Why all lawyers should have an iPad!

By Foong Cheng Leong

Well, this article is not only about the iPad but about other tablets in the market in general. Other tablets such as Samsung Galaxy Tab or Blackberry Playbook are instructive examples, too, but that is not my focus here.

For me, my iPad is probably one of the most useful tools in my practice. It helps me with the following:-

Research

An internet enabled iPad is very useful for quick research. Imagine you’re in Court and you suddenly remember a case which would help your case. You can easily access legal publishing websites such as CLJ, Lexis-Nexis and even British and Irish Legal Information Institute (Baili). On a different note, Lexis-Nexis now has its own iPhone App. I understand that an iPad App for that will be out soon.

You can also store your basic cases and statues in your iPad. Since my practice is only limited to intellectual property matters, I keep a folder of relevant statues such as the Trade Marks Act 1976, Patents Act 1983, Copyright Act 1987, Industrial Designs Act 1996, Franchise Act 1998, Personal Data Protection Act 2010 etc. This allows you to access it quickly without internet connection.

Accessibility 

With the right App (such as DropBox) or a proprietary software, you can access your files anywhere. Let say you need to look at a letter for a file, you can view straightaway it on your iPad.

I use DropBox to store my statues and legal cases – divided into various categories. For example, if I want to view a case regarding trade marks, I only need to access my Trade Marks folder.

Dropbox also synchronizes my folders in all my devices. To illustrate, the files that I keep in my PC will be the same as all the files in my iPad when I update the former.

If you have a little bit of money to spend, build a proprietary software or use a reputable software to make your files accessible remotely and securely.

But remember, everything that can be accessed on the internet, although secured by professionals, is not 100% secure. You wouldn’t want to end up like ACS:Law, a UK law firm who had some of their confidential information leaked online after its website was attacked.

Saving paper 

The iPad allows you to take notes using its keyboard or even scribbling your notes on handwriting apps such as Penultimate. I have books and books of notes in my room. Some of these notes have no value and it’s a waste of paper.

Once you’re done with your notes, your can email them to yourself or anyone you like.

Presentation

Recently, I met a potential client who wanted help on drafting an intellectual property license agreement. He had never seen such agreement before and my professional fee was a concern to him. He was probably thinking why should I pay so much for something I’ve never seen before?

I downloaded a 20 pages sample intellectual property license agreement into my iPad and showed him that such an agreement would look like this. That 20-page agreement was a great help to him to visualize the deliverables and of course, my fees.

Screen sharing

Few months ago, my colleague printed a few copies of presentation slides and distributed them to some clients in a meeting. I suddenly thought, “Wouldn’t it be cool if he had distributed iPads with those slides?”. Imagine walking into a board meeting with 10 iPads in your hand to be distributed to the board of directors!

With screen sharing, a user can share his screen with others by connecting the devices wirelessly. Let’s say if you wish to refer to a passage in a case to a Judge, you can do so by sharing your screen with him (provided that the Judge has an iMac or iPad, which brings to say, “All Judges should have an iPad too!”).

Digital Text Converter

If you have iPad2, you can use it like a scanner by taking a picture of a document and then convert it to editable text using Apps like FotoNote. Very useful when you have some hardcopy precents that are too troublesome to be typed.

You can also convert written digital text into editable text using certain Apps like PhatPat.

GPS

iPad has basic GPS function. It gives you your real-life location and directions to a specific place. Although very basic, this function saved my skin numerous times when I needed directions to Court or finding my way out of Putrajaya and Cyberjaya.

Conclusion

There are many functions which I have not explored on my iPad. I’ve seen Apps which allow you to digitally sign on a document. I’ve also seen Apps which could turn your iPad into a fax machine to send and receive facsimile. It will also help you send the document by mail!

I only own an iPad hence I am unable to advise whether the other tablets are good. But if you’re looking for an iPad for work, my view is that a 16Gig and 3G+Wifi iPad2 is sufficient. iPad should be treated as a secondary device hence there is no point storing all your information inside. Also, with cloud computing, your data need not be stored in the iPad but in the “clouds”.

As for the best country to purchase an iPad, Malaysia has one of the lowest iPad prices.

As a closing note, iPad is a portable device. It is a light and easy to carry. It can easily be misplaced and lost. Therefore, security is very important. Make sure you password protect your iPad and ensure that MobileMe is installed. MobileMe allows you to wipe out your content if you lose your iPad.

The above article is written by Foong Cheng Long and first appeared on the eLawyer Law Blog Forum . Copyright © 2011 Foong Cheng Leong. All Rights Reserved. Republished in Reading Law with permission. Foong Cheng Leong is a legal practitioner who specializes in Intellectual Property and is currently in active practice within Malaysia. He maintains his own website at FoongChengLeong.com and can be reached at fcl@foongchengleong.com 

Adjournments of criminal proceedings

To “adjourn” a proceeding or matter is, according to Dictionary.com, is to “postpone, suspend or transfer proceedings”. For a lawyer conducting criminal proceedings before Malaysian courts, to adjourn such proceedings, for a short or longer period of time, may sometimes be expedient for him or her, especially in situations where he or she is caught off guard by what has transpired during a trial. However it is generally accepted that when granting an adjournment, courts are bound to ensure the avoidance of hardship to the parties involved, particularly when an accused who has yet to be found guity for the crime(s) that he or she is being charged with, is still languishing under remand. In such a situation, frequent adjournments would indeed be unjust and from the view of the Prosecutor, the effluxion of time would most certainly affect the ability of his or her witnesses to recall facts. It was said in the case of PP v Tanggaah [1972] 1 MLJ 207 by Sharma J that the longer a period is allowed to elapse from the time of the incident to the the time of giving evidence in court, the greater the chances are for confusion to occur and for truth to be obscured.

This object of this article is to consider the law for the time being in force concerning adjournments of criminal proceedings before Malaysian courts.

Section 259(1) of the Criminal Procedure Code provides that if from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial the court may, by order in writing, from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable. This power provides for adjournments to be granted arising from two situations, namely the absence of a witness, and/or other reasonable causes.

The Malaysian courts have always upheld the right of either party, be it the Prosecution or the Defence, to adjourn proceedings on the basis of absence of witnesses. In Tan Foo Soo [1967] 2 MLJ 19 it was said that every latitude must be given to an accused to defend his case and call witnesses in advance of his or her defence.

For reasonable causes, however, much would depend on how the court concerned percieves the situation. Situations are in practice assessed on a case by case basis and thus it would be difficult to state with confidence what would or would not constitute reasonable cause. Some common instances of what courts have accepted as constituting reasonable cause, however, are illness, the need to complete investigations, and situations concerning the counsel conducting the matter before the court.

Illnesses of the lawyers conducting proceedings before the court are more often then not always accepted as consituting reasonable cause, whether in the case of the Prosecution (as illustrated in the case of Chi Ah Chong [1953] MLJ 101) or the Defence (as in the case of Mohd Ekram [1962] MLJ 129). However, any adjournment granted in this situation would not be automatic and the lawyer is required to adduce for the court’s inspection a medical certificate to that effect. However, illnesses that occur suddenly have also been held to be reasonable cause, without the need to adduce an MC.

The need to complete investigation is seldom regarded as reasonable cause, as an incomplete investigation indicates that the Prosecutor has yet to prefer a charge against the accused, and so renders a proceeding against him or her groundless in law. Tan Kim San [1980] 2 MLJ 98. In such a situation, the court would be duty bound to acquit the accussed pursuant to section 173(g) of the Criminal Procedure Code. However, when investigations are completed and the adjournment sought is merely to trace witnesses or to complete service of documents such as medical or chemist reports, then the court would consider these to be within the scope of what constitutes reasonable cause. Perera [1977] 1 MLJ 22.

In situations concerning lawyers or counsels conducting trial, adjournments are not usually given for the benefit of counsels personally but for the parties they represent. An accused may need his case adjourned in situations where the accussed is seeking to retain new counsel following the discharge of his previous one, or when newly appointed counsel requires time to familiarise him or herself with his client’s case. The position of the courts with respect to situations such as these has been mixed. In Por Choo Aik [1993] 2 MLJ 131, it was held that the court must be firm in dealing with an application for adjournment and must only grant such adjournment on reasonable grounds. It is not reasonable grounds, for example, for the accused to appoint counsel at the last moment and then pray for adjournment. This was also the position in Lee Fok San [1963] MLJ 371 when the accused changed his counsel for the fourth time and the court rightly rejected his application on grounds of unreasonableness.

In the case of Kahar Tong [1992] 4 CLJ 1865 the view was that when the accused has been given sufficient time to seek legal representation and his counsel accepts brief at the last minute, he or she should be prepared to proceed with trial or at least not complain when the court rejects his or her request for adjournment. However, the court would be prepared to moderate such strictness in situations where the need to appoint new counsel arises as a result of the sudden discharge of the accused’s previous counsel. Another valid reason, perhaps, could be when the accused is too poor to engage counsel by his own means and has to rely on the Bar Council’s Legal Aid or the newly established Yayasan Bantuan Guaman Kebangsaan (YGBK or National Legal Aid Foundation) and when these organisations have yet to fully process the accused’s request for legal representation and assign him or her a defence counsel. In Awaluddin Suratman v DPP [1992] 1 MLJ 416 the court held that although applications for adjournment are dealt with on a strict basis, the court owes a duty to ensure that the accused enjoys the benefit of having counsel properly able to act on his or her behalf and in cases where the counsel is newly retained following the sudden departure of the previous counsel, a short adjournment would further the interests of justice as counsel would need notes of evidence to be properly prepared in order to safeguard the interests of the accused.

A court is never bound to grant adjournment every time a request for one is made. Bakar Ahmad [1968] 4 MC 294. A counsel when engaged must be prepared to discharge their briefs on the days that have been fixed for trial Mohd Abdullah [1980] 1 MLJ 201. A number of propositions were stated in the case of Mokhtar Abdul Latif [1980] 2 MLJ 51. They are, firstly, that as a general rule, trial dates are fixed at the convinience of the court and are given on a first come first serve basis. Secondly, there must be a good and cogent reason for adjournment and counsel must not accept briefs when they clash with days that have been fixed for trial. In the case of Sharma Kumari [2000] 6 MLJ 282, an application for adjournment on the basis that counsel had a matter before another court was not accepted on grounds that it would enable counsel to select which briefs to prefer in the event of a clash.

All in all, it can be summarised that Malaysian courts jealously guard against the propensity to grant adjournments at whim. However, when cogent reasons in support of such requests made are within the bounds of ordinary reason, there is nothing to prevent the courts from exercising their power in favour, provided the cause of justice is further advanced.

Stay tuned for our article on adjournments of civil proceedings to follow in due course and thank you for your faith in Reading Law.

Consumer Protection (Amendment) Bill 2010 deals with unfair contract terms

Remember our series of articles on unfair contract terms? Well, it now seems that the Malaysian Parliament is set to finally come up with a law addressing the issue in the upcoming Consumer Protection (Amendment) Bill 2010.

Preferring the approach of amending an existing statute to enacting a wholly new one, the Bill inserts a new Part into the existing Consumer Protection Act 1999, namely Part IIIA intituled Unfair Contract Terms. This Part contains new sections 24A to 24J all intended to address the issue of when businesses seek, via standard form contracts, to impose on consumers terms excluding or limiting their liability when they arise, as well as other terms thought generally considered unfair. Section 1(3) provides that the Part applies to contracts entered into after the coming into force of the Bill.

Section 24A deals with general interpretation in connection with the Part. The definition of a contract in section 2 of the Contracts Act 1950 is retained and a “standard form contract” is defined as a consumer contract that has been drawn up for general use in a particular industry, whether or not the contract differs from other contracts normally used in that industry. An “unfair term” is defined as a term in a consumer contract which, having regard to all the circumstances, causes a significant imbalance in the rights and obligations of the parties arising under the contract to the detriment of the consumer. Section 24B states that notwithstanding the Contracts Act 1950, the Specific Relief Act 1950 and the Sale of Goods Act 1957 as well as other provisions of the law for the time being in force, the Part shall apply to “all contracts”. This presumably addresses implied terms regarding sale of goods in the Sale of Goods Act 1957, specifically sections 14 to 16 of that Act regarding transfer of title and issues of merchantability and fitness for the purpose for which goods are bought. The section fails to mention the Hire Purchase Act 1967, of which section 7 also deals with implied terms in hire purchase agreements. Also should the Part really extend so broadly so as to include all contracts? Presumably if such is the case, a contract or contract term proscribed by law, such as those in the Schedules to the Housing Development (Control and Licensing) Regulations 1989, or financial or securities contracts, or contracts or bills of consignment or lading, be included as well?

Section 24C and 24D are probably the most important sections in the new Part. The Malaysian Parliament has preferred to split the question of unfair terms into two, dealing with terms that are procedurally unfair (section 24C) and substantially unfair (Section 24D). Section 24C(1) proscribes that a contract term is procedurally unfair when

i. It results in an unjust advantage to the supplier (ie. the business relying on the term in question) and/or;

ii. It results in an unjust disadvantage to the consumer;

iii. On account of the conduct of the supplier; or

iv. On account of the manner or circumstances that the contract is entered into between the supplier and the consumer.

Section 24D(1) holds that a contract term is substantially unfair when;

i. it is in itself harsh;

ii. it is oppressive;

iii. it is unconscionable;

iv. it excludes or restricts liability for negligence;

v. it exludes or restricts liability for breach of express or implied terms of the contract “without adaquate justification”.

The approach of splitting the dealing with such terms into procedurally unfair and substantially unfair is rather unique and this author knows not of any other jurisdiction within the Commonwealth that has chosen this approach. It is also, in this author’s view, rather needless and unneccessary. A substantially unfair contract term is neccessarily procedurally unfair as well. The two are not mutually exclusive. There is also the troubling question of what would about to inadaquate justification for breach of express or implied terms of a contract. When is the justification adaquate and when is it not? Presumably this follows the approach of determining if whether the exclusion of such terms are fair and reasonable or not, but for this to work the statute itself must give an account of what “adaquate justification” amounts to rather then just simply leave the matter for the courts. Such an approach would be in tandem with those used in other jurisdictions, such as the United Kingdom in their Law Commission’s proposed Unfair Contract Terms Bill 2005, specifically clase 14(1) which provides a test on how contract terms are deemed not fair and reasonable. It is also noted that Malaysia has decided that exclusion or limitation of liability for negligence is to be disallowed outright rather than having it hang on whether such an exclusion or limitation is fair and reasonable or as the Bill puts it “without adaquate justification”.

Sections 24C(2) and 24D(2) at least partially follow the approach of Clause 14 of the UK Bill  (specifcally Clause 14(4) )when they list the considerations to be had when determining when a contract term is procedurally or substantially unfair. The considerations are mostly the same between the soon to be Part IIIA of the Consumer Protection Act 1999 of Malaysia, and Clause 14(4) of the Unfair Contract Terms Bill 2005 of the United Kingdom, and again the latter does not contain needless distinction between what is substantively and what is procedurally unfair. The new section also fails to provide an example of a list of terms that can be thought unfair unlike the corresponding Clause in the UK Bill.

Section 24E states that it is for the supplier (ie the business) to prove that the contract term is with adaquate justification. This is the same as Clause 16(1) of the UK Unfair Contract Terms Bill 2005. Section 24F provides that a court or the Tribunal established by the 1999 Act may deal with any issue of any unfair contract term even if none of the parties has raised the matter, again similar to Clause 21 of the UK Bill.

Section 24G(1) enacts that a court or the Tribunal may declare an unfair contract term under sections 24C and 24 D to be void and subsection (2) is not unlike Clause 24 of the UK Unfair Contract Terms Bill which provides that other clauses of the contract affected are to continue in force without the offending term. Section 24H further provides that a term of a contract can still be held void even if it has been partially or wholly executed. This is a novel idea as it provides more certainty as to the position of the parties in the midst of a continuing contract.

Section 24I makes the contravention by “any person” (as defined under subsection (1)) of the Part an offence. The section is silent on how exactly is the Part contravened. First of all, why “any person”? Is it possible for the consumer to commit an offence under the Part? Or is the inclusion of any unfair contract term by a supplier/business to be made an offence? If this is so, it should have been clearly spelt out. There is also a host of other matters that arise by making unfair contract terms an offence, for instance, it could inhibit freedom of contract. The high penalties involved (RM 250,000 for a first offence and RM 500,000 for a subsequent offence, as well as RM 2,000 a day in which the offence continues) could also be pontentially crippling for small businesses. Other jurisdictions have so far not seen the need to make any inclusion of an unfair contract terms an offence and while the merits of such a move are debatable, it is suggested that a comprehensive study on the move be done at first.

Section 24J empowers the Minister to make Regulations in connection with the Part. This section could provide an avenue to remedy two important defects discovered so far, namely the failure to indicate the extent of the application of the Part and the types of contracts involved and secondly, the failure to provide an list of examplary contract terms that might be thought unfair.

The proposed new Part IIIA of the Consumer Protection Act 1999 as will be introduced by the Consumer Protection (Amendment) Act 2010 contains many weaknesses, all of which could and should be addressed by enacting a single comprehensive piece of legislation on unfair contract terms, rather then by simply amending an existing statute. It does not, for example, include unfair notices. Thus while a consumer can now worry less about whether he or she may claim under a defective contract, the same might not be said for a notice, for example, one notice excluding liability for negligence when using a swimming pool or car park, for example, is not covered by the new Part on a plain reading of the Bill, which clearly limits its scope to standard form contracts, and does not mention notices. This is in spite of Domestic Trade and Cosumer Affairs Minister Datuk Seri Sabri Yaakob’s claims to the contrary.

The Bill also makes an unneccesary distinction between procedural and substantive unfair contract terms. It fails to make provision as to what types of contracts exactly are covered by the Part and extending the application to “all” contracts could possibly have unexpected and unfavourable ramifications. It crucially also fails to address the issue of application taking into account where the contract is concluded (ie whether in or outside Malaysia) or what happens when a contract applies foreign law. A test for determining what amounts to “without adaquate justifiaction” is absent, as well as a list of examples of unfair contract terms. What offence created is not clearly defined and the potential effects not carefully studied.

On the other hand, initiative is demonstrated by providing that a term of a cotinuing contract can also be struck down on account of being unfair. On the whole, it is remarked that some form of bulwark against unfair contract terms in consumer contracts is better then nothing but there is room for improvement. It is hoped that those that be can revisit the issue in the future and consider seperate, more comprehensive legislation on the matter instead. It would be interesting, however, to see how the Malaysian courts react to the new legal provisions on unfair contract terms, especially concerning if they would follow the approach of their foreign counterparts in deducing unfair terms, or create their own notions based on the new provisions.

Are Liberal Judges really ‘Judicial Activists’?

By Adam Cohen

“Judicial activism” is the number-one conservative talking point about the law these days. Liberal judges, the argument goes, make law, while conservative judges simply apply the law as it is written. It’s a phony claim. Conservative jurists are every bit as activist as liberal ones. But the critique is also wrong as an approach to the law. In fact, judges always have to interpret vague clauses and apply them to current facts – it’s what judging is all about. That point was eloquently made by retired Supreme Court justice David Souter, during a speech at Harvard’s 359th commencement earlier last month.

To hear conservatives tell it, America has long been under attack by liberal judges who use vague constitutional clauses to impose their views. This criticism took off in the 1950s and 1960s, when federal judges were an important driving force in dismantling racial segregation. Conservatives say that courts should defer to the decisions made by Congress, the President, and state and local officials – the democratically elected parts of government. When they interpret the Constitution, they should apply the plain words and the original intent of the Framers. If they did, conservatives insist, the right result would be obvious.

In his address at Harvard, Justice Souter explained why this cardboard account of the judge’s role “has only a tenuous connection to reality.” It is rarely the case, Souter pointed out, that a constitutional claim can be resolved by mechanically applying a rule. It’s not impossible: if a 21-year-old tried to run for the United States Senate, a judge could simply invoke the constitutional requirement that a Senator must be at least 30. But many constitutional guarantees, like the rights of due process and equal protection, were deliberately written to be open-ended and in need of interpretation.

Another problem with the mechanistic approach is that the Constitution contains many rights and duties that are in tension with each other. In 1971, the court considered the Pentagon Papers case, in which the government tried to block the New York Times and the Washington Post from printing classified documents about the Vietnam War. The court didn’t have one principle to apply – it had two. The First Amendment argued for allowing publication, while national security weighed against it. The Supreme Court, rightly, came out on the side of the newspapers. But it struck many people as a difficult case to decide. As Souter noted, “a lot of hard cases are hard because the Constitution gives no simple rule of decision for cases in which one of the values is truly at odds with another.”

Conservatives like to make judging sound easy and uncomplicated. At his confirmation hearings, Chief Justice John Roberts said he would act as an “umpire,” applying the rules rather than making them, and remembering that “it’s my job to call balls and strikes and not to pitch or bat.” It was a promise that did not last long past the Senate’s vote to confirm him. Chief Justice Roberts and the rest of the court’s five-member conservative majority have overturned congressional laws and second-guessed local elected officials as aggressively as any liberal judges. And they have been just as quick to rely on vague constitutional clauses.

In a 2007 case, the conservative majority overturned voluntary racial integration programs in Seattle and Louisville, Ky. Good idea or bad, these programs were adopted by local officials who had to answer to the voters. But the conservative Justices had no problem invoking the vague words of the Equal Protection Clauseto strike them down. Earlier this year, in the Citizens United campaign finance case, the court’s conservatives struck down a federal law that prohibited corporations from spending on federal elections. Once again, they relied on a vaguely worded constitutional guarantee. And in the process, they flouted the will of the people. After the ruling, a poll found that 80% of Americans opposed the ruling – 65% “strongly.” The decision was as anti-democratic as any liberal ruling conservatives have ever complained about.

A few years ago, a law professor at the University of Kentucky methodically examined the votes of the justices, applying objective standards. She found that the court’s conservatives were at least as activist as the liberals. When Kagan’s confirmation hearings begin later this month, there are likely to be more charges that she would be a judicial activist. Justice Souter’s Harvard address was a timely reminder of how meaningless such accusations really are. – Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board.

Opposing view by Richard, a Yahoo! commentator: For a lawyer, this piece is pretty clumsily written and completely unconvincing. Yes, there are clauses in the Constitution that were deliberately left open-ended and require interpretation. That is not the point of contention for most conservatives, despite what Cohen claims. Their argument is that liberal activist judges deliberately extrapolate conclusions based on the most tortured logic and tenuous connection to what is actually written in the Constitution and, in most cases, they are correct. This isn’t surprising when liberal Supreme Court justices have publicly stated that the Constitution is “living document” and that case law should be used as a vehicle for social change. As for conservaties taking the same approach, it hardly seems likely (despite the unnamed University of Kentucky study) since conservatives specifically reject using the courts as tools for social engineering. Cohen’s feeble example of the Supreme Court overturning the McCain-Feingold so-called campaign finance reform doesn’t bother to consider the fact that the law violated the Constitional right to free speech. Of course, liberals are only interested in enforcing the provisions of the Constitution with which they agree.

The above article appeared here on Yahoo! on 9 June 2010 and is reproduced here for analysis of its message being equally applicable in the context of Malaysian laws. Reproduction of an opposing viewpoint meant to affirm Reading Law‘s stance of neutrality. Copyright in this article vests with TIME Magazine. For more viewpoints, visit the original article.

Bankruptcy (Part 2)

Exactly one year ago, on our last treatment of the subject, we discussed the processes one undergoes when becoming a banktrupt. In this article, we will examine the scope of the Recieving Order and the Ajudication Order (together known as a Bankruptcy Order) and the functions of the Director General of Insolvency (formerly known as the Official Assignee). We shall also take a look at how and by what process an undischarged bankrupt may get his bankruptcy annulled or discharged.

(More to come)

Members vs Directors of company: who wins?

The directors are bestowed with powers to act in the best interest of the company. Directors are given such powers in the article of the association of their company. Often they collide with the direction of the members, shareholders and creditors as to whether or not the directors are acting for the best interest of the company or vice versa. Quite often the members and the directors will have different views in determining what is best for the company. Since then, the law have been developed in order to distinguish the powers between the directors and the members. At the early historical development of company law where division of powers between the members and the directors may concern, director seen as nothing but agent. The General meeting and the board of directors are integral part of the company.

Basically we will have to look into the article of association to see the powers of the members and the directors, but in default situation, we have to refer to article 73 Table A of the Companies Act if only the company follows Table A.

Director acts in accordance with the resolution passed by Board of Director’s meeting. Directors are empowered to act on behalf of the company since the company is only an artificial person. The shareholders who have invested their money in the company are given voting power on certain matters reserves to them under the company’s articles of association, the Companies Act and the general principles of law to determine the company’s course of conduct. Meanwhile Board of Director involve in the management of company’s affairs. However conflicts always occur between Board of Director and the shareholders in deciding what the company capable of. The issue here is whose direction will prevail? In resolving this issue, company law have divided the authority of these two entities of a company by referring to the provision in Companies Act 1965 and the articles of association. Management powers has expressly been given to the Director as determined by the articles and memorandum of association , with specific statutory provisions requiring certain conduct of director to be subjected to shareholder’s approval. Management power of Board of Director is bestowed under Article 73 of Table A, Fourth Schedule, Companies Act 1965 which provides that:

The business of the company shall be managed by the directors who may pay all expenses incurred in promoting and registering the company, and may exercise all such powers of the company as are not, by the Act or by these regulations, required to be exercised by the company in general meeting, subject, nevertheless, to any of these regulations, to the provisions of the Act, and to such regulations, being not inconsistent with aforesaid regulations or provisions, as may be prescribed by the company in general meeting; but no regulations made by the company in general meeting shall invalidate any prior act of the directors which would have been valid if that regulation has not been made.

Criminal sentencing principles (Part 1)

The jurisdiction and authority of a criminal court judge to pass sentence in Malaysia can be found within various statutes, not least Article 121 of the Federal Constitution, as well as section 87 of the Subordinate Courts Act 1948 in respect of First Class Magistrates’ Courts, section 64 of the same Act in respect of Sessions Courts, and section 22(2) of the Courts of Judicature Act 1964 in respect of the High Court. According to section 173(f) and 173(m) of the Criminal Procedure Code (section 180 when the Court is a High Court), upon finding the accused guilty, it shall sentence according to law.

It was said by Hashim Yeop Sani J in the case of PP v Loo Choon Fatt [1976] 2 MLJ 256 that while courts generally exercise a discretion when they pass sentence, these ought to be within well established judicial principles and this article will attempt to identify what those are. Split into four parts, the first will discuss the factors to be considered in assessing sentence, the second in fixing sentences, the third in passing such sentences and lastly, the fourth part will identify the kinds of sentences that are in force within Malaysia, and the considerations to be had when the law proscribes for them to be applied.

The court when assessing sentence takes into account the nature of the offence, the circumstances of the commission, degree of deliberation, public interest, the plea entered, the age, the background and other similar factors. But there must be some proportion between the offence and the penalty. It must be proportion to the guilt of the offender and the nature and gravity of the offence. Each sentence must be an individual one, personal to the offender, assessed with regard to his moral and financial circumstances and the nature of the offence even when public interest demands a deterrent sentence to be passed, each case must be judged according to its own individual merits. These considerations may be categorized into three, namely public interest, circumstances in which the offence was committed and the background of the offender.

1. Public interest

Public interest is not necessarily the prime consideration in assessing sentence but it is an important one. Another thing to remember is that a major element of public interest is that it is not only justice for the accused but also justice for the society. Society through the courts must show its abhorrence to the occurrence to a particular type of crime and the only way the courts can show this is by the sentence they pass, as held in the case of R v Sargeant [1974] 60 Cr App R 74 by Lawton LJ.

Although it was said in Kenneth John Ball [1951] 35 Cri App Reports 164 that the first and foremost consideration is public interest, it was however added in New Tuck Shen [1982] 1 MLJ 27 that public interest varies necessarily according to time, place and circumstances What is public interest in one place may differ in another place and when passing sentence in public interest, the court bears in mind the theories of sentencing, the principles of which are namely retribution, deterrence, prevention and reformation.

Retribution as an object in sentencing is now said to play no part and the courts have since progressed from an ‘eye for an eye’ type of justice or to exact from victims of aggression their pound of flesh. However there is another aspect of retribution emphasized by the courts and it is to show abhorrence of particular types of crimes and criminal conduct in the length of the sentence passed. Abdullah Mohd Am [1988] 2 MLJ 368

A deterrent sentence means a sentence higher than what would normally be passed not necessarily because of the facts of the case but in order that others should be dissuaded from commission of offences of a similar kind. This necessarily involves some unfairness to the accused, since in receiving such a sentence, he is being punished more than what he would have been, having been assessed on the facts alone. This may not necessarily be incorrect because past sentences may have been too low and the time may have come for imposing those type of sentences. Yau Kau Kui [1989] 2 MLJ 139. General deterrent sentences however are of little value where offences are unpremeditated, committed on the spur of the moment.

The principle of prevention is effected by taking away from the offender the power of offending. This element is reflected in sentences such as life imprisonment and minimum sentences and orders of police supervision, the last of which serves to inhibit the offender from offending.

Reformation as a principle is generally held in favor in public interest in that it serves public interest by helping the offender turn to honest living.Teo Siew Peng [1985] 2 MLJ 25

2. Circumstances in which the offence is committed

It is universally recognized that in fixing sentence, the court would consider the nature and circumstances. Mohd Jalani [1997] 5 MLJ 551. This would encompass within its ambit its manner of commission, the type and nature of offence and rampancy of the offence.

Circumstances surrounding the manner of offence is a principle determinant and is best understood when the facts of the particular cases are known such as in the cases of Safiah Abdullah [1983] 1 MLJ 324, Joginder Singh [1984] 2 MLJ 133 and Imran Nasir [1987] 1 MLJ 166. The facts of these case were particularly repulsing and justifies the court in adopting a deterrent sentence. In Safiah Abdullah, two young offenders strangled to death a man who they had already mortally wounded. In Joginder Singh, the accused had framed the owners of two rival restaurants for possession of drugs while in Imran Nasir, the accused was a policeman who raped a young girl in a police station. Sometimes the circumstances of the case can operate as a mitigating factor. In the case of Seah Ah Kew [1974] 1 MLJ 125  based on the facts where the victim of a kidnap was not ill treated, the court did not impose a death penalty for the offence under the Kidnapping Act. Circumstances of the case include whether the offence was premeditated as in Vanaga Mootho [2003] 1 CLJ 78  and whether the accused was intoxicated as in Raja Izzaudin Shah [1979] 1 MLJ 270.

There are certain offences that the courts view seriously. Among offences that normally attract custodial sentence, even for a first offender and despite a plea of guilty would be offences of house breaking because of the traumatic effect on the occupiers. Hassan Nordin [2002] 3 CLJ 495 Other offences would include breach of trust by people holding relatively high positions in society such as in Tan Koon Suan [1987] 1 MLJ 18 and possession of firearms and ammunition because of what was said in Chong Kwong Huah [1981] 1 MLJ 316 that a man who carries a gun has a capacity to use it and it is too easy to make a transition from possession to use with disastrous results.

The court is entitled to take judicial notice of what is notorious and prevalent. Mustapha Abdullah [1997] 2 MLJ 45. For example, this could include taking notice that the area in which the offence was committed in is notorious for that particular offence.

3. Background of the offender

In sentencing the court requires knowledge of background of the accused to strike a balance, so to speak, between the interest of the public and interest of the accused Mohd Fuad [2001] 5 MLJ 549.

There are a number of factors usually advanced to support a plea for leniency. However the court must balance these matters with other factors which may require consideration for severity. The position is best explained in Loh Oi Lin [1949] MLJ 120 that there are factors such as prevalence, difficulty of detection and injury to public revenue which operate in the direction of severity and others such as leniency to first offenders which operate in the other direction and where as frequently happens a number of these factors applied in one case. The court must balance them as best as it can. Among the factors more commonly advanced are age, antecedence, family hardship, conduct subsequent to the offence, impact of conviction, health, and delay in disposal of cases.

Age, particularly youth, is an effective mitigating factor and this is recognised in section 96(2) of the Child Act 2001 that a child aged 14 or above shall not be imprisoned if they can be suitably dealt with in any other way. However, where circumstances so warrant, the court would disregard the age of the offender particularly where the nature of the crime requires the dare, the dash and the defiance of youth in its commission Teh Ah Cheng [1976] 2 MLJ 186. Old age on the other hand is not a mitigating factor because if old age is accepted as an ingredient to light sentence, the court will give the wrong description to the public that old people are given special treatment if found guilty and by right, old age should make one more mature in taking power and experience Yahya Salaman [2006] 2 MLJ 475.

The fact the accused is a first offender is a consideration for leniency and provision is recognized in sec 173(a) and 294 that the court may proceed to buy over an offender because of his antecedence or that he is a first offender Winston Raja [1999] 1 CLJ 315. However the fact that the accused has a clean record may not necessarily operate as a factor in mitigation where there are no mitigation factors in the circumstances of the offence as in the cases of Garner [1973] 1 MLJ 106 and Leo Say [1985] 2 CLJ 155.

The view of the courts in relation to family hardship is that the accused is pleading hardship from the consequences of his own conduct and he should not expect to excite or harness any sympathy by taking the stance of a youth to kill his parents and then pleases in mitigation he is an orphan. Teh Ah Cheng [1976] 2 MLJ 186. However family difficulties have been recognized and given consideration in Mohd Hashim [1961] MLJ 11. The position of family hardship may be encapsulated in what was said in Amir Hamzah [2003] 3 AMR 626. The effect of the conviction on the accused’s family does not automatically become a mitigating factor. The accused cannot be allowed to commit offences only to hide behind the possible repercussions of a lengthy custodial sentence on his family to lighten the sentence imposed. The needs of the accused are far outweighed by issues of public interest.

A valid factor in mitigation is whether the accused regrets what he has done. There are many ways to show regret such as by cooperating in the investigations, pleading guilty and making amends with the victim of the crime such as paying of compensation. Kasavan Seenderan [1999] 1 CLJ 347. Restitution of property would also attract a lenient sentence Loo Cheng Hock [1988] 1 MLJ 316.

A person conviction suffers not only from loss of employment. He carries the stigma of being a convicted person and in assessing sentence, the court considers these factors a substantial part of the punishment. Vijaya Raj [1981] 1 MLJ 43. However these considerations was disregarded by the court in Datuk Haji Harun [1978] 1 MLJ 240 because of the impact on members of the bank who were poor people from rural areas and who expected their leaders not to touch their money entrusted to his care.

Health is another valid consideration and it was considered in the cases of Tay Chuan Beng [1989] 1 MLJ 403 and Dato Nala Karuppan [1999] 2 CLJ 59 but it was not considered in Liew Kim Yong [1989] 3 MLJ 323 who appealed not to be imposed whipping as part of the punishment for an offence of rape on the grounds that he was allergic to painkilling drugs consequential to the whipping.

The next part in will consider how sentences are fixed so stay tuned.

Criminal appeals and revisions in Malaysia

In this article the processes a case undergoes after determination on the first instance are discussed. There is after determination in the first instance on any criminal matter provision to courts of a higher jurisdiction by way of, firstly, an appeal and secondly, revision.

First we will discuss appeal. A two tier system of appeal is practiced. The first is that subordinate courts appeal in the first instance to the high court and then to the court of appeal. However appeals proceeding from the magistrate to the court of appeal must be with leave of the court of appeal and on a question of law. The second is that trials of the high court proceeds in the first instance to the court of appeal and then to the federal court.

The appeal is commenced by the filing of notice of appeal and after service of the grounds of judgment or the notes of evidence if requested for by the filing of the petition of appeal which shall contain particulars of law and fact as regard to which the trial court is alleged to have erred. Wirasingam [1958] MLJ 76. The procedure encompasses the filing of the notice and of the petition of the appeal. Within 14 days from the date of judgment, in the case of the notice, and in the case of the petition, 14 days after service of the grounds of the decision. There is no prescribed form used for the notice but where notice is against sentence specific reference should be made whether appeal is against extent or legality of the sentence. Specific reference would not only go to clarity but also to bring to notice of the magistrate what he is required to state in his grounds of decision.

While it is accepted that it does not invalidate a notice for it to merely say that appeal is against sentence, a clear form of notice is desirable. It must also be stated in the notice that the appellant is desirous of appealing.

In the case of Sarikei District Council [1997] 5 MLJ 328 the notice omitted the words “desirous of appealing” and stated “take notice that the Sarikei District Council, the complainant in these cases, is dissatisfied with the order of the honorable magistrate En. Awang dated 19 June 1995 dismissing the judges against the accused persons on the grounds that the proceedings against them had been a nullity. The appellant court found that the words “appeals to the high court against the said order” had been omitted after the word “nullity”. It was held the omission was material and that this had rendered the notice defective and bad in law.

The second document is the petition of appeal prescribed in Form 51 of the 2^nd schedule of the CPC. Section 307(6) of the Criminal Procedure Code states that a petition must state the substance of the judgment appealed against containing definite particulars points of law or fact in regard to which the court was alleged to have erred.

Where the petition alleges that a conviction is against the weight of evidence, the petition must state in what way the conviction was against the weight. Ong Chee Ho [1933] MLJ 39. Where the allegation that the conviction was unreasonable or could not be supported having regard to the evidence, this must be shown in the petition. Ooi Teck Chien 1971 1 MLJ 51

The prescribed time limit for the filing of the documents are 14 days from the date of judgment with respect to the notice and14 days from service of the grounds of decision or where the notes of evidence have been requested for from the date having been informed the notes are available.

The grounds of decision is essential to the filing of decision because the grounds of appeal would be culled from the grounds of decision and/or the notes of evidence.

The calculation of the 14 days when the last day of the time period falls on a weekly or public holiday was discussed in the case of Kentucky Fried Chicken [1976] 2 MLJ 145 that the date which the sentence is passed is excluded and where the last day falls on a Sunday or weekly holiday, the last date to file would then be Monday, the next working day.

There is need to strictly comply with the prescribed time limit for the filing of the documents of appeal. This strict time limit is moderated by recourse to Section 310 where the order that substantial justice may be done, a judge may permit an appeal which is time barred. Section 310 is only invoked on application. An aid should be sought with all convenience speed. Only in exceptional cases would be rule be relaxed Nagalingam [1935] MLJ 29 and an application for an enlargement of time is not given as a matter of course. Jumari Mohd [1982] 1 MLJ 282

Section 310 is exercised at the court’s discretion. An exercise of this discretion depends on the facts and circumstances of each case. In Wirasingam [1958] MLJ 76 the view was that the applicant must satisfy the court that circumstances exist which justify an extension of time and that the applicant has a reasonable prospect of success on his appeal.

Identical views were expressed in Zulkifli Puasa [1985] 1 MLJ 461 where the court of appeal said “..there are 2 factors to consider on an application for an extension of time:

i) The length of the delay and whether it can be satisfactorily explained.

ii) Whether the out of time application is likely to succeed.

Where the delay is of short duration the court may if it thinks fit, disregard the delay even in the absence of satisfactory reasons but where a substantial amount of time has elapsed, say a month or more, an extension of time will not be granted as a matter of course without a satisfactory explanation. Where the delay is minimal, the court will still not grant an extension of time if the application for which the extension is sought is bound to fail. There must be an arguable case. However, even though the subsequent application may be likely to succeed as for example when a fellow prisoner’s conviction has been quashed, the court will not grant an extension of time as a matter of course. The entire circumstances would be considered.

Next we will discuss revisions. The powers of revision is contained in Sections 323 to 327 of the Criminal Procedure Code and are given to high court judges. Muhari Mohd Jani [1996] 3 MLJ 116 The object of revision is to confer on criminal courts a kind of supervisory jurisdiction to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of precautions or apparent harshness of treatment resulting on one hand in some injury to law and order or on the other some undeserved hardship to some individuals. Liaw Kwai Wah [1987] 2 MLJ 69

The power of revision must be used sparingly and exercised judicially. Sukma Dermawan [1999] 3 CLJ 361. Revision may only be exercised for good reasons and between the limits and spirit of the legislation. There can be no recourse to revision when the matter is appealable and no appeal is lodged. Mohd Dalhar [1995] 1 MLJ 645. The court will not act in revision where the matter is pending appeal. Soon Seng Sia Heng [1974] 2 MLJ 170. The court would not allow efforts to go around provisions which bar appeals by attempting to get cases reviewed unless there are obvious illegalities or miscarriages of justice and revision is not an alternative to an appeal.  Rajendran [2000] 4 MLJ 369

When the court acts in revision, it is not confined to matters raised by the parties alone. Yen Wing Lee [1994] 3 CLJ 453 In appropriate circumstances, the court would go into the deeper aspects of the matter to ensure substantial justice subsist between the accuser and the accused and also between the accused and others who might have suffered. The court is also not precluded from revision when the matter has been brought on appeal as long as it has come to its knowledge or even if the matter at hand did not arise from the record of proceedings.

There are many ways in which a court’s attention may be drawn to cases where the decisions may have to be revised through newspaper reports, through letters from members of the public, aggrieved parties or their relatives, through requests by magistrates or revision of decisions made and through formal applications. Muhari Mohd Jani’s case.

Happy New Decade 2010s

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Reading Law wishes all its readers a Happy 2010 as well as Happy New Decade 2010s. The ’00s showed a lot of legal changes on the Malaysian scene, and we hope to record the coming changes in this decade as well.

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GST set to be introduced in Malaysia

Following the tabling of the Goods and Services Tax (GST) Bill 2009 in Parliament recently, the Goods and Services Tax, otherwise known as GST, is set to make its début within Malaysia. The move to introduce GST was first announced during the tabling of the 2010 annual Budget.

If things are smooth sailing, the Bill could come into force by the middle of the year 2011, imposing a 4% rate on the sale of goods and services, replacing the 5% sale and services tax imposed currently.

The proposal is controversial for potentially being detrimental to the poor, and although the Malaysian Government has assured to allay such concerns by introducing it below the current sale and services tax rate, several have countered that the rate could be further hiked once the GST is introduced, as what had happened in Singapore which had introduced the rate at 3% only to bring it up to 7% later, as well as other countries such as Australia. In the United Kingdom, the GST is as high as 15%-17%. GST was slated to be introduced in Hong Kong in 2006 but was later cancelled following public opposition.

Reading Law will run an analysis or two on the GST and its potential impact once we obtain a copy of the Bill. Meanwhile please let us know what you think by participating in the following poll.

Current known GST rates worldwide

1. Australia                                        10%
2. Canada                                             5%
3. New Zealand                               12.5%
4. Singapore                                         7%
5. United Kingdom                            15%