Last couple of days, I’ve seen better. ‘Feeling down’ must be contagious: 1st me, then friend, then me again. Hypnotic weekend next…

Criminal jurisdiction of Malaysian courts (Part 1)

In this article we will discuss the jurisdiction of the courts in Malaysia with respect to criminal matters. Before discussion can commence however we need to look at the hierarchy of Malaysian courts, which can breifly be illustrated by the following diagram;

Going by the diagram above, quite obviously the lowest court that exists is the Penghulu’s court (with respect to Peninsula Malaysia) and the Native’s court (in the case of Sabah and Sarawak). This is followed by the Magistrates’ courts (consisting of First and Second class Magistrates) and the Sessions court. Together these courts constitute what are called the lower courts and are governed with reference to the Subordinate Courts Act 1948 (formerly the Courts Ordinance, 1948).

Above the courts hereto mentioned, there is the High Court, the Court of Appeal and finally the country’s apex court, the Federal Court. These are superior courts that are created by the Federal Constitution of Malaysia (specifically by Article 121 and the few Articles following) and organised by the Courts of Judicature Act 1964.

Having despensed with elaboration as to what courts exist in Malaysia we will proceed to examine the criminal jurisdictions conferred on each court in respect thereof. There exist three types of jurisdiction, firstly subject matter jurisdiction, secondly local jurisdiction, thirdly sentencing jurisdiction and finally extraterritorial jurisdiction. It is mainly the first and the third kind that concern criminal law. Common sense of course dictates that the lower courts would have more limits in terms of what subject matters they are able to ajudicate upon compared to the higher courts.

Previously, prior to 1978 in respect of criminal matters, the Judicial Committee of the Privy Council, UK was the apex court of Malaysia, like so many other Commonwealth realms. Those judgments made by the court while it was still a Malaysian court are still binding, see the decision of the Federal Court in Dalip Bhagwan Singh v PP [1998] 1 MLJ 1.

There is also a seperate Court for Children constituted under the Child Act 2001. This court replaced the Juvenile Court constituted for trying minors previously.

First we shall start with the Penghulu’s Court. Section 95 of the Subordinate Courts Act 1948 states that the penghulu shall have jurisdiction to try offences of a minor nature, enumerated in his Kuasa, and can impose a fine of not more than RM25 (Section 96). The offender must be one of an Asian race and able to speak the Malay tongue. The offender also has a right to be tried by a Magistrate instead (Section 95(3)).

When talking about the Magistrates’ Court, one must bear in mind that there exist Magistrates of two types, First class and Second class. The jurisdiction of offences to be tried by the two are of course, different. The jurisdiction of the Second class Magistrate, contained within section 88 of the Subordinate Courts Act 1948, is with respect to trying offences punishable with a term of imprisonment not exceeding twelve months or punishable with fine only, and sentencing to a term of not more than six months jail or a fine not exceeding RM1,000 (Section 89). Should the Second class Magistrate opine that he does not have enough in terms of jurisdictional or sentencing power, he may take the necessary steps to adjourn the case for trial  by a First class Magistrate, as provided for in the proviso to section 88 of the Act.

The First class Magistrate of course, has much more in terms of sentencing and jurisdictional power, and these are provided for within sections 87 and 85 of the Subordinate Courts Act 1948 respectively. The First class Magistrate is vested with the power to try offences punishable with a term of imprisonment not exceeding ten years or punishable with fine only, as well as the power to sentence to a term of imprisonment not exceeding five years or a fine not exceeding RM10,000 or whipping not exceeding 12 strokes, or any combination of the three. There are also exceptions to the limitation on the First class Magistrate’s power. The proviso to section 87(1) for example, states that the Magistrate may award in excess of the power proscribed where any law gives him the authority, and some examples include section 118 of the Customs Act 1967, section 41 of the Dangerous Drugs Act 1952 and section 6(3) of the Betting Act 1953 (formerly the Betting Ordinance, 1953 or Ordinance No. 47 of 1953) where the Magistrate has power to impose a fine of not less then RM 20,000 and not more than RM 200,000 and up to five years imprisonment or both. The exercise of this power was seen in the case of Cheong Ah Cheow v PP[1985] 2 MLJ 257 and the case of PP v Yap Sin Peng [1986] 2 MLJ 66 wherein the Magistrate had awarded the maximum RM20,000 fine in both cases respectively, and these decisions were upheld. Section 87(2) gives the Magistrate further authority to punish in excess of his jurisdiction where the accused has previous convictions and provided that the Magistrate records his reasons for doing so. However, cases such as PP v Tengku Hitam [1962] MLJ 414 and Abdul Wahab v PP [1970] 2 MLJ 203 given the said provision an unnecessarily restrictive construction by stating that the Prosecution has a duty to choose with care as to which court possesses the requisite sentencing jurisdiction sought by the Public Prosecutor before going on to prosecute his case, and that section 87(2) can only be invoked when the case takes an unexpected turn and that the Magistrate’s basic sentencing powers are found wanting and furthermore knowledge of previous convictions can only be adduced after trial. With respect, such a construction does not serve the true intention of the provision which makes no mention of such limitations, and only serves to inhibit the Prosecutor’s unfettered discretion to prosecute in a Court of his choice under Article 145 of the Federal Constitution. It must be noted however, that a Magistrate does not have jurisdiction over Constitutional matters, as acknowledged in the case of Repco Holdings Bhd v PP [1997] 3 MLJ 681.

The criminal jurisdiction of other Malaysian courts, namely the Sessions Court, the High Court and the Court of Appeal will be examined in the next part.

Even Law Students can have a Life

Congratulations & Welcome to Law School!

Congratulations, you’ve successfully completed your foundation, diploma or STPM! And you have received the offer letter from the Law School you applied to!

If you survived the Orientation Week and met your seniors in many ways than one, you will start to hear the horror stories of Law School! And I’m not talking about the ghost at Level 13. The failure rate, lecturers who enjoy torturing with the innocent brains of young and helpless undergraduates like yourself. Maybe you’ve even earned that death stare yourself. Or at least your classmate. Ok.. Ok.. I’m exagerating a bit. But it’s always normal for seniors to hand down ‘how to tackle the lecturer’ tips and tricks.

After the 3rd week, work begins to flood your table. The lecturer wants you to read the cases and present them during the tutorials. Or even worse: the lecturer and tutor have no idea what each other is doing! And you know so well the price of not reading all those long, daunting, bombastic cases – public humiliation in front of your classmates. Yeah, the lecturer will not appear in leather and cracking a whip, but her comments and snide remarks is enough to burn through anything.

Where did all the lovey-dovey Law School image go?

When you’re overwhelmed with work, now you start to feel the weight of Law School. Gone were the image you had, which looked like a lost scene from Ella Enchanted.

Remember it’s Still University…

Don’t rob yourself of your recreational activities. If you’re into football or rugby, make time to play on the field at least every weekend. When reading the latest romance novel by Somefamous Novelist while sipping a nice warm cup of Milo is your thing, do it. Heck, if you enjoy PC games, why not!

As they say, if you work hard, make sure you play hard!

Watch your health. Yes, instant noodles can fill your tummy up – especially when your wallet and purse are dead from bleeding and there’s a draught in your bank account. Learn to cook vegetable. Buy up a stock for 3 days and cook. Nothing too fancy – as long as you can take it. You need carbohidrates, though you can try to avoid starch.

Learn to budget. Get rid of destructive expenses – yes, this includes that significant other who you cannot live without that’s demanding all your posessions be their’s. If you really want a partner, get someone who understands that you are a student. Don’t bother impressing them with gifts from the 1st day, coz the moment you do, you’re expected to – otherwise they think you don’t love them anymore.

If you can afford to set aside RM90 per month, sign up to go to gym. But there are many workout facilities you can access for free. A strong body paves way to a strong mind. Want to save cost, join a sports club on campus.

Learn to manage your emotions and mood. There are many sources you can refer to. A simple gesture such as praying can go a long way. If you know neurolinguistic programming (NLP), you can use it. No harm buying Adam Khoo’s I am Gifted, So Are You and Master Your Mind, Design Your Destiny. Tony Buzan’s books are also great. You can always go up to a counsellor or a priest. Neither two can speak about what you confide in them by Law and by faith.

Whatever you indulge in, make sure it’s balanced out. Otherwise you’d end up in trouble some aspects in your life.

Calling for Contributors… Again!

This has been said before, but again we cannot stress enough how “understaffed” this law blog is, so please, those of you who visit, if you guys are law students, think about contributing as well.

The qualifications required to be had are not much. They are that you should be;

1. A law student or a young lawyer (fresh grads or practising for a few years);

2. Be willing to write quality articles and share your experiance;

3. Believe that you can make a difference.

You will be required to make regular contributions on everything there is to do involving law (after all this is all and sundry on Malaysia legally), but posts must be neutral. Neutral means not showing sympathies with any particular groups nor showing any ideological inclinations, and sticking with the facts.

If any of you are interested, please leave a reply in comments and we will get back to you. – Admin.

Limitation of civil actions

To sue or not to sue. This was the opening line of a recent post detailing what a cause of action is and when it accrues. However it is equally relevant to this post for, should one choose to dwell on the question for too long, one might find it too late to even sue anymore!

This is because of the existence of what is called limitation period in law, that is, there is a definate time frame for one to commence legal action, and to wait beyond such a frame would render the cause defeated for being time barred, or more accurately, statute barred. The reason why the term statute barred is more accurate is because usually such periods are never proscribed in common law but imposed by statute, because the state considers it good that there should be a definate end to litigation after a while, tho the doctrine of laches under equity could have played a contributory role as well.

By the way, while this issue was discussed a little in the first mentioned post above, the purpose of this article is to expand and elaborate just a little bit more on what limitations of civil actions actually are.

In Malaysia, the principal statute of limitation is the Limitation Act 1953, which was first enacted as the Limitation Ordinance 1953 (F.M. Ordinance No. 4 of 1953) on 9 February 1953 and is based on the English Limitation Act 1939 which has since been replaced in Britain by the Limitation Act 1980. Section 4 of the Act cautions that nothing therein shall operate as a bar to any action or proceeding unless expressly pleaded.

The Act proscribes different periods of limitations depending on different types of causes of action that arise. For actions relating to torts and contracts generally the period is six years from when the cause accrued, imposed by section 6. The effect could be potentially unjust, as can be gleamed from the case of Loh Wau Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280. In that case, a house was delivered late, namely, delivered on 7 November 1977 instead of 18 September 1975 as promised. The plaintiff claimed the agreed liquidated damages of 8% per annum for late delivery and filed his or her action on 9 September 1982. The defendant contended that the action should be considered time barred. The apex court agreed with the defendant.

Where there has been a fraud or concealment however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff’s cause of action was delibrately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff. The effect of this section is plainly seen in the case of Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571 where the defendant’s insurers took great pains to conceal themselves from the knowledge of the plaintiff and thus the latter’s claim was not held statute barred as a result. Limitation periods also do not run where a plaintiff  is under disability until the expiry of such a disability under section 24 of the Act.

It should be noted that generally courts do not have power to enlarge the limitation period when asked (See Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1) but there are circumstances where the limitation period itself is renewable, such as in the instance where debt is acknowledged or part payment is made in respect thereof under section 26 of the Act. Section 27 further qualifies this however, by stating that such acknowledgment must be in writing. The claimant is required to specifically plead this acknowledgment or else it would be struck out as held in the case of Mat bin Lim & Anor v Ho Yat Kam & Anor [1967] 1 MLJ 13.

Section 9 of the Act states that where an action is made in respect of land and the recovery thereof, the period of limitation would be 12 years. However this does not apply in delays for an action of specific performance, for example, because the owner would already have equitable title in the land. In Chee Hock Lai v Tan Swee Thai & Ors [1990] 2 MLJ 477 the plaintiff purchased land from an administrator of an estate and entered into possession more than 40 years before the filing of the action by the plaintiff. The plaintiff was never given title to the land despite several requests. Hence, the court opined that the delay was justified and ordered specific performance. In Ungku Sulaiman Bin Abd Majid & Anor v Director of Lands and Mines, State of Johor & Anor it was held that where property was wrongly acquired, time remained at large and the law of limitation would be inapplicable.

Section 20 of the Act bars action in respect of recovery of rent arrears after the expiry of six years on which they become due.

Although the Limitation Act 1953 is the principal statute of limitations within Malaysia, it is indeed not the only statute of limitation in force. Section 3 of the Act provides that the Act is inapplicable where the Government is involved and indeed the Government protects itself by virtue of section 2 of the Public Authorities Protection Act 1948 which reads;

Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced within the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect.

a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty six months next after the ceasing thereof…

This provision was tested in the case of Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12 where the Government failed to make good some payments in respect of some building contracts. The Government contended that such contracts were made persuant to a public duty and this the plaintiff’s claim was statuted barred with reference to section 2 of the Public Authorities Protection Act 1948. The court opined that non payment of monies owed was not in persuance of a public duty and accordingly allowed the claim.

Bankruptcy (Part 1)

You’re working and earning a multi thousand ringgit salary. You’re on top of the world and feel that you can buy whatever you want. You have expensive taste, so you buy expensive cars, drink Starbucks every day, dress fancy, look fancy, take herbs, botox, the works! Then, recession hits! You lose your job. Those credit card bills become due, but you can’t pay! Soon you get letters of demand from the banks, the letters culminate on fine day into what is called a “Bankruptcy Notice”, and this notice seems so important its served on you personally. You read it and see an itemised account of what you owe with a demand that you pay up within 7 days, or else a “Bankrupcty Petition” would be pleaded against you in court. Those days pass. The very next day the bailiff comes and serves on you a “Bankruptcy Order” and then takes all your property, your home, and you are left, desperate and broke, with nothing.

This article attempts to set out the processed involved when bankruptcy is resorted to in the enforcement of judgments in Malaysia. Written with an emphasis on the debtor (who are, after all the majority of those involved in bankruptcy cases) the starting point in an execution involving bankruptcy up to the granting of a Bankruptcy Order will be laid and discussed. Reference will be made in particular to the provisions of the Bankruptcy Act 1967, being such an Act governing insolvency of the individual in Malaysia. Small scale references to the Debtors Act 1957 would also be made as well.

On with the discussion. The Bankruptcy Act 1967, or Act 360 of the Laws of Malaysia, came into force on 30 September 1967. The Act follows the approach of the repealed English Bankruptcy Act 1914 in the regulation of individual insolvency matters. The British rewrote that law in their own jurisdiction with the passage of the Insolvency Act in 1986, which simplified the whole process a great deal, much to the delight of their creditors. Here in Malaysia however, the old approach remains.

The whole process begins when a would be debtor commissions what is called an “Act of Bankruptcy”. This act takes the forms proscribed under section 3(1) of the Act. A cusory glance at these reveal that it is mostly common sense doings, such as attempting to transfer property to evade the payment of debt, the intentional delaying of creditors, the failure of the officer fails to find any property of his to seize in order to satisfy such debt, etc, but the most common relied upon could be none other then 3(1)(i), where a final judgment, together with a bankruptcy notice, is served upon the debtor, and the debtor fails to pay the quantified amount therein within 7 days (excluding the day of service of the notice vide Re Fadzil Bin Othman [1994] 2 MLJ 474). Should such days pass without the debtor doing anything, then he has committed an Act of Bankruptcy. He can avoid this by  filing a claim for a counterclaim, set-off or cross demand. A counterclaim and set-off is a claim against the creditor for something that could not be established during the trial which led to the final judgment (more on this later, defined by Order 15 rule 12 of the Rules of the High Court 1980) whereas the cross demand is of such a nature that it equals or exceeds the amount of the judgment debt (Re a Bankruptcy Notice (1934) Ch 431). For these to succeed it must be quantified first as held in Sovereign General Insurance Sdn Bhd v Koh Tian Bee [1988] 1 MLJ 304 and secondly as held in Re A Debtor [1983] 3 All ER 545 it must be put forward in good faith and have a reasonable probability of success.

Thereafter a creditor would present before the High Court what is known as a Bankruptcy Petition. This is a petition to ask the Court to ajudicate that the debtor has failed to pay his debts and should therefore be made a bankrupt. Upon receipt of such a petition, the court would grant what is called a Recieving Order (that is an order that all properties of the debtor be vested in the Director General of Insolvency) and an Ajudicating Order that deems the debtor to be a banktrupt. The two orders together are known as a Bankruptcy Order. To know more about these Orders and who the Director General of Insolvency is, stay tuned for the next part of this series on bankruptcy.

A lawyer files a RM160 million suit against the Bar Council

A practising lawyer has filed a RM160 million lawsuit against the Bar Council today for not allowing him to use their premises for the launch of his book, ‘Presumed Guilty’. He claims it violates Article 8 of the Federal Constitution violating his right to be treated equally.

His earlier work, ‘No Intention To Kill’, was in fact launched there last year, and from my own experiance doing practical work in the Shah Alam Court complex, was widely avaliable everywhere, including that complex. 

The Bar Council, according to the report by The Star newspaper, is investigating this work for possible conflicts with the Legal Profession (Publicity) Rules 2001, the Legal Profession (Practice and Etiquette) Rules 1978 and Bar Council Rules and Rulings 2008. 

I myself have not read his works, but seeing them made me think we might finally have our very own Malaysian John Grisham, something to be encouraged, not stifiled.

The full report is avaliable here.

Being your own lawyer

By Bhag Singh

In court, one can always represent oneself. Beware, however, that it could be an uneven playing field.

In these times of economic downturn, it appears that more cases will be filed on account of loans taken and other financial obligations assumed.

When sued, not everyone is able to have the services of a lawyer. Without legal aid or the services of a pro-bono lawyer, it can be costly to engage counsel. In such circumstances, presenting one’s own case is an option.

A foreign paper reports that in the United States, more people are representing themselves in court. This has not only caused congestion but also raised questions of how just the outcomes are or can be.

Similarly, individuals here are likely to begin representing themselves if this is not already happening. Yet there does not appear to be a mechanism or system in place that can effectively help them.

As such, most of the time they are unprepared for the legal procedures. Unless guided, they are likely to fail to bring and present the right documents or evidence. In consequence, it is likely that they will fare poorly whatever the merits of their case.

Faced with such a situation, an individual can resort to various bodies that provide legal aid. However, this may be limited to giving advice or it may cover representation in court, depending on the nature of the problem, the individual involved and the provider of the assistance.

Except for criminal cases where a death sentence is involved, there is no firm assurance of obtaining legal assistance in terms of representation in court. This is particularly so in the case of civil disputes.

The Government has a Legal Aid Bureau, and the Bar Council also provides legal assistance.

However, where such assistance is available, there are usually limitations. This is because a person may be deemed eligible for the facility only if he passes a means test in terms of his assets and income.

Quite apart from litigation in the ordinary courts such as the Magistrates Court or Sessions Court, there are also situations where a person is required to appear personally and present his case whether making a claim or resisting one.

There are also special tribunals where a person may make a claim. In such instances, the aggrieved person may have the option or be limited to presenting the claim himself. In this case, the procedures are kept simple and formalities minimal.

Another example is where a complaint is made to the Industrial Relations Department following a person’s dismissal which he perceives to be unjustified. The complainant will be seeking to be reinstated in his position.

In such a case, there is no adjudication but merely steps to mediate and reconcile the parties. Yet it does constitute making a decision with somewhat serious consequences.

At first glance, it may appear that keeping lawyers out is a good idea. There will be no legal fees, and the matter can be kept simple and dealt with quickly.

However, this may not always be for the good of the individual. This is because the entity which he claims against will necessarily be represented by an officer. That person may be legally qualified and experienced in handling such matters. This, in a way, creates an uneven playing field.

Given the nature of the complaints that such tribunals or bodies deal with, the disadvantage to the individual may be ameliorated by the role played by the presiding officer in the light of the procedures involved.

On the other hand, when it comes to litigation in the ordinary courts, an individual is in a somewhat different situation when he appears himself. This is because there are more technicalities and procedures involved which need to be complied with.

In some countries, there are “self-help” centres in the courts where facilities exist to aid and guide such people. In some cases, court lawyers or the court staff provide help to the individual.

However, this is more likely, and the assistance more effective, if extended to litigants in relation to specific areas such as claims for debts, landlord tenant disputes and other areas where the issues are uncomplicated.

Like most parts of the world, we have not moved very far in this direction. Thus it is not always possible or practical for the court to guide the individual or assist him. Many people who cannot afford a lawyer or are not qualified for legal aid and find dealing with the procedures too daunting, just give up and let matters take their course.

This is certainly not an ideal situation. Organisations that provide legal aid could hold “information” sessions for the public to brief them on claims. A more detailed discussion of how such situations could be dealt with should come next.

(Copyright in this article vest with Bhag Singh and is reproduced here for non-profit study.)

Quotable law quotes

1. If there were no bad people, there would be no good lawyers. – Charles Dickens
2. The trouble with law is lawyers. - Clarence S. Darrow
3. When men are pure, laws are useless; when men are corrupt, laws are broken. - Benjamin Disraeli
4. A successful lawsuit is the one worn by a policeman. - Robert Frost
5. The law isn’t justice. It’s a very imperfect mechanism. If you press exactly the right buttons and are alsolucky, justice may show up in the answer. A mechanism is all the law was ever intended to be. - Raymond Chandler 
6. The magistrates are the ministers for the laws, the judges their interpreters, the rest of us are servants of the law, that we all may be free. - Marcus T. Cicero
7. In law, nothing is certain but the expense. – Samuel Butler
8. The wise know that foolish legislation is a rope of sand, which perishes in the twisting. - Ralph W. Emerson

Some of Asia’s weirdest laws

After days of serious posting, we thought we might mark Reading Law’s comeback with a list of some of Asia’s weirdest laws. Sit back and laugh silly!

China

1. You may only have one child, or you will have to pay a fine.

2. To go to college you must be intelligent.

Phillipines 

1. Cars whose license plates end with a 1 or 2 are not allowed on the roads on Monday, 3 or 4 on Tuesday, 5 or 6 on Wednesday, 7 or 8 on Thursday, and 9 or 0 on Friday from 7:00 AM.

South Korea

1. Traffic police are required to report all bribes that they receive from motorists.

Singapore

1. Bungee jumping is illegal.

2. The sale of gum is prohibited.

3. Failure to flush a public toilet after use may result in very hefty fines.

4. f you are convicted of littering three times, you will have to clean the streets on Sundays with a bib on saying, “I am a litterer.

5. It is illegal to pee in an elevator.

Thailand

1. It is illegal to leave your house if you are not wearing underwear.

2. You must wear a shirt while driving a car.

3. You must pay a fine of $600 in Thailand if you’re caught throwing away chewed bubble gum on the sidewalk.

4. No one may step on any of the nation’s currency.

Turkey

1. All married women must get their husband’s permission if they wish to have a job, they must live wherever the husband wishes to reside, and they must forfeit all jointly held assets upon divorce from her husband.

Source: www.dumblaws.com