Legal in Malaysia

DIVORCE THROUGH BREAKDOWN OF MARRIAGE

2012-01-20T15:38:00.001+08:00

In Law Reform (Marriage & Divorce) Act 1976 (LRA 1976), section 53 provides for divorce through the breakdown of marriage. Subsection (1) of section 53 provides that either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down. In order to grant the decree of divorce, the court must first satisfy both limbs in subsection (2) of section 53 namely: (i) the facts alleged as causing or leading to the breakdown of marriage; and (ii) the circumstances make it just and reasonable to grant the decree of divorce. If both limbs are not satisfied, it will not be sufficient for the court to act.

Section 54 (1) of LRA 1976 is relevant to justify the facts alleged as causing or leading to the breakdown of marriage. It reads:

"In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say:-

(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) That the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) That the parties to the marriage has lived apart for a continuous period of at least two years immediately preceding the presentation of the petition."

In determining whether the circumstances make it just and reasonable to order a decree of divorce, the court will refer to subsection (2) of section 54 where it requires the court to consider all the circumstances, including the conduct of the parties and how the interests of any children of the marriage or of either party may be affected if the marriage is dissolved.

The court when granting a decree of divorce may subject it to such terms and conditions as it may think fit to attach. If the court considers that in all the circumstances it would be wrong to dissolve the marriage, it would dismiss the petition.

In this article, we will discuss in depth on paragraph (b) of section 54 of LRA 1976. This paragraph requires the petitioner to prove that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. Here, the court will decide whether the petitioner can reasonably be expected to live with the respondent.

In the case of Katz v Katz, the Court defined behaviour as something more than a mere state of affairs or a state of mind. It is action or conduct by one which affects the others.

There are two views in this aspect. The first view is that the sole test to be prescribed as the nature of the behaviour is that it must be such as to justify a finding that the petitioner cannot reasonably be expected to live with the respondent.

As stated in the case of Thurlow v Thurlow, in order to establish that the respondent has behaved in such a way that the petitioner could not reasonably be expected to live with the respondent, it is not sufficient merely to establish that the marriage was dead and that it was impossible for the petitioner to cohabit with the respondent. It has to be shown that it was the respondent’s behaviour which justified a conclusion by the court that the petitioner could not reasonably be expected to endure cohabitation. For that purpose, behaviour included negative conduct.

Secondly, in determining whether the petitioner can or cannot reasonably be expected to live with the respondent, the court must take into account the character, personality, disposition, and behaviour of the petitioner and the respondent as alleged and established in evidence. Under the second view, there are three tests that can be applied:-

a) Reasonable man’s test

It was derived from the case of Livingstone-Stallard v Livingstone-Stallard that “would any right-thinking person come to the conclusion that this husband has behaved in such a way that this wife cannot reasonably be expected to live with him, taking into account the whole world of circumstances and the characters and personalities of the parties?”

In Malaysia, the case that has followed the decision of the case above is Joseph Jeganathan v Rosaline Joseph. The husband filed a petition seeking the dissolution of the marriage alleging that the marriage had broken down irretrievably in that the respondent had behave in such a way that he cannot reasonably be expected to live with her. The evidence adduced showed that the matrimonial home was filled with bitterness, strive, and tension, generated by frequent violent quarrels. There were virtually daily absences of several hours by the respondent from the matrimonial home and at times for periods up to 70 – 80 days. Efforts of reconciliation had been a failure. The court held that the test which can be applied is the reasonable man’s test. The court had to consider the whole circumstances and the characters as well as the personalities of the parties. The court granted the decree nisi to the petitioner and held that the marriage had irretrievably broken down.

b) Behaviour test, whereby the behaviour of both parties must be considered.

In the case of Ash v Ash, it was held that the court must not consider only the behaviour of the respondent, but also the character, personality, disposition as well as the behaviour of the petitioner.

c) Where there is a breach of obligation between both parties.

In Pheasant v Pheasant, the petitioner husband alleged that the wife had not given him the spontaneous demonstrative affection, which his nature demanded and for which he claimed that it caused the marriage to be irretrievably broken down. It was held that there was nothing in the wife’s behaviour which could be regarded as a breach on her part of any of the obligations of the marriage or effectively contributing to breakdown of the marriage. Therefore, the husband’s petition for divorce was dismissed.

We can see the example of cases which falls under paragraph (b) of section 54 (1) of LRA 1976 as in the case of Shudesh Kumar a/l Moti Ram V Kamlesh a/p Mangal Sain Kapoor [2005] 5 MLJ 82, the petitioner/husband contends that the marriage broke down because of the unreasonable behaviour of the respondent/wife. The petitioner contends that the respondent is a suspicious person, and had even physically attacked him. He says she was abusive and rude, even to his father. She wanted the petitioner to move out of his family's residence, which he refused to do so, and this led to frequent quarrels between the parties, eventually leading to their separation. It is therefore open to this court to grant the decree nisi on that ground alone.

In contrast, in the case of Bhanu Serakami v Nagamma [1991] 2 MLJ 266, the husband instituted the divorce proceedings solely on the ground that he and his wife had been living apart continuously for more than two years and that reconciliation attempts made between them at the Marriage Tribunal in Petaling Jaya had been unsuccessful. Hence, he claimed that the marriage had irretrievably broken down. The wife denied that they had been living apart continuously for two years before the presentation of the petition by the husband. She averred that they got married in 1984, later she had conceived a child of the husband on or about March 1985 but suffered a miscarriage at the end of July 1985. In 1985, the wife found the photograph of a lady in the husband's diary. The husband quickly grabbed the photograph off the hand of the wife. She believed that the husband had been committing adultery with the unknown woman. In 1988, they had a sexual relationship.

The court was satisfied that the husband’s complaints about the wife were trivialities. The husband wanted a divorce not because he was tired of misbehaviour of his wife, but because he was tired and bored of his wife and desired his freedom. The husband's petition for divorce was dismissed as he failed to prove that the marriage had irretrievably broken down.

Happy New Year everybody...

2012-01-01T00:50:00.004+08:00

Salam and Hi all,

We would like to wish everybody especially our loyal blog readers A Very Happy New Year! may this year is a good and prosperous year for you.

Thank you for supporting us all the while until now, we look forward to help the public this year. With the new spirit, God willing, we will continue our blog post with new area of legal matters, answering / responding to a lot more email questions and try our best to ease your problems.

Happy New Year!

JOB VACANCY

2011-11-02T15:03:00.001+08:00

Our firm are planning to setup a new legal creative industry department. We need a lawyer which is interested to join us to lead this department:

Job Scope

1. Preparing Contract between film productions house with the related agencies

2. Preparing Contract between all the crew, artist and other related parties

3. Intellectual property agreement

4. Legal advisory for the film production house

5. Preparing document with local and international production house

6. Others legal creative industry matters

The lawyers must:

1. Able to work around Klang Valley

2. Able to work in the flexible working time

3. Preferable lawyers who have 3-4 year experience in the related field.

4. Good leadership skills to leads its own department

5. Willing to travel local and overseas

6. Have a good personality to deal with the industry

7. Have a own transport

8. Excellent communication and writing skills in English and Malay

9. Preferred Muslim

The coming project is already secured and just around the corner. Immediate vacant and the closing date is 11 November 2011. Please submit your CV to mohdirhan@gmail.com or contact us 03-90748642.

Desertation

2011-09-19T11:55:00.018+08:00

Divorce through breakdown of marriage.

Desertion means wilful absenting of the husband from the society of his wife in spite of her wishes. It consists of the unjustified withdrawal from cohabitation by one spouse without the consent of the other with the intention of remaining separated permanently. According to Section 54 (1)(c) Law Reform (Marriage and Divorce) Act 1976 (LRA), respondent has deserted the petitioner for a continuous period of at least 2 years immediately preceding the presentation of the petition.

Basically, there are 2 types of desertion which are;

1. Simple desertion

2. Constructive desertion

1. Simple desertion

Simple desertion is a situation where one party leaves another party without reasonable cause, then the party who leaves is in desertion. We can say that there are 4 essential elements of desertion;

I. De facto separation (fact of separation), where the parties must be separated for 2 years and there must be a complete cessation of cohabitation. The desertion must still be running when proceedings are commenced. It usually occurs when one party leaves the matrimonial house.

II. The guilty party must have the intention of living separately from the other.

III. There is no desertion if the separation is with the consent of the other party and the consent must be given freely.

IV. The party must have reasonable cause or excuse for leaving the other.

The desertion must be in 2 years period and it must be continuous.

2. Constructive desertion

It is a situation in which one spouse causes another to leave the matrimonial home or due to the conduct or behaviour of the respondent, the petitioner had to leave the matrimonial home and the respondent is said to be a deserter and in constructive desertion. The test to determine whether the offender is in constructive desertion is the same as the test in determining simple desertion.

Referring to Section 54(1)(d) LRA, it is stated that the parties to the marriage have lived apart for a continuous period of at least 2 years immediately preceding the presentation of the petition. This section basically discussed about spouses who were still in a marriage relationship, but is living separately.

Lived apart here means that there must be a physical separation and a recognition that the marriage is at an end. Even if the spouses are living under the same roof, they can still be regarded as living apart if they are living in 2 households. However, they will not be regarded as living apart if they are sharing meals and living accommodations, even though they are living in a separate room and is no longer having sexual intercourse.

Business back as usual

2011-09-05T14:35:00.001+08:00

Salam All! We are back in business as usual. working hours 9:00 am to 5:00 pm daily (Saturday and Sunday close).

2011-08-05T10:05:00.002+08:00

Greetings.

Messrs Irzuan hereby announce that two lawyers are joining us as partners, and we would like to congratulate Mr. Azhar bin Jalaludin (civil litigation) and Tn. Syed Fadzil bin Syed Shamsuddin (running down) who officially join Messrs Irzuan as partners on 04/08/2011.

I Hate You, I Want to Ruin Your Life, I Want to Defame You!!!!

2011-08-03T11:04:00.005+08:00

Hello everyone. It has been quite a time since our last article as we are quite busy and hectic with our workload.

However, that should not be an excuse for us to escape from our social obligation of educating and providing the public with good and concise legal advice, hence this article on defamation is posted as we are of the view that the topic is a topic of general interest as we received lot of question in relation to the law governing defamation.

To ease the reference of the reader, I would like to illustrate two situations and throughout this article we would explain to you the substance of law of defamation.

SITUATION A:

A company appointed a company secretary which supposed to manage the affair of the company such as the the conveyance of annual general meeting and the compliance of the company to the requirement of the Companies Act 1965.

The company secretary failed to do so and the company was fined by the Suruhanjaya Syarikat Malaysia. It causes big shame to the company and the company wishes to proceed with a defamation suit against the company secretary.

SITUATION B:

An article was posted on Lionel Messi's authentic facebook alleging that Christiano Ronaldo is having an affair with 3 high class prostitute and at the same time he was linked with an affair with his ex-girlfriend's boyfriend.

QUESTION: WHICH ACTION SUSTAINABLE IN LAW FOR DEFAMATION SUIT?

For situation A:

The company cannot bring an action for defamation suit even if the act of the company secretary have causes the company to suffer from embarrassment. The rationale is because there is no defamatory statement made by the company secretary towards the company.

For situation B:

Christiano Ronaldo can bring an action against Lionel Messi for defamation and it is simply because it fulfills all elements of defamation as the effect of such defamatory statement is to show that Christiano Ronaldo is of low moral and decency as well as having some gender confusion.

To establish defamation, all these three elements need to be proved and established.

Element of Defamation

There must be a DEFAMATORY statement.
The DEFAMATORY statement is referred to the victim.
The DEFAMATORY statement is published.

Defamatory Statement

It is word uttered which have the tendency to lower the reputation of the victim in the eyes of the society and that they society will shun and avoid the victim.

It simply means any word that was said or written which will have the effect of damaging and tarnishing the reputation of the victim and which will have the effect of isolating the victim from the society.

Example:

Dato KA is a lawyer which is well known for charging exorbitant and unreasonable legal fees to his client.

Tan Sri AM opened an Apple Store selling fake Apple product made from China.

Those two examples seems to be defamatory as it have the tendency of lowering their reputation in the eyes of the society. But please take note that the court have developed a test to determine whether such statement is defamatory or not and it is known as reasonable man's test.

Reasonable Man's Test

The test is simple. Would the society believe the statement to be true? If the society does believe that the statement is true, the statement is defamation. On the other hand, if the society don’t believe such statement, there will be no defamation as such statement does not have the effect of tarnishing the reputation of the victim.

Applying to the scenario above, let’s assume that Dato KA is a very senior lawyer, much more senior that the great Karpal Singh and society themselves recognized and acknowledged this fact and they are aware as to the legal fees that have to be spend if they wishes to appoint Dato KA as the solicitor, there will be no defamatory statement made as the society have already acknowledge the fact and as such, no damage was done to the reputation of Dato KA.

As to example No 2, let’s assume that the society believe the statement that Tan Sri AM sold fake Apple product to be true and because of that the sales of Apple product at Tan Sri AM's Apple Store decreased tremendously. Such a statement can be said to be defamatory as it had damages the reputation of Tan Sri AM and had causes him to suffer losses.

Defamatory Statement Must Be Made In Reference To The Victim And That It Must Be Published

For an action for defamation to succeed, the victim must show to the Court that the defamatory statement is referred to the victim. This is can be done if the article expressly mentioning the name of the victim or publishing the pictures of the victim alongside the defamatory statement..

However, people are smart nowadays and they did not mention the name or publish the picture of the victim alongside the defamatory statement. What they do is simply giving a hint or a clue of the identity by blurring or pixelating the picture of the victim and at the same time giving more information to enable the reader to guess correctly the identity of the victim.

Eventough the defamatory statement was never referred to the victim directly, the jurisprudence of the court showed that if the reader can guess correctly the identity of the victim, the Court will interpret it as referring to the victim himself.

Finally, the defamatory statement must be published. The term published in the context of law of defamation simply means it must be made know to a third party.

Example:

Mr. A wrote a letter alleging that Mr. Z absconding money from his client. Mr. Z knows the existence of this letter but the letter was never send to anyone and is well kept in Mr. A safekeeping.

In this situation, there will be no publication as the defamatory statement was never disseminated and published to a 3^rd party hence there is no defamation.

Let’s twist the situation around. This time, Mr. A send the letter to all of Mr. Z’s client as well as Mr. Z’s bosses. The defamatory statement have been published as it has been made known to a 3^rd party. In this situation, there is a defamation done to Mr. Z.

The Recent Development in Law of Defamation: The Aftermath of Facebook & Twitter

It is interesting to note that there has been a revolution in the law of defamation after the birth of Facebook and Twitter as well as some other blogging site.

The growth of Facebook and Twitter make the dissemination of defamatory statement to be much easier and as such, the effect will be much more damaging as oppose to the conventional mode of spreading defamatory statement.

The Malaysian Court nowadays have interpreted that Internet is no vacuum and cannot escape from the claw of Malaysian Law. The Malaysian Court have decided that regardless what medium is choosen to spread the defamatory statement, be it on Facebook or Twitter, the Court will looks at the merit of the case and determine whether there is a fulfillment of all the element of defamation or not.

In addition to that the Multimedia and Communication Commission of Malaysia have set up a body to monitor the dissemination of defamatory article on the Internet and they are well equipped with the latest technology to detect the culprit who is responsible for the defamatory statement.

As such, when you posted something defamatory on your Facebook or Twitter, there is a tendency for such post to be liable for defamation. Hence, we advised the reader to be very carefull with what you post and commented on the Internet.

Conclusion

For a victim of defamation to succeed in their defamation suit, there must ensure that all three elements of defamation to exist. It is important for a victim of defamation to consult with their lawyer as soon as possible.

The delay of initiating a legal suit may form an impression to the court that the effect of the defamatory statement is not serious and it does not have the ability to tarnish and damage the reputation of the victim.

There are lots of other thing that need to be explained in relation to the law of defamation such as the damages, defence for defamation and injunction for defamation. However, we need to keep it short so that the reader will not get bored with our words. Nevertheless, we open the floor for any question in relation to law of defamation.

Thank you.

Regards,

Khairul Aiman

Email: khairul.aiman2@gmail.com

Messrs. Irzuan

Non Muslim Divorce Proceeding in Malaysia

2011-08-03T09:45:00.002+08:00

Attention to all of our beloved reader. The post on non muslim divorce proceeding have become a hit and we received lots of email from our reader everyday.

However, most of the question posted by the reader have been answered and addressed properly, and as such, we would like to suggest to our beloved reader to have a look at the questions and answers posted before sending us any email as we belive that the questions and answers posted will be sufficient to give you a deep illustration and understanding about the divorce proceeding for non- muslim in Malaysia.

Nevertheless, we would like to say thank you to the continuous support from our reader and in the short period of time, we will come out with another interesting topic which is the maintenance of wife/husband and child after the divorce as well as the custody of the child.

Sincerely,
Khairul Aiman

Messrs. Irzuan

2011-08-02T17:00:00.009+08:00

Never let it happen again….

Working parents have no choice but to find a place to send their child for care while they are working. Finding a place to send their child is not a problem because there are a lot of child care centres out there but finding the good one can however be challenging. Recently, we have heard several cases about death of infants caused by negligence of the care centre and mostly died due to choking of milk. This kind of news gives uncomfortable feelings for parents out there. Thus, because of this alarming concern, we feel we need to discuss about this issue.

What you need to know about child care centre?

1. Before sending your child to a care centre, you must make sure;

The care centre registered with Social Welfare Department (JKM).
This can be done through background check with (JKM) or local authorities (PBT).

2. Care centre is governed by two different laws which are;

Child Care Centre Act 1984
Care Centres Act 1993

3. Child care centre should meet the requirements set out by;

Fire and Rescue Department (BOMBA)
Health Department
Local authority (PBT)

What you should do if your child is injured or died due to the care centre negligence?

1. Make police report.

2. Inform Social Welfare Department (JKM).

JKM have the power to take action against care centres which are not registered.
JKM cannot blacklist the care centre and stop the care centre from opening new branch.

3. Inform local authorities (PBT) ·

They have the power to shut down the premise because care centres have to register and acquire license from PBT.

4. Take legal action (claim for damages) ·

We can take action against the care centre under civil jurisdiction for negligent.
Action for negligent is governed by Civil Law Act 1956.
Eventhough what you do here will not bring your child back but think of it as a social responsibility and as an initiative to stop irresponsible care centres from operating.
It can be done for the purpose of either to restraint them from continuing their activity or to claim for damages. ·
Damages can be recovered due to the negligence (in monetary terms).

* Provided elements of negligence is fulfilled;

I. The care centre has duty to ensure safety and comfort of your child;

II. The care centre fail to ensure safety of your child;

III. You have suffered damage (death or injury suffered by your child);

IV. The decedent would not have died but for the negligenct.

It is important for the care centre to ensure that;

Minder employed must have proper knowledge in dealing with kids.
Skilled and well trained minder is of top priority because of the job scope.
Minder employed do their job with utmost care.
Minder should have proper knowledge to handle emergency matters. ·

It is important for you to know your rights and for your child to get the best from the care centre you send your child to. Do not let your child be the next victim and you to regret what you have done. Never let it happen again….

Mohd Asni Mansor

Email: mohdasni53@gmail.com

Messrs Irzuan

Ramadhan

2011-08-02T16:51:00.003+08:00

we would like to announce that Messrs Irzuan will start its daily operation from 0900am to 0430pm for a month until the end of Ramadhan.

Second Legal Clinic

2011-07-04T16:04:00.000+08:00

In Lock Up: Your Right, You Should Know It!

2011-05-14T21:33:00.002+08:00

I wrote this article upon knowing that one of our fellow lawyer colleague were denied her right as a lawyer, hence denying her client's right for a legal representation and amounting to a violation of section 28A of the Criminal Procedure Code (CPC). The incident happens at IPD Selayang whereby the police denied her from seeing her client in the lock up.

If you think that this is a small incident, so small that it won’t effect your right, YOU ARE WRONG!

Such incident is a contempt to the intention of the legislator and a direct disrespect to our constitution.

Why?

Pursuant to the amendment of CPC in 2006, the Parliament had inserted s.28A which strengthens the right of citizen of Malaysia as provided by Article 5 of the Federal Constitution.

The essence of s.28A is that suspects have the right to know the ground of arrest and to make phone call to their family informing their whereabouts and a phone call to their lawyer.

I’m focusing on the right to call the lawyer. The underlying principle of the imposition of such right is simple, to ensure that the suspect know their right upon being held and questioned by the police officer.

To do so, they need a lawyer to tell them what is their right, what can be asked by the police, what cannot be asked by the police, what kind of answer you are not obliged to answer and most importantly, whether the police have the right to use any violence or threat against them to force them telling something that is incriminating against themselves.

By denying a lawyer to see his client in the lock up, it amounting to denying the right of the suspect to get a legal representation, a right clearly enshrined in the CPC as well as our constitution, hence amounting to disrespect to our system of law.

Yes, it was argued that s.28A also allows the police to deny the right of the suspect if there is a possibility that by granting their right to a lawyer, it will disturb the whole police investigation and witness.

But please bear in mind that the right to deny is an exception stipulated in s.28A. Just like any other exception, it should only be applied when you can show that injustice will happen as consequences of adhering to the general rule.

The police should not blatantly invoke the exception without even considering the general rule and its effect of granting such right.

As such, the police being the officer of justice should view such matter in good faith and should not simply being prejudice to the suspect. After all, the suspect is not guilty until is proven guilty.

For the reader, this is your right and you should know it! Learn it and remember it by your heart.

Upon being detained by a police officer you must know that you have the right to;

i) know the ground of arrest

ii) make a phone call to your family

iii) make a phone call to your lawyer asking them some advice or to ask them to come to the lockup.

Know this right because the police investigation period is the most crucial stage in the criminal prosecution as this is the time where all the evidences were gathered.

In simple way, once you get arrested and being detained, get your lawyer!

image taken from: http://www.setiaalam.net/sara/quick-updates/40-setia-alam-updates

Property and Conveyancing In Malaysia

2011-05-05T16:23:00.001+08:00

What is Conveyancing?

The term 'Conveyancing' refers to all the legal and administrative work associated with transferring the ownership of land or buildings from one owner to another. The conveyancing process starts after an offer has been made and accepted to buy a property and solicitors' details exchanged by the two parties.

Who Does The Conveyancing?

Most people hire a solicitor or licensed conveyancer to undertake the legal side of buying their home. It is possible to do the conveyancing yourself, but it is time-consuming and also risky if you lack the necessary expertise. Although professional services are expensive, they have become cheaper in recent years and it is well worth the cost to successfully complete the purchase and to resolve any possible problems. This part of the process is crucial.

DIY Conveyancing: Pros and Cons

DIY-conveyancing is perfectly possible. If you are not put off by legal jargon and willing to deal with the large amounts of paperwork involved then you might manage without a professional conveyancer or solicitor. However, it is advisable to think about this very carefully, as it is a complex and time-consuming business. If it is not carried out properly you could, for example, find yourself involved in costly legal disputes over boundaries, or discover that there is a new road planned to be built opposite your home, or even that the seller did not have the legal right to sell the home.

In reality very few homebuyers undertake the conveyancing themselves, for three main reasons:

Many mortgage lenders will insist on employing a solicitor to protect their interests. They will not risk having shoddy conveyancing work.
There is a higher chance of things going disastrously wrong.
The other people involved may not be happy with you doing your own conveyancing, and may even reject your offer on this basis.

There are some cases in which DIY conveyancing is particularly inadvisable, for example:

the property is being sold by a divorcing or separating couple (this requires specialist skill or knowledge).
the property is not freehold.
the property is unregistered.
the property is not a house.

Some picture at 'Majlis Sesi Penerangan PEWARIS MALAYSIA & Klinik Undang-Undang

2011-05-03T15:51:00.001+08:00

program committee members

welcoming speech

see more pictures at Irzuan Fan Page at Facebook

Free Online Federal Laws

2011-04-28T12:14:00.000+08:00

Check this out, it's free!

Program Sesi Penerangan Pewaris Malaysia & Klinik Undang-Undang

2011-03-31T16:07:00.005+08:00

Tarikh: 30 haribulan April 2011

Masa: 8:30 malam

Tempat: Yayasan Restu, Shah Alam

Pakaian: Formal/Baju Melayu/Batik

Yuran masuk: PERCUMA

Anjuran Pewaris Malaysia dengan kerjasama Tetuan Irzuan.

Semua ahli pewaris dijemput hadir. Sila hubungi Saudara Aiman atau Rizal di khairul.aiman2@gmail.com tel: 03-90748642 untuk pertanyaan lanjut.

*Makanan & Fail kit disediakan

Perlancaran Yayasan Bantuan Guaman Kebangsaan

2011-02-26T00:11:00.001+08:00

Bahagian Hal Ehwal Undang-Undang (BHEUU), Jabatan Perdana Menteri telah dipertanggungjawab untuk menganjurkan Majlis Pelancaran Yayasan Bantuan Guaman Kebangsaan (YBGK) yang akan disempurnakan oleh YAB Perdana Menteri Malaysia pada ketentuan seperti berikut:

Tarikh : 25 Februari 2011(Jumaat)

Masa : 9.30 pagi

Tempat: Dewan B, Pusat Konvensyen Antarabangsa Putrajaya (PICC)

Penubuhan YBGK telah dipersetujui oleh Jemaah Menteri dalam mesyuaratnya pada 3 Mac 2010. Tujuan penubuhan YBGK adalah untuk memberi bantuan dan nasihat guaman dalam kes jenayah kepada golongan yang kurang berkemampuan supaya mendapat akses kepada keadilan dengan sewajarnya.

YBGK kini telah didaftarkan sebagai sebuah syarikat khairat (charitable company) pada 24 Januari 2011 dan Kerajaan telahpun bersetuju untuk menyumbangkan geran bernilai RM5 juta kepada Yayasan ini manakala Majlis Peguam Malaysia pula sebanyak RM250,000 sebagai sumbangan permulaan.

YBGK dipengerusikan oleh Yang Berbahagia Tan Sri Peguam Negara dengan Tuan Ragunath Kesavan, Presiden Majlis Peguam Malaysia selaku Timbalan Pengerusi. Setiausaha Syarikat ialah Firma Shearn Delamore & Co. Ahli-ahli Lembaga Pengarah YBGK pula terdiri daripada Ketua Setiausaha Perbendaharan, Ketua Pengarah Bahagian Hal Ehwal Udang-Undang, Ketua Pengarah Jabatan Kebajikan Masyarakat, Ketua Pengarah Jabatan Bantuan Guaman, Presiden Persatuan Undang-Undang Sabah, Presiden Persatuan Peguam Bela Sarawak dan Dekan Fakulti Undang-Undang daripad Universiti Kebangsaan Malaysia.

YBGK akan memberi bantuan guaman dan khidmat nasihat dalam perkara jenayah kepada mana-mana warganegara Malaysia yang memerlukan bantuan guaman di peringkat tangkapan, reman/tahanan dan permohonan ikat jamin. Bantuan guaman bagi peringkat perbicaraan di mahkamah adalah untuk mereka yang berpendapatan:-

(a) tidak lebih daripada RM25,000 setahun; atau

(b) melebihi RM25,000 setahun tetapi tidak melebihi RM36,000 setahun dengan dikenakan bayaran tertentu yang akan ditetapkan oleh YBGK.

Semua jenis kesalahan jenayah layak dibantu kecuali kesalahan yang membawa hukuman mati. Kesalahan yang membawa hukuman mati tidak akan diliputi oleh YBGK pada masa ini kerana mahkamah telah menyediakan perkhidmatan peguam yang dilantik oleh mahkamah (assigned counsel) kepada tertuduh dalam kes sedemikian.

Source: http://bheuu.gov.my/

Sent from Kamarul Irzuan's iPhone

Interesting! PTPTN cannot appoint private lawyers to sue students!

2010-12-09T16:25:00.003+08:00

Salam and Hi all,

As promise in my facebook page, i post one interesting case I handled recently. The case was regarding PTPTN suing one person for 'so-called default' in paying his study loan given by PTPTN. I do not wish to touch on the details of the case's merit but rather stick to only one issue of NULLITY in such civil action.

After I got the instruction to defend the case, I prepared all the necessary papers such the defense statement, notice of appearance and so on. I also prepare one notice of preliminary objection (PO) to be served onto the plaintiff's solicitor (PTPTN) as required under the rules.

The PO stating and demanding that defendant shall plead to the court to have the whole suit dismiss with cost due to illegality and nullity of the action.

Reasons: section 58 of the Perbadanan Tabung Pendidikan Tinggi Nasional Act 1997 Act A1296 ("the Act") which was interpreted by the High Court at Sibu EXCLUDE the private lawyers from representing any suit brought by PTPTN against any defaulted student (or any person).

Section 58 reads as follows:

58. Conduct of civil proceedings

Notwithstanding the provisions of any written law, in any civil proceedings by or against the Perbadanan.

(a) Any person holding the appointment of Federal Counsel and authorized by the Attorney General for the purpose; or
(b) Any officer of the Perbadanan authorized in that behalf by the Chairman, may, on behalf of the Perbadanan, institute, appear in and conduct such proceedings and may make and do all appearances, acts and applications in respect of such proceedings.

The section clearly exclude private lawyers.

Now, since the case I handle was presented by a private lawyer, it was within the restriction of the above.

The case was set for preliminary objection hearing on last 8/12/2010, and after due process of submission the Learned Magistrate allowed the objection and dismissed the case with cost on the ground that PTPTN does not have any statutory right to appoint private lawyers to sue defaulters as per judgment of the Sibu High Court.

I append bellow the judgment for your reading satisfaction (it is quite lengthy for you, but the important part is the PO issue, the rest are really worth ready for total understanding the issues).

Before that I would like to emphasize myself that I do not condone the act or attitude of 'not paying your study loan', this post is just to make sure that PTPTN to be more responsible in carrying its statutory and social duty.

IN THE HIGH COURT IN SABAH AND SARAWAK

AT SIBU

11A-2-2010

BETWEEN

TIONG SIEW MING ….APPELLANT

AND

PERBADANAN TABUNG PENDIDIKAN ….RESPONDENT

TINGGI NASIONAL

RULINGS

1. This is the Appellant's (Defendant in the Magistrate's Court) appeal against the decision of the learned Magistrate in allowing the Respondent's (Plaintiffs in the Magistrate's Court) application for summary judgement by entering a judgement for the sum of RM22,376.29 as at 26th June 2007 with interest thereon at the rate of 8% per annum from 26th June 2007 to the

date of full payment.

2. The sum of RM22,376.29 claimed by the Respondent's claim against the Appellant is the outstanding educational loan facility granted by the Respondent to the Appellant.

3. It is at the foremost in my mind that a hearing of Order 14 appeal is by way of rehearing. (See: Malayan Insurance (M) Sdn. Bhd. v. Asia Hotel Sdn. Bhd. [1987] 1 CLJ 246.

SIDE ISSUE

4. At the outset, the Appellant raised a side issue which had also been raised in the Magistrate's Court by way of preliminary objection, the same was dismissed by the learned Magistrate.

5. It is to be noted that the Respondent filed the initial summons on 9th June 2008 (amended and redated 16th April 2009) against the Appellant through their appointed solicitors Zaid Ibrahim & Co ("ZICO"). The filing of the action was after the insertion of the Perbadanan Tabung Pendidikan Tinggi Nasional Act 1997 Act A1296 ("the Act") which came into force from 20th July 2007.

6. Section 58 of the Act provides for conduct of civil proceeding, states:

58. Conduct of civil proceedings

Notwithstanding the provisions of any written law, in any civil proceedings by or against the Perbadanan.

(a) Any person holding the appointment of Federal Counsel and authorized by the Attorney General for the purpose; or

(b) Any officer of the Perbadanan authorized in that behalf by the Chairman, may, on behalf of the Perbadanan, institute, appear in and conduct such proceedings and may make and do all appearances, acts and applications in respect of such proceedings.

7. In light of the provision in section 58 of the Act, it was argued for the Appellant that ZICO as a private legal firm does not fall within the "persons" listed under section 58 of the Act who has the authority to represent Perbadanan Tabung Pendidikan Tinggi Nasional ("PTPTN") in civil proceedings. Hence, the civil proceedings instituted by ZICO in the Magistrate's Court is a nullity.

8. In response, it was submitted for the Respondent that this side issue is res judicata because the same matter had been raised in the Magistrate's Court by way of preliminary issue and it has been dealt with and dismissed by the learned Magistrate. Since there was no appeal against the learned Magistrate's decision on the preliminary objection and the appeal period has lapsed, the decision of the learned Magistrate thereon is final and binding on the parties to the action.

9. I regret I do not agree with the Respondent. In my opinion, the learned Magistrate's ruling on the preliminary objection does not fall within the word "decision" in Order 49 r 6 of the Subordinate Courts Rules 1980 as it does not determine on the right of the parties. Hence, it was not appellable. (See, Tentuan J&S Holding Sdn. Bhd v. A Karim Hasan & Anor [200] 4 CLJ 152. Accordingly, the issue of res judicata does not arise.

10. The Respondent submitted the authority of ZICO to represent the Respondent is based on section 35 of the Act, which states: "Appointment of agents, consultants, etc The Perbadanan may appoint or employ such agents, consultants including advocates and solicitors, or other persons to transact any business or to do any act required to be transacted or done in the execution of its functions or for the better carrying into effect the purposes of this Act.

11. Emphasis was put on the words "…consultants including advocates and solicitors…..to transact any business or to do any act required to be transacted or done in the execution of its function or for the better carrying into effect the purposes oft this Act"

12. A question is posed: does the foregoing words "consultant including advocates and solicitors" provides the power for appointment of ZICO?

13. It must be borne in mind that when construing an Act of Parliament, the court is to interpret the statute in order to ascertain legislative intent by reference to the words appearing in the particular enactment. Prima facie, every word appearing in an Act must bear some meaning for Parliament does not legislate in vain by using meaningless words and phrases. (Krishnadas a/l Achutan Nair & Ors v Maniyan a/l Samykano [1997] 1 MLJ 96, per Gopal Sri Ram JCA).

14. In the Words, Phrases & Maximx – Legally & Judicially, the word "consultant" is defined as "One who gives professional advice". From this definition it can be safely said that the appointment of solicitors and advocates is confined to giving professional advice to PTPTN. Nothing in section 38 gives authority to ZICO, a legal firm, to institute, appeal in and act for PTPTN in Civil proceedings.

15. The principle governing the rule of construction expressed in the maxim generalibus specialia derogant is that where there are two provisions of written law, one general and the other specific, the special or specific provision excludes the operation of the general provision. (See: Luggage Distributors (M) Sdn. Bhd. v Tan Hor Teng [1995] 3 CLJ 520).

16. Section 58 is a provision which specifically deals with conduct of civil proceedings and the person who could institute, appear in and conduct such proceedings and may make and do all appearances, acts and applications in respect of such proceedings on behalf of PTPTN. It excludes the general provision in Section 35 of the Act. Thus, ZICO has no authority to represent PTPTN in civil proceeding.

17. I find merits in this side issue. As such, the civil proceeding instituted by ZICO in the Magistrate's Court is a nullity.

APPEAL PROPER

18. I shall for the completeness proceed to deal with the appeal proper.

Issue No. 1: The appellant did not owe the Respondent the sum of RM22,376.29 as claimed by the Respondent.

Issue No. 2: No particulars have been provided by the Respondent as to how the sum of Rm22,376.29 was arrived at.

19. At the outset, I am compel to disagree with the Appellant's submission that in a summary application, the burden of proof is on the Plaintiff to prove its case and to show that the action against the Defendant is "virtually uncontested and incontestable.".

20. The Respondent's application in the present case is made under Order 26A (equivalent to Order 14 Rules of High Court) for summary judgement. The correct legal position is that the burden is upon the defendant to satisfy the court that there is an issue or question in dispute which ought for some other reason to be trial of that claim. (Per Chong Siew Fai J in Huo Heng Oil Co. (E.M.) Sdn. Bhd. v Tong Tiew Yong [1987] 1 MLJ 139.

21. I opined these two issues are inter-related and can be dealt with together.

22. For the Appellant, it was contended that the Respondent claimed for a sum of RM22,376.29 which comprised the principal sum of RM19,500.00 allegedly disbursed to the Appellant and the rest is the administration costs of 4% per annum and incident costs as at 25th June 2007 (See, Para 5 of Affidavit in Reply affirmed by Nur Zulkarnain bin Che Azmi at page 32 Record of Appeal). It was contended that the Respondent has failed to set out how it derived the sum of RM22,376.29.

23. It must be noted that the Appellant did not dispute that an educational loan had been granted to her pursuant to the Education Loan Agreement dated 13th August 1999. Nor did the Appellant challenge the terms and conditions contained in the Offer Letter (Exhibit NZ-1) and the Education Loan Agreement (Exhibit NZ-2 annexed to the Affidavit in Support).

24. It is to be further noted that pursuant to the Education Loan Agreement letter of Offer, the Respondent is entitled to charge administration costs at the rate of 4% per annum and accidental costs incurred. (See, Item 1 of Exhibit NZ-1 annexed to Affidavit in Support, page 16 Record of Appeal).

25. Given that the study loan is in the sum of RM19,500.00, the balance sum of RM2,876.29 (RM22,376.29 – 19,500.00) must be for the administration costs of 4% per annum and incidental costs which the Plaintiff is entitled to charge pursuant to the agreed terms in the Offer Letter and the Education Loan Agreement.

26. In the absence of averrment that the calculation of the amount claimed is wrong, a mere averment as to how the Respondent has arrived at the amount of claim could not constitute a trialble issue which warrants the case to go for a full trial.

27. I see no triable issue in Issues No. 1 and No. 2.

ISSUE NO. 3 Was the sum of RM19,500.00 actually disbursed?

28. Learned counsel for the Appellant had in his submission worked out a calculation based on exhibit NZ – 3 to show that the Respondent had only disbursed the principal sum of RM10,500.00 (round off figure) and not RM19,500.00 as claimed.

29. In response, learned counsel for the Respondent submitted – which, I concur - the purported simple mathematical calculation by the Appellant's solicitors were never adduced in the affidavit evidence and was made from the bar. As such, no weight should be given to the allegation and it should be disregard.

30. In any event, it is clearly stated in the statement of account (Exhibit NZ-3) under "Jumlah Pinjaman Setahun" and "tempoh Pinjaman" that the amount of loan was RM6,500.00 for three years totaling RM19,500.00. It also shows that a sum of RM19,500.00 had been granted to the Appellant.

31. I see no triable issue in Issue No.3

ISSUE NO. 4: Whether excessive administration costs was imposed.

32. The issue raised herein is that the sum of RM22,876.29 is inclusive of the principal sum and the administrative costs plus incidental costs. The Respondent prayed for interest at the rate of 4% per annum on the sum of RM22,876.20, which is imposition of interest upon interest. It was submitted that this imposition of compound interest contravenes the proviso (a) to section 11 of the Civil Law Act 1984.

33. I see no merits in this contention. It must be pointed out that the administration costs of 4% per annum which the Respondent is claiming is pursuant to the agreed terms in the Education Loan Agreement entered into between the Appellant and the Respondent.

34. The Appellant also raised issue that as the Respondent had declared that the administration costs is to be charged at the rate of 1% per annum with effect from year 2009 and previously at 3% per annum, how come the Respondent is still claiming administration costs at the rate of 4% per annum?

35. I agree with learned counsel for the Respondent that the Appellant's reliance on the alleged reduced rate for administration costs is misconceived and unsubstantiated. This is because the Offer Letter (Exhibit NZ-1) as well as the Education Loan Agreement (Exhibit NZ-2) have provided for the charging of administration costs at the rate of 4% per annum. Thus, the Respondent is entitled to charge the same in the present case herein.

36. I see no triable in Issue No. 4.

ISSUE NO. 5: Whether the Respondent's claim is statute barred.

37. Learned counsel for the Appellant submitted that the commencement of payment was 10th December 2002 and therefore the cause of action of this action began on 10th December 2002.

38. Article 38 of the Sarawak Limitation Ordinance (Cap 49) provided for three years limitation period "For money payable for money lent". Thus, counting from 10th December 2002 (date of accrual of cause of action herein), the Respondent should commence the action on or before 9th December 2005. Thus, the present action which was filed on 9th June 2008 is two years and six months out of time. Thus, the Respondent's claim against the Appellant is statute barred and ought to be dismissed.

39. It was further argued that section 23A of the Act which provides twelve years limitation period from the date on which the cause of action accrued is of no help to the Respondent. This is because section 23A came into force only on 20th July 2007and it is fundamental principle of law that no statute shall be construed to have retrospective effect unless such a construction clearly appears in the terms of the Act.

40. It was submitted that the question whether the Plaintiff's claim is barred by limitation or not has given rise to a triable issue which is to be decided by the trial court. Pai Khek Meng v Harbi bin Appellant [2006] 7 MLJ 189 was cited in support.

41. I regret I do not agree. It must be noted that the present action was filed on 9th June 2008 after the Act.

42. Section 23A of the Act states; "Notwithstanding the provisions of any written law, any action

founded on contract for educational loans shall not be brought after the expiration of twelve years from the date on which the cause of action accured."

43. The clear wordings in Section 23A has excluded the application of Sarawak Limitation Act.

44. I see no merit in the Appellant's submission. My reason is this. If the present action had been filed before section 23A coming into force, then the amended Act would have no retrospective effect since there is no such provision in the Act. Since the Respondent's action was filed after the coming into force of section 23A, the issue of retrospective application does not arise.

45. Hence, I see no triable issue in Issue No.5.

CONCLUSION

46. Despite the fact that the Appellant had failed to satisfy the court that there is a triable issue which ought to be tried in a trial court, the appeal would still be allowed on the ground that the action instituted and conducted by Messrs Zaid Ibrahim & Co, Advocates in contravention of section 58 of the Act is a nullity. No order as to costs.

Signed

YEW JEN KIE, J.

Date: 22nd July 2010

Still looking for lawyers to join the ship!

2010-10-25T10:53:00.003+08:00

I know the images are blur, not intend to disclose detail here anyway. For those (lawyers) interested, please email me at ki_my@hotmail.com or kirzuan@gmail.com.

I am looking for lawyers to become my associate

2010-08-29T04:31:00.001+08:00

Hi all,

I am currently looking for lawyers to work with me as my associates, with partnership status and profit sharing.

For those who are interested please email me a.s.a.p

Thank you

Sent from my iPhone

Software for Law Firm

2010-08-17T21:47:00.004+08:00

With the help of a friend and his team, I am currently developing a customised law firm software for Malaysian Practitioners.. Hope when it is ready I could share with everybody and especially fellow lawyers at a very minimum cost (got to buy it from my friend- I promise gonna be very cheap). The objective is- just want everybody especially small firm and sole practitioner to be able to enjoy this automatic system..

let's tell the rest of the world and the 'big boys' that small firms can affort this great system. And I think even better than those currently available in the market..

price recommended: RM15 only per installer per user for first modul..don't you think it is worth!?

Those who are interested, please don't disturb me you email directly my friend at sktrapidsales@gmail.com

Re: [Legal in Malaysia] New comment on Small Claim Court: Do-It-Yourself (DIY).

2010-08-15T22:41:00.001+08:00

Hi,

My question is simple if your not entitle for the bonus why the company made the part payment?

Second question, how could confirm that the bonus paid is only half of it? What if the company say that it was all bonus they offered.

Anyway, I could not go into detail your matter as I do have much info.

However, as long as your claim fall within the scope of small claim court. Why don't you give a try.

Sent from my iPhone

On 15/08/2010, at 10:33 PM, Chris <noreply-comment@blogger.com> wrote:

Chris has left a new comment on your post "Small Claim Court: Do-It-Yourself (DIY)":

I was working in this company from 2007 - 2009. In 2007 & 2008, the management withhold part of our bonus said they will release that portion (0.5 months) when we pass our company's internal audit. But the audit was deferred and i left the company in Nov 2009 before they paid the bonus which is in Dec 2009.

I was thinking, since i had performed my work for 2007 & 2008 which helped towards the completion of the audit, shouldn't i be entitled to my portion although i had left before the payout? It was not my fault the 2007 & 2008 audit was being deferred to 2009.

I called up my manager and ask but he said that because i had left, i am not entitled to the bonus.

Do you think i have a case here for small claims or will i just be wasting my time?

Appreciate your advice. Thanks!

Posted by Chris to Legal in Malaysia at August 15, 2010 10:25 PM

Re: [Legal in Malaysia] New comment on Got a Bounced Cheque?

2010-08-09T23:37:00.000+08:00

Salam,

I guest you have read my article and by now you already got some basic idea of your rights to reclaim your money.

As I mentioned in the article, dishonour ed cheque per se may be a good cause of action and evidence to establish your claim in court of law.

Sent from my iPhone

On 09/08/2010, at 10:27 PM, Anonymous <noreply-comment@blogger.com> wrote:

Anonymous has left a new comment on your post "Got a Bounced Cheque?":

i am a foreigner in malaysia.one of my country man has given me a cheque instead of money received by hand.now according his statements his account has not sufficient money.i would like to know how much a cheque is powerful?or i need to recourse other way?
thank you
hossein

Posted by Anonymous to Legal in Malaysia at August 9, 2010 9:41 PM

Legal Opinion-Rights of Foreign Shareholders in a Malaysian Company

2010-08-09T14:15:00.003+08:00

Hi All,

I was asked by one of client to write this legal opinion in brief about the rights and powers of Foreign Shareholders in a Malaysia Company. I think it is good to share with everybody else.

However please take note that this legal opinion is very brief and in general. It may somehow give general idea of the issue discussed.

Case Background

A foreign company from Singapore ('ABC Company') hold a 15.5% (the numbers and name are not actual) shares in a Malaysia Company. Being a foreign shareholder, ABC Company is concerned and wishes to be advised as of its rights as shareholders, its power of vote, access and read account books and records.

On a separate matter, ABC Company also wishes to be enlightened on the latest ruling of Malaysian laws and regulations on FIC (Foreign Investment Committee).

Issue

What are the basic rights and powers of shareholders in Malaysia Company?

Whether ABC Company having hold 15.5% of shares could be well protected under Malaysian Legal System? Whether they could exercise all its rights and powers?

Division of corporate powers between board and shareholders, whether ABC Company as shareholder will be sufficiently protected and/or whether they could have any kind of monitoring system on the company's activity?

Protections under companies act 1965.

What is the current position of FIC rulings in Malaysia?

Brief on EKUINAS (Ekuiti Nasional Berhad)

What are the basic rights and powers of shareholders in Malaysia Company?

Malaysian Company Laws is not much different from Singapore Company Laws as it origin from the same root. However, though identical in principle there are differences in both laws as amendments took place from time to time.

Companies in Malaysia are government under Companies Act 1965 (as the general and principle act) and other related laws such as Security Commission Act 1993, Security Industry Act 1983 and many more (especially for listed company).

The shareholder have few basic rights namely requisition for and convene general meetings; attend, appoint a proxy and speak at general meetings; vote at general meetings; getting information such as Registers of Substantial Shareholders, Registers of Debentures, Instruments and register of charges, register of Directors' Shareholdings, Registers of Directors and Secretaries, Minute Book of General Meetings, Register and index of Members, a copy of audited financial statements (must be circulated to shareholders at least 14 days before the meetings; and above all, to enforce these rights.

To answer your question whether ABC Company has the right to vote, yes they definitely has. And the question on whether your company has the right to inspect/access/read account books, basically yes, only at the annual general meeting or extra ordinary meeting (should ABC Company does not appoint any proxy or director holding executive powers). I will discuss and elaborate further on the issue of division of power bellow.

Assuming that ABC Company does not appoint any director representing its executive interest, the best chance for them to inspect and read the account books (or even objecting or regulating the company business activities) is at the annual general meetings. The meetings among all (as provided under table A of Article 46 in the forth schedule of the Companies Act 1965-if the company adopt the article-most companies in Malaysia adopting it) will enable your company to:-

Peruse the consideration of the accounts, balance sheet and reports of the directors and auditors;
1. Declaring a dividend (if any) recommended by the directors;
2. Election of directors in place of those retiring; and
3. Appointment and fixing of remuneration of auditors

Whether ABC Company having hold 18.4% of shares could be well protected under Malaysian Legal System? Whether they could exercise all its rights and powers?

Deriving from limited information given, and presumably that ABC Company only holds shares in the Malaysia Company without having any executive directorship; as I mentioned above the most possible chance to regulate, 'inspect' and 'interfere' the business activities is through annual general meetings.

Holding 15.5% shares will entitle you to:-
1. Attending annual general meetings and extra ordinary meetings;
2. Two or more members holding not less than 10% of issued share capital may call for a meeting;
3. The shareholders must convene the general meeting in a manner as close as possible to the conduct of general meetings in accordance with the articles of the company;
4. Members holding than not less than 10% of the paid-up share may requisition for the convening of an EGM. The directors must proceed to convene EGM as soon as possible, within 21 days from the date of receipt of the requisition. The meeting shall be held no later than 2 months after the date of receipt of the requisition;
5. If the directors fail to convene the EGM as requisitioned by the members within 21 days after the date of the requisition was received, any requisitionists representing more than ½ of the total voting rights of all the requisitinists may proceed to convene the EGM.
6. Your company has the right (through its proxy) to speak at AGM and EGM (however be careful that if your company being members of the Malaysia Company still in arrears, may be barred/or allowed with specific condition from attending a meeting if the articles of association so provided).
7. Companies Act provide that every shareholder has a right to vote at any general meeting of the company and each equity share issued by public company or a subsidiary of a public company (should the Malaysia Company is a public company) shall confer the right to one vote at a poll at any general meeting.

Division of corporate powers between board and shareholders, whether ABC Company as shareholder will be sufficiently protected and/or whether they could have any kind of monitoring system on the company's activity?

Again, just to elaborate further and answer simple question on whether or not your company may have the rights to vote and to read account book; I think it would be better to explained briefly the issues of division of powers between board and shareholders.

Originally all the decision making power of a company lies in the assembly of the shareholders during the general meetings.

But that is no longer practical especially when carrying current complex business affairs, hence most day to day various function of the company are now vested to individuals other than the shareholders themselves. Perhaps for practical and legal reason, the corporate powers of companies are divided between the board of directors and the shareholders. The shareholders in the general meetings and the board now have been the management powers.

In short, the board are expected to carry 'trustee-like' fiduciary duties and common law duty to exercise care, skill and diligence to ensure certain minimum standards of behaviour, compliance of laws and most important not to shrouding transactions in secrecy.

The power of the board are conferred by the memorandum and articles of association, companies act, common laws and listing rules of relevant exchanges (for public company).

The directors (board) are expected under the companies act to:-

Keeps accounts

Ensure that a balance sheet and profit and loss statement be made out for each financial year

Ensure that a directors' report be written for each financial year

Lay before the company at its annual general meeting, a profit and loss account, balance sheet and directors' report for the financial year

Act honestly and take reasonable care and diligence in exercising his power

Directors as fiduciaries are subject to the following duties:

1. Must act bona fide in the interest of the company and must not exercise their powers for any collateral purpose.
2. Must not place himself in a position which there is a conflict between his duty to the company and his personal interest or duties to others.
3. Must not make any secret profit out of the position as director.

Protections under companies act 1965

There are several protections provided under the Companies Act 1965 and other rules related to it. Among most common is the statutory protection and remedies of the minority shareholders (under section 181 of the act), disclosure by directors under section 131 onwards of the same act and so on.

FIC and EKUINAS

The new guideline which terminates the FIC and its function commenced on 30 June 2009 and all FIC requirement imposed before on companies are immediately cancelled. FIC now be replaced by a unit under UPE (Economy Planning Unit) under the Prime Minister Department. However, your company must understand that the 30% bumiputera equity requirement is still exist at the macro level and all other requirement under specific sector still remains intact. For example, there are sectors in which still not been liberated by the government and required certain bumiputera's equity.

Participation of bumiputera equity is now carrying out under the EKUINAS, Ekuiti Nasional Berhad a government investment arm company which will identify and venture into Malaysian private company (which is yet to be listed public).

Legal Reference

Security commission

Companies act 1965

CLJ Law Article: 'minority shareholders' actions by Jim Corkery

CLJ Law Article: 'minority shareholders' remedies-proposal for reform for Malaysia' by Assoc. Prof Dr Samsar Kamal Abdul Latif

CLJ Law Article: 'company directors & offences under the companies act in Malaysia & Singapore 1' by Yashwant Rai Vyas

Minority shareholders watchdog group

Ramadhan Al Mubarak

2010-08-08T23:38:00.000+08:00

Salam to Muslim readers,

I would like to wish you good barakah in Ramadhan and may Allah give us all good Health and strength to perform our duty in fasting.

May this Ramadhan bring us closer to Him.

Sent from my iPhone