INFO Johore Bar - July 2018

 Rule of Law – A New Dawn in -4 The Malaysian Spring ~ R. Jayabalan, Fadhil Ihsan,

Aimi Syarizad  The New Attorney General of Malaysia

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 National Land Code - 10 (Amendment) Act 2016 ~ Yang Pei Keng  Insolvency Act 2017 ~ Yang Pei Keng

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 Tenderfoot ~ Sri Divi Gunapati

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 The Big Bad Bank - 17 ~ Allen Yu  Law Notes ~ Yang Pei Keng

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 Affirming the Judiciary’s Independence ~ G S Nijar

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 Judgments Glorious Judgments - 24 ~ S. Balarajah

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 Group Law Practice ~ R. Jayabalan

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 Johore Bar Activities

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 In Memoriam

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 New Admissions to the Bar

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Chairman’s Message

From the Editor’s Desk

Fellow members of the Johore Bar, I congratulate Mr. Roger Lo, En. Fadhil and the Publications and IT Sub-Committee for their hardwork and effort in delivering the first issue of INFO Johore Bar for this term. It is indeed not an easy task but the Publications and IT Sub-Committee was up for it and R Jayabalan they have done it. I look forward to the pleasure of reading this issue and the next two issues that the Committee has targeted for this term.

Roger Lo

The nation is in euphoric mood after the election on the 9th of May 2018.

Many of us are still recounting the election day excitement, the late night drama when the results unfolded and the tense that followed prior to the swearing-in of the new Prime Minister on the next day.

Dear Members and Friends at law,

Whilst each of us would have our own personal reasons for rejoice and to look forward to in the coming days under the new administration; collectively as the Bar, we look forward to the return of rule of law in the governance of the country. The new government has given a firm commitment to the rule of law soon upon their election victory and has re-affirmed that commitment many times since. It is time that they walk the talk and we shall see. Most importantly we look forward to the repeal of many legislations brought under the previous government that paid scant regard to the rule of law and cavalierly trampled upon our personal freedom and fundamental liberties that are guaranteed under the Federal Constitution. We also look forward to the key institutional reforms that was promised by the new government and which has begun to take shape. We also look forward to the new government’s swift actions to address and resolve many controversies and scandals that blighted the good name of the country and dogged the nation. It is safe to say that we are indeed living in exciting times at the moment.

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.

The Johore Bar Committee has lined up many programs and activities for this term for the benefit of our members. The Committee is thankful for the support given by the members. With the good support we hope to further improve on our programs and to reach out to more members especially those from the smaller towns.

The Committee has also been dealing with the issues and concerns brought to our attention by members as best as we can. Amongst others the Committee had a meeting with the top police officers in the state to discuss issues faced by members when dealing with the police and police witnesses in handling accident cases. The Committee also had a meeting with the Industrial Court to discuss issues pertaining to Industrial Court practice in Johor Bahru. Apart from this regular meetings were also held with the civil and criminal courts to discuss issues involving the courts and judicial officers. Members had been kept informed of the progress on the issues and steps taken to address the same. There are other issues concerning conveyancing matters and the land office and these are being attended to as well and members will be informed accordingly.

We look forward to continue to serve the members. We also look forward to new ideas and suggestions from members in carrying out our responsibilities.

Thank you.

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

R. JAYABALAN CHAIRMAN, JOHORE BAR COMMITTEE 2

It is with great pleasure that I present to you the first edition of the INFO Johore Bar for this term.

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INFO A

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JOHORE B A R

Johore

JOHORE BAR COMMITTEE 2018/2019 Chairman R. jayabalan Committee Members Lim Eng Siang Shahareen Begum Binti Abdul Subhan K. mohan Santhi a/p Balachandran Punitha 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. Zainuddin (CO-OPTED) Fadhil Ihsan bin mohamad Hassan (co-opted)

Bar

INFO JOHORE BAR welcomes articles, views and news (including photographs) be they legal non legal or extra-legal. The views of the writers of articles etc are not reflective of the views of the Bar Committee neither does the Bar endorse or adopt their views.

However, the Johore Bar Committee reserves the right not to publish or to edit those published for content, clarity, style and space considerations. Contributions and enquiries may be directed to secretariat@johorebar.org.my www.johorebar.org.my www.info.johorebar.org.my

Representative to the Bar Council S. gunasegaran Hon. Secretary Anis Syarizad binti Datuk Hj. Kuthubul Zaman

Editorial Committee 2018/19 Info Johore Bar

JOHORE BAR COMMITTEE 2018/19 Sitting (Left to Right): Shahareen Begum Abdul Subhan, E S Lim, R. Jayabalan (Chairman), S. Gunasegaran (Bar Rep), K. Mohan, Roger Lo Standing (Left to Right): Allen Loh, Danny Loo, Aimi Syarizad, Santhi Balachandran, Punitha Mariappan, Khairul Asri Members not pictured: Anis Syarizad (Hon Sec), Hajah Norfaizah Zainuddin, Fadhil Ihsan INFO JOHORE BAR - JUNE 2018

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RULE OF LAW – A NEW DAWN IN THE MALAYSIAN SPRING R. Jayabalan Fadhil Ihsan Aimi Syarizad The Malaysian Spring The announcement by the Election Commission of Malaysia (“EC”) of the date of the 14th Malaysian General Election; 9th May 2018 (“May 9th”), a Wednesday was understandably met with much furore – and fury. Little was realised then, what a historic day May 9th would become!

The first midweek polling since the formation of Malaysia, many Malaysians saw the choice as the then beleaguered incumbent Prime Minister Dato’ Seri Najib Razak’s desperate attempt at clinging on to power by ensuring a low voter turnout. The desperation was echoed by the then incumbent Deputy Prime Minister Dato’ Seri Zahid Hamidi who publicly announced that the “best thing to do” for the many Malaysians working in Singapore was not to return to vote if they could not get leave. In retaliation and despite all the obstacles, over 12 million Malaysians came out decidedly that historic day to save the country through the act of voting; the very heart of democracy.

While hope springs eternal, many jaded Malaysians voted without the conviction that their one vote would have made a difference. The last two elections in 2008 and 2013 proved that the Barisan Nasional (“BN”) coalition’s system of patronage and ‘money politics’ in addition to systematic gerrymandering and malapportionment have ensured their victory at the polls.

Regardless, on May 9th, Malaysians were determined to take charge of the country and triggered a peaceful revolution via the ballot box. The over 60-year monopoly rule by the BN coalition was brought to end and for the first time since independence, Malaysia saw a change of regime. The fledgling Pakatan Harapan (“PH”) coalition led by the stalwart Tun Dr. Mahathir Mohamad had gained the necessary seats to take over Putrajaya in a stunning and shocking victory. Closer to home, Johor, long regarded as BN’s ‘Fixed Deposit’ State delivered 18 out of 26 Parliamentary States and 36 out of 56 State Seats to PH and as such, denying BN the rule of the state for the first time ever.

In many ways PH’s victory was seen as a 2nd Merdeka for Malaysia. Malaysians woke up on May 10th to greetings of Malaysia Baru, and a sense of accomplishment with an astounding disbelief over what had just happened. The nation resoundingly 4

rejected the regime that manipulated and corrupted the institutions of the nation, plundered the resources of the country for their own benefit, and trampled upon the people’s rights and liberties. Instead, with renewed hope, Malaysians entrusted PH with the mandate to run the Government for the next five years.

Assured by the PH manifesto, Buku Harapan which aptly referred to the Proclamation of Independence first read out by the first Prime Minister, Tunku Abdul Rahman; that the nation ‘be forever a sovereign democratic and independent State founded upon the principles of liberty and justice and ever seeking the welfare and happiness of its people and the maintenance of a just peace among all nations’, Malaysians are basking in a new found freedom and optimism that the Malaysia that could have been, can now, eventually be.

In that same manifesto, PH promised to ‘return the rule of law by ensuring the independence and integrity of important government agencies’. At his first press conference in the early hours of May 10th, now the world’s oldest elected leader, Tun Dr. Mahathir Mohamad affirmed the new government’s commitment to the rule of law; “What we want to do is restore the rule of law”. After years under the BN regime that unashamedly and arrogantly disregarded the fundamentals of Rule of law, this affirmation was welcomed with the fullest of hope.

The Rule of Law – A New Dawn The fundamental feature of the Rule of law, according to British jurist Albert Dicey, necessitates that no person is above the law and that all is equal before the law. Hence, laws to be enacted must be true to its word and without ambiguity. Such laws must protect individual rights and liberties and not be oppressive as to deprive those liberties without cause. Of course, as with all laws, fair and just enforcement must also take place and a forum be made to remedy and give recourse to those aggrieved.

Malaysia does, to a certain extent, have the mechanism set for the proper enforcement and safeguards of the rule of law. Our founding fathers had the foresight to place the Federal Constitution as supreme law of the Federation and our legal system has been structured to provide adequate reliefs and remedies to its people. Our courts are mindful of this as well.

Recently the Federal Court in Government of Malaysia

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v Mat Shuhaimi [2018] 2 MLJ 133 quoted the House of Lords, reminding that“The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve.”

Since Merdeka, our Courts, to a certain extent, have been consistent with upholding the supremacy of the Constitution, invalidating laws which are ultra vires the Constitution. However, many a times our Courts have also embarked onto various rules of interpretation such as “harmonious construction” to deem some laws inconsistent with the Constitution and the rule of law as “good law”.

In the many years of BN rule and more so in the past few years, the Rule of Law had fallen between the cracks.

This was most obvious in the exoneration of persons involved in the alleged 1MDB scandal. Not only has this placed the office of the then Attorney General into disrepute, there was also perception that people in power were immune and the laws of the country did not apply to them – they were simply above the law!

Malaysians called for justice to be done, and to be seen to be done. Alas they were not heard.

The sheer arrogance and assuredness of the regime in the preceding years saw the enactment of various laws and amendments that paid no heed to the rule of law and ran roughshod over civil liberties and freedom. Amongst them, the Security Offences (Special Measures) Act 2012 (“SOSMA”), Prevention of Terrorism Act 2015 (“POTA”), Prevention of Crime Act 1959 (“POCA”) and Anti-Fake News Act 2018.

The arrest and charging of critics, activists, journalists and lawyers alike all pointed to a disproportional enforcement of laws. Rule of law was swiftly overtaken by selective prosecution – and persecution. This is where the new government’s affirmation to the rule of law is most reassuring. Restoration of the rule of law is long overdue and must take place immediately, where laws are applied to all, without fear or favour, in all levels of society. A good start by the new government, would be to ensure that the investigation into the former Prime Minister takes place transparently and fairly.

Restoration of rule of law is long overdue. Measures must be taken fast before we become an outcast in the realm of rule of law. Our current standing internationally is disturbing. The World Justice Project, an independent organization which monitors and measures governance and compliance to Rule of law, lists Malaysia at number 53 in the world ranks.

The restoration of rule of law, as it stands, will require laws to be fair and necessitate the fair and transparent enforcement of such laws. This would ensure that everyone is equal before the law. Amendments to draconian laws need to be made to limit powers of government and to build clear separation of powers so as to not have history repeat itself. Where amendments are insufficient to cure legislations that restrict personal liberties and trample the rule of law, the PH Government must act swiftly to repeal such legislations.

Legislations With Ouster Clauses A myriad of legislations have incorporated ouster clauses to restrict or oust completely the powers of the courts from scrutinizing decisions of the administrative bodies or ministers empowered under the respective Acts. Amongst others; the Immigration Act 1959, Prevention of Terrorism Act 2015, Land Acquisition Act 1960, Housing Development (Control and Licensing) Act 1966, Printing Presses and Publication Act 1984, Societies Act 1966 and Industrial Relations Act1967.

The decision of the administrative bodies or ministers under these legislations is final and immune from judicial scrutiny.

Whilst the validity of the ouster clauses in many cases have been subjected to legal challenge, in most instances, our courts have regrettably tied themselves down, toed the line and refused to strike down such clauses for being in breach of the doctrine of separation of powers and inherent powers of the courts under the Constitution, thus meekly subjugating themselves to the might of the Executive. Over the years, whilst a few judges with courage have nullified and struck out such clauses – the most outstanding of which were the judges of the Federal Court in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah & Anor [2017] 5 CLJ 526 – such decisions nevertheless were in the exceptions and not as of general rule.

Ouster clauses emasculate the Judiciary and hands supremacy to the Executive whilst Parliament is made to become a mere stamping tool of the Executive. The Constitutional framework of separation of powers and check and balance between the three branches of powers– which forms the pith and substance of our Constitution - has been rendered meaningless and a mere formality. The reign of Executive supremacy took over and rule of law was discarded to the fringes of powers.

This must stop now. The new government with its commitment to the rule of law must walk the talk and remove ouster clauses from the statute books as soon as possible.

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Anti-Fake News Act 2018 This ingenious piece of legislation was amongst the arms conceived by the previous government to shut down criticisms on national issues, stultify freedom of expression and to pull the carpet over any attempts for public discussions on the excesses and deviations under their administration. Malaysia became one of the first in the world to enact the anti-fake news law. The need for this law was strongly questioned by the general public and civil society as there were already laws in place to deal with “fake news” and its repercussions; chiefly the criminal defamation laws under the Penal Code, Sedition Act 1948 and the civil law recourse under the tort of defamation.

The Act itself is ambivalent and dubious. “Fake news” is not clearly defined and couched so widely that any form of communication that is spoken, written, drawn, audio and visual or “in any other form” could amount to “fake news”. There is no mention as to who has the authority or competency to decide whether a news is “fake” or otherwise. There is no stipulation as to how the crime is to be proven in court. The inevitable conclusion is that it is “fake news” if the government says so. The target of this law is social media – the last estate outside the clutch of the Executive. This law is abhorrent to the spirit of freedom of speech and expression under the Constitution and must be repealed immediately.

Sedition Act 1948 The proponents of this Act often refer to it as a necessary force to protect the peace, harmony and tolerance amongst the races. Ironically however, the Act was conceived for a very different purpose. The precursor of this Act, the Sedition Enactment 1948 was enacted by the British colonialists to clamp down anti-government elements. The Executive in the new Malaya instead of removing this law, saw its utility in the preservation of their powers and kept it in the statute books.

Over the years the Act was strengthened and became a political tool to quash dissent and discourse on public issues – not to mention the numerous arrests and locking up of opposition figures and activists.

Democratic discourse and intellectual debates on national or “sensitive” issues were kept off limits by the long arms of “seditious tendency” and in the process preserved the Executive’s grip on power.

The unshackled notion of “seditious tendency” and the powers given to the Executive to effectively have a final say on what amounts to sedition is an affront to rule of law. There are already in place other existing laws that 6

are more “equitable” such as under the Penal Code to deal with preservation of peace and race relations. The Sedition Act must be put to rest. Alternatively if there is indeed a need for the Act – which is questionable - then improvements ought to be made to ensure adherence to rule of law.

Communications and Multimedia Act 1998 This Act established the Malaysian Communications and Multimedia Commission (“MCMC”) as an authority with wide arbitrary powers - yet little accountability. Sec. 233 and 263 of the Act allows MCMC to act unilaterally and arbitrarily to muzzle dissenting views and shut down freedom of expression, right to information and democratic discourse on the internet and social media – the internet police. Sec. 233 carries the broad yet vague notion of “improper use of network facilities” and was abused to great effect by the previous government to control and shut down social media that was deemed as a threat to the government and its prime leader. Sec. 263 allows the Minister to bar public access to internet sites and was constantly abused to stop access to sites that advocated democratic governance, transparency and accountability - on the flimsy reasons of causing “public confusion”. The citizens’ right to information and freedom of expression under the Constitution was curtailed and stunted. Due process and rule of law in the management of internet and social media was cast aside and became illusory as far as the MCMC and its robust minister was concerned. The new government must repeal and remove sec. 233 and 263 to preserve rule of law in the government’s actions in relation to internet and social media.

The offence of “activity detrimental to parliamentary democracy” Section 124B of the Penal Code is another ingenious legal weapon conceived by the previous government to shut down dissenting views in a desperate attempt to cling on to power. This section created the offence of activity detrimental to parliamentary democracy without clear demarcation of what those offences really are - or not.

It was simply defined as an activity designed to throw or undermine parliamentary democracy by violent or unconstitutional means. As a result, even peaceful activities that propagated the democratic notions of accountability of government, accountability of leaders and transparency in governance were interpreted to be detrimental to parliamentary democracy and the individuals behind such activities were arrested and prosecuted.

INFO JOHORE BAR - JUNE 2018

“Activity detrimental to parliamentary democracy” became the means for sheltering the government and its prime leader from being subjected to scrutiny or called to answer for their transgressions. One such instances was individuals being arrested and charged for lodging police reports overseas on alleged siphoning of 1MDB funds under this so-called offence.

This dubious but politically convenient offence that violates all democratic principles must be removed to restore rule of law.

Security Offences (Special Measures) Act 2012 (“SOSMA”) SOSMA is a procedural law that replaces the Criminal Procedure Code in security offences. SOSMA gives arbitrary powers to the police and the prosecution that at worst, removed all notions of fair trial for the accused, or at best, rendered the notion of fair trial as illusory.

The introduction of the Act was controversial from the start. At the Bills stage the government sold the Act as a necessary weapon to fight terrorism. And yet the definition of “security offences” went far beyond the threat of terrorism, thus lending itself to abuse.

Various provisions of SOSMA such as detention without trial for long periods, non-availability of bail in certain instances, interception of communications and usage of electronic monitoring devices on individuals are some of the draconian measures available under the Act for the police and prosecution without much of a resistance from the Courts on grounds of due process, rule of law and personal liberty. SOSMA gravely undermines the idea of rule of law, right to fair trial, and the principles of equality of protection and personal liberties under the Constitution – and hence must be excised.

Prevention of Terrorism Act 2015 (“POTA”) POTA was the previous government’s backdoor attempt to bring back to life the draconian measures of the repealed Internal Security Act 1960, Emergency (Public Order and Prevention of Crime) Ordinance 1969 and Restricted Residence Act 1933. The government had initially, on a wave of popularity-seeking effort, repealed the three archaic legislations but later brought back the provisions under the veil of the new POTA. POTA discarded the notions of fundamental liberties and right to fair trial under the Constitution. Amongst others; POTA allowed for initial detention without trial for up to 60 days, two-year detention without trial with potentially unlimited extensions, limited provisions for judicial scrutiny and strictly controlled the right of the detainee to be heard and the right to legal representation.

The Court’s judicial powers were further clipped to the extent that the Courts became rubber-stamping tools

for the police and the prosecution. The need for this Act is questionable and doubtful as there are already sufficient anti-terrorism provisions in the Penal Code which if necessary can be further improved without the need for POTA. A quick and precise repeal of POTA is hence necessary.

Prevention of Crime Act 1959 (“POCA”) POCA was originally enacted to control criminals, secret societies, terrorists and undesirable persons.

POCA underwent major amendments in 2014 wherein its scope was comprehensively expanded and again in 2017, that turned the Act completely repugnant to the rule of law, liberty and natural justice.

POCA provided for detention without trial, reversed the presumption of innocence, restricted the right to legal representation and rendered illusory the recourse to judicial scrutiny. The requirement for due process and “check and balance” by the court was trampled with.

The creation of the Prevention of Crime Board with powers that made the Board as author and master of its procedure and process completed the onslaught on rule of law. POCA has no place in a society that espouses rule of law. There are other security legislations including the Penal Code that can, where needed, be strengthened to deal with prevention of crime without sacrificing rule of law, natural justice and fundamental liberties – hence POCA must be repealed.

A Spring of Hope The over 60 years of BN rule, saw the clear erosion of rule of law. In their efforts to maintain their grip on power and ensure the invincibility of the Prime Minister of the day, the previous regime maintained and even enacted legislation with the sole purpose to muzzle dissentions and any perceived threats. The list above, while worrying in itself, is merely a tip of the iceberg where such legislation is concerned.

The outcome of the election on May 9th was a declaration of the will and intent of the people that these transgressions must come to a stop and rule of law must be brought back to life. The new government has taken notice and has promised to bring back the rule of law in its governance, the very moment it came into power and has since, repeatedly affirmed its commitment to the rule of law.

Now, the time has come for the new government to walk the talk. The abovementioned abhorrent laws and its ilk must be excised and the position of rule of law as protector of fundamental liberties under the Constitution must be restored as soon as possible so that the events of May 9th will truly be what it was perceived to be – the birth of a new Malaysia.

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WORLD JUSTICE PROJECT: RULE OF LAW INDEX 2017 – 2018

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JOHORE BAR CONGRATULATES THE NEW ATTORNEY GENERAL OF MALAYSIA

Tommy Thomas On 5.6.2018 Tommy Thomas, a very senior member of the Bar was appointed by the Yang Dipertuan Agong as the new Attorney General of Malaysia.

This appointment is a moment of pride and joy for the Bar as Tommy Thomas is the first practising member of the Malaysian Bar to be appointed directly from the Bar to be the Attorney General. It is a historical moment for the Malaysian Bar and the country.

Tommy Thomas was born in Kuala Lumpur in 1952 and received his early education at Victoria Institution. He read law at the University of Manchester, graduating in 1972, and became a barrister at Middle Temple in 1974. He also studied International Relations at the London School of Economics and secured a Masters degree in 1975.

Tommy Thomas was admitted as advocate and solicitor of the High Court of Malaya on 3.6.1976 and began his legal career at Messrs Skrine & Co. He rose to become a partner in 1982. In 2000, he established his own law firm, engaging exclusively in litigation matters.

Tommy Thomas specialized in administrative law and judicial review, intellectual property, arbitration, land, banking and finance, constitutional law, company law, securities law, insolvency and wills.

Tommy Thomas also served in the Bar Council from 1984 to 1988, and from 1993 to 2001. He was elected as the Secretary of the Malaysian Bar from 1995 to 1997. He was also a member of the Bar (Disciplinary Proceedings) Review Committee under the chairmanship of Tun Hussein Onn. Tommy Thomas has also published two books titled “Anything But the Law: Essays on Politics and

Economics” and “Abuse of Power: Selected Works on the Law and Constitution”.

Tommy Thomas has appeared as counsel in many landmark cases at all levels of the courts of Malaysia and also before the Privy Council in London. He has had more than 120 reported cases and countless unreported cases. He has been singled out as one of Malaysia’s leading litigation lawyers by numerous independent international publications, including The Asia Pacific Legal 500, Which Lawyer, Who’s Who Legal (The International Who’s Who of Business Lawyers), Commercial Litigation Lawyers of Asia, and Chambers Asia.

Tommy Thomas more than 40 years of legal experience with reputation of competence and integrity makes him eminently suitable for the role of Attorney General. His appointment is also recognition of the valuable contribution and the role that the Bar could provide, if and when given the opportunity, to the administration and good governance of the nation.

The Johore Bar congratulates Tommy Thomas on his appointment and is confident that with the benefit of his counsel as the government’s principal legal advisor the rule of law and cause of justice will prevail without fear or favour and the governance of the nation and its key institutions will adhere to the letter and spirit of the Federal Constitution.

The Johore Bar is also confident that under his leadership the Attorney General’s Chambers will gain public trust and confidence that the Chambers truly deserves.

The Johore Bar also pledge full support and cooperation to the new Attorney General and his Chambers, if and when required, in carrying out his challenging responsibilities in the interest of the nation and the rakyat.

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NATIONAL LAND CODE (AMENDMENT) ACT 2016

By Yang Pei Keng 10 April 2018

The National Land Code (Amendment) Act 2016 [Amending Act 2016] came into force on 1 January 2017. Some important amendments have been made to the National Land Code 1976 [NLC].

The salient points of the Amending Act 2016 relate to the following: 1. Foreigners and Industrial Land 2. Surrender and re-alienation of freehold land 3. Hefty increase in fines and penalties The provisions relating to the industrial land have been radically amended. Fines or penalties for offences committed under the NLC have been increased manifold. There is a new provision on substituted service. A study must be made on the saving clause.

1. Industrial land – acquisition by foreigners needs approval: s433B amended Before the amendments, foreigners could acquire industrial land freely. There was no necessity to apply for the approval of the State Authority: s433A, (aa).

In other words, a foreigner could buy any industrial land freely without any restriction. The State Authority or Pengarah Tanah dan Galian (PTG) could not legally impose any condition requiring foreigners to apply for approval for acquiring industrial land in this country.

The provision of the NLC allowing foreigners to acquire any industrial land freely is now deleted.

With effect from 1 January 2017, foreigners cannot acquire or buy any industrial land without obtaining the prior approval of the State Authority. The State 10

approval is a must. This is certainly a complete departure from the previous practice. s433B [relating to the acquisition of “industrial land” by foreigners] appears to be the most important section in the NLC amended by the 2016 Amending Act. The previous Companies Act 1965 has been replaced by the new Companies Act 2016 in the relevant provisions of the NLC: s433A. Industrial land and PTG Guidelines Though before 1 January 2017, there was no restriction on foreigners acquiring “industrial land”, the Johor PTG had on several occasions issued Guidelines requiring foreigners to apply for approval from the relevant authority. These Guidelines were in fact inconsistent with the relevant provisions of the NLC existing at the time.

Such Guidelines were ultra vires the National Land Code. The NLC is a Federal legislation passed by Parliament. Any Guidelines introduced by the Land Registry or any other departments can never prevail over a piece of Federal legislation.

There are always restrictions on the acquisition of other categories of land, e g building land. Approval of the relevant State Authority is always required.

With effect from 1 January 2017, industry land is subject to the same restrictions. Every foreigner must now apply for approval before acquiring any category of land in Malaysia, whether it is agricultural, building or industrial land: s.77, Amending Act 2016. The end result is that foreigners must now apply for approval of the State Authority to acquire any type of land, whether agricultural, building or industrial land.

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2. Surrender and re-alienation of freehold titles : new s.204(3A) The next issue concerns freehold land. Freehold titles are known as titles in perpetuity in our land law. A new s204(3A) relating to the surrender and re-alienation of freehold land has been inserted in the NLC. It replaces the proviso to s204(3). The said proviso is thereby deleted.

Under the new s204(3A), if a person who has a freehold title, surrenders it to the State Authority for re-alienation (say, for sub-division of the land), the individual titles issued subsequently for the subdivided lots, in place of the original freehold master title, must also be granted in perpetuity.

That is to say, the individual subdivided lots must also be issued with freehold titles. The Land Registry cannot issue leasehold titles in place of the freehold master title. Leasehold titles are known as terms of years in our NLC. Exception to the rule There is, however, one unusual exception. If the proprietor of a freehold title on his own volition applies for leasehold titles (instead of freehold titles) after subdivision or partition, he may do so.

But such unusual arrangement seems to be very unlikely, simply because freehold titles are more valuable than leasehold titles.

For examples, most banks are more willing to grant loans or other credit facilities for freehold land, but not leasehold land. Invariably, they will only grant a lesser amount of any loan on the security of leasehold property.

Proprietors may accept Leasehold titles after realienation As mentioned above, it is very unlikely for a proprietor of a freehold title to apply for subdivided leasehold titles in place of his freehold master title, unless there are exceptional circumstances that prompted him to do so.

There was, for example, an unusual case in the State of Johore that occurred many years ago. A proprietor of a freehold master title applied for leasehold titles for subdivided lots after surrender and re-alienation.

It involved a housing project. A large piece of land was held under a freehold title [the master title]. It was surrendered to the Land Registry for conversion of the category of land use from agricultural land to building land; and an application was made for subdivision of the land.

With a view to expediting the approval of the subdivision of the land, the proprietor, appeared to have been ill advised, accepted individual leasehold titles for the subdivided lots of the freehold land. He had the intention to develop the large tract of land into a housing project.

Is the introduction of the proviso to s204(3A) [i.e. to accept leasehold titles for freehold land in ignorance of the law] designed to cover such unusual scenario?

Is it to serve the purpose of exonerating the relevant authority from any liability which might arise therefrom?

3.

OTHER AMENDMENTS NATIONAL LAND CODE

TO

THE

a. Land subject to a charge [s204GA] If a charge has been created over a piece of land in favour of a bank [chargee], the bank may give his consent to the application by the owner of the land for surrender and re-alienation under s204D(1). The Land Administrator must then endorse a note to that effect on his land title [the Register Document of Title (RDT)]. b. Re-alienated leasehold must be for the remainder of the lease Any re-alienated leasehold land must not be less than the remainder of the original lease. In other words, if any person surrenders his leasehold land for re-alienation, the lease issued after re-alienation must be for the remainder of the original lease.

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For example, if an original leasehold title is for 99 years, and a period of 59 years has lapsed, a new term of 40 years [i.e. 99 - 59 = 40], being the remainder of the lease must be granted. The realienated leasehold title must not be less than the remaining 40 years.

But where the various titles are held under various terms of years, the State Authority will have the final say on the terms of years for the lands to be re-alienated. c. To apply for extension of a lease before expiry: new s90A Anyone having a leasehold title may apply to the State Authority for the term of lease to be extended.

But the application must be made before the expiry of the lease: s90A(2). The Land Administrator must endorse on the title (RDT) upon receiving the application: s90(3).

Every person having a registered interest in the land must consent to the application, unless his consent ought to be dispensed with: s90A(4). Without the consent of the parties, the State Authority will not entertain the application.

The State Authority has the discretion to approve or reject the application for extension of the lease. After the approval has been granted, the applicant is to pay a premium or other charges: s90A(5). The Land Administrator will notify (by Form A) the applicant to pay the sum. The approval will lapse if the sum is not paid within the specified time: s90A(6).

Once the sum has been paid, the Land Administrator will endorse a memorial of the extended period of the lease on the title (RDT as well as IDT). The memorial of approval endorsed on the title will apply also to the subsidiary titles issued subsequently: s90A(8).

For any subdivided building (e.g. a condominium apartment, flat, etc.), the application may be made by the management corporation armed with a unanimous resolution. It will be regarded as an application relating to the land and provisional block. The State Authority is empowered to consider the application together with other applications: s90A(9).

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d. Approval includes the consent by the chargee: s204GA(2) amended If the proprietor accepts the approval by the State Authority, the approval will include the consent by the chargee [e.g. the bank] as to the discharge of the charge, and also the consent for a fresh charge to be executed and presented upon re-alienation. e.

Land held under qualified titles - to be surveyed before surrender and re-alienation: S204B

An application for surrender and re-alienation of any land under qualified title (hak sementara) must be properly surveyed for purposes of surrender and realienation. Such application will only be entertained if the land has been duly surveyed, and a certified plan has been approved by the Director of Survey and Mapping (unless the State Authority directs otherwise): S204B. f. Attestation clause – for caveats, withdrawal of caveats, etc.

Even though withdrawal of a private caveat is not a dealing, as in the case of a private caveat, the Amending Act 2016 requires that the withdrawal of a private caveat must have an attestation clause: s.325 The private caveat must state the last known address of the proprietor if the caveat is to bind the land itself or an undivided share in the land: s323.

Similarly, a lien-holder’s caveat must have an attestation clause even though it is not a dealing: s.330. A trustee’s caveat must also have an attestation clause even though it is not a dealing: s333 g. Particulars of person presenting documents: s377 The Registrar is entitled to record the particulars of the person presenting or delivering the documents.

In the case of a natural person, any change of name may also refer to his citizenship or the number of the national identity registration card: new s378(2).

‘Natural individual’ is changed to ‘natural person’: s436A . “Natural person” is the correct legal term to be used.

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4.

HEFTY INCREASE PENALTIES

IN

FINES

AND

(1) Offences re transfer of estate land: S214A A person will commit an offence if he makes false declaration etc. or fails to comply with any condition etc. imposed on him in the transfer of estate land.

Fine: at least RM100,000 to 1 million [previously RM10,000 only]. If it is a continuing offence – RM5000 fine [previously 1000] a day.

(2) Late collection of documents after registration: s305 The Registrar will inform the party concerned to collect documents after due registration. If the party fails to do so within the prescribed period, he has to pay fees for the release of the documents later on: new s305(2A) and (2B).

(3) Meddling with boundaries: S400 The fine for meddling with boundaries etc. has been increased to RM1000 [from RM100].

(4) Unauthorised survey: S400A The fine for conducting any unauthorised survey of land by any person is increased to RM20,000 [from RM10,000].

(5) Interference with boundary marks, etc.: s400 The fine for interfering with boundary marks is increased to RM5,000 [from RM500]. The cost for repairing or re-emplacing the boundaries is increased to 5 times [from 3 times].

Increase in penalties for other offences a) Making false statement, etc. - fine RM500,000 or 5 years, or both: s422 b) Fraudulent alterations, destruction, etc. of documents - fine RM500,000: s423. c) Failure to produce documents - fine RM1,000: s424 d) Unlawful occupation of State land, etc. -fine RM500,000 or 5 years, or both: s425

e) Unlawful use of air space over State land, reserved land - fine RM10,000: s425 f) Unlawful extraction or removal of rock material - fine RM500,000: s426 . Abetting the commission of the offence – fine RM500,000: s426(1B). g) Authorised police officer’s additional power of arrest and seizure - to stop and examine vehicles; failure to co-operate – Fine RM5,000 or 6 months, or both: s426A h) Grazing of animals on State land, etc. – Fine RM5,000 : s427. i) Obstruction of Land Administrator’s right of way, etc. – fine RM5,000: s428 j) Wrongful receipt of information - fine RM5,000: s428A. Date of commencement of certain sections – to be appointed Certain sections introduced by the Amending Act have yet to come into effect until a date has been appointed for implementing such sections.

There are seven sections yet to come into operation: sections 34, 35, 45, 48, 56 and 76. The Minister of Natural Resources and Environment will appoint the date of operation of such sections. This would mean that the existing sections of the NLC concerned are still applicable for the time being.

Conclusion Numerous provisions relating to offences under the NLC have been amended effecting a hefty increase in fines and penalties. It tends to create the impression that the Amending Act is largely designed to augment the revenue of the relevant authorities.

In comparison, the amendments concerning the industrial land and freehold titles appear to be of lesser importance, though they have serious impact on the interests of proprietors of property as well as foreigners in this country.

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Insolvency Act 2017

By Yang Pei Keng 13 April 2018

Commencement Date: 6 October 2017

proceedings has been increased to RM50,000.

Our Bankruptcy Act has been in existence for about 50 years. But, now it has been replaced by the Insolvency Act 2017 [Act 360]. The new 2017 Act came into force on 6 October 2017. The oft-quoted name of our law of bankruptcy - Bankruptcy Act - is now history. It has changed its name to the Insolvency Act 2017.

In other words, a debtor must owe at least RM50,000 or above, before he can he made an insolvent person. No bankruptcy proceedings are allowed if the debt owed is below RM50,000.

Under this new 2017 Act, a person who is made a “bankrupt” is now known as an insolvent person, and not a bankrupt. The stigma of the term “bankrupt” has been removed. The person should no longer be described as a “bankrupt”. He is to be referred to as an “insolvent person”.

But in the case of a company or corporate, when it becomes insolvent, it is governed by the Companies Act 2016. It does not come under the Insolvency Act 2017.

Our law of bankruptcy has undergone substantial changes under the new 2017 Act. The salient points of the Act may be summarised as follows: 1. Minimum debt for bankruptcy is increased to RM50,000.

2. One bankruptcy order only will be made by the Court, instead of two orders [the receiving order (RO) and the adjudication order (AO)] under the new 2017 Act. 3. Creditors must exhaust all modes of execution in the course of recovering debts, only then can he resort to bankruptcy proceedings.

4. Malaysia has created a new term “social guarantor”. It is a creature of our legislation.

5. Insolvency Assistance Fund has been set up: s77A, 2017 Act. 6. An insolvent person is entitled to automatic discharge of bankruptcy.

7. Pre-bankruptcy rescue mechanism for negotiated schemes or voluntary arrangements is available 1. The minimum debt for bankruptcy is increased to RM50,000.

Since 6 October 2017, after coming into effect of the new 2017 Act, the minimum debt for commencing bankruptcy 14

A cursory study of the history of the law of bankruptcy, will show that the minimum debt for commencing bankruptcy proceedings has been increased steadily over the last 50 years. It started with RM1,000 before 1976, then it was raised to RM2,000, RM10,000, RM30,000. It is now RM50,000. Now, any debt below RM50,000 does not entitle a creditor to file bankruptcy proceedings against the debtor concerned.

2. One single bankruptcy order will be made [instead of RO and AO] Under the previous law of bankruptcy, the Court had to make two orders after hearing the petition for bankruptcy, namely, the receiving order (RO) and the adjudication order (AO). But under the new 2017 Act, only a single bankruptcy order will be made by the Court. The reason given for preferring to have a single bankruptcy order is that, a single order will save cost on advertisement and the cost for advertising it in the gazette.

Under the previous law, the first order [RO] does not make the debtor a bankrupt, but he will be deprived of the possession and control of his property. Under the new single order, the Director General of Insolvency [DGI] will manage the property on behalf of the debtor.

3. Creditors must exhaust all avenues of recovering debts before resorting to bankruptcy proceedings.

Generally, a creditor is not allowed to commence bankruptcy proceedings against his debtor unless leave has been obtained from the court before doing so: s5(3) (a), 2017 Act. The creditor must have exhausted all modes of execution and enforcement, such as writ of seizure and sale, judgement debtor summons (JDS), garnishee order, etc. before commencing bankruptcy proceedings.

This is certainly a departure from the previous law. Before the amendment, it was not necessary for the creditor to

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proceed with any other forms of execution against the debtor. He could just commence bankruptcy proceedings at once at his own discretion.

4. “Social Guarantor” – a new creature of our Legislation Through legislation, our Parliament has introduced a new concept of “social guarantors”. In fact, it is unheard of in any other jurisdictions. It is a novel concept created by our federal legislature.

A “social guarantor” is defined as a person who becomes a guarantor not for the purpose of making profits: s.2, 2017 Act. A person becomes a social guarantor for a scholarship, study loan, or any grant for educational or research purposes; for a hire-purchase of a vehicle [for personal use, but not for business use]; or for a housing loan (for personal dwelling only, and not for investment).

The main feature of a social guarantor is that he enjoys extraordinary protection: he cannot be made a bankrupt at all simply because he does not obtain any profit or gain from the loan obtained by the debtor.

5. “Insolvency Assistance Fund” has been established: s77A of the 2017 Act A special fund – Insolvency Assistance Fund (IAF) - has been established to assist in recovering and administering the assets of the bankrupt. The Fund will be under the control of the Director General of Insolvency (DGI). It comprises profits from any investment under s.77 as well as all costs, fees, charges or moneys recovered in any proceedings under the new Act: s77A(2).

discharged from bankruptcy after three years of being made a bankrupt.

The conditions for automatic discharge of a bankrupt are: the bankrupt must have filed his statement of affairs, and must have paid an amount of target contribution towards his debt. He must also render an account of moneys and property to DGI. Creditors are not allowed to raise any objection to the application for automatic discharge by 4 categories of bankrupt: s33B, namely a. b. c. d.

Social guarantors Deceased bankrupts Bankrupts with disabilities Bankrupts suffering from chronic diseases

7. Alternatives to bankruptcy - negotiated schemes – voluntary arrangements With a view to avoiding the stigma of being made a bankrupt, before a bankruptcy order is made against a debtor, he may enter into a negotiated scheme with his creditors, by way of reaching some form of compromise with his creditors. In fact, developed countries, such as Singapore and UK, have long been using such mechanism.

The Fund is to be used for defraying the following expenses: s77A(3) –

The new 2017 Act introduces a pre-bankruptcy mechanism, known as the “voluntary arrangement”.

The voluntary arrangement serves to prevent the debtor from being made a bankrupt. At any time before being made a bankrupt, the debtor may propose a voluntary arrangement to his creditors. Such voluntary arrangement may be made any time before a bankruptcy order is made against the debtor: s2C, new 2017 Act. #

a. Legal costs and fees for recovering the assets of the bankrupt; b. Costs and fees for the administration of the bankrupt’s assets; c. Expenses incurred in the administration of the bankrupts’ assets; d. For any other purposes as may be prescribed.

Conclusion With the introduction of the new Insolvency Act 2017 which came into force on 6 October 2017, creditors will find it more difficult to collect outstanding debts. Collection of debts will incur more legal expenses since a creditor must exhaust all modes of execution for recovering debts before filing bankruptcy proceedings.

The main purpose of the Fund is to finance proceedings to recover assets on behalf of bankrupts’ estates which have insufficient money.

A creditor is deprived of his discretion to commence immediately bankruptcy proceedings against his debtors, without having to resorting to other modes of execution.

Solicitors involved in debt collection will be burdened with a greater volume of legal work which is to be timeconsuming.

6. An insolvent person is entitled to automatic discharge of bankruptcy: new s33C The new 2017 Act introduces a new concept of automatic discharge of bankruptcy. The Malaysian law did not have such provision before. Subject to certain conditions to be complied with, a bankrupt will be automatically

The process of debt collection will inevitably be slowing down. In the long run, to what extent the slowing down of the process of debt collection, will adversely affect the commercial world, is yet to be seen.

INFO JOHORE BAR - JUNE 2018

15

TENDERFOOT

(With lots of love and respect for my peers.)

Sri Divi Gunapati

People simply assume that the best career options are either to be a doctor, lawyer, accountant or engineer. Thus, parents make their kids pick the tried and tested jobs; it is sort of like a survival mechanism. Some of you would have never planned on becoming a lawyer, if you are feeling unsure about this field and cannot seem to adjust to the fact that you chose law, all I can say is you have time to figure things out along the way and live your life in your own terms. But honestly deep inside I think being a lawyer is an extraordinary calling.

To my fellow peers also known as the newbies to this field of law, I certainly feel you. Now, take a deep breath and continue reading while I share what is in my head.

The fact is that the paradigm shift from being a student to a pupil then a lawyer is madness. Well definitely no one expects you to know everything in a day, so stop being so hard on yourself. Understand that it is a stepping stone, and that is how everyone starts and it is also how everyone started. Sometimes it is not all about the experience. You may be new to the working world, maybe, but certainly not to Law. It is the effort and hard work that makes you who you are. We know that the path to become a lawyer is not an easy one. Even after getting the degree from law school, we go through the 9 months of pupilage before we can officially call ourselves lawyers. After that, the stress of whether or not we will be retained will start to haunt us. The process to get a permanent job has never been a piece of cake for everybody. I would say some are fortunate to land a job immediately or get retained, but for many, it is a challenge.

During an ethic course dinner some time back, the guest speaker shared his thought that it is not right to expect a pupil to straight away become a profound lawyer with all the knowledge in the world just upon completing his or her 9 months of pupilage.

I totally agree with him on that. We live in a culture that has put forward a particular image of lawyers 16

and the work they do. Allow me to repeat that we cannot learn everything in a day. On some days I wish I could just download a lawyer app from the play store into my brains, obviously technology has not progressed to match up to my level of expectation.

To my fellow peers, don’t be discouraged.

I have personally faced situations where some lawyers may seem to show a little bit of superiority due to their experience and knowledge in this field, do not get disturbed by that, instead remain calm and learn how to deal with it in a mature manner. You have come this far and have been able to endure and overcome the challenges put in front of you. Have faith, it will definitely pay off.

Always maintain a positive mind, even if you make mistakes along the way. Get involved, expand your network and do not be afraid to approach the other lawyers, share knowledge that you gain with your peers and always go the extra mile to improve yourself. Most importantly do not let those scary challenges pull you down, you will not learn unless you try. Also, bear in mind that it is not advisable to run before you can walk. I believe the best part of being a newbie is though there are so many things that we do not know yet, we never run out of new things to learn. Ever wondered why we say ‘practicing law’? Take note of that word ‘practice’, make the initiative, never be afraid and always give it your best shot. In simple words, I would say ‘If you feel like a NOBODY, then it is time you make some effort to be SOMEBODY.’ On a whole other note, I was wondering if this would get published, but at least I did my part and I think the effort is all that matters. If you are reading this, then I believe what I said before is self-evident. I hope you enjoyed this read!

By Sri Divi Gunapati

INFO JOHORE BAR - JUNE 2018

THE BIG BAD BANK

By Allen Yu

Allen Yu Back in the old days before the middle 1980’s, where litigation was concerned, banks were invincible. In other words they seldom lose their court cases.

They could contract out of the Contracts Act. A judge once said the act does not say that the contracting parties are unable by agreement to vary the legal consequence spelt out by the Act. Therefore a bank could contract out of the clauses referring to the laws of guarantee.

What then is the point of having the Contracts Act where just about any big corporation could contract out of the law which had codified all the decisions of the courts? It’s like ousting the jurisdiction of the court. And since nobody reads the fine words of the agreement prepare by the banks, they wrote the law.

In overdrafts, they could demand payment of all sums owing even when there is no default.

What is the point then of giving out a loan today, let the customer utilized it and then demand its immediate payment upon short notice? And penalty interest will be charge on its late payment.

The customer could not challenge the amount owing because there would be a clause in the agreement stating that their statement cannot be challenged.

In my early years of practice, my firm was doing some bank work. While my senior partner was doing the conveyancing work , I was doing the litigation. One bank started imposing the legal cost it would pay for our work. We could no longer charge RM50.00 for our notice of demand. It was just RM5 including the cost of the A.R.Registered post. Our fees for the bank’s debt collection was slashed to a nominal sum.

And I felt it was no longer worth the while doing their work. Sometimes it was just enough to pay the litigation clerk. Yet they demand immediate action for all their cases. After all they are the pay master.

An international bank once told its panel of solicitors that it will pay the legal fees and disbursements for the loan documentation but on the condition that the lawyers have to bear the cost of stamping, registration and others first and they will re-imburse the lawyers at the end of the year. When I commented that this will deplete our funds, the regional manager offered to give us an overdraft. Although he probably meant it as a joke, I did not find it funny then.

One Batu Pahat lawyer told me that once he had to postpone his case in the Johor Bahru court because he was down with a flu. The bank told him off – that they do not care if he was sick or not, he must attend court since they were paying him. He said he wrote to them the following day that he was withdrawing from their panel.

In small towns, some bank managers behaved as if they were geniuses among the local population, expressing opinions on things beyond their field of knowledge. And to some of them, if you are not on their panel of solicitors, you ain’t so good as a lawyer. When I wrote to one bank for information about an account holder for the purpose of applying for the Letters of Administration, he asked for the L.A. first before he would give the document. Trying to explain to him that I need the information so that I can apply for the L.A. was lost on deaf years. I then wrote to the regional office.

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Besides listening to their “wisdom”, lawyers on their panel had to entertain them. My senior partner once asked me to organize a lunch with a bank manager. I ordered the Chinese food in advance. When he came he did not seem very please. I wondered why. Then when an auctioneer invited me to have lunch in the same restaurant with the same bank manager, I found my answer. Instead of pre-ordering the food, the auctioneer let the manager decide. He decided that we should all have western food.

The same manager once told me that he liked me to entertain him, but complained that I always bring along my wife. I understood what he meant. He wanted women. I decided not to bother with his bank as I do not wish to be his pimp.

One regional manager told me to prepare an application for a Mareva Injunction.

When I told him that he has to sign the affidavit, he was taken aback and we did not proceed with this action. When he had to put down his signature and swear to the facts, this great manager chickened out.

Then came the 1980’s when suddenly banks were losing cases in court. Past consideration was one of the favourite defences. Thanks to a Batu Pahat lawyer, Bankruptcy Notices had to mention the exact amount owing. And where the bank filed both a foreclosure and a civil action for the same debt, one of the action had to be stayed. Auction dates can be given a long date at the request of the debtor to enable the debtor to win a lottery. This actually happened in one case I was handling, when I objected to a long date, the judge told me not to be in such a hurry and said, “Who knows he might strike lottery during the time”.

Local lawyers acting for the banks were losing their cases to such an extent that one bank decided to let only one big law firm in the Kuala Lumpur to handle all their debt collection cases. This annoyed some of their local lawyers as it implies incompetence on their part.

When I started my own practice, I could not get 18

on any bank panel. The reason they gave me was that I was a sole proprietor. Some wanted me to have a Malay partner. And it was not just being a partner, but the name of the firm had to include the Malay partner’s name. I decided not to bother as some of the banks permitted me to do their work on an ad hoc basis. Then one day a friend of mine, who is a Tan Sri now offered to assist me in getting into either one of two banks. He kept his promise and I was in. The local bank manager was of course surprised and asked me how did I get in without his support. That bank turned out to be most corrupted of all banks. There were kickbacks from customers and I presumed from lawyers also. I did not get much work because I did not bother to “lobby” for any work. I was satisfied as long as they passed back to me the legal work of the clients that I refer to them.

Factory owners often take out a RM5 million loan or more for renovation works. In actual fact only RM1 million would be used for the renovation. The rest to pay off their creditors.

And if there is some balance, it would be kept somewhere. The borrowers would then default on their loan and be made bankrupts. But they will also be driving Mercedez Benz cars and eating out in fancy restaurants.

During one of my friend’s father’s birthday I was seated next to the new manager of a bank.

When he heard my name, he said he heard I was a nasty lawyer. I presumed his staff must have complained about a bounced cheque case I took up against them. I was annoyed at his open arrogance but remained calm and said that he was mistaken. I had in fact persuaded my client to settle it at the token sum of RM1,000 because the bank was going to deduct any damages from the pay of the employee who made the mistake. Had I known this would be his gratitude, I would not have help him.

One manager snubbed me in his own way.

A friend of his requested him to let me meet him for the purpose of getting on his bank panel. He spoke to me for a few seconds and then let me sit for the rest of the day doing his own work. I caught the message and excused

INFO JOHORE BAR - JUNE 2018

myself. Without looking at me, he told me to keep in touch. When I bumped into him a few days later, he did not recognize me.

how little they are getting, they often agree to accept a lesser sum as full payment of all their debts.

They say if you want to do conveyancing, you have to eat a lot of humble pie. I think I have eaten my fair share of it. I wasn’t very good at lobbying and I am not proud to confess to all my readers these experiences. But now I could look back and laughed them off.

I did have a client who was already knowledgeable of all these methods. He and another director stood as guarantor for a huge loan. I think it was around RM25 million. When his company defaulted, the bank sued him.

He did not bother to defend himself. When he received his bankruptcy notice, he went out to play golf. I was surprised and asked why he was not worried of the impeding bankruptcy.

His replied was that the bank should be more worried because if he does not pay, they will lose millions. I suspected he and his fellow director may have kept a few millions in somebody’s account on their behalf.

When the recession came in the later 1990’s, I was surprised to be visited by bank managers asking me to refer my clients to them. They were more than happy to let me do the documentation on ad hoc basis. What a role reversal. Nevertheless I did not take advantage of their situation and was not rude to them.

However some banks will play out the non panel lawyers. You refer clients to them after they agree to let you do the documentation.

The approval is then delayed with the reason that their head office has not approved the work to be given to you, thus jeopardizing your client’s agreement to complete within the three months. If they want it fast, they need to use THEIR lawyers. I caught on the game and stopped referring any work to these banks.

A regional manager once told me that the bank will never compromise on any sum owing. They will not lose even a cent. It was with this thought in mind, that I always advise my insolvent client, not to waste their time in offering to pay some money to them to extend the time for full payment. It’s better to pay their friends and suppliers first. Suppliers could give a discount on your debt and they will do business with you again when you are solvent. Banks will not.

To make the bank managers’ eat their words and arrogance, a year after my clients were made bankrupt, and after the insolvency officer has determined the monthly amount that my clients have to pay, I would advise my client to get a friend to offer a sum equivalent to about 5 years payment of that monthly sum. Normally the bank will not agree in the first or 2nd year of bankruptcy. But by the 3rd year and seeing

Another knowledgeable client I believed, invented this game with the bank. When his request for postponement of the auction was rejected, he got one of his friends to bid at the auction. After winning the bid, his friend would pay the deposit and ….DEFAULTED the balance sum. By doing that , he gained the time he wanted because the bank then had to wait for three months for the balance. When they discover the default and re-apply for another auction date at least 6 months would have elapsed by then.

When the law was changed so that a person has to owe RM30,000 or more before they can be made a bankrupt, a lot of credit card holders were save from bankruptcies. The bank adopted a different approach – professional debt collectors. A client of mine was a bankrupt.

She lived with her husband, also a bankrupt in a rented house. One day a car stopped in front of her house and out came out 4 guys, 3 big Indian guys and another man wearing a tie.

They claimed to act for the bank and were there to seize her personal goods. She called me and I told her to tell them that she is a bankrupt and therefore they cannot seize her belongings.

They said they don’t care. I advised my client to call the police. They dared her. When she picked up the phone, they quickly left. I wrote to the head office of the bank and received their

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lawyer’s letter in reply, informing me that they were professional debt collectors, licensed by the Bank Negara itself. Since they started to follow the methods of the loan sharks, I wonder when will they post a big poster on a debtor’s house demanding payment.

It is also said that when the sun is shining, the bank offers you an umbrella. But when it rains, they will be the first to take it away.

When the manager of a new merchant bank came to town, the manager approached me and asked me to refer big clients to them. Minimum loan of RM5 million. When I said that one of my clients has some cash flow problems but otherwise stable, he said anyone except this company. I then told him off, that when people really need some loan to tie over their cash flow problems, the banks would not help. Instead they prefer to look for companies that do not need such loan.

That brings me to the banks doing telemarketing.

Some banks would call you out of the blue, offering you a loan of RM20,000 to RM50,000

20

without any need for a security. They were quite a nuisance. But in one instance I decided to have some fun. They offered me RM30,000.

I replied, “What am I suppose to do with only RM30,000?” He replied that I could buy some stocks and shares. I told him if you really want to give a loan, make it RM300,000 without security. I need it for my daughter’s oversea education. He could not do that and the conversation ended.

I finally decided not to do any more loan documentation when a regional bank officer was rude to my staff. My staff was so traumatized and insulted that she wanted to resign from my office. When I spoke to him, I discovered this officer suffers from OCD Obsessive Compulsive Disorder. Every letter must be written in a certain manner he desires.

Not a coma or word missing. Otherwise he would go berserk and returned your letter and documents for correction, thus delaying the release of the loan.

Work was less stressful without the bank work.

INFO JOHORE BAR - JUNE 2018

LAW NOTES

By Yang Pei Keng 8 April 2018

Case 1 - Contract tainted with illegality Notes on MBB V NEWWAY DEVELOPMENT SDN BHAD & OTHERS [2017] 5MLRA277 A Sabah case. P bought a piece of native land under the name of a nominee, a native who was one of his own staff members.

Under the Sabah law, such purchase of native land by way of a native nominee is illegal and void. The native nominee executed a Power of Attorney in favour of the so-called beneficial owner of the native land, who was not a native. He then took a bank loan from Maybank to finance the purchase of the property.

The High Court decided against Maybank when it took out court action for recovery of the bank loan which was in default of repayment. On appeal, the Court of Appeal confirmed the High Court decision.

Held: The loan is illegal and void. Maybank cannot claim for non-payment of the loan.

Case 2 - Forfeiture in case of default Notes on MARS TELECOMMUNICATIONS SDN BHD V CUBIC ELECTRONICS [2017]5 MLRA V, owner of a piece of land in Malacca together with plants and machinery, charged the land to OCBC for securing some loan facilities. V failed to service the loan. OCBC petitioned for winding up of his Company.

His tenant sublet the land to a university UTMM. T tried to buy over the land from V the land together with other assets for a total purchase price of RM90 million [i.e. RM80 million for the land and RM10 million for the assets]. T paid V a deposit of RM 1 million.

Before the signing of the SPA, V granted T extensions of time to make part payments . T paid a total of RM3 million plus RM40,000 as interest.

The total amount of part payments were forfeited by R the owner, when T defaulted in payment of the balance of the purchase price.

T contended that the forfeiture of the total part payments of over RM3 million was unlawful. T argued that V could only forfeit RM 1 million, and the remainder should be refunded to T. Court of Appeal held: The label ‘deposit’ or ‘penalty’ did not necessarily mean so. It was for the court to construe. V failed to prove the damage it had suffered, nor did it prove that the compensation was reasonable.

CA only allowed forfeiture of RM1 million [about 1.1% of the total purchase price] paid as deposit.

Any remaining sum must be refunded to T. Another case involving 2 doctors There was another case reported in 2017, concerning forfeiture in case of default of payment. It involves two doctors in the sale of medical practice.

Doctor V entered into a contract with Doctor P for the sale of his medical practice in consideration of RM120,000, being the full purchase price.

P paid V a sum of RM12,000, being 10% of the purchase price, as earnest money or deposit. P subsequently also paid various installments to V. The total sum paid by V was RM96,000.

When P defaulted in payment of the balance of the purchase price, V forfeited the total sum of RM96,000 paid by P. The Federal Court held: V could only forfeit RM12,000, the 10% deposit. He must refund the balance of the sums paid by P.

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21

Federal Court judge named to UN’s first judicial integrity network Malay Mail, 18-4-2018

Tan Sri Zainun Ali

KUALA LUMPUR, April 18 — Federal Court judge Tan Sri Zainun Ali has been appointed as one of 10 members of the United Nations Office on Drugs and Crime’s (UNODC) inaugural Global Judicial Integrity Network.

“It will be an honour to work with you all as we continue to encourage other judiciaries and stakeholders to join us on this important journey,” he added.

Besides Zainun, fellow members of the network include judicial representatives from other countries.

According to the UNODC, the advisory board will help to identify priority challenges and emerging topics in judicial integrity, and assist judiciaries in addressing those challenges as they arise.

In 2012, Zainun was elevated to Malaysia’s highest court, making her the fifth female judge in the country to be accorded the honour.

Among the notable cases that the 65-year-old has handled was that of the unilateral conversion of Hindu mother M. Indira Gandhi’s three children to Islam.

“The Global Judicial Integrity Network is an initiative of paramount importance in strengthening judicial integrity and preventing corruption in the justice system,” said Dimitri Vlassis, chief of the UNODC Crime and Corruption Branch at the closing of the two-day meeting last Tuesday.

Apart from that, Zainun also made a landmark decision last April when she ruled that the 1988 amendment to the Federal Constitution to check the powers of the judiciary was against the country’s supreme law.

Affirming the judiciary’s independence

By Gurdial Singh Nijar The Sundaily, 1-5-2017 “The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework”.

-Federal Court Judge Zainun Ali “THE judicial power of the court resides in the judiciary and no one else”, resounded the Federal Court through the judgment of Zainun Ali, Federal Court judge, in a recent decision – Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat.

Her Ladyship’s dexterous pen deftly demolished the notion – expressed by an earlier majority Federal Court decision – that the jurisdiction and powers of the judiciary could be determined by Parliament.

This, said the court, would suborn the judiciary to Parliament; and by extension, the executive. This would have “the unfortunate effect of allowing the executive a fair amount of 22

Gurdial Singh Nijar

influence over the matter of the jurisdiction of the court”. For “executive” read “government of the day” – and we see the historic dimension of the judgment.

The judgment struck down an amendment to the Land Acquisition Act (LAA), which gave two lay assessors (nonjudges) complete authority to decide on the compensation for a person whose land had been acquired by the government.

One of these assessors must always be a government valuation officer. The judge had no power. If the assessors differed in their assessment, the judge had to choose either one’s decision.

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“The judicial power to award compensation has been whittled away from the High Court judge to the assessors” in breach of Article 121(1) of the Constitution, said the Federal Court.

The decision made clear that “judicial power” – to decide disputes between the government and its citizens, as well as between subjects in civil and criminal matters – lies only with the judiciary under Article 121(1) of the Federal Constitution.

A 1988 amendment to Article 121(1) of the Federal Constitution had deleted the provision vesting “the judicial powers of the Federation” in the High Courts and the inferior courts of the country.

It now states that the courts “shall have such jurisdiction and powers as may be conferred by or under federal law”.

(The Article’s heading still reads as “Judicial power of the Federation”.)

This amendment was essentially the response of a government intent on stopping its executive and legislative authority from being scrutinised or undone by judicial decisions.

A decade later the Court of Appeal through Justice Sri Ram made the first direct assertion that the amendment had not divested the courts of the judicial power of the Federation; and that the constitutional separation of powers was preserved. Several courts thereafter continued to assume that they could exercise such powers.

When the amendment was first passed, the International Commission of Jurists expressed concern of its “threat to the structural independence of the judiciary”.

As indeed finally materialised.

This was by the 2007 Federal Court decision PP v Kok Wah Kuan. A 4-1 majority ruled that the jurisdiction and powers of the High Court will be as prescribed by federal law.

Meaning, it was for Parliament to decide on what powers it will give to, or take away from, the judiciary. Essentially the legislature, and by extension the executive, ruled. In 2009, another bench of the Federal Court refused to disturb the decision.

In one fell sweep, Kok Wah Kuan repudiated the doctrine of the separation of powers. “This doctrine is not a provision of the Malaysian Constitution”, declared the Federal Court.

This ignored the fact that the Constitution is structured such as to distribute power to the three institutions: the legislative, the executive and the judiciary.

This structure implies that the basic principle of the separation of powers will apply (Privy Council decision in Hinds.)

Also, our courts have always accepted that the Constitution embodied the doctrine. This decision effectively demolished the independence of the judiciary and the rule of law.

Parliamentary supremacy.

supremacy

trumped

Constitutional

The Bar Council protested. It called for constitutional amendments to provide for a clear separation of powers.

The Commission of Inquiry into the Lingam tape scandal recommended that Article 121(1) be re-amended back to its original form. All this fell on deaf ears.

Until the Semenyih Jaya decision delivered last week.

It restored Kok Wah’s lone dissenting opinion by SabahSarawak’s Chief Judge, Richard Malanjun – which warned that giving Parliament the overriding power would make courts “servile agents of a federal Act of Parliament and that courts are now only to perform mechanically any command or bidding of a federal law”.

Said Malanjun, vesting judicial power with the courts “represents an important feature in a democratic system of government”.

Because they form the third branch of the government with a duty “to ensure that there is a check and balance in the system including the crucial duty to dispense justice according to law.”

In particular, the Federal Court ruled as ultra vires the amendment to the LAA as there was no provision in the Constitution allowing assessors to perform the functions of a High Court judge.

Especially since there was no appeal against the amount assessed. This undermined the judiciary’s judicial power and impinged upon two basic features of the Constitution – the separation of powers and the independence of the judiciary.

The ruling reiterated that Parliament simply did not have the power to make any law after Merdeka Day that was inconsistent with the Constitution.

And it could not introduce any law which undermined the doctrine of separation of powers; or the independence of the judiciary.

Judicial independence was crucial – to “assure security of freedom to the judiciary from political, legislative and executive control”.

For it is the judiciary’s function as a bulwark of the Constitution that provides an effective check and balance against executive and legislative overreach; keeping these other institutions within their constitutional limits and ensuring that they uphold the rule of law.

Ultimately, only this can secure public confidence in the judiciary.

Concluded Justice Zainun in her inimitable style, “The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework”. _______________________________________________

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23

JUDGMENTS GLORIOUS JUDGMENTS

By S. Balarajah

(First published in INFO Johore Bar January 2011)

S. Balarajah The glory of judges lie in their judgments. Long past his hour upon the Bench, a judge will be quoted and cited. Judges, lawyers and students of the law generation after generation will quote the wisdom of the judge. Glorify his findings and seek to uphold his judgment.

Glorious judgments do not fade. They do not lose their shine. Their power. Their wisdom. Their rationale.

They do not eclipse into the annals of legal history. But they will be searched. And researched. They will be rejuvenated. To illumine the dark paths of litigants and lawyers who seek their light.

Lord Denning’s judgments are easiest to follow.

To understand. And to digest. Denning studied Mathematics at Oxford. When he read for the Bar, he became proficient with words. Words are the lawyer’s tools of trade. And so he said in his book, The Discipline of the Law. And he went on to add that to succeed in the profession of the law you must seek to cultivate the command of language.

In his other book The Closing Chapter, Lord Denning, that master of words and simplicity, gave some worthy advice. He advised the following: (1) Use plain simple words which all your readers will understand.

(2) Present them well. Think of your readers.

(3) Split them up - break your pages into paragraphs and paragraphs into sentences.

Lord Denning reckoned that: ... a massive unbroken page of print is ugly to the eye and repulsive to the mind. A long broken paragraph is indigestible. Split it up into sentences. If you find that you must have long sentences break it up with a punctuation. Sometimes a dash. At other times a colon or semi-colon. Often a comma. It enables the reader to get the sense readily.

Lord Denning in the same book claims: I with, I think, the first to introduce a new system.

I divided each judgment into separate parts: first the facts; second the law. I divided each of those parts into separate headings. I gave each heading a separate title.

In exemplary judgments are facts distilled. Laws made clear. And judgments given in favour of the righteous.

A judge by his previous training in the law is bestowed with lucidity and clarity of thought. He has endowed in him the ability of expression. And the art of compression. An art which is said to be utterly lacking in lawyers.

A well-presented judgment will show the facts of the case neatly recited, arguments for both sides justly and fairly presented and the reasons for the judge supporting one side properly laid out and adumbrated.

It is perhaps desirable for a judgment to list all authorities presented or cited even though they may have not been referred to in argument by counsel. It might be useful at the appellate level.

Judgments at times are written and handed down after impassioned pleas by counsel. This was so in the case of Esso Petroleum Malaysia lnc v Kago Petroleum Sdn Bhd1 where Peh Swee Chin SCJ said: We were not going to write a judgment on this case, but at the conclusion of hearing obit, learned counsel for the appellant seemed to have made a somewhat impassioned plea for it. We have decided to accede to it and we hereby do so.

In appellate courts generally, the judgment of a dissenting judge will see force of argument and language. A dissenting judge being in the minority will seek to justify his dissent in powerful language. And employ powerful arguments.

Literary excellence is profound in dissenting judgments. The opening salvo of that most distinguished and learned judge to adorn the Bench of the Courts of Malaya comes to mind. The late Tan Sri Dato’ Dr Eusoffe Abdoolcader SCJ in the case of Government 1

24

(1995) 1 CLJ 286.

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of Malaysia v Lim Kit Siang2 opened his dissenting judgment thus: In delivering oral judgment ex tempore at the conclusion of argument giving reasons for my decision to dismiss these two joint appeals with costs, I declared at the inception that I was entering a vigorous dissent. It now only remains for me to register and reflect in this judgment the force of my dissent revolving primarily around the crucial question of law as to standing to sue in public law litigation and endeavour in doing so to translate the sting of the thing into language as mild as I can mobilize and muster without mincing words.

The Judge, now in the Grand Courts above was renowned for his learning and literary forte, prided himself in holding that all his judgments were literary works. And they were indeed.

A judgment might well betray a judge’s grasp of the salient facts, law and the remedies sought by the litigant.

A perfect judge is defined in the October 1976 issue of The Magistrates3 thus: A person who – listens to both sides; treats both sides fairly; judges only on the evidence; recognises his own prejudices; recognises what is relevant; reasons logically and impartially; The late Tan Sri Dato’ seeks information Dr Eusoffe Abdoolcader when needed; has unlimited patience and courtesy; then, applying these principles reaches a decision firmly, excluding all other considerations and consequences – this is, of course, perfection.

The judgment in the case of Merdeka University Bhd v Government of Malaysia4 began thus: Exordium Merdeka, proclaimed Tunku Abdul Rahman to the resounding echo of the populace, and so it came to be.

But the cry for Merdeka University has not achieved the same response and result. And thus the matter comes before the court.

And the 12-page judgment concluded thus: The Result For the reasons I have given the plaintiffs claim for the declarations sought must fail and I accordingly dismiss it with costs.

Let me just add this. Neither victor nor vanquished as such emerges as a result of my decision. It reflects the triumph of the rule of law - a fundamental effect of the National Ideology.

In the opening remarks of his judgment His Lordship tuned his mind to the matters before him and in so doing expressed judicial duties eloquently. He said, inter alia: Let me immediately reiterate what I said in court at the outset of these proceedings: I am not concerned with the political undertones or overtones or whatever that may affect the questions raised in this action, and in this trials am moved by no considerations other than that of determining the issues involved purely and strictly within the confines of the Federal Constitution and the law, abjuring any concomitant political or emotional offshoots springing like Athena from the head of Zeus in its wake. The Attorney General, meaning well no doubt, presents a vision of doom when he speaks of the grim consequences that might ensue if grave circumspection is not exercised in weighing the respective interests involved, but my short answer to this is, as I said in court in anticipating Mr Beloff for the plantiff, fiat justitia, ruat coelum - let justice be done, though the heavens should fall. I said in Mak Sik Kwong v Minister of Home Affairs Malaysia (1975) 2 MLJ 168 (at page 171) and I say again, the courts constitute the channel through which His Majesty’s justice is dispensed to his people and are accordingly the bastion of their rights and the courts must therefore necessarily be the ultimate bulwark against the excesses of the executive, though I should add that unconstitutionality and illegality of administrative action and not the unwisdom of legislation or executive discretion is the exclusive and narrow concern of judicial review and control of administrative acts.

Whilst it is perfectly legal and acceptable to permit one to give vent to his literary zeal and energies it must be of utmost consideration that the primary aim of a judgment is a serious functional purpose, ie to mete out justice and to justify the findings and the rationale behind the findings. To justify justice.

For a study of literary encroachment in judgments of our High Courts one cannot but recall the glorified works of the late Justice Tan Sri Dato’ Dr Eusoffe Abdoolcader.

2 3

(1988) 2 MLJ 41.

Reproduced in (1976) 2 MLJ cvii.

4

(1981) 2 MLJ 357.

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25

In the Federal Court case of Chong Kok Lim & Ors v Yong Su Hian,5 Abdoolcader J (as he then was) in delivering oral judgment commenced his judgment with the following interesting words that would captivate even a lay reader: This case, which, like the papacy of Pope John Paul I, lasted 33 days in the hearing, involves the question of the validity of the respondent’s expulsion from membership in the Perak Chinese Association...

by him as, if there is no cause of action against the appellant, there can be no serious question to be tried between them, nor was he entitled in any event to the interlocutory order in respect of a sum of at least $1,200, 000 out of the proceeds of sale on a summons that was not merely interlocutory but also ex parte and made previous to service of the writ and before appearance was entered and seeking a mandatory order that in the event of a sale of the Perak land for the highest bid by public auction the appellant should keep undisposed of and unencumbered at least that amount out the proceeds of any such sale, and I would refer in the latter respect to Felton v Callis (1969) 1 QB 200 (at pp 218-219) which held that even where a cause of action subsists it would require an exceptional case to justify making a mandatory order in such circumstances and the court should be most reluctant to make an order for the mere payment of a sum of money, and, I would interpose and add parenthetically, for that matter, for freezing a person’s assets, in this case the appellant’s funds to the extent of some $1,200,000, as this would virtually amount to circumventing the provisions of Order 14 of the Rules of the High Court and, quite apart perhaps from also raising the spectre of undue preference in the light of the resolution of the appellant for the sale of the Perak land disclosing its indebtedness to other creditors for a substantial sum, in effect giving the appellant in liming only the equipollent of conditional leave to defend the action - and all this all the more so when the respondent had lent the moneys in question not to the appellant but to the first defendant for the latter to purchase shares in the appellant and the respondent has accordingly no privity with or claim against the appellant in respect thereof.

At times judgments begin with subtle wit as in the case of Mookapillai & Anor v Liquidator, Sri Saringgit Sdn Bhd & Ors.6 The same judge began thus: Sri Saringgit Sdn Bhd no longer reflects if it was ever intended to and has certainly fair outgrown its humble and perhaps even cherished origins if that was indeed the case as suggested by the literal Malay connotation of its name as a revered onedollar entity.

There are judgments that at times subtly chide counsel and display the judge’s own scholarship. One cannot do better then quote verbatim Abdoolcader J in the penultimate paragraph of his judgment in the case of Re Tan Boon Liat:7 I must express my appreciation to counsel on both sideshow the careful arguments addressed to me and it is no indication of disrespect to them that I have not in this judgment dealt with the cases they cited to me but I have thought it necessary however to consider and discuss other authorities not cited by either side but which appear to me to be pertinent to the crux of the contention raised in this matter. If I may seem to have quoted authority overmuch, this was to satisfy the desire to manifest the comforting sentiment that my decision on the issue involved is reinforced by the sanction of something stronger than my own unaided thought.

To appreciate the literary expertise of Abdoolcader J, one must read his judgment in Yeng Hing Enterprise Sdn Bhd v Liow Su Fah,8 with which Raja Azlan Shah CJ (Malaya) and Chang Min Tat FJ concurred, wherein appears a single grammatically flawless sentence of 361 words. It reads thus: I need only add that it follows that the order of August 5, 1977 should not have been granted as the respondent had no right in the circumstances to the temporary injunction sought 5 6 7 8

(1979) 2 MLJ 11 at p 20.

(1981) 2 MLJ 114.

(1976) 2 MLJ 83 at p 88.

(1979) 2 MLJ 240 at p 244.

26

Judges in their judgment also pontificate on the trials, tribulations and turbulences of life. And also the law as a profession (job) and the ingredients to succeed in the law.

In the case of Sabrina Loo Cheng Suan v Eugene Khoo Oon Jin,9 Vincent Ng J said in conclusion as follows:10 In postlude, I am constrained to say that I couldn’t help noting with regret and distaste, the venom spat out at each other by both the parties, more so by the plaintiff, in the course of their evidence during the trial. I am sure that both of them started their relationship in joyous though surreptitious circumstances, no less contributed by the fact that

Sultan Azlan Shah 9

(1995) 1 MLJ 115.

10

Ibid at p 134.

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their entirely adverse, disparate and dissimilar needs happened to coalesce and dovetail and were mutually met at that material time. On the one hand you have the plaintiff, then only 19 years old, a veritable beauty queen with only a Standard Six level of education - who had won the Miss Penang beauty contest and soon thereafter became Miss Malaysia but was otherwise quite deficient on the monetary factor needed to live up the life of her newly acquired status and to make the trip to attend the Los Angeles Beauty Pageant. On the other hand you have the defendant, then 47 years old, a basic man of a lawyer (a member of a profession confined only to a select few at that time) who ran a successful legal practice, replete with ready funds to provide the financial back up needed, but who among his other needs, had also succumbed to the stirring of his loins. For a few years this relationship worked admirably well until the expectation of one fell short of his or her needs.

At the end of the day, the parties herein would still have to reckon with the fact that, though perhaps their initial encounter may have been a transient dalliance or frolic with a beauty queen on the part of the defendant, yet their subsequent union confirmed by marriage under Chinese rites - had produced a daughter who, in the natural order of things, is expected to outlive both of them and who shall bear witness to how one party treats the other in the aftermath of this mutually bruising trial. The defendant, who had ceased legal practice many years ago, is now 72 years old and plagued with illhealth. The plaintiff has also now apparently lost the vibrancy and glamour of her youth, with scant future prospects, as the result of this platonic relationship which eventually turned sour.

Nice words. Nice thoughts. Nice ending. Could well have been from a Mills & Boon paperback.

In the case of Chang Ah Moi @ Chan Kim Moy (f) v Phang Wai Ann,11 Abdul Malik Ishak J, who is a prolific writer and who writes with great profundity, began his judgment thus: This case is yet another example of how a battered housewife goes through life in a nightmare - the nightmare of being brutally assaulted by her own husband. Marriages are said to be made in heaven, with lots of love and affection and, in the context of 11

(1995) 2 AMR 2030.

this case, it culminated in violence.

In the course of his judgment but obiter dicta His Lordship defined a mistress as ‘where the relationship may be said to be casual, impermanent, fleeting and secret’.

In the case of T v 0,12 Mahadev Shankar J (as he then was) said as follows: In other words this was not a voidable marriage but one which was void ab initio. We cannot refer to a void marriage as a monogamous marriage because both in flow and fact it is no marriage at all. It may sound like a contradiction in terms to consider the child of such a union as legitimate but in these circumstances the policy of the law is that the child should not be bastardised.

Lau Zhan Chen (an infant by his mother and next friend Lau Fatt Wan (f) v Makoto Togase & Ors13 is a paternity petition. In the course of the judgment, the judge said as follows: Elated at the arrival of this bundle of joy, Makoto Togase named his son Noriake Togase and informed his parents in Japan about the latest development and again repeatedly begged for their consent. His parents finally relented and gave their consent and blessings to the marriage between the two love birds. Both parties duly registered their marriage in Johor Bahru on February 28, 1993. Now, they want to render their son legitimate.

As at the date of birth of the petitioner, the petitioner’s natural mother Lau Fatt Wan (f) was not lawfully married to the petitioner’s natural father This means, in blunt language, that the petitioner is a bastard.

In the case of Abdul Razak Ahmad v Majlis Bandaraya Johor Bahru,14 the Court held: To give locus stands to a ratepayer like the Plaintiff would open the floodgate and this would in turn stifle development in the country.

Abdul Razak Ahmad

There was no genuine private interest for the plaintiff to protect. He was more concerned about the publicity that went along with this case. As a lawyer that kind of publicity must have been good to him. The Dato’ Bandar aptly described him as busybody. I venture to describe him as a trouble shooter, a maverick of a sort out to stir trouble.

12 13 14

(1994) 4 CLJ 593 at p 596.

(1995) 1 AMR 283.

(1995) 4 CLJ 342.

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27

The erudite judge in upholding that justice transcends all other factors and feelings in the case of Jaya Kummar a/l Ayadurai v Hj Aman Shah b Hj Abdul Rashid & Anor15 is reported to have said as follows: A scoundrel like the applicant is now free to re-enter public service as a police constable notwithstanding his conduct of irresponsibility. There is a gross miscarriage of justice in quashing the decision of the first respondent as this might inculcate the thinking that scoundrels like the applicant could easily misbehave and get away with it triumphantly.

If this is the likely result of this decision, I hasten to add that the courts are they to right the wrong and to adjudicate on matters brought before it solely on the available evidence and nothing else.

An unscrupulous scoundrel, a mean rascal like the applicant too is entitled to leave with the feeling that he has been fairly treated. It is with a heavy heart that certiorari was issued …

J said:21 This court would also wish to place on record its appreciation to all the four counsel on their research (though it drew a blank in terms of case law on forgery); to mention in particular, Mr Ghazi’s lengthy written submission and his further written reply, though in both his written submissions he was somewhat at sea on the question of immediate and deferred indefeasibility pertaining to forgery.

Admittedly this case seems tailor-made to draw the sweat out of counsel and judge alike. However, if only for development of the law it is hoped that this decision is taken up for consideration by a higher tribunal on three points ... It is to this end that this written judgment would be made available to the parties today, immediately after it is read. And, for the same reasons this court will be ill-inclined to place any impediment on the plaintiff should she be minded to appeal against my judgment.

The scathing remarks of NH Chan JCA in the case of Ayer Molek Rubber Co Bhd & Ors v Insas Bhd & Anor16 have gained international notoriety. His Lordship who sat with Siti Norma Yaakob JCA and KC Vohrah J in the Court of Appeal referred to the High Court which is situated in Denmark House, Kuala Lumpur concluded his famous judgment with the words of Shakespeare in Hamlet:17

At times judges touch on the profession. In KS Chua & Co v Chui Miang Chew & Ors,22 Abdul Malik lshak J said as follows when upholding the majesty of the rules: ‘Lawyering’ is not an easy job. It requires handwork, skill, patience, knowledge of the law, and above all, good health and some measure of luck. Ill health is nothing more than an occupational hazard. Ill health can never bring success and there is no short cut to success either This court is not a court of morals but a court of justice. Breaches of the rules will not be lightly taken.

These observations are made so that people will not say, ‘Something is rotten in the state of Denmark’.

The Federal Court in the Ayer Molek case18 said that ‘judicial pronouncements should be judicial in nature and not depart from sobriety, moderation, and reserve’.19 The Court quoted an indian authority which held that that ‘(judges) cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses’. Timely advice. Personal altercations cannot be tolerated. They may be an affront to the state and its citizenry. It may well border on disservice. And people have a right to be indignant. People are more wary of their rights now.

There are judgments where judges commend counsel, chide them and hope that their decision will be tested by a higher tribunal. In the case of Boonsom Boonyanit v Adorna Properties Sdn Bhd,20 Vincent Ng 15 16 17 18 19 20

(1992) 3 AMR 2823.

(1995) 2 MLJ 734.

Ibid at p 744.

(1995) 2 MLJ 833.

Ibid at p 841I. (1995) 2 MLJ 863.

28

Judicial felicitations are fair. But over-felicitation may be taken or construed to be a show of partiality. It has been said that a judge, like Caesar’s wife, should be above even an iota of suspicion or partiality.

Legalese is said to be the learned language of lawyers. It is noted that judges nowadays have begun to use mundane language in their judgments.

In Houng Hai Hong & Wee Choo Keong v MBf Holdings Bhd & Anor,23 Lamin bin Hj Mohd Yunus PCA said as follows: It is amazing that in the context in which the letter was written, a professional could use the word ‘rumour’. Firstly, why the need to write to the other side merely to say that their information was only a ‘rumour’. He could simply telephone. He was in Jalan Raja Laut while the other in Jalan Yap Kwan Seng. From Jalan Raja Laut, he could even walk to the High Court registry to enquire. He could have 21 22 23

Ibid at p 887.

(1995) 3 AMR 2618.

(1995) 3 AMR 3087.

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got a clear-cut answer. Again the news about the case including the issuing of the order appeared in The Star the same day (10 February 1993). For a politician especially one residing in a city, and for that matter almost anyone, the first item on the breakfast menu is the morning papers. We were more than convinced that the second appellant knew about the case and the existence of the order in the morning of 10 February 1993. By employing the word ‘rumour’ we could not equate the mind of the writer of the letter to the innocent mind of a newly born babe. By that we simply mean that the second appellant was not honest.

In Chung Khiaw Bank Ltd v Hipparion (M) Sdn Bhd,24 Edgar Joseph Jr J (as he then was) made the following opening remarks: This is yet another one of those cases where a borrower is attempting to avoid repayment of money he has borrowed on purely technical grounds.

However as I have said before, this is not a court of morals but a court of law and so if the borrower is right in its contentions then it is entitled to succeed.

The master of simplicity in language and presentation was the greatest English judge of our times, Lord Denning.

Lord Denning in his book, Due Process of Law, at p 59, narrates a little story. No one can better Lord Denning’s language. His simplicity is to be admired. lf at all it should be emulated. This is what he wrote: Once upon a time there was a judge who talked too much. He asked too many questions.

One after another in quick succession. Of witnesses in the box. Of counsel in their submissions. So much so that they counted up the number. His exceeded all the rest put together. Both counsel made it a ground of appeal.

He was the Honourable Sir Hugh Imbert Periam Hallett whose initials gave him the nickname ‘Hippy’ Hallet. He had been a judge for 17 years. He earned a big reputation as a junior at the Bar; and in silk for his knowledge of the law. He used to appear in the Privy Council where Lord Maugham appreciated his talents and appointed him a judge in 1939. He started his judicial career quietly enough but - as often happens - as his experience grew so did his 24

loquacity He got so interested in every case that he dived deep into every detail of it. He became a byword.

The climax came in an ordinary sort of case. It is Jones v National Coal Board (1957) 4 QB 55. The roof of a coal-mine had fallen in.

A miner had been buried by it and died. The widow Lord Chancellor Gerald claimed damages.

Gardiner

The case was tried by Hallet J at Chester He rejected the widow’s claim. She appealed on the ground, among others, that the judge’s interruptions had made it impossible for her counsel to put her case properly. The Board put in a cross-appeal including among others that the Judge’s interruption had prevented the Board from having a fair trial.

The appeal was argued before us by Mr Gerald Gardiner QC (afterwards Lord Chancellor) for the widow. He was the most able advocate I have known. On the other side was Mr Edmund Davies QC (afterwards Lord Edmund-Davies). He was the most resourceful. We usually in such a case give judgment straightaway at the end of the argument.

But on this occasion we reserved it for just over three weeks. We realised that it might lead to the end of the judge’s career; as it did. So we took special care. This is what I said, speaking for the whole court: ‘We much regret that it has fallen to our lot to consider such a complaint against one of Her Majesty’s judges: but consider it we must, because we can only do justice between these parties if we are satisfied that the primary facts have been properly found by the judge on a fair trial between the parties. Once we have the primary facts fairly found, we are in as good a position as the judge to draw inferences or conclusions from those facts, but we cannot embark on this task unless the foundation of primary facts is secure.

No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understanding details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the Board, and to see whether they were well founded or not. Hence, he took them up himself with the

(1988) 2 MLJ 62.

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witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.

Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large, as happens, we believe, in some foreign countries. Even in England, however, a judge is not a mere umpire to answer the question ‘How’s that?’ His object, above all, is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate plays an honourable and notable necessary role. Was it not Lord Eldon LC who said in a passage that ‘truth is best discovered by powerful statements on both sides of the question’?: see ex parte Lloyd. And Lord Greene MR who explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, ‘he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict’: see Yuill v Yuill.

Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. Should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better. Let the advocates one after the other put the weights into the scales - the ‘nicely calculated less or more’ - but the judge at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch & Zaretzky, Bock & Co. So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: see R v Cain, R v Bateman, and Harris v Harris

by Birkett LJ especially. And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: see R v Clewer. The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down 30

by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he said that: Patience and gravity of hearing is an essential part of justice; and an overspeaking judge is no well-tuned cymbal.’

Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is what has happened here.

A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties - nay, each of them - has come away complaining that he was not able properly to put his case; and these complaints are, we think, justified.

Courts and judges should be ever mindful of the aforesaid dictum of Lord Denning in the case of Jones v National Coal Board.25 Tun Salleh when launching the books Law, Justice and the Judiciary: Transnational Trends by Prof Dato’ (Dr) Visu Sinnadurai (now one of His Majesty’s judges serving in Muar) and Malaysian Law is reported to have said,26 inter alia, as follows: To say that the law is buried deep in the heart of judges and will only manifest itself according to the emotional and psychological attitude of judges is, to say the least not only a misconception of what the law is but also an unfair criticism.

Tun Mohd Suffian in the book Lord President Suffian: His Life and Times said: First and foremost judges who accept responsibility of judicial functions should avoid the use of the Bench as a platform to make derogatory remarks on any person or make comments unrelated to issues involved before them.

Tun Mohd Suffian

The learned Tun went on to give a word of advice: Junior members of the Bar deserve special consideration. They don’t have enough experience.

They are eager to learn to do the best they can for their clients. If I find it necessary to tick them off do so in the privacy of my chambers.

25 26

(1957) 4 QB 55.

(1988) 1 MLJ xxii.

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He also said: Judges should not make themselves obnoxious to counsel by chiding or ridiculing them, for the task of an advocate is a difficult one. Lawyers too have a duty to their clients and a duty to the court.

Lord Chancellor Bacon said that ‘patience and gravity of hearing is an essential part of justice and an overspeaking judge is no well-tuned cymbal’.

In Morality and the Law, Gerald Abraham writes that judges of the High Court were called ‘lions around the throne’ in the days when they were the King’s men. He says that ‘history is full of their roarings and their rapine.

And they left a literature, full of bloody morsels from the ovens of Coke and redolent with the odours of Bacon’.

The book Roses in December is an autobiography. It is an autobiography of a great indian judge, MC Chagla.

He was a judge in the l940s.

Chagla took the view that: ... it is the business of counsel to tell me what the pleadings contain. My job is to decide after hearing them. I followed throughout my judicial career. I think it a mistake for a judge to go to court after studying the case that is coming up before him. Inevitably one makes up one’s mind one way or other after having read the papers. I agree the decision is tentative and one might change it after hearing counsel. But it requires a very strong mind to change an opinion once formed.

Chagla claims that he never reserved judgment. He says: Throughout my career as a judge, I have never reserved judgment except, I think, in one case; and God knows, I have delivered hundreds of judgments.

I remember the first occasion when an important point was argued by Munshi and Taraporevala on opposite sides. I hesitated for a moment, and wondered whether I should reserve judgment, or deliver the judgment straightway and whether I would be equal to the task. I said to myself: ‘I have delivered several speeches as a politician, but it is one thing to make a political speech; it is quite a different thing to write a judgment, laying down the law with precision and conciseness.’ But I thought again. If I had allowed my fear and hesitation to prevail, I should have been lost. So I took courage in both hands, called the stenographer immediately and dictated the judgment then and there.

I cannot understand why, after a judge has heard both sides, has appreciated all aspects of the

matter, has cleared his doubts by putting the right questions to counsel, he has still to think over the matter before he can decide the case one way or the other. It is much better to get the matter off your chest immediately. Your mind is full of the case, of the arguments you have heard, of all the facts that have been recited before you. Everything is fresh.

Reservation of judgment very often leads to judges forgetting some of the facts, and also the arguments advanced before them. How often have we been told that a point was argued in the High Court but has not been mentioned in the judgment. A further advantage is that as the judgment is being delivered in open court, any mistake or misstatement that a judge nightmare while delivering the judgment, can be immediately corrected by counsel in court.

Judges like Chagla will be a source of inspiration and consolation to young or junior members of the Bar. This what Chagla says: I should also like to say a word about the patience or the indulgence that may be called for when a junior lawyer is arguing a case. Senior lawyers do not need protection from the court; they can look after themselves. A junior arguing his first case, or one of his early cases, needs all the sympathy and understanding that a judge can show him. He may not be able to put his point properly. The judge should overlook such deficiencies and actively help the man to formulate his points more accurately. If he has succeeded in arguing judge shoulder out of his way to pay him a compliment in the judgment.

Judges do not realise what a great matter of pride it can be to a junior lawyer to be complimented in a judgment. One can imagine his elation and his optimism about his future at the Bar. I have seen with regret judges accepting a proposition from a senior while brushing aside the same proposition when advanced by a junior. Looking back, one great satisfaction which I have about my life on the Bench is that I have rarely lost an opportunity of extending a helping hand to so many junior lawyers many of whom have made good and some even adorn the his case well, the Bench.

A judge is a lawyer by training.

Sir Dr RE Megarry QC (as he then was) - delivering the ‘Hamlyn Lectures’ entitled ‘Lawyer and Litigant in England’ in 1962 said: In the layman’s eyes a judge is almost by definition a profound lawyer.

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Sir Dr RE Megarry QC

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Frankfurter J was an eminent American judge.

In a letter to a 12-year-old who wanted to be a lawyer, he said as follows: My dear Paul No one can be a truly competent lawyer unless he is a cultivated man. If I were you, I would forget all about any technical preparation for the law. The best way to prepare for the law is to come to the study of the law as a well-read person. Thus alone can one acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking which only a truly liberal education can give. No less important for the lawyer is the cultivation of the imaginative faculties by reading poetry seeing great paintings, in the original or in easily available reproductions, and listening to great music. Stock your mind with the deposit of much good reading, and widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe, and forget all about your future career.

With good wishes, Sincerely yours, (Signed) Felix Frankfurter Master M Paul Claussen Jr Wounding or hurtful use of words and adjectives in judgments in reference to parties or witnesses cannot be mitigated even by an appellate court. In expunging the offending words, the order to expunge often reproduces the offending words and repeats the damage.

In The English Judge, Henry Cecil says: The British Legal Association complains about oppressive practices on the part of some judges.

‘From time to time’, the Association writes, ‘solicitors fall below the high standard of behaviour required of them and it is necessary for judges to reprimand them in public. Far too frequently certain judges reach hasty conclusions without having heard any explanation from the solicitor concerned.

It is submitted that, if a solicitor is about to be criticised, he should be notified privately in advance by the judge, he should be requested to explain his conduct and given an immediate right of reply either in person or by counsel. The Association entirely agrees that judges should be entitled to reprimand solicitors as and when necessary and is simply asking for fair play.

The learned author who himself was a retired judge says: Every sane person abuses his power from time to time, but a judge has many more opportunities of doing this than most other people. One unfair 32

remark by one judge can bring the judiciary as a whole into disrepute, just a few unruly and badmannered students can give the young people of today a bad name. In each case the percentage is tiny but the harm is done just the same.

The judge is in a unique position. Not merely is everything said by him during a case absolutely privileged, but he cannot be shouted down as in Parliament, or even answered back if he refuses to allow it. He can cause great misery and frustration to parties, witnesses and advocates. The harm that a judge can do is not merely in actual injustices, that is, wrong decisions, but in sending litigants (and advocates) away with a feeling that their cases have not been properly tried.

The public puts great trust in our judges and, on the whole, this trust is not abused. But a few judges do occasionally say wounding and hurtful things to or about witnesses, counsel or solicitors and the person concerned usually has no remedy.

Such remarks may have a permanent effect upon a man, who may be so upset by the unfair strictures upon him that he proceeds to take it out on the next person available, probably his wife. It is hardly too far-fetched to say that the possible chain reaction from bad behaviour by a judge could be a divorce.

Further support is found in the Hamlyn Lectures of 1952

by Sir Dr RE Megarry QC (as he then was). This is what he said: I am concerned with incidental comments which do not affect the result of the case yet which may be deeply wounding. Perhaps it has emerged that someone connected with the case has changed his name or nationality or both; perhaps he has been bankrupt, or a patient in a mental hospital. These facts may have no possible bearing on the result of the case, and yet the judge may more than once refer slightingly to them. To the judge these remarks may be of little moment, to be forgotten soon after the case is over; yet the litigant or his witness has been seared.

It is a fervent prayer that judgments will have language that is temperate civil and sober without the pain of uncalled for adjectives, wounding and cantankerous language. Litigants and lawyers use the courts. To seek justice and solace. And relief. Let’s not abuse them.

It is been said from time immemorial that the halls of justice are hallowed places. Not only the Bench but the Bar table and the witness boxes and the precincts of the court should be accorded hallowed treatment.

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Whosoever who treads these hallowed precincts should be treated with respect, courtesy and care. After all we are all mere servants in the Temple of Justice.

In concluding, a quote from Lord Hardwicke (1742) would be quite in order: There cannot be anything of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety to themselves and their characters.

“A judge learns something every day from the members of the Bar and I feel that every day I have sat here I have become a little more capable of carrying on my duties as result.”

- Justice N.H.P. Whitley 1938 MLJ at page viii “But cases are won by being on the right side of the Gods. Being on the right side of the Judge should also help.”

- Mr Justice Mahadev Shankar (1) MJ 1984 page xi

Dato’ Mahadev Shankar

HEALTH ALERT! How to manage stress STRESS happens to everyone every day. Family, work, unexpected changes, relationships, illness and money can cause anxiety. Stress affects people differently – some become anxious or defensive, others become depressed or withdrawn.

The first step in managing stress is to identify its source. Next, you can either change the situation or alter how you react to the situation. No single method works for everyone or in every situation, so you have to ask yourself what works best. Here are some techniques you can adopt.

Practise better time management

Make a list of the tasks you need to do and set aside a fixed amount of time to complete them.

Change your expectations

Look at the bigger picture.

Ask yourself how important it will be in the long run.

Adjust your standards

Stop setting yourself up for failure by demanding perfection.

Accept what you can’t change

Some things in life are beyond our control. Focus on the things you can control instead.

Avoid unnecessary stress

Learn how to say “no”. Taking on more than you can handle is a recipe for stress.

Reassess your priorities

Drop tasks that aren’t necessary to the bottom of the list or eliminate them entirely.

Work around the problem

Compromise. When you ask someone to change their behaviour, meet them halfway and do the same.

Share your feelings

If you don’t voice them, resentment will build and the situation is likely to remain the same.

Make time for yourself

Don’t neglect yourself. Make time to nurture yourself, and you may find yourself in a better frame of mind to handle problems.

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GROUP LAW PRACTICE

The Rules The Legal Profession (Group Law Practice) Rules 2018 (“Rules”) took effect on 30.6.2018.

The Rules were drafted by the Bar Council and approved by the Attorney General under s 77 of the Legal Profession Act 1976 and was gazetted on 25.6.2018.

The Rules were a culmination of the Bar Council’s initiative over the years with the Small Firms Practice Committee to allow small law firms to operate as a group whilst at the same time maintain their individuality as a firm.

The Objective For purposes of the group practice, a small firm is a firm with no more than five advocates and solicitors and without a branch office. Up to five small firms are allowed to operate from a common premises with shared resources and infrastructures.

By operating as a group the small firms will be able to reduce their operating costs, increase their skills set and maximize their potential, marketability and competitiveness in an increasingly competitive legal industry.

The Benefits By operating from a common premises and sharing infrastructures (e.g rental, staff, subscriptions, library and equipments) small firms will be able to reduce their operating costs. This is the most striking benefit.

By operating as a group with several firms doing work in various areas of the law, the small firms will be able to offer wider range of legal services and increase their marketability and attractiveness to potential clients. There will be higher level of client procurement and client retention for small firms.

Small firms will be able to promote themselves as a larger “firm” and become more attractive to clients and attract high-fee earning works. Clients especially the “big-clients” would have more confidence to trust the small firms with complex and high-fee earning works.

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The level of job satisfaction in legal practice would also improve. Sole-proprietors and small partnerships would no longer feel isolated in their office and practice. There will be easier and greater opportunity to consult, legal discourse and networking. There will also be easy source of referrals for small firms. The group setting will also benefit younger lawyers as they will have someone reliable within the vicinity to provide guidance and mentoring.

Group practice elsewhere In preparing the framework for group law practice, the Bar Council had studied the group law practice model in Hong Kong, Singapore and Australia.

In Hong Kong two or more firms may operate from the same address as separate firms in mutual co-operation. The group practice is not a legal entity and not a partnership. The group is identified by a Chinese or English approved name that includes the expression “Group Practice”.

A firm in the group may use the group name in conjunction with the firm name but the firm name should carry more prominence. The group is to be managed by a company whose directors and shareholders shall be employees under the group and the company cannot engage in any activity other than the management of that group practice.

In Singapore two or more firms can practice under a group name as separate firms in mutual co-operation. The group is not a partnership and shall bear an approved name with the words “Group Law Practice”. A firm in the group can use the group name with its firm name. The group is to be managed by a manager. The firms in the group may operate a common office account to meet the group’s common expenses. Each firm in the group must still maintain their own office account and clients account.

The main features of the group practice under the Legal Profession (Group Law Practice) Rules 2018

The Bar Council will maintain a register of group law practice. Firms that wish to operate as

INFO JOHORE BAR - JUNE 2018

a group law practice must apply for approval from the Bar Council.

The group law practice shall consist of two small firms or a maximum of five small firms operating from a common address or premises. A small firm is a firm with not more than five advocates and solicitors and without a branch office.

The group law practice is to bear a name as approved by the Bar Council with the words “Group Law Practice” or “Amalan Undang-undang Berkumpulan”. The name should not be one that may reasonably be regarded as being ostentatious, misleading, sensational or in any other way unbefitting the dignity of the legal profession or similar or likely to be confused with other groups.

The group law practice name is to be displayed on a nameplate outside the premises of the group practice and the nameplate shall also display the names of all the firms in the group. The nameplate shall be in the form as determined by the Bar Council.

The firms in the group law practice shall use the group law practice name together with the name of the firm in their documents and stationeries including letterheads and business cards – provided that the firm’s name shall be more prominent than the name of the group law practice.

The group law practice cannot have a branch and a firm cannot be a member of more than one group law practice.

The group law practice is not a legal entity and is not a partnership nor can be operated as a partnership. The firms co-operate with each other without being partners. A notice to this effect is to be displayed in the office of the group law practice and to be given to the clients of the firms. Each firm in the group is to be liable for its own debts and liabilities and bear its own professional indemnity insurance premium, subscriptions and levies payable to the Bar Council and the Bar Committee.

Each firm in the group law practice continue to exist as a separate legal entity and to continue to maintain its own office account and client accounts.

However, the firms in the group law practice may operate a common bank account for the purpose of meeting the common expenses of the group.

All the firms in the group law practice must operate from a common address or premises and may share the facilities and infrastructures such as staff, library, subscriptions and equipments.

A firm which joins or withdraws from a group law practice must notify the Bar Council of the same in writing within fourteen days.

A firm in a group law practice may request another firm in the group to undertake work entrusted by a client of that firm provided that the client has consented to the same in writing. A firm in the group law practice may act for a party in a matter where another firm in the group law practice is acting for the other party in the same matter provided that both parties have given their consent in writing. A notice to this effect shall be displayed prominently within the office of the group law practice.

A sole-proprietorship firm in the group law practice shall, with the permission of the Bar Council, appoint another firm in the group to act in his stead in the event of his incapacity or death In line with the introduction of the group law practice the Bar Council Ruling 7.03 that prohibited sharing of premises by law firms has been amended to allow sharing of premises by firms operating under a group law practice.

The group law practice is an innovation in legal practice introduced by the Bar Council.

It is another step towards improvement of legal practice and to provide more practice options for members. The group law practice does not change the fundamentals of the conventional firm based practice and has the potential to add more value and quality to small firms’ practice.

Members of the Bar especially those from small firms are strongly encouraged to study and consider the feasibility of group law practice. The Rules and the application forms are available at the Malaysian Bar website. Members who require more information or clarification may contact the Small Firms Practice Committee.

R. Jayabalan Chairperson Bar Council Small Firms Practice Committee

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JOHORE BAR ACTIVITIES SEMINAR ON MANAGING OFFICE & CLIENTS’ ACCOUNTS On 14th June 2017, the Johore Bar CPD organised a Seminar on Managing Office & Clients’ Accounts at Abdullah A. Rahman Auditorium. The seminar was conducted by Mr K C Lim. 51 persons attended the seminar.

ELEMENTARY COURSE ON THE REPRESENTATION OF CHILDREN IN MALAYSIA On 19th July 2017 the Johore Bar CPD and Bar Council Child Rights Committee jointly organised an Elementary Course on the Representation of Children in Malaysia at Abdullah A. Rahman Auditorium. The trainers were Ms Ajeet Kaur, Ms Yvette Mah, Ms Goh Siu Lin and Mr Lee Teong Hooi. 21 persons participated in the course.

SEMINAR ON LAW OF JOINT VENTURES On 7th July 2017, the Johore Bar CPD organised a Seminar on Law of Joint Ventures at Abdullah A. Rahman Auditorium. The speaker was Mr K C Lim. 92 persons attended the seminar

SEMINAR ON THE DIFFERENCE BETWEEN ISLAMIC WILL AND NON ISLAMIC WILL On 13th July 2017, the Shariah and CPD sub committee jointly organised a Seminar on the Difference Between Islamic Will and Non Islamic Will at Abdullah A. Rahman Auditorium. The seminar was presented by Tuan Hj. Zainal Abidin Sh. Zakaria. 87 persons attended the seminar.

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INFO JOHORE BAR - JUNE 2018

JOHORE BAR ACTIVITIES HARI RAYA CELEBRATION On 20th July 2017, the Johore Bar Social Committee organised a Hari Raya Celebration at Tropical Inn Hotel, Johor Bahru. Apart from members of Bar the High Court Judge, Judicial Commissioners and the Sessions Court Judges, Magistrates, Deputy Registrars and other Judicial officers also attended the gathering and enjoyed the sumptuous high-tea menu especially the roast lamb. The attendees enjoyed the performance by the Convent Johor Bahru Choir band with songs from their repertoire.

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JOHORE BAR ACTIVITIES JOHORE BAR vs PAHANG BAR FRIENDLY GAMES 2017

The 2nd Annual Johore Bar vs Pahang Bar Games 2017 was held on 29th July 2017. This edition was hosted by the Johore Bar. Four events were organised and ended with closing dinner at JCSC, Taman Tasek, Johor Bahru.

GETTING STARTED WORKSHOP On 17th August 2017, the Johore Bar CPD and Bar Council Professional Indemnity Insurance Committee jointly organised the Getting Started Workshop at Abdullah A. Rahman Auditorium. The workshop was to introduce young members to management of law firm. 38 persons attended the workshop. The speakers were Ms Karen Cheah, Tuan Hj. Abdul Murad, Mr R Jayabalan, En. Johan Shahar and Cik Mysahra Shawkat.

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JOHORE BAR ACTIVITIES PROFESSIONAL STANDARDS COURSE On 5th & 6th Sept 2017, the CPD Committee organised the Professional Standards Course. The course was attended by 49 pupils. Senior members of the Johore Bar briefed the pupils to various aspects of practice such as maintenance of client accounts, managing clients, court practice, risk management and the values of the Bar. The course was followed by an exam on the next day and ended with a formal dinner with the High Court Judges and pupil masters at Grand BlueWave Hotel, Johor Bahru. The guest speaker at the dinner was Mr. George Varughese, President of the Malaysian Bar who gladly shared his experience at the Bar and gave guidance on managing practice.

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JOHORE BAR ACTIVITIES YOUNG LAWYERS & CHAMBERING PUPILS AND SPORTS COMMITTEE BBQ On 7th – 8th October 2017, the Young Lawyers and Chambering Pupils jointly with Sports Committee organised the BBQ at Mersing, Johor. The purpose of the event was to enhance camaraderie and bonding between members as well as sharing of legal experience with young lawyers and pupils. 25 lawyers took part in the event. The activities included Dodge Ball Match, Campfire and Mega BBQ.

PUBLIC FORUM: “STOP THE MONSTER NOW OR NEVER” On 3rd October 2017, the Human Rights Sub Committee organised a forum on child rights at Tropical Inn, Johor Bahru. The speakers were Dato’ Yasmeen Shariff, Ms. Manimegalai G, Mr. Raymond.

The forum was moderated by Mr. Norman Fernandez with welcoming remarks by Mr Danny Loo, Human Rights Committee Chairperson.

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JOHORE BAR ACTIVITIES SEMINAR ON CONSTRUCTION INDUSTRY PAYMENT AND ADJUDICATION ACT 2012 (CIPAA 2012) (ACT 746) On 15th Sept 2017, the CPD Committee organised a seminar on Construction Industry Payment and Adjudication Act at Abdullah A. Rahman Auditorium.

Mr. Shamsul Bahrin Manaf presented the seminar. 42 persons attended the seminar.

SEMINAR ON BANKRUPTCY (AMENDMENT) ACT 2017 On 29th Sept 2017, the CPD Committee organised a seminar on Bankruptcy (Amendment) Act 2017 at Berjaya Waterfront Hotel, Johor Bahru. The speaker was Mr. Khoo Kay Ping. 192 persons attended the seminar.

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JOHORE BAR ACTIVITIES SEMINAR ON INTRODUCTION TO ISLAMIC FINANCE On 25th Oct 2017, the Johore Bar CPD and Bar Council Islamic Finance Committee organised the introductory seminar on Islamic finance at M-Suites Hotel, Johor Bahru. The speakers were Mr. Jal Othman, Mr. Megat Hizaini Hassan and Mr. Hizri Hasshan. 66 persons attended the seminar.

TRAINING ON YAYASAN BANTUAN GUAMAN KEBANGSAAN (“YBGK”) On 28th Oct 2017, the Bar Council YBGK Steering Committee organised a training on legal representation under the YBGK Scheme at Abdullah A. Rahman Auditorium. 42 members attended the training.

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JOHORE BAR ACTIVITIES SEMINAR ON CONVEYANCING PRACTICE AND RECENT DEVELOPMENTS On 10th Nov 2017, the CPD Committee organised a seminar on conveyancing practice and recent developments in the practice. The speaker was Mr Yang Pei Keng and held at Berjaya Waterfront Hotel. 150 persons attended the seminar.

FAREWELL DINNER FOR JUSTICE DATO’ TEO SAY ENG The Social Sub Committee organised the farewell dinner in honour of Justice Dato’ Teo Say Eng on 31st October 2017 who was due for retirement, at DoubleTree Hotel Johor Bahru. 116 members attended to show appreciation of the Johore Bar to the Judge for his contribution during his tenure of service in Johor Bahru.

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JOHORE BAR ACTIVITIES FORUM ON CONDUCT OF ACCIDENT MATTERS IN JOHOR BAHRU SESSIONS COURT On 8th November 2017, the Johore Bar Courts Liaison Committee held a forum with members to discuss issues faced by members in running down matters at Abdullah A. Rahman Auditorium.

SEMINAR ON BASIC CRIMINAL LITIGATION On 23rd Nov 2017, the CPD Committee organised seminar on basic criminal litigation. Mr Salim Bashir presented the seminar.

35 members attended the seminar.

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JOHORE BAR ACTIVITIES SEMINAR ON MERGERS & ACQUISITIONS MANAGING COMMONLY ENCOUNTERED ISSUES On 8th December 2017, the CPD Committee organised a seminar on merger & acquisitions at Abdullah A. Rahman Auditorium. The speaker was Mr K C Lim. 49 persons participated in the seminar.

SEMINAR ON BANKRUPTCY (AMENDMENT) ACT 2017 On 15th December 2017, the CPD Committee organised seminar on Bankruptcy (Amendment) Act 2017 at Bei Boutique Hotel, Muar, Johor.

The speaker was Mr. Khoo Kay Ping. 79 persons attended the seminar.

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JOHORE BAR ACTIVITIES 45TH BENCH & BAR vs POLICE GAMES 2017 The 45th Annual Johor Bench and Bar vs Police Games 2017 (“Games”) was held from 26th January 2018 to 3rd February 2018. Seven events were held namely cricket, volleyball (mixed), badminton, shooting, futsal, table tennis (mixed) and soccer. The Games were jointly officiated by YA Puan See Mee Chun, Senior High Court Judge in Johor Bahru, and YDH Datuk Mohd Khalil Kader Mohd, Chief Police Officer of Johor, followed by a game of cricket at Johor Cricket Council, Mutiara Rini, Johor Bahru. The Games ended with a closing ceremony and dinner at IPK, Johor Bahru on 3rd February 2018. The police team emerged as overall winners.

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45TH BENCH & BAR vs POLICE GAMES 2017 |26TH JAN 2018 – 3RD FEB 2018

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48TH ANNUAL GENERAL MEETING OF THE JOHORE BAR On 23rd February 2018, the Johore Bar’s 48th Annual General Meeting (“AGM”) was held at Berjaya Waterfront Hotel, Johor Bahru. 289 members attended. This was a record attendance for the AGM. Mr. R Jayabalan was elected as the Chairman of the Johore Bar and Mr. S Gunasegaran as the representative to the Bar Council.

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

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45TH ANNUAL GENERAL MEEETING OF THE JOHORE BAR

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JOHORE BAR ANNUAL DINNER & DANCE 2018 At DoubleTree by Hilton, Johor Bahru 24th February 2018

Aimi Syarizad This year’s Annual Dinner and Dance was held at the DoubleTree by Hilton Hotel Johor Bahru on the 24th of February 2018. Thanks to the tenacity of the Social, Charity and Welfare Sub-Committee members, this year, we had close to 300 attendees.

The evening was graced by our Guest of Honour, the President of the Malaysian Bar, Mr George Varughese and his spouse, who led the crowd in the tossing of the Yee Sang; a break from our traditional fare and held in the spirit of the then ongoing Chinese New Year celebrations.

Following that, the attendees enjoyed their dinner to the musical styling of Glenn and Sasha who brought out the inner rock stars in all of us through their rendition of classic Pop and Rock songs, even including some Chinese, Hindi and Malay songs to the delight of the audience.

The attendees were also treated to the hilarious antics of the emcee R K Farid who kicked the evening off with the Best Dressed competition which saw several splendidly dressed members of the Johore Bar dancing and ‘falling in love’ on stage much to the enjoyment of the crowd.

The highlight of the evening came in the form of Malaysia’s very own ‘homegrown’ comedian (and actor, and composer, and lyricist, and apparently anything else you can imagine) the clearly multitalented: Douglas Lim. His astute observation of all things Malaysian was a clear hit as everyone was able to relate to the subject matter; our beloved nation of Malaysia and the oddities of her citizens!

His 30 minute set had everyone doubling over in laughter.

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With the scrumptious Dinner over, the night paved the way to the Dance portion of the evening, where this time, even our Guest of Honour and his lovely spouse took a turn on the dance floor. Members of the Johore Bar too exhibited their lithe limbs on the dance floor, before calling the night off around midnight.

At the risk of tooting my own horn, I certainly believe that the night was a spectacular success; one that would not have been possible without the constant and unwavering support of the Social, Charity and Welfare Committee members and the Johore Bar Committee Members of 2017/18. Special thanks to Ms Meneka Kanasmoorthy, Ms Punitha Mariappan and the Johore Bar Secretariat led by the ever reliable Kak Siti, for their much needed and appreciated enthusiasm and initiative. I am deeply grateful.

To the members of the Johore Bar who showed their support either by attending or through their contributions both in cash and kind, I would like to take this opportunity to thank you profusely. I hope that we showed you a good time. If there were any shortcomings, I sincerely apologize and bid that it not deter you from attending our future events.

Till then, I thank you again and hope to see you often at the Social events of 2018/19!

Aimi Syarizad Binti Kuthubul Zaman Chairperson Social, Charity & Welfare Sub Committee 2017/18

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JOHORE BAR ANNUAL DINNER & DANCE 2018 | 24th February 2018

Speech by the Chairman of the Johore Bar Committee 2017/18

S. Gunasegaran Our Guest-of Honour Mr George Varughese, President of the Malaysian Bar and his lovely Spouse Dr Lilian George.

Dato’ Abdul Fareed bin Abdul Gafoor, Vice-President of the Malaysian Bar. He is without his spouse, and hence very free and available.

Chairpersons and Representatives of: Law Society of Singapore Malaysian Medical Association (Johor) Malaysian Dental Association (Johor) Institution of Engineers Malaysia (Johor) Institution of Surveyors Malaysia (Johor) Malaysian Institute of Architects (Johor) Johor Master Builders Association My Fellow Members of the Bar Distinguished Guests Ladies and Gentlemen

Continuing Professional Development (CPD) has always been the pride of the Johore Bar. We have over the years, almost by ourselves and without relying on the Bar Council, developed a very strong and active CPD program to enhance the professional knowledge and skills of our members. Last year we organized a total of 18 events, out of which 2 were held in Muar for the benefit of our brethren practising in North Johor. And beginning this year the Johore Bar has started conducting its own Professional Standards Course for pupils-in-chambers and we are the only State Bar in the country to do so.

Congratulations Santhi for a job well done.

A very good evening and Welcome one and all to the Annual Dinner & Dance of the Johore Bar 2018.

The Legal Aid Sub-committee headed by the energetic Punitha Mariappan is another active committee that works everyday throughout the year in providing legal aid to the public in criminal matters under the Yayasan Bantuan Guaman Kebangsaan (“YBGK”).

The Annual Dinner is the highlight of the social calendar of the Johore Bar and is the last event organised by the outgoing committee for the year 2017/18.

The Sports Sub-committee chaired by Khairul Asri organized the usual sporting events and managed to revive the Annual Bench & Bar v Police Games which went into hibernation the previous year.

The past year had been a very active and eventful one for the Johore Bar. As usual, the Committee was focused on dealing with and resolving issues pertaining to the two main practice areas of our members, namely Litigation and Conveyancing.

And not to be outdone, the Social Sub-committee under Cik Aimi Syarizad has been busy organizing all kinds of social gatherings throughout the year, including this very function.

Court issues were resolved through regular meetings with the Judiciary, for which I am grateful to the Honourable Justice Dato’ Indera Mohd Sofian bin Tan Sri Abdul Razak, the Hakim Utama of the Johor Bahru High Court and Puan Sabariah binti Atan, the Pengarah Mahkamah Negeri Johor for keeping their doors open for me throughout the year.

As for Conveyancing, Mr Lim Eng Siang, though a newcomer, has proven to be a worthy successor to Mr Andrew Wong who had been the Chairperson of that Committee for many years before that.

All other Sub-committees have done their fair share of work.

Like they say “All roads lead to Rome” all these events led to our final destination, namely the 48th AGM of the Johore Bar which was held yesterday. My last two AGM as Chairman have been record breakers of sort. Last year the AGM was over within the hour and has entered the annals of the Johore Bar as the shortest AGM ever. This year’s AGM has set another record as the AGM with the largest attendance. The Secretariat had a tough tine struggling to register the 289 members who turned up for the meeting,

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which is 3 times the quorum required for our AGM. Totally unprecedented. I suspect, but am not very sure that the record attendance was because all the positions for election were hotly contested. The elections nevertheless proceeded smoothly. Ladies and Gentlemen, it is now my pleasure to introduce the newly elected members of the JBC for the year 2018/19: Chairman: R. Jayabalan Committee members: Punitha Mariappan Santhi Balachandran K. Mohan Roger Lo Ming Aimi Syarizad binti Datuk Kuthubul Zaman Khairul Asri bin Ahmad Allen Loh Wei Cher Lim Eng Siang Shahareen Begum binti Abdul Subhan Danny Loo

Now the farewell part of the speech. I have served a total of 6 terms as Chairman of the Johore Bar. It has been an honour, privilege and pleasure to have been of service to you. You have given me the unique opportunity to serve the profession that I take pride in belonging to. I thank you from the bottom of my heart for having placed your trust and confidence in me all those years. On my part I have tried earnestly to serve you well and I hope that you have not been disappointed with my efforts and results. But if there have been any deficiencies or shortcomings, kindly accept my humble apologies.

Finally I take this opportunity to record my deepest appreciation and gratitude to the following: Firstly, the members of my Committee, not just for the last year but all those who have served previously, for your undivided support, co-operation and guidance, in carrying out my duties as Chairman, without which I would not have been able to achieve anything. I am ever so indebted to you.

Johore Bar Representative: S. Gunasegaran Congratulations to the new team.

After all the stress and tension of the AGM yesterday, this Dinner and Dance serves as a stress relief therapy for us. Where we meet our brethren in a relaxed and jovial atmosphere, where we eat and drink to our heart’s content and have a happy time.

The Organizing Committee has spared no efforts to make it an enjoyable and memorable event for you. I take this opportunity to thank the bubbly Organizing Chairperson Aimi Syarizad binti Datuk Kuthubul Zaman as well as the inimitable Meneka Kanasmoorthy and the members of the Social Subcommittee for making this possible.

Meneka has been involved in the activities of the Johore Bar for such a long time and her contribution to the social events, in particular the Annual Dinner and Dance over the years is immeasurable. She has declined nomination to the Johore Bar Committee this year, I believe because she is taking sabbatical leave and will be back next year or so.

I am technically no more the Chairman of the Johore Bar as we have just elected a new Chairman. In my new avatar as your Bar Representative I will continue to defend, promote and champion the interests of the Johore Bar at the Bar Council, and I 54

hope that the President and the Vice-President who are here, have no objections to that.

Secondly, the efficient and dedicated staff of the Johore Bar Secretariat, both at Johor Bahru and Muar, and ably led by our ever-smiling Executive Secretary, Siti Norhafizah Mohd Umar for taking care of all our secretariat matters and for ensuring the success of all the activities, events and functions organized out by the Johore Bar throughout the year.

A very big thank you to Siti and team.

Thirdly and lastly, to my family, in particular my dear wife Chandrika, for being my pillar of strength, supporting me in all my endeavours, tolerating my frequent absence from home, office and social functions and most importantly for attending to my court cases on a regular basis when I was running around doing Bar work. Thanks a million for your support and understanding. Now that I am no more the Chairman I hope to make up for the lost time and opportunities.

Ladies and Gentlemen, with that, thank you and have a pleasant evening.

S. GUNASEGARAN Chairman Johore Bar Committee 2017/18

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JOHORE BAR ACTIVITIES COURTESY CALL ON THE JUDGES AND JUDICIAL COMMISSIONERS OF THE HIGH COURT AT JOHOR BAHRU The Johore Bar Committee took office after the AGM on 23rd February 2018. The new Committee paid a courtesy call on the Judges and Judicial Commissioners of the High Court in Johor Bahru on 12th April 2018.

COURTESY CALL ON THE JUDGE AND JUDICIAL COMMISSIONER OF THE HIGH COURT AT MUAR, JOHOR The Johore Bar Committee also paid courtesy call on the High Court Judges in Muar on 3rd May 2018 at the Muar High Court.

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DEPARTED MEMBERS OF THE JOHORE BAR

Mohd Hilmy bin Samsudin

Dato’ Joseph Singaram Pillay

Ravichandran a/l Sinnappah

1/3/1969 – 8/11/2017

4/9/1957 – 20/2/2018

14/8/1964 – 31/3/2018

Allahyarham Mohd Hilmy bin Samsudin passed away on 8th November 2017 at the age of 48. He was born on 1st March 1969. He was called to the Bar on 11th November 2000.

He practised in the firm of Messrs Mohd Amin, Ng & Associates.

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

The late Dato’ Joseph Singaram Pillay passed away on 20th February 2018 at the age of 61.

He was born on 4th September 1957. He was called to the Bar on 28th November 1987. He set up his own practice under the name and style of Messrs J. S Pillay & Co. with branches in Selangor, Kuantan and Johor Bahru.

The late Dato’ J.S. Pillay leaves behind his wife and two daughters.

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

The late Ravichandran a/l Sinnappah passed away on 31st March 2018 at the age of 54. He was born on 14th August 1964. He was called to the Bar on 20th March 1996. He practised as a senior partner in the firm of Messrs Zaid Ibrahim & Co. The late Ravichandran a/l Sinnappah leaves behind his wife and two sons.

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

Death is not the end. It is a NEW BEGINNING for those we have lost where they are greeted by the familiar faces of old family, friends, and pets who have passed on long before them. It is an amazing transition in to a new world called “Heaven”.

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CONGRATULATIONS TO THE NEWLY ADMITTED MEMBERS OF THE BAR (JOHOR) (AS AT TIME OF PUBLICATION) NO 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40

NAME CHAN CHUN FANG LIM CALLY MOHAMED HAFIZ BIN BAHARUDIN NG YU JIA AQMAL HAKIM MAULA MEMAN CHAI ING HIEN LOW HUI LE SRI DIVI A/P GUNAPATI GWEE YUN XIAN LEE CHEAW HONG NG XUANYING TAN YEE MEE CHEW SIN CHI JOYCE TAI LI SZE VILASHINIDEVI A/P SATHIASEELAN DINESHKUMAR A/L VEGEKUMARAN LIM JIAN YIE MUHAMMAD AFNAN BIN NAZIM SHALINI A/P CHANDNIRAN WONG CHAN HWA FARRIS LEE BIN DINIE LEE MOHAMAD SAUFI BIN SARMIN SHAHEERAMARIA BINTI GHAZALI SIONG CHAI TENG YARSHINI A/P JIWAN AIMI NASARUDDIN BIN MOHD ROSLAN NOOR NABILA BT SHAMSUDIN NUR SYALIANA BINTI MOHD SOFFIAN AINA NADIAH BINTI ALIAS ANIS NAFISA BINTI KAMARUL JAFREY IVY ALVERA ANG NYUK-LAI SOH CIA WEN FATIN NABILA BINTI KAMAROL ZAMAN WONG ZU HAO AZRI NADIAH BINTI MOHD YANI KHOO YIN ZHANG LOH CHIN EE MUHAMMAD SYAHMI BIN SULAIMAN NUR AFIZAH BINTI YUSOFF NURAINI SAKEENAH LEE BINTI ADI JOHAN LEE

FIRM LF CHONG & CO TEA, KELVIN KANG & CO ROSLI KAMARUDDIN & CO ZAID IBRAHIM & CO OTHMAN HASHIM & CO GULAM & WONG LIM & HOOI REGINALD VALLIPURAM & CO ARTHUR LEE & CO S K SONG H H LONG & CO XIAN & CO ZAINUL RIJAL TALHA & AMIR DAVID GURUPATHAM & KOAY ZAINUL RIJAL TALHA & AMIR A. RAHIM & CO SYED ALWI, NG & CO SYED FAISAL & CO R JAYABALAN S K SONG SYED ALWI, NG & CO ZAID IBRAHIM & CO RUSMAH ARUNAN & ASSOCIATES (KL) CHIONG & PARTNERS ZAID IBRAHIM & CO MASTURA & ASSOCIATES TAM CHENG YAU & CO CHRIS LEE & PARTNERS RAHIM, AIDIL & PARTNERS TAM CHENG YAU & CO CLARENCE EDWIN LAW OFFICES ZAID IBRAHIM & CO GAN & ZUL MANIAN K MARAPPAN & CO RAHAYU PARTNERHSIP (KL) NORA S W LAM & ASSOCIATES ROGER TAN & PARTNERS SYED ALWI, NG & CO RAZIYAN RAHIM & ASSOCIATES ANUAR YUSOF & PARTNERS

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DATE OF ADMISSION 25/05/2017 25/05/2017 25/05/2017 25/05/2017 18/06/2017 18/06/2017 18/06/2017 18/06/2017 19/06/2017 19/06/2017 19/06/2017 19/06/2017 09/07/2017 09/07/2017 09/07/2017 16/07/2017 16/07/2017 16/07/2017 16/07/2017 16/07/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 03/08/2017 03/08/2017 03/08/2017 07/08/2017 07/08/2017 07/08/2017 07/08/2017 10/09/2017 10/09/2017 28/09/2017 28/09/2017 28/09/2017 28/09/2017 28/09/2017 28/09/2017

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41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58

SITI MAISARAH BINTI AB TALIB CASSANDRA QUEK YI TING CHONG JIA JUN TAN LU YI TEO VOON ANNE WU KUAN ZU RHOSHVIN SINGH A/L RUGBER SINGH CHOU ZHAO MIN MADELYN TAIN CHUN YI NUR SAKINAH BINTI ISMAIL NURSHUHADA BINTI IMRAANUAR SULIYANA BINTI SUGIMAN TIAN SIN LING NAAELAH BINTI SALEH NURELYANA BINTI NARUDIN TAN HIK TAO CHARLES TAY GUOCHAO CHEE HUI XIAN

59 60 61 62 63 64 65 66 67

NUR AFIAH BT AHMAD RADZI TE FUI QI CHIN MIN SHUEN CHUA TING FUI DING SHEAU SYH KIEW CHEE HONG TAN LEE TING TSENG SENG GUAN TOH PEI ROO

68 69 70 71

NURFARAHIN BINTI ESMON TAN WEN JIE MUHAMMAD FAIZ SYUKRI BIN MAZURI AINA FARHANA BINTI MUHAMMAD DZULKIFLI CHONG ZIN NAN MAGESSVERY A/P MARIMUTHU MUHAMMAD IRSYAD BIN MARDI NOORKHAIRIL HUDA BINTI ALI PANG YONG TONG RONALD ANG YU CHYE TAN JING YI BAK SENG CHANG NOOR AQILAH BINTI DAUD NUR HIDAYAH BINTI HASHIM SITI NURSYAFIQAH BINTI MOHD ISA GLADY HO JIA TING

72 73 74 75 76 77 78 79 80 81 82 83 58

SYED ALWI , NG & CO REGINALD VALLIPURAM & CO LEE & TENGKU AZRINA WOON WEE YUEN & PARTNERS TEO & ASSOCIATES HAN & PARTNERS RANJIT SINGH & YEOH (KL) SOO HOO & CO ABDUL RAHMAN & PARTNERS (KL) ABDUL RAHMAN & PARTNERS NUR MAIDIN & CO (SELANGOR) ZAINUL RIJAL TALHA & AMIR ARTHUR LEE & CO RAHIM & LAWRNEE ZUFAIDI & ASSOCIATES JULIE LIM, VASANTHAN & CO ZAID IBRAHIM & CO (KL) DAVID GURUPATHAM & KOAY (SELANGOR) ASRAM ZAKARIA & CO ZAID IBRAHIM & CO (KL) NORA S W LAM & ASSOCIATES K S PANG & CO DENNIS NIK & WONG LIM SOH & GOONTING ZAID IBRAHIM & CO LAI & ASSOCIATES (KL) LEE HISHAMMUDDIN ALLEN & GLEDHILL (KL) ZAIRINA, LOH & WONG (KL) R R CHELLIAH BROTHERS (KL) GAN & ZUL ZULPADLI & EDHAM (KL)

28/09/2017 08/10/2017 08/10/2017 08/10/2017 08/10/2017 08/10/2017 12/10/2017 29/10/2017 29/10/2017 29/10/2017 29/10/2017 29/10/2017 29/10/2017 09/11/2017 09/11/2017 09/11/2017 13/11/2017 13/11/2017

CHIONG & PARTNERS ALBERT DING, LEE & PARTNERS OTHMAN HASHIM & CO AKMAL SAUFI & CO S K SONG GAN & ZUL WANG & SB WONG GANANATHAN LOH (KL) AZMI SU & CO ANA SHAHRANA ANNUAR & CO HASRITA & CO IQBAL HAKIM SIA & VOO

15/01/2018 15/01/2018 15/01/2018 15/01/2018 15/01/2018 15/01/2018 15/01/2018 22/02/2018 22/02/2018 22/02/2018 22/02/2018 26/02/2018

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13/11/2017 13/11/2017 19/11/2017 19/11/2017 19/11/2017 19/11/2017 19/11/2017 19/11/2017 23/11/2017 07/12/2017 07/12/2017 14/12/2017 15/01/2018

84 85

HAZIQ BIN ISHAK NUR HAFIZAH HUSNA BINTI ELAHAB @ LAHAB 86 NUR IZYAN BINTI YA’ACOP 87 TOM LI PENG 88 ZULIANA BINTI ZULKIFLI 89 NOR NADIA BINTI NANGAR 90 SYAHRIL ANUAR BIN HARUN 91 TAY HONGYI 92 KERK YEONG YEONG 93 NOR RAFIDAH BINTI SALLIH 94 NURSYAHIRAH BINTI ZULKIFLI 95 SUGANTHY A/P KUNASEKARAN 96 AHMAD NUR AWALLUDDIN BIN ZAKARIA 97 HAZIMAH BINTI HASSAN 98 MOHAMED IMRAN BIN MOHAMED SAM 99 NUR ATIQA BINTI AGUS 100 VIVIAN KONG MEI YI

TEA, KELVIN KANG & CO TEH POH TEIK & CO

26/02/2018 26/02/2018

MOHD AKHIR & PARTNERS ARTHUR LEE & CO NORIZAN TARMEZE & ASSOCIATES AIZALIAN ASMADI & CO SYED ALWI, NG & CO TEA, KELVIN KANG & CO HONG & FONG SULAIMAN, JAMELLAH & CLEMENT (KL) SYAHRUL & HAMIDI (SELANGOR) V M KUMARAN & CO SYED ALWI, NG & CO M N HALIM SYAFFIE & ASSOCIATES ZAMAN & ASSOCIATES AZMI & ASSOCIATES NADZARIN KUOK PUTHUCHEARY & TAN

26/02/2018 26/02/2018 26/02/2018 27/03/2018 27/03/2018 27/03/2018 19/04/2018 19/04/2018 19/04/2018 19/04/2018 06/05/2018 06/05/2018 06/05/2018 06/05/2018 06/05/2018

“DOCTORS VS JUDGES” In the Salman Khan hit and run case the LOWER court judge and the HIGH court judge had the SAME pieces of EVIDENCE to deal with.

They also had the SAME Indian LAW to abide by and most probably they had similar education qualifications too.

Yet they INTERPRETED the situation in absolutely CONTRASTING manner and gave verdicts which are poles apart.

Just imagine what would have happened if a YOUNG doctor sitting in a GOVERNMENT hospital catering to hundreds of patients in a day had diagnosed a celebrity patient presenting with gastric discomfort as GASTRITIS and another hospital had LATER on diagnosed that patient to be having a MYOCARDIAL INFARCTION. I am sure that doctor would have been screwed and jailed.

A JUDGE gets YEARS to decide on a case unlike a DOCTOR who is expected to diagnose and treat everything in the BLINK of an eye.

If a doctor making a wrong diagnosis can be prosecuted shouldn’t a judge giving wrong verdicts meet the same fate?

If hospitals can be sued for not admitting poor patients shouldn’t the courts be prosecuted for having lack of impending cases?

Is it not appalling that a judge taking 12 years to give a wrong verdict gets away unhurt and a doctor making one mistake is screwed by our legal system?

Doctors practice medicine which is more of an art than an exact science whereas law is absolutely 100% manmade, yet doctors are expected to be right on all occasions.

If doctors and hospitals have a duty towards the society then does the judiciary not have a responsibility towards the socitey.

If there is so much of hue and cry in media about doctors and hospitals charging huge sums from patients then why do we not ever hear a word on the fee that lawyers like Manu Singhvi and Jethmalani charge for their court appearances.

Government often talks about putting a capping on the fees doctors charge for various procedures but there is no talk of putting a capping on the fee that these lawyers charge to get justice for their clients.

If health is a citizen’s right then so is justice. Shall we take our minds off worshipping false heroes & think?

*JUDICIARY SHOULD ALSO COME UNDER CPA (CONSUMER PROTECTION ACT)* INFO JOHORE BAR - JUNE 2018

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JOHORE BAR STATISTICS AS AT 30TH APRIL 2018 Towns (1) Johor Bahru (2) Batu Pahat (3) Muar (4) Kluang (5) Kulai (6) Segamat (7) Kota Tinggi (8) Masai (9) Pontian (10) Yong Peng (11) Tangkak (12) Pasir Gudang (13) Gelang Patah (14) Mersing (15) Ulu Tiram (16) Simpang Renggam (17) Pekan Nanas (18) Labis In the State of Johor

LAW FIRMS 30.4.2018 Increase/Decrease 458 33 72 -2 70 2 50 3 22 2 19 -1 19 2 18 2 14 0 6 0 6 0 6 1 4 1 3 0 3 1 2 1 1 0 1 0 774 45

30.4.2018 1502 147 145 91 44 38 23 31 19 6 9 10 9 5 3 3 1 1 2087

LAWYERS Increase/Decrease 95 -2 9 12 5 0 0 2 1 0 0 2 2 -1 1 2 0 0 128

Total Membership As at 30th April 2018, the total membership of the Johore Bar is 2087. There has been an increase of 128 members since the last statistics (on 31st May 2017). The total membership of the Johore Bar constitutes 11% approx. of that of the Malaysian Bar. Lawyers in Johor Bahru There are 1502 members practising in the city of Johor Bahru. They account for 71% of the total membership in the State of Johor (i.e. 1502/2087 members).

Law Firms in Johor Bahru The total number of law firms in the State of Johor is 774. There has been an increase of 45 law firms since May 2017.

The number of law firms in Johor Bahru has increased (from 425 to 458). They constitute 59% approx. (i.e. 458/774) of the law firms in the State of Johor.

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Number of law firms in the State of Johor

Number of lawyers in the State of Johor

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