. I am indeed struck by his generosity in offering rent free premises to another member of the Bar. Such acts of kindness is indeed rare in this cut throat world. His firm was also on the legal panels of banks despite it being a sole proprietorship. This remarkable feat bears testimony to his hard work and the trust that clients had in him. The life of the late Dato Abd Rahman is indeed remarkable for his lifetime of service firstly in the Government and then in the Bar. He held various positions in the Johor Bar and was instrumental in 43

starting the 1st Games between the Law Society of Singapore and Johor Bar a tradition which has stood the test of time. I am fascinated by his interest in various and diverse matters such as orchids, classic cars and history. He was indeed a man for all seasons. Most fascinating was his love for music and that he was a big fan of Elvis Presley and Cliff Richard. Only those from a certain era would know who these singers are. Over and above all this was his passion for law as embodied in his legal firm Messrs Abd Rahman & Partners. To the family members, I offer my deepest condolence. Your loss is much more than what we can possibly feel or say. We have lost a beloved friend and/or colleague. You have lost a son, husband and father. Take pride in the assurance of a life well lived for the family and the legal profession. "Life is God's plan From Him we come, to Him we return But those we love forever remain In spirit they walk by our side Come dear family and friends Lets move on by celebrating their lives Lives so pure without fear or favour Lives absolutely committed to the cause of justice". "Those we hold most dear, never truly leave us. They live on in the kindness they showed, the comfort they shared and the love they brought into our lives." I hereby order that a copy of today's proceedings be kept in the Court archives and a copy be forwarded to the respective families. My deepest condolences. May their souls rest in peace. Puan See Mee Chun Judge High Court of Malaya Johor Bahru

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JOHORE BAR ACTIVITIES CHINESE NEW YEAR OPEN HOUSE

On 15th March 2018, the Johore Bar organized open house for members of the Johore Bar and pupils at Johor Bahru and Muar respectively to celebrate the Chinese New Year festival.

The long with for food.

Photos Before Food

WELCOMING HIGH-TEA IN HONOUR OF YA JUSTICE PUAN SEE MEE CHUN

On 12th April 2018, the Johore Bar Social Sub Committee organized a High-Tea at Amari Hotel, Johor Bahru to welcome Justice Puan See Mee Chun, Who had been posted to Johor Bahru on 1st January 2018. The event was attended by 101 members and with two Judicial Commissioners YA Tuan Mohd Ivan bin Hussien and YA Tuan Mat Ghani bin Abdullah. Happy to be in JB

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JOHORE BAR ACTIVITIES WORKSHOP ON CURRENT ISSUES AFFECTING CONVEYANCING PRACTICE

On 19h April 2018, the Continuing Professional Development sub committee organised a workshop on current issues affecting conveyancing practice presented by conveyancing veteran Mr. Andrew Wong. 60 participants attended the workshop.

JOHORE BAR INFORMAL HIGH-TEA AT MUAR

On 3rd May 2018, the Johore Bar Committee had an informal high-ten with the north Johor members and pupils at the Bei Boutique Hotel, Muar, Johor. The event was organised by the North Johor Affairs sub committee. A total of 30 persons attended the high-tea.

Smiles all round

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JOHORE BAR ACTIVITIES SEMINAR ON INTELLECTUAL PROPERTY (‘IP’) AND INTRODUCTION TO IP LITIGATION

On 31st May 2018, the Continuing Professional Developments sub committee organised a seminar on Intellectual Property (IP) and Introduction to IP Litigation presented by Ms. Ng Yueng May and Mr. Muhammad Azrul Abdul Hamid. A total of 70 persons attended the seminar.

SEMINAR ON DRAFTING CIVIL CAUSE PAPERS AND WRITTEN SUBMISSIONS

On 8th June 2018, the Yong Lawyers and Chambering Pupils sub committee organised a seminar on drafting civil cause paper and written submissions presented by Dato’ Varghese George, retired judge of Court of Appeal. A total of 166 persons attended the seminar.

Thanks for the tips Judge

SEMINAR ON LEVERAGING IT FOR LAW FIRMS On 11th June 2018, the Young Lawyers and Chambering Pupils sub committee organised a seminar on leveraging IT for law firms presented by Mr. Edwin Lee Yong Cieh and Mr. Foong Cheng Leong. A total of 41 persons attended the seminar.

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JOHORE BAR ACTIVITIES HARI RAYA AIDILFITRI OPEN HOUSE AT JOHOR BAHRU AND MUAR

On 27th & 28th June 2018, the Johore Bar hosted Hari Raya Aidilfitri open house at Johor Bahru Aidilfitri open house at Johor Bahru and Muar respectively for members of the Bar and pupils in chambers.

PROFESSIONAL STANDARDS COURSE On 24th & 25th July 2018, the Continuing Professional Development sub committee organised the Ethics and Professional Standards Course that was attended by 33 pupils. Senior members of the Bar exposed the pupils to various aspects of practice such as maintenance of client account, conduct with clients, courts and fellow lawyers, and the good values of practice at the Bar. The following day was the examination, and the course ended with a formal dinner with masters and members of the Bar at Thistle Hotel, Johor Bahru. The guest speaker at the dinner was Mr. K Sila Dass, who shared his experience at the Bar.

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JOHORE BAR ACTIVITIES TALK ON CUSTODY BATTLE: ANALYSING RECENT DEVELOPMENTS IN SHARIAH COURT

On 19th July 2018, the Shariah and Continuing Professional Development sub committees jointly organised a seminar on custody battle, presented by Puan Saâ&#x20AC;&#x2122;adiah Din. A total of 35 persons attended the seminar.

SEMINAR ON CONVEYANCING PRACTICE AND RECENT DEVELOPMENTS

On 26th July 2018, the North Johor Affairs sub committee organised a seminar on conveyancing practice and recent developments presented by Mr. Yang Pei Keng, held at Prime City Hotel, Kluang, Johor. A total of 45 persons attended the seminar.

SEMINAR ON PRESERVING THE INTEGRITY OF THE FINANCIAL SYSTEM: PREVENTION OF MONEY LAUNDERING & TERRORISM FINANCING, ROLE OF LAWYERS AS EFFECTIVE GATEKEEPERS

On 27th July 2018, the Continuing Professional Development sub committee organised a talk on preserving the integrity of the financial system presented by Bank Negara officer, Ms. Tee Suat Hong. A total of 40 persons aettended the seminar.

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JOHORE BAR ACTIVITIES CIVIL ADVOCACY COURSE

On 3rd & 4th August 2018, the Bar Council Advocacy Training Committee in collaboration with the Continuing Professional Development sub committee held the Civil Advocacy Course for members of the Johore Bar. The course was conducted at the criminal courts, Jalan Ayer Molek. A total of 22 members participated and the participants were divided into groups of six with two trainers per group. The trainers were Mr. Ooi Huey Miin, Mr. Shanmuga K, Pn. Shahareen Begum binti Abdul Subhan, and Mr. Brendan Navin Siva.

EXECUTIVE CERTIFICATE IN ISLAMIC FINANCE

On 6th & 7th August 2018, Bar Council Finance Committee jointly with the CPD sub-committee organised the seminar on executive certificate in Islamic finance presented by Prof. Dr Youness Soualhi and Mr. Ahmad Lutfi Abdull Mutalip. A total of 26 persons attended the seminar.

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JOHORE BAR ACTIVITIES WORKSHOP ON HANDLING INQUESTS On 11th August 2018, the Human Rights sub committee organised a workshop on handling inquests. The speakers were Mr. Visvanathan and Mr. Yohendra. A total of 42 persons attended the workshop.

TALK ON CONVENTIONAL BANKING vs ISLAMIC BANKING

On 15th August 2018, the Shariah and Continuing Professional Development sub committees jointly organised a seminar on conventional banking vs islamic banking, presented by Hj Zainal Abidin Sh Zakaria. A total of 70 persons attended the seminar. SEMINAR ON MARITIME LAW

On 17th August 2018, the Continuing Professional Development sub committee organised a seminar on maritime law, presented by Mr Clive Navin. A total of 47 persons attended the seminar. SEMINAR ON DRAFTING CIVIL CAUSE PAPERS AND WRITTEN SUBMISSIONS

On 20th September 2018, the North Johor Affairs sub committee organised a seminar on drafting civil cause papers and written submissions at PineTree Hotel, Batu Pahat J o h o r. T h e s e m i n a r w a s presented by Datoâ&#x20AC;&#x2122; Varghese George, former Court of Appeal Judge. A total of 50 persons attended the seminar. INFO JOHORE BAR - JANUARY 2019

JOHORE BAR ACTIVITIES 12TH JOHORE BAR FUTSAL TOURNAMENT

The 12th edition of the Bar annual futsal tournament was held on 18th August 2018 at Sports Prima Pandan with participation of 7 teams. The Challenge Trophy was won by the Veterans team. The event was concluded with prize giving ceremony and lunch.

HI-TEA @ KLUANG On 14th September 2018, the North Johor Affairs sub committee organised an informal hi-tea gathering with members and pupils at Barneyâ&#x20AC;&#x2122;s restaurant. The members enjoyed socialising in between the western meal.

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JOHORE BAR ACTIVITIES TALK ON LATEST DEVELOPMENTS IN LAW: ARBITRATION AND ADJUDICATION

On 21st September 2018, the Continuing Professional Development sub committee organised a seminar on Latest Developments In Law: Arbitration and Adjudication presented by Mr. Sudharsanan Thillainathan. A total of 24 persons attended the seminar.

YLC BAR-OUT

On 22nd to 23rd September, the Young Lawyers And Chambering Pupils sub committee organised the YLC Bar-out at Tanjung Balau, Johor. The event was to enhance camaraderie between members and sharing of legal experience 25 lawyers took part in the outing. SEMINAR ON THE BASICS OF COURT ADVOCACY On 28th September 2018, the Continuing Professional Development sub committee organised a seminar on the basics of court advocacy presented by Mr. Fahri Azzat. A total of 28 persons attended the seminar.

TALK ON PRACTICAL ASPECTS OF MEDICAL NEGLIGENCE LITIGATION

On 5th October 2018, the Continuing Professional Development sub committee organised the seminar on practical aspects of medical n e g l i g e n c e p r e s e n t e d b y M r. Manmohan S. Dhillon. A total of 57 persons attended the seminar. INFO JOHORE BAR - JANUARY 2019

JOHORE BAR ACTIVITIES JOHORE BAR vs MAHKAMAH GAMES 2018 (‘BBC GAMES’)

The Johore bar and Courts Games was held from 4th to 6th October 2018. The closing ceremony was held at MSC Cyberport, Johor Bahru on Saturday 6th October 2018. Nine games were played, namely bowling, futsal, volleyball, badminton, soccer, sepak takraw, carom, darts and futsal. The Games ended with draw with 4 points for each side. Both teams were declared joint winners.

SEMINAR ON WILLS, PROBATE, LA AND SMALL ESTATES On 11th October 2018, the Continuing Professional Development sub committee organised the seminar on will, probate, LA and small estates presented by four speakers namely Pn. Nahzatul Ain Binti M o h d K h a l i d , M r. S e l v a B a l a n Sinnan, Ms. Daphne Law Chah Yee, and Pn. Sarah Binti Kambali. A total of 103 persons attended the seminar. 53

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JOHORE BAR ACTIVITIES WORKSHOP ON RISK MANAGEMENT FOR STAFF On 18th October 2018, the Bar Council Professional Indemnity Insurance Committee jointly with Johore Bar organised the workshop on Risk Management For Staff at Abdullah A. Rahman Auditorium. The spekers were Mr. Richard Wee, Mr. Heron Khalid Goh, Mr. Mohamad Ezri Abdul Wahab and Ms. Shamine Parisamy. A total of 36 persons attended the workshop.

SEMINAR ON BILLING & COLLECTIONS

On 18th October 2018, the Bar Council Professional Indemnity Insurance Committee jointly with Johore Bar organised seminar on billing & collections, presented by Mr. Abdul Murad Che Chik and Mr. Lam Chong Seng. A total of 24 persons attended the seminar. INTRODUCTION TO DISMISSAL PROCEEDINGS AT THE INDUSTRIAL COURT

On 10th October 2018, the Young Lawyers And Chambering Pupils sub committee organised seminar on introduction to dismissal proceedings at the Industrial Court, presented by Mr. R. Jayabalan. A total of 29 persons attended the seminar.

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JOHORE BAR ACTIVITIES

SEMINAR ON DIVISION OF MATRIMONIAL ASSETS

On 1st November 2018, the Continuing Professional Development sub committee organised seminar on division of matrimonial assets, presented by Ms. Vicky Alahakone. A total of 97 pesons attended the seminar.

SEMINAR ON DEFAMATION – THINK BEFORE YOU SPEAK

On 15st November 2018, the Continuing Professional Development sub committee organised seminar on defamation, presented by Mr. John A. Skelchy. A total of 48 persons attended the seminar.

PUBLIC FORUM ON DOMESTIC VIOLENCE

On 10th December 2018 in conjunction with the World Human Right Day, the Human Right sub committee organised a public forum on domestic violence, The speakers were Pn. Nor Fadilah Binti Mohamed Nizar, President and Founder of JEIWA, Tn. Mohamad Ali Taib, Pengarah Jabatan Pembangunan Wanita Negeri Johor; and Ms. Melissa Mohd Akhir, Women’s Aid Organisation (WAO) The event was moderated by Ms. J Chandrika.

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JOHORE BAR ACTIVITIES 50 YEARS OF BENCH & BAR vs JOHOR POLICE GAMES 2018 (1968 â&#x20AC;&#x201C; 2018)

The 2018 Bench & Bar vs Johor Police Games in Conjunction with the 50th year of the Games was successfully held on the 16th-23rd November 2018. In total 9 games were played out namely cricket, futsal, table-tennis, pool, darts, volleyball, badminton, golf and soccer. The Games were jointly officiated by YA Tuan Mohd Ivan bin Hussien, Judicial Commissioner of Johor Bahru High Courd, and YDH Datuk Mohd Khalil Kader Mohd, Chief Police Officer of Johor, followed by a game of cricket at Johor Cricker Council, Mutiara Rini, Johor Bahru. The games ended with a closing ceremony and dinner at Johor Cultural & Sports Club (JCSC) on 23rd Nov 2018. The Bench & Bar team emerged as the overall winners this time - after a long dry run of almost 30 years as runners-up. It was the perfect way to celebrate the 50 years!

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PICTURES FROM THE GAMES AND CLOSING DINNER

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congratulations to the newly admitted members of the bar (johor) (as at time of publication) NO

NAME

FIRM

FARIDAH HANIM BINTI JAFFRI

LAU KOK GUAN LIANA & ASSOCIATES

DATE OF ADMISSION 11/06/2018

LIEW SHI LUN

S K SONG

11/06/2018

LIEW WAN YING

DAVID GURUPATHAM & KOAY

11/06/2018

LIM JYE KIE

S K SONG

11/06/2018

LIM JYE LIE

K V LIM & VOO

11/06/2018

MISHANY A/P YOGARAJAN

SYED ALWI, NG & CO

11/06/2018

NUR AZREEN BINTI JAMIL

NORIZAN TARMEZE & ASSOCIATES

11/06/2018

SYAFIQAH BINTI MD SHAFIE

OTHMAN HASHIM & CO

11/06/2018

ER TIAN FEI

WILLIAM CHUA KON & ASSOCIATES

28/06/2018

NAFISAH BINTI HAMZAH

CHYE KWEE YEOW & CO

28/06/2018

NG WEI YING

EUNICE DEREK & CO (KL)

28/06/2018

SITI NABILAH BINTI RAHMAN

LILY & CO

28/06/2018

TEE POH PENG

SIMON TONG & PARTNERS

28/06/2018

ADLI DINIE BIN BAHARUDIN

SYED ALWI, NG & CO

15/07/2018

KOH DIPENDRA JEREMIAH LAW (KL)

15/07/2018

AMARPREET SINGH A/L RAJWINDER SINGH MUSTAQIM BIN MOHD MARSIDI

MUHD ANUWAR & PARTNERS

15/07/2018

NURASHIDAH BINTI MD RAZIP

FAIZAH AISHAH RAHMAN & ASSOCIATES

15/07/2018

SHARMILA NAIR A/P SASIDHARAN

TERANG, MANJIT, AZMI & HARDIP SINGH

15/07/2018

ZAINUL RIJAL TALHA & AMIR

15/07/2018

SOPHIA AMIERA BINTI MUHAMMAD HAFIZ ANTONIO HANG LEE YING

DAUD & CO

29/07/2018

PUTERA AMIROOL FAEZ BIN SUHASI

ROSLI KAMARUDDIN & CO

29/07/2018

TAY QIAO DAN

SYED ALWI, NG & CO

29/07/2018

TOH BOON TIONG

JAL & LIM

29/07/2018

WONG WEI CHAO

LIM SOH & GOONTING

29/07/2018

AMANDA SONIA MATHEW

K SILA DASS & PARTNERS

09/08/2018

ILYA FATANAH BINTI SUHAIRI

OOI SAM HENG & ASSOCIATES

09/08/2018

KHAIRIYAH BINTI MOHD KAMAL

CHRIS LEE & PARTNERS

09/08/2018

NUR ZAIDAH BINTI MUHAMAD ZAILANI

09/08/2018

NURFARRAH AMIERA MOHD AZLAN

ANANDAN KRISHNAN, SAHRIHAN & PARTNERS LEE & FONG

ZUFAIDI & ASSOCIATES

09/08/2018

NURWAFA ATIKAH BINTI MOHAMAD BAHRI NURZARIFAH BINTI ABDUL TALIB

SAHRIHAN & HAMDAN

09/08/2018

RAJARAJESWARI A/P PARASERAMAN

K SILA DASS & PARTNERS

09/08/2018

TAN JING SEE

T K LIM & CO

09/08/2018

AMIZA BINTI ABD KAHAR

AZMI & ASSOCIATES

28/08/2018

AUDREY TEOH

SYED ALWI, NG & CO

28/08/2018

CHEAH YONG HUI

MAK, NG, SHAO & KEE

28/08/2018

LIM SEAY SEAN

TEH KIM TEH, SALINA & CO

28/08/2018

ROGER TAN & PARTNERS

28/08/2018

MUHAMMAD NUR SADIQIN BIN MOHD KHUSNI NG SIEW HOON

HALIM HONG & QUEK

28/08/2018

SHAMSIYAH BINTI AZLAN

CLARENCE EDWIN LAW OFFICES

28/08/2018

SULAIMAN BIN ZAMANI

MOHD IRWAN MOHD MUBARAK (KL)

28/08/2018

FARAH FARHANA BINTI HASSAN

ABDUL RAMAN SAAD & ASSOCIATES

10/09/2018

INFO JOHORE BAR - JANNUARY 2019

09/08/2018

43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89

IZZATI BINTI ISMAIL NOR ZANA NATASHA BINTI ZAINI NUR AFRINA HANNANI BINTI MOHAMAD ALIM SAVEENA LOSHINI A/P PRABAKARAN SHALINE A/P RAJAN TAN CHOR HAN AKMAMI BINTI ABDULLAH AKHILI EDELYNN WONG FARAH IZZATI BINTI AHMAD AZAM MUHAMMAD ARIFF BIN MOHD ADNAN SAI SWEE KEE WAN MOHD AMEERUL NAZHIF WAN ZULFIKRI MIMIE ASMIEDAH BINTI AZMI MOHD DANISH BIN SHAHRIR NURSYAMIM FATEHA BINTI MOHD AMIN S. THINARECHAKA A/L SELVAM SYUFRI BIN A SAMAD CHONG FOOK ONN LAW QUANWEI NATASYA BINTI AZMI NURATIKAH BINTI DARWESH DIYANAH HUSNA BINTI KAMARUDIN NUR HANIS BINTI ROSLI NURSHAHIRA BINTI RAMLI SHEREENA KAUR GILL SIM YEN TAN SZE LEE UMMI AMYRA NATASHA BINTI AZHAR WONG HSIN HYI AHMAD SYAKIR BIN MD MANSOR KATHLEEN DANG LIM YI TIAN MUHAMMAD IZWAN AZIZI BIN MD SAID NUR AISHAH BINTI YACOB SUREKKA A/P SREEDHARAN WONG JIUN KAI ZAHIDAH BINTI ZULKAPLI PRAKASH BABU A/L BALAKRISHNAN AMEERA IRIANEY BINTI JAFFRY NUR SYAKIRAH BINTI ABD MUSA LIM ZI YI RAJAGUNASEELAN A/L PADMANABAN TEO YAN JIE TOK JUN WEE WONG YI NING MUHAMAD TAUFIK BIN SABERI NOR AZEAN BINTI MOHD SOHAINI

GAN & ZUL HAZELIN & ASSOCIATES NORZITA & JULIA

10/09/2018 10/09/2018 10/09/2018

ZAID IBRAHIM & CO RODZIAH & COMPANY LEE HISHAMMUDDIN ALLEN & GLEDHILL RAZIYAN RAHIM & ASSOCIATES MANJIT SINGH SACHDEV, MOHAMMAD RADZI & PARTNERS NAZRI AZMI ISLINDA (KL) OTHMAN HASHIM & CO SYED ALWI, NG & CO EDHAM & PARTNERS

10/09/2018 10/09/2018 10/09/2018 25/09/2018 25/09/2018

OTHMAN HASHIM & CO ZAID IBRAHIM & CO OTHMAN HASHIM & CO

26/09/2018 26/09/2018 26/09/2018

G K SRITHARAN & CO ZAHAR & PARTNERS SIMON TONG & PARTNERS K H TAN & CO VEIZAY & COMPANY FARID AZIZ & CO AKMAL SAUFI & CO ABDUL RAHMAN & PARTNERS OTHMAN HASHIM & CO ZAID IBRAHIM & CO ZAID IBRAHIM & CO SYED ALWI, NG & CO ZAID IBRAHIM & CO TEA, KELVIN KANG & CO ABDUL RAMAN SAAD & ASSOCIATES SYED ALWI, NG & CO ABDUL RAHMAN & PARTNERS OMAR ISMAIL HAZMAN & CO LAW ASSOCIATES ALBERT DING, LEE & PARTNERS S K SONG NORIZAN TARMEZE & ASSOCIATES RAHIM & LAWRNEE GAN & ZUL ZUFAIDI & ASSOCIATES CHIONG & PARTNERS S K SONG LEE & TENGKU AZRINA LAU KOK GUAN LIANA & ASSOCIATES CHIONG & PARTNERS ROSNI, FRANCISTAN & HO (PAHANG) MIOR RAIMY FUAAD & AQIS (PERAK)

26/09/2018 26/09/2018 04/10/2018 04/10/2018 04/10/2018 04/10/2018 28/10/2018 28/10/2018 28/10/2018 28/10/2018 28/10/2018 28/10/2018 28/10/2018 28/10/2018 21/11/2018 21/11/2018 21/11/2018 21/11/2018 21/11/2018 21/11/2018 21/11/2018 21/11/2018 15/11/2018 29/11/2018 29/11/2018 02/12/2018 02/12/2018 02/12/2018 02/12/2018 02/12/2018 09/12/2018 09/12/2018

INFO JOHORE BAR - JANUARY 2019

25/09/2018 25/09/2018 25/09/2018 25/09/2018

JOHORE BAR STATISTICS AS AT 31st DECEMBER 2018 Towns (1) Johor Bahru (2) Batu Pahat (3) Muar (4) Kluang (5) Kulai (6) Masai (7) Segamat (8) Kota Tinggi (9) Pontian (10) Yong Peng (11) Tangkak (12) Pasir Gudang (13) Mersing (14) Ulu Tiram (15) Gelang Patah (16) Simpang Renggam (17) Pekan Nanas (18) Labis In the State of Johor

LAW FIRMS 31.12.2018 Increase/Decrease 451 -7 72 0 68 -2 51 1 23 1 20 2 19 0 19 0 14 0 6 0 6 0 6 0 3 0 3 0 3 -1 2 0 1 0 1 0 768 -6

LAWYERS 31.12.2018 Increase/Decrease 1569 67 147 0 139 -6 101 10 43 -1 34 3 39 1 28 5 20 1 6 0 10 1 10 0 5 0 3 0 8 -1 3 0 1 0 1 0 2167 80

Total Membership As at 31st December 2018, the total membership of the Johore Bar is 2167. There has been an increase of 80 members since the last statistics ( on 30th April 2018). The total membership of the Johore Bar constitutes 11% approx. of that of the Malaysian Bar.

Lawyers in Johor Bahru There are 1569 members practising in the city of Johot Bahru. They account for 72% of the total membership in the State of Johor (i.e.1569/2167 members).

Law Firms in Johor Bahru The total number of law firms in the State of Johor is 768. There has been a decrease of 6 law firms since April 2018. The number of law firms in Johor Bahru has decreased (from 458 to 451). They constitute 58% approx. (i.e. 451/768) of the law firms in the State of Johor. Number of law firms in the State of Johor

Number of lawyers in the State of Johor

INFO JOHORE BAR - JANUARY 2019