Malaysian Law Student

2015-10-02T14:42:00.000+08:00

Hi Everyone,

It's been a long time I haven't update this blog for 3 years . This blog has been created since I was studying law a few years ago . Nowadays, I am practicing as a lawyer and I have been busy with my works and so on . Thanks to all visitors who still visit my blog and those who left some comments.

Most likely I will rarely update this blog but if you need any clarification regarding the law especially relating to the Property like sale and purchase Property, you can contact me via e - mail at : ikram@frances-hazlina.com

Thank you.

Best Regards,

REX

LANDLORD-TENANT LAW...

2012-10-17T11:37:00.001+08:00

Most college students lease apartments or homes while pursuing their studies. It is therefore

highly beneficial for students to have a good understanding of landlord-tenant law, which

governs the leasing of real property. The following sections highlight major areas of landlord-tenant law that relate most frequently to students.

HOLDING DEPOSITS

A “holding deposit” is a sum of money paid by a potential tenant to a rental property owner to ensure that the property is not leased to someone else for a specific amount of time. For example, a landlord may ask you for a deposit to “hold” an apartment or house—i.e., not rent it to others—while you decide whether youdo in fact want to rent the property. Holding deposits are designed to give potential tenants an opportunity to determine whether they would like to or are able to lease certain property. The holding deposit serves to compensate the owner if the potential tenant decides not to lease the property. In theory, a property owner should only retain the amount of a holding deposit equivalent to the actual damages caused by a potential tenant not signing a lease contract. The owner should return the remainder of the deposit to the tenant.

SECURITY DEPOSITS

Landlords usually require a security deposit from tenants when renting residential property. The security deposit can be used only at the “natural expiration” of the lease to pay for:

• Damage to the property;

• Unpaid rent; and

• Other unpaid debts.

Return of the Security Deposit

A landlord should return the security deposit and/or provide the tenant with an accounting for any deductions withheld from the return of the deposit within 21 days from the day the tenant vacates the premises. The tenant should give the landlord a forwarding address to which the check for the return of the deposit is to be mailed.

If a landlord does not return all or some of a deposit, the tenant may demand that the property owner refund all or some of the security deposit and/or may request an accounting of charges. Tenants are responsible for leaving leased property in the same or better condition than when the occupancy began. Tenants are not responsible for normal wear and tear to leased property. If a landlord withholds all or some of a security deposit for damages that do not exceed normal wear and tear, the tenant may have a claim against the property owner which can be pursued claims to court. To be successful, the tenant will need sufficient evidence to prove that damages to the unit did not exceed normal wear and tear.

Note: A security deposit cannot be “non-refundable”—i.e., it may only be used by a landlord to pay for damage to property or unpaid rent or other unpaid debts, and otherwise must be returned.

BEFORE SIGNING THE LEASE

Prior to signing any rental agreement, tenants should pose any questions they may have about the agreement to the landlord. Future tenants should at the very least ask about:

1. The policy on subletting and/or assigning the rental property.

2. The policy on “breaking the lease,” or leaving early.

3. The policy on the landlord entering the property for repairs.

4. How many people may sign the lease.

5. When the rent is due and to whom.

6. To whom notices should be given.

Tenants can reduce the likelihood of confusion and court proceedings by asking the property owner these questions and ensuring that such details are included in the written rental agreement. Not reading or understanding the terms of a lease agreement will not release you from itsobligations. If you are unsure about what certain lease terms mean, ask the property owner or obtain assistance from Student Legal Services or another legal professional before you sign.

WHEN YOU TAKE OCCUPANCY

Tenants should conduct a thorough walkthrough of their rental property and document its condition immediately upon taking occupancy. Since tenants are responsible for leaving property in the same or better condition as when they took occupancy, it is imperative that tenants create this record. Documenting the condition of the property will be extremely helpful if the owner later wrongfully withholds the security deposit or bills for damages in excess of the security deposit amount. Tenants should be very specific while recording and describing the nature and extent of any existing damages to the unit. It is crucial that you take photographs of your initial walkthrough. You can develop two sets of photographs; promptly mail one set to yourself via certified mail and do not open the envelope—the postmark will provide proof of the date the photographs were taken. The photographs will serve as evidence as to the condition of the property upon original occupancy in the event a dispute arises.

WARRANTY OF HABITABILITY

There are certain minimum standards that must be met for a residence to be suitable for human habitation including:

• Plumbing in good working order.

• Hot and cold running water.

• Heating facilities (although not air conditioning) in good working order.

• Floors, stairways, and railings maintained in good repair.

A tenant living in a residence that falls beneath the minimum standards of habitability may have the option of moving out early and/or receiving a reduction in the rental amount for the time during which the unit was below standards. Tenants who believe that their residence is uninhabitable should seek legal counsel to gain a fuller perspective of their rights and

responsibilities.

REPAIRS AND MITIGATION

If a tenant finds that a rental property requires repair, he or she has a duty to promptly report the issue to the landlord. If the tenant fails to report negative conditions about the property, the tenant can be held liable for any increased damage to the property that results from not reporting the problem. This is called “mitigating the harm.” The duty to mitigate means that even if tenants do not want an item repaired, they still have a responsibility to report damage, so that the landlord has the opportunity to attempt a repair.

Example:

Roommates Abu and Bakar discover that the bathroom of the apartment they are renting has water leaking from a sink faucet. Abu and Bakar decide not to call the landlord to repair the leak because they are busy studying for midterms and writing papers; they do not want to be disturbed by maintenance workers making repairs in their bathroom. The leak continues to worsen over time. Approximately three weeks after Abu and Bakar discover the leak, what was a small trickle of water has become a steady stream. The water has caused mold to develop below the carpet and on the walls, and has damaged the paint.

Result:

Because the water leak became worse and likely caused increased damage to the property as a result of Abu and Bakar not initially reporting the problem, They may be held liable for the cost of remediating the mold infestation, repainting the walls, and repairing any other water damage. Had the landlord been able to repair the small leak three weeks prior, the major damage to the unit would not likely have occurred.

Tenants always should seek to mitigate harm because they have a duty to safeguard the landlord’s property while residing there. Failure to do so can be costly. EVICTIONA landlord may evict a tenant for any substantial breach of a rental agreement. Examples of conduct by tenants generally serving as grounds for eviction include:

• Failing to pay rent.

• Having more occupants in the unit than permitted by the lease.

• Breaking the Homeowner Association rules.

• Failing to safeguard the property.

• Conducting illegal activities on the premises (drugs, underage drinking, etc.).

• Unauthorized subletting.

• Having pets or permitting pets to “visit” if pets are prohibited.

When a property owner decides to evict a tenant, the landlord must provide the tenant with a “Three-Day Notice to Pay or Quit” or a “Three-Day Notice to Cure or Quit,” depending upon whether the landlord wants the tenant to pay rent or to “cure” a breach of the contract. A tenant has three days to comply with a demand for payment or curative action. If the tenant ignores or fails to adequately respond to the Three-Day Notice, the landlord may go to court to obtain a judgment to evict the tenant. Once the landlord obtains the judgment, the tenant must vacate the property immediately. If the tenant does not vacate immediately, the authorities may forcibly remove the tenant from the premises.

A tenant should immediately seek legal counsel upon receipt of a Three-Day Notice. WHEN THE LEASE TERMINATESWhen a lease ends, there are certain steps that tenants should take in order to protect their rights.

Give Notice

Although a lease will naturally terminate on a date specified in the rental agreement, tenants must still provide the property owner with a 30-day written notice of intent to vacate. If a tenant fails to give notice, the tenancy automatically becomes month-to-month, and the tenant may be held liable for an additional 30-days worth of rent until a 30-day written notice is properly given.

Conduct a Walkthrough

Tenants should conduct a walkthrough of the property with the landlord or the landlord’s agent two weeks before the lease ends. This allows the tenant to know in advance what potential problems may exist regarding the condition of the residence. Based on what the landlord indicates may be problematic, tenants can make any repairs themselves or work with the landlord to hire a professional to conduct repairs. This will help to ensure that the maximum amount of the security deposit is returned to the tenant. It is crucial that you take photographs of your final walkthrough, documenting the condition of the unit. We recommends that you develop two sets of photographs; promptly mail one set to yourself via certified mail and do not open the envelope. In the event a dispute arises regarding the condition of the unit, you will have good evidence as to its condition upon vacancy.Provide a Forwarding AddressTenants should provide their landlord with a forwarding address to which the security deposit (less any deductions) should be returned.

SAMPLE TERMS AND CONDITIONS IN SALE AND PURCHASE AGREEMENT

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TERMS & CONDITIONS

WHEREAS: -

I. The Vendor(s) is desirous of selling and the Purchaser(s) is desirous of purchasing the Property described in Section 4 of the Schedule hereto (hereinafter referred to as "the said Property") in his capacity as stated in Section 6 of the Schedule hereto free from all encumbrances, in particular of any caveat and/or charge, and with vacant possession and subject to the terms and conditions hereinafter provided.

II. Where the said Property is presently charged by the Vendor(s) to a bank or other financial institution, the particulars of which are as stated in Section 7 of the Schedule hereto (hereinafter referred to as "the Existing Charge" and "the Existing Chargee" respectively) and the Purchaser(s) will assist the Vendor(s) in discharging the Existing Charge in the manner hereinafter provided.

III. The Purchaser(s) intends to apply to a bank or other financial institution for a loan to assist him to complete the purchase of the said Property and the Vendor(s) will assist the Purchaser(s) in obtaining release of the Purchaser(s)’ loan in the manner hereinafter provided.

NOW IT IS HEREBY AGREED as follows:-

1. DEFINITIONS

1.1. Unless there be something in the subject matter or context inconsistent therewith, words importing the singular number or the masculine gender only shall include the plural number or feminine gender and words importing individual persons shall also deem to include a body of persons corporate or unincorporated.

1.2. Where there are two or more persons included in the terms "the Purchaser(s)" and/or "the Vendor(s)", their liabilities under this Agreement shall be joint and several.

1.3. The headings to the clauses of this Agreement are for convenience of reference only and shall not affect the construction thereof.

1.4. The words "hereby", "herein", hereinafter", "hereinbefore", "hereof", "hereto", "hereunder" and other words of similar import shall refer to this Agreement as a whole and not to any particular provision.

2. AGREEMENT TO SELL / DEPOSIT

2.1. IN CONSIDERATION of the sum stated in Section 8 of the Schedule hereto (hereinafter referred to as "the Deposit") paid by the Purchaser(s) to the Vendor(s) by way of deposit and part payment towards account of the Purchase Price (as hereinafter defined) upon signing of this Agreement (the receipt of which sum the Vendor(s) hereby expressly acknowledges) the Vendor(s) shall sell and the Purchaser(s) shall purchase the said Property free from all encumbrances, in particular of any caveat and/or Existing Charge, and with vacant possession and subject all expressed and implied terms and conditions and category of use of the said Property as are more particularly endorsed on the document of title affecting or relating the said Property or any part thereof and otherwise as provided under the National Land Code, 1965 and its amendments and to the terms and conditions herein contained.

2.2. The Purchaser(s) may upon the execution of this Agreement, at his own cost and expense lodge a caveat against the said Property.

2.3. The said Property is sold subject to all rights and other easements and to all road, back lane and other improvement schemes whatsoever affecting the same.

3. THE PURCHASE PRICE, BALANCE PURCHASE PRICE & COMPLETION DATE

3.1. The total consideration for the sale and purchase of the said Property shall be the sum stated in Section 5 of the Schedule hereto (hereinafter referred to as "the Purchase Price"). The balance of the Purchase Price in the sum stated in Section 9 of the Schedule hereto (hereinafter referred to as "the Balance Purchase Price") shall be paid by the Purchaser(s) in the manner and at the time stated in Section 10 of the Schedule hereto (hereinafter referred to as "the Completion Date").

3.2. Without prejudice to Clause 3.1 hereof, the Vendor(s) shall grant the Purchaser(s) an extension of such time as stated in Section 11 of the Schedule hereto (hereinafter referred to as "the Extended Completion Date") to pay the Balance Purchase Price in which event, the Purchaser(s) shall pay to the Vendor(s) interest on such outstanding Balance Purchase Price at the rate stated in Section 11 of the Schedule hereto on a daily basis until such time when such outstanding Balance Purchase Price shall have been paid up.

3.3. If the Completion Date or the Extended Completion Date, as the case may be, falls on a Sunday or a public holiday completion shall take place on the day other than a Sunday or public holiday next following the Completion Date or Extended Completion Date, as the case may be.

3.4. Where there is an Existing Charge on the said Property, the parties hereto hereby expressly and irrevocably authorises the Vendor(s)’ Solicitors to hold and utilise all sums paid by the Purchaser(s) towards account of the Balance Purchase Price, or such part thereof as may be necessary or sufficient to discharge the Existing Charge. In the event that the Balance Purchase Price is insufficient to release the Property from the Existing Charge, the Vendor(s) hereby undertakes to forthwith pay the difference between the Balance Purchase Price and the redemption sum due to the Vendor(s)’s Financier (“Redemption Sum”) And the Purchaser(s) or the Purchaser(s)’s Solicitors or the Purchaser(s)’s Financier shall not be obliged, notwithstanding anything to the contrary herein contained to pay the Balance Purchase Price or any part thereof to the Vendor(s) unless and until the Vendor(s) has first paid the difference between the Balance Purchase Price and the Redemption Sum to the Vendor(s)’s Financier.

4. DEPOSIT OF DOCUMENT

4.1. Unless the original issue document of title to the said Property is in the possession of the Existing Chargee, the Vendor(s) shall upon the execution of this Agreement, deposit the original issue document of title with the Vendor(s)’ Solicitors, who shall deliver the same to the Purchaser(s)’ Solicitors only in accordance with Clause 6.1 hereof or upon payment of the Balance Purchase Price.

4.2. In the case where the Vendor(s) is a corporation, the Vendor(s) shall further cause to be deposited with the Vendor(s)’ Solicitors its company's resolution in respect of the sale of the said Property together with other requisite statutory documents including certified true copies of its memorandum and articles of association, Form 24 and Form 49.

5. PAYMENTS

5.1. Payment by the Purchaser(s) under this Agreement may be made to the Vendor(s)’ Solicitors. If payment is otherwise than in cash, it may be by way of telegraphic transfer into the Vendor(s)’ bank account or the Vendor(s)’ Solicitors' Clients' account, bank draft, cashier's order, the Purchaser(s)’ Solicitors' cheque or the Purchaser(s)’ cheque, in which event the time of depositing the same with the Vendor(s)’ Solicitors shall be deemed to be the time of payment PROVIDED THAT the bank draft, cashier's order or cheque is good for payment when presented to the bank concerned, and in the event of payment drawn on an outstation bank the Purchaser(s) shall reimburse the Vendor(s) of the bank commission so incurred.

5.2. Notwithstanding anything to the contrary contained herein, if the said Property at any time during the continuance of this Agreement is however encumbered or subjected to any caveats whatsoever (other than those disclosed herein) the Purchaser(s) shall be entitled to suspend the time for payment of the Balance Purchase Price hereunder until the said encumbrance or caveat, as the case may be, is removed at the cost and expense of the Vendor(s).

5.3. The Vendor(s)’ Solicitors shall release the Balance Purchase Price together with all interests due, if any, but less any sum due from the Vendor(s) to the Purchaser(s) and/or the relevant authorities in respect of the Property to the Vendor(s) within seven (7) days after the earlier of: -

(a) presentation for registration of the Transfer at the relevant Appropriate Authority; or

(b) the Vendor(s)’ Solicitors’ receipt of the Balance Purchase Price.

6. LOAN

6.1. If the Purchaser(s) shall obtain a loan (hereinafter referred to as "the Loan") from a banking financial or other institution (hereinafter referred to as "the Financier") to finance the purchase of the said Property, the Vendor(s) shall allow the said Property to be transferred to the Purchaser(s) and to create a charge in favour of the Financier and shall for that purpose deliver to the Purchaser(s) or the Purchaser(s)’ Solicitors the following:-

(i) the original issue document of title to the said Property;

(ii) a valid and registrable memorandum of transfer in favour of the Purchaser(s);

(iii) a valid and registrable discharge of charge, if any;

(iv) a copy of the current quit rent receipt assessment receipt and all other documents (in particular the documents as stated in Clause 4.2 hereof), if any, necessary to effect the registration of the transfer of the said Property;

(v) written confirmation that the difference between the Purchase Price and the loan amount has been paid; and

(vi) such letter of undertaking duly executed by the Vendor(s) in favour of the Financier in form and substance as may be required by the Financier undertaking to refund the Financier the Loan released.

PROVIDED THAT :-

(a) the Purchaser(s) shall have paid to the Vendor(s) the difference between the Purchase Price and the Loan;

(b) in the event that the Vendor(s) requires the Balance Purchase Price or any part thereof to secure the discharge of the Existing Charge, the Purchaser(s) shall at any time after the approval of the Loan from the Financier pay to the Vendor(s)’ Solicitors or procure the Financier to release the Loan or any part thereof to the Vendor(s)’ Solicitors to enable them to secure a discharge of the Existing Charge; and

(c) in the event the Property is free from encumbrances, the Financier and/or its solicitors shall have furnished the Vendor(s) with an undertaking to release the Loan to the Vendor(s) or the Vendor(s)’ Solicitors as stakeholders, within a reasonable time upon the presentation of the transfer in favour of the Purchaser(s), the charge in favour of the Financier and any other relevant documents for registration at the relevant authorities.

6.2. It is hereby expressly agreed that the obtaining of the Loan from a bank or other financial institution is not a condition precedent of this Agreement. Failure to obtain the Loan shall not be a ground for any delay by the Purchaser(s) in the payment or for any non-payment of the Purchase Price or any part thereof on the Completion Date or Extended Completion Date, as the case may be.

7. THE EXISTING CHARGE

7.1. In the event prior to this Agreement the Vendor(s) has charged the said Property to the Existing Chargee, the Vendor(s) shall forward the Vendor(s)’ undertakings to refund the Loan and shall obtain from the Existing Chargee the redemption statement and undertakings as may be required by the Financier for the release of the Loan and forward the same to the Purchaser(s)’ Solicitors or the Financier or its Solicitors, as the case may be, within FOURTEEN (14) DAYS from the date of receipt by the Vendor(s) or his Solicitors of the request for the same, failing which the time delayed shall be deemed to be time extended in favour of the Purchaser for payment of the Balance Purchase Price free of interest.

7.2. If the Redemption Sum shall exceed the Balance Purchase Price, the Vendor shall pay to Vendor’s Solicitors the difference between the Redemption Sum and the Balance Purchase Price so as to effect a full and proper redemption of the Property within seven (7) days from the date of receipt of the Redemption Statement by the Vendor’s Solicitors.

7.3. The Vendor(s) shall forward to the Purchaser(s)’ Solicitors or the Financier's Solicitors, as the case may be, the original issue document of title to the said Property, a valid and stamped Discharge of Charge together with the duplicate charge thereof and the necessary stamping/registration fees within FOURTEEN (14) DAYS from the date the Vendor(s) or his Solicitors shall have received the redemption sum from the Purchaser(s) or the Financier, failing which the time delayed shall be deemed to be time extended in favour of the Purchaser for payment of the Balance Purchase Price free of interest.

7.4. Any delay on the part of the Vendor(s) in respect of Clause 7.1 and/or 7.2 and/or 7.3 above shall correspondingly enlarge the time of the Completion Date by the number of days so delayed.

7.5. Any penalty payable by reason of the said delay shall be borne by the Vendor(s) including but without limitation to the penalty or penalties on the late registration of the Memorandum of Transfer and Memorandum of Charge and all other relevant documents pertaining thereto.

7.6. All costs charges fees and expenses in relation to the discharge of charge the Existing Charge shall be borne and paid by the Vendor(s).

7.7. For avoidance of doubt, the Parties agree that the Balance Purchase Price shall be utilised for the redemption of the Property Provided Always that: -

(a) the Redemption Sum shall not exceed the Balance Purchase Price; and

(b) the Purchaser shall have received the Redemption Statement.

8. TRANSFER

8.1. For the purpose of adjudication and stamping and of enabling the Purchaser(s) to obtain the Loan from the Financier, the Vendor(s) shall upon the execution of this Agreement also execute and deliver adequate copies of the adjudication forms and a valid and registrable transfer of the said Property (hereinafter referred to as “the said Transfer”) in favour of the Purchaser(s) or his nominee(s) to the Purchaser(s)’ Solicitors PROVIDED ALWAYS that the Purchaser(s) shall not present the same for registration unless in accordance with Clause 6.1 hereof or upon payment of the Balance Purchase Price.

8.2. The Purchaser(s)’ Solicitors shall send the said Transfer for adjudication by the relevant government authority within THIRTY (30) DAYS from the date of the Purchaser(s)s’ Solicitors receipt of the Consent of Transfer from the relevant Land Office/Registry and the notice of assessment of duty shall have been obtained at least TWENTY ONE (21) DAYS PRIOR to the Completion Date. Any delay on the part of the relevant government authority in adjudicating the said Property and thereby resulting in the issuance of the notice of assessment of duty within TWENTY ONE (21) DAYS PRIOR to the Completion Date shall correspondingly enlarge the time of the Completion Date and the Purchaser(s) shall be entitled to the corresponding enlargement of the Completion Date.

8.3. The Purchaser(s) undertakes to pay the stamp fees on adjudication within the fixed time (subject to the right of appeal on the adjudicated amount). In the event of default of the Purchaser(s) in paying the stamp fees, the penalty, if any, shall be borne by the Purchaser(s).

8.4. Subject to the payment of the Purchase Price in the manner herein stipulated, the Vendor(s) shall do everything necessary to transfer the said Property to the Purchaser(s) or his nominee(s).

8.5. If after the Completion Date or Extended Completion Date, as the case may be, the transfer cannot be registered in favour of the Purchaser(s) or his nominee(s) free from encumbrances by reason of any caveat, prohibitory order or other encumbrance, which has been registered by the Vendor(s), it shall be the duty of the Vendor(s) to remove forthwith at his own costs and expenses such caveat, prohibitory order or other encumbrance in order to enable the Purchaser(s) or his nominee(s) to be registered as proprietor free from encumbrances, failing which the Vendor(s) shall at the request of the Purchaser(s) refund forthwith the Purchase Price together with the ad valorem duty (if already paid) legal costs and other monies properly and reasonably incurred by the Purchaser or his nominee whereupon this Agreement shall be treated as terminated, without prejudice to the right of the Purchaser(s) hereunder in the event that he takes steps to remove such caveat, prohibitory order or other encumbrance, in such event the Vendor(s) shall reimburse the costs and expenses reasonably incurred by the Purchaser(s).

8.6. Where, however, the Purchaser(s) does not require the transfer of the said Property for the purpose of securing the release of the Loan from the Financier, then notwithstanding the foregoing provisions the Purchaser(s) shall not present the transfer for registration until and unless the Balance Purchase Price has been fully paid.

9. DELIVERY OF POSSESSION / VACANT POSSESSION

9.1. Where the said Property is to be sold with vacant possession, subject to the full payment of the Purchase Price and all interest accrued (if any), together with the apportionment of outgoings in respect of the the property (if any), the Vendor(s) shall deliver vacant possession of the said Property in a good and tenantable state (fair wear and tear excepted) to the Purchaser(s) within SEVEN (7) days from the date of receipt of the full payment of the Purchase Price and all interest accrued (if any), together with the apportionment of outgoings in respect of the the property (if any), failing which the Vendor(s) shall pay to the Purchaser(s) an interest on the full Purchase Price at the rate of 8% per annum on a daily basis until such time when the Vendor(s) shall have delivered vacant possession or alternatively the Purchaser(s) shall be entitled to affirm this Agreement and seek specific performance and/or damages.

9.2. The risk of the said Property shall continue to rest with the Vendor(s) until the delivery of vacant possession thereof.

9.3. Upon full payment of the Purchase Price and all interest accrued (if any), together with the apportionment of outgoings in respect of the the property (if any), the Purchaser(s) shall be let into possession of the said Property and/or shall be entitled to receive the rents and profits accruing therefrom as from the Completion Date or Extended Completion Date, as the case may be, the rents and profits being apportioned for this purpose on the Completion Date or Extended Completion Date, as the case may be.

9.4. Where the said Property is to be sold without vacant possession, the keys to the said Property are deemed to be delivered to the Purchaser(s) upon full payment of the Purchase Price by virtue of the Vendor(s) has given the said keys to the tenants or occupiers of the said Property.
10. OUTGOING

10.1. The Vendor(s) shall before the Completion Date or Extended Completion Date, as the case may be, settle any arrears of quit rents assessments and other outgoing in respect of the Property and shall indemnify the Purchaser(s) against payment of the same.

10.2. All quit rents assessments and other outgoing for the current year shall be apportioned as between the Vendor(s) and the Purchaser(s) as at the Completion Date or Extended Completion Date or date of delivery of vacant possession (where the said Property is to be sold with Vacant possession), as the case may be.

10.3. Upon payment of full purchase price, the Vendor(s) shall where applicable produce the latest receipts for the settlement of quit rents and assessments electricity water and other outgoing. If any or all receipts are not produced, the Vendor(s) hereby expressly authorises the Purchaser(s)’ Solicitors to retain out of the Balance Purchase Price such sufficient sum based on the last available bill as shall be necessary to discharge the Vendor(s)’ apportionment of the quit rents assessments electricity water and other outgoing in respect of the Property.

11. RPGT RETENTION SUM (IF APPLICABLE)

11.1. The parties hereto shall respectively notify the Director General of Inland Revenue of this transaction under the prescribed forms within sixty (60) days from the date of this Agreement or within such time as may be allowed by the Director General of Inland Revenue.

11.2 The Vendor(s) hereby warrant and undertake that he/she/they has/have fulfilled the requirement of having exceeded five (5) years from the date the Proprietor first purchased the said Property and as such, the Vendor(s) shall file the CKHT 1A and CKHT 3 forms with the Director General of Inland Revenue and thereafter forward a copy of the CKHT 3 to the Purchaser(s)’ Solicitors before the expiry of sixty (60) days from the date of this Agreement. On the other hand, the Purchaser(s) shall file CKHT 2A before the expiry of sixty (60) days from the date of this Agreement.

11.3 (a) In the event the Vendor(s) has/have not fulfilled the requirement of having exceeded five (5) years from the date of the Proprietor first purchased the said Property, the Vendor(s) hereby warrant and undertake to pay real property gains tax in respect of the sale of the said Property within the said sixty (60) days from the date of this Agreement and further undertake to pay such other amount as may be imposed by the Director General of Inland Revenue from time to time.

(b) The Vendor(s)’ Solicitors are hereby authorised by the parties hereto to retain the sum as stated in Section 12 of the Schedule hereto (“hereinafter referred to as “the RPGT Retention Sum”) and pay the RPGT Retention Sum to the Director General of Inland Revenue within sixty (60) days from the date of this Agreement. For avoidance of doubt, both the Vendor(s) and the Purchaser(s) shall also file the CKHT 1A and 2A forms respectively with the Director General of Inland Revenue.

(c) In the event the RPGT Retention Sum is insufficient, the Vendor(s) shall be liable to pay the shortfall immediately upon receipt of the notification from the Director General of Inland Revenue. The Vendor(s) further covenant and undertake to indemnify and keep the Purchaser(s) fully indemnified against all claims, fines penalties tax liabilities or demands whatsoever resulting from the Vendor(s)’ non-compliance with any of the provisions of the Real Property Gains Tax Act, 1976 in respect of the said Property.

12. VENDOR(S)’ WARRANTIES

The Vendor(s) confirms and warrants that:-

12.1. The Vendor(s) is not an adjudged bankrupt or no bankruptcy proceedings has been instituted against him/her;

12.2. The Vendor(s) has not charged, mortgaged, assigned or encumbered in any manner whatsoever the said Property or any part thereof or created or permitted to be created any lien over the said Property or any part thereof other than those registered with the land office or registry of companies;

12.3. The Vendor(s) has not entered into any agreement with any person, firm or company to sell the said Property or any part thereof or granted any lease, option, license, easement or any other right whatsoever over or in respect of the said Property or any part thereof to any person, firm or company other than those disclosed in this Agreement;

12.4. The Vendor(s) has punctually paid all quit rents rates taxes and all other outgoing payable in respect of or in connection with or arising out of the said Property and no event of default has occurred that could or might result in the said Property or any part thereof being forfeited to the relevant authority; and

12.5. The Vendor(s) has secured all requisite approval(s) from the appropriate authority which includes governmental, semi or quasi-governmental or statutory body for any alteration addition extension or renovation to the said Property.

12.6 The Vendor hereby confirm that he/she/they has/have settled all the maintenance charges in respect of Property due to the Developer/Joint Management Body/Managemenet Coprporation/Resident Committee or otherwise prior to execution of this Agreement and shall further undertake to settle all outstanding pertaining thereto prior to the Completion Date or the Extended Completion Date, as the case may be. The Vendor(s) further agree and endorse the rights of the Purchaser(s)’ Solicitors to deduct any outstanding maintenance charges from the Balance Purchase Price pursuant to Clause 10.3 hereinabove.

13. PURCHASER(S)’ WARRANTIES

The Purchaser(s) represents and warrants that the Purchaser(s) has the full power and authority to execute deliver and perform the terms of this Agreement and has taken or will before the Completion Date or Extended Completion Date, as the case may be, take all necessary corporate and other actions to authorise the execution delivery and performance of the terms of this Agreement.

14. DESCRIPTION OF THE SAID PROPERTY

14.1. The said Property is believed to be and shall be taken as correctly described in Section 4 of the Schedule hereto (save for clerical or typing errors) and any inaccurate statement, error or omission shall not entitle either party to claim against the other in respect thereof nor annul the sale or entitle the Purchaser(s) to be discharged from his purchase herein.

14.2. The said Property is sold subject to all rights and other easements and to all road back lane and other improvement schemes whatsoever affecting the same.

14.3. The Vendor(s) shall not be bound to show any title to boundaries fences or walls nor to distinguish which part of any of the said Property sold is held under different title or tenure further than he may be able to do so from information in his possession and the Purchaser(s) shall be deemed to purchase with full notice in all respects of the actual state and condition of the said Property sold and shall take the said Property as it is.

14.4. The Purchaser(s) hereby expressly confirm that he has inspected the said Property before the execution of this Agreement and has or is deemed to have full notice of the actual state condition locality and contour of the said Property.

14.5. The identity and area of the said Property sold with that comprised in the document offered as the title thereto shall be admitted by the Purchaser(s) SAVE THAT where the said Property is a vacant land and the relevant authority shall pursuant to the Weights and Measures Act 1972 or other legislation given notice to alter the area of the said Property before the Completion Date or Extended Completion Date, the Purchase Price shall be adjusted accordingly.

15. DEFAULT BY THE PURCHASER(S)

In the event the Purchaser(s) shall commit any breach of the terms and conditions herein contained or fail refuse and/or neglect to pay the Balance Purchase Price and all interest accrued (if any) in the manner and at the time stipulated herein or if the Purchaser(s) shall become bankrupt or enter into any composition or arrangement with his creditors or suffer any execution or being a company enters into liquidation whether compulsory or voluntary notwithstanding that the Vendor(s) has performed and completed his obligation under this Agreement, the Vendor(s) shall be at liberty to forthwith terminate this Agreement and to forfeit absolutely the sum stated in Section 8 of the Schedule hereto without any prior notice and refund to the Purchaser(s) any other sum or sums paid without interest, PROVIDED THAT the Vendor(s) shall be entitled to claim from the Purchaser(s) all interest accrued on the Balance Purchase Price during the Extended Completion Date (if utilised), and the Vendor(s) shall be at liberty with or without notice to the Purchaser(s) to resell the said Property and upon the happening of this event the memorandum of transfer in respect of the said Property shall be cancelled and treated as null and void and of no effect AND the Purchaser(s) undertakes at his own cost and expense to withdraw any private caveat lodged against the said Property within TEN (10) DAYS of such termination and thereafter the parties shall have no claim whatsoever against each other.

16. DEFAULT BY VENDOR(S)

In the event the Vendor(s) shall fail refuse and/or neglect to complete this Agreement or to transfer the said Property to the Purchaser(s) or his nominee(s) as required herein notwithstanding that the Purchaser(s) has performed and completed his obligation under this Agreement, including but not limited to, the payment of the Purchase Price, the Purchaser(s) may elect either to require the Vendor(s) to refund all monies paid free of interest and to pay to the Purchaser(s) a further sum as stated in Section 13 of the Schedule hereto being agreed liquidated damages whereupon this Agreement shall be treated as null and void and of no further effect and neither party shall have any claim whatsoever against the other or alternatively the Purchaser(s) shall be entitled to affirm this Agreement and seek specific performance and/or damages.

17. ACQUISITION

The Vendor(s) warrants that at the time of the execution of this Agreement he has not received any notification of any acquisition or intended acquisition of the said Property or any part thereof under the Land Acquisition Act, 1960 or other legislation save that which is expressly disclosed herein. In the event that before the Completion Date or Extended Completion Date, as the case may be, the said Property or any part thereof shall be acquired by the Government or any Public Authority:-

17.1. The Vendor(s) shall give notice of the same to the Purchaser(s) within FOURTEEN (14) DAYS of the receipt of such notification and the Purchaser(s) shall within FOURTEEN (14) DAYS of receipt of such notification from the Vendor(s) elect either to terminate this Agreement or to proceed with the purchase hereunder.

17.2. In the event of the Purchaser(s) electing to terminate this Agreement, the Purchaser(s) shall notify the Vendor(s) in writing within the said period of FOURTEEN (14) DAYS stated in Clause 17.1 hereof, and upon the Vendor(s)’ receipt of such notification for termination the Vendor(s) shall within FOURTEEN (14) DAYS of such termination refund to the Purchaser(s) all monies paid to the Vendor(s) pursuant to this Agreement free of interest and thereupon this Agreement shall be null and void and neither party shall have any claim against the other in respect thereof.

17.3. In the event of the Purchaser(s) electing to proceed with the purchase of the said Property, the Purchaser(s) shall notify the Vendor(s) in writing within the said period of FOURTEEN (14) DAYS stated in Clause 17.1 hereof and in such event the compensation payable by the relevant authority in respect of such acquisition shall be paid to the Purchaser(s) subject to the payment of the Balance Purchase Price by the Purchaser(s) to the Vendor(s) in accordance to the terms and conditions of this Agreement.

17.4. The parties hereto hereby declare that in the event of the Purchaser(s) giving notification to the Vendor(s) that the Purchaser(s) elects to proceed with the purchase of the said Property in spite of notification of any acquisition or intended acquisition under the Land Acquisition Act, 1960 or other legislation as hereinbefore mentioned, such acquisition or intended acquisition shall not vitiate or annul this Agreement or in any way release the Purchaser(s) from his obligations under this Agreement, nor shall the Purchaser(s) be entitled to any reduction of the Purchase Price which shall nevertheless be payable in full in accordance with the provisions of this Agreement.

18. CIRCUMSTANCES BEYOND CONTROL

Notwithstanding any provisions herein contained to the contrary (if any) it is hereby agreed by the parties hereto that the Vendor(s) and/or the Purchaser(s) shall not be liable to the other for any failure on his part to fulfil any terms of this Agreement if such fulfilment is delayed hindered or prevented by circumstances beyond the control of the Vendor(s) and/or the Purchaser(s) including, but not limited to force majeure, acts of God, civil commotion, acts of war, strike, lockout, riot, loss or damage by fire flood or tempest, loss of relevant document by the relevant government authority or the Financier or the Existing Chargee and other circumstances of whatever nature beyond the control of the Vendor(s) and/or the Purchaser(s), then either party may at his option withdraw from this Agreement in writing and immediately refund all the sums paid in accordance of this Agreement and this Agreement shall henceforth and for all purposes be deemed to be cancelled.

19. WAIVER OR INDULGENCE

Delay in exercising or omission to exercise any right power or remedy accruing to either party or knowledge or acquiescence by the party concerned of any breach of any of the conditions or covenants herein contained or any indulgence given by the party concern shall not affect impair or prejudice any such right power or remedy or to be construed to be a waiver of such conditions or covenants or any of them and notwithstanding such knowledge or acquiescence or indulgence given the party concerned shall be entitled to exercise his rights under this Agreement and to require strict performance by the other of the terms and conditions herein nor shall the party concerned be liable to the other in any manner whatsoever for not enforcing any of his rights hereunder.

20. STAMP AND REGISTRATION FEE

All stamp duty on this Agreement and the stamp duty and registration fee in respect of the transfer in favour of the Purchaser(s) or his nominee(s) and all Solicitors' costs and expenses in respect of the purchase of the said Property shall be paid by the Purchaser(s). The Vendor(s) shall pay his Solicitors' fees, all costs and expenses incidental to the sale of the said Property and the discharge of charge.

21. NOTICE

21.1. Any notice request or demand to be given under this Agreement shall be in writing and shall be sufficiently served on the Vendor(s) or Vendor(s)’ Solicitors if delivered or forwarded by hand or prepaid registered post addressed to his/its address hereinafter mentioned or his/its last known address and shall be sufficiently served on the Purchaser(s) or Purchaser(s)’ Solicitors if delivered or forwarded by hand or prepaid registered post addressed to his/its address hereinafter mentioned or his/its last known address. Any notice sent by prepaid registered post as aforesaid shall be deemed to have been duly served on the THIRD (3RD) DAY following the date on which the notice was so posted.

21.2. Any change of address by either party shall be communicated to the other in writing. Nothing done in reliance on Clause 21.1 hereof shall be affected or prejudiced by any subsequent change in the address over which the other party has no actual knowledge of at the time the act or thing was done or carried out.

22. ENTIRE AGREEMENT

This Agreement sets out the entire agreement and understanding between the parties hereto and supersedes and cancels in all respects all previous agreements and undertakings, if any, between the parties hereto with respect to the subject matter hereof. No variation of this Agreement of whatever nature shall be made or purported to be made by any party or parties (nor shall any variation or purported variation be valid or enforceable) unless the same is in writing and duly agreed to and executed by all the parties concerned.

23. SEVERABILITY

If any provision of this Agreement for any reason shall be declared invalid, void, illegal or otherwise unenforceable, the remaining provisions of this Agreement shall remain in full force and effect. The parties shall amend that provision in such reasonable manner as to achieve the intention of the parties without illegality or where it is nor practicable to do so that provision shall be severed from this Agreement.

24. COMPLIANCE WITH LAW

The Vendor(s) and/or the Purchaser(s) shall in all respects to observe and comply with any Act, ordinance, enactment, order, rule, regulation, by-law in regard to the sale and purchase of the said Property and shall at all times entitle either party to indemnify and keep indemnified the other against all actions proceedings costs expenses claims and demands in respect of any such act matter or thing done or omitted to be done in contravention of any of the said provisions.

25. TIME

Time wherever herein mentioned shall be of the essence of this Agreement and in particular to the payment of all monies due from the Purchaser(s) to the Vendor(s) under this Agreement.

26. SUCCESSORS BOUND

This Agreement shall be binding upon the heirs, personal representatives, successors in title and permitted assigns of the Vendor(s) and Purchaser(s).

27. SCHEDULE

The Schedule and Appendix (if any) hereto shall be taken read and construed as an essential part of this Agreement.

28. SPECIAL CONDITIONS

IT IS HEREBY EXPRESSLY AGREED BY THE PARTIES HERETO THAT THE "SPECIAL CONDITIONS" AS ANNEXED HERETO SHALL FORM PART OF THIS AGREEMENT and that should there be an inconsistent or repugnant term or terms, the term or terms contained and inserted in the 'SPECIAL CONDITIONS" herein referred shall prevail over the same contained in Clauses 1 to 27 aforesaid.

SPECIAL CONDITIONS

1. The sale and purchase herein shall be concluded on “as is where is basis” and the Vendor(s) hereby undertake not to encumber the said Property in any manner whatsoever that will hinder or impede the transfer of the said Property to the Purchaser(s).

2. The Property is sold subject to the Tenancy Agreement/arrangement (if any).

Job Interview Guidelines

2011-09-20T16:35:00.002+08:00

Here are some interview tips to help ensure the best results for you. These tips have been carefully summarised based on feedback that we receive from employers.

Read the job description and company profile carefully so that you are aware of the job details when an employer calls you about your application. If the job advertisement does not contain enough information, ask the employer for more details.
Remember to write down the name & contact number of the recruiter in case you need to call back later.
Prepare for the interview by finding out more about the company, the job and the industry.
Be punctual for your interview. Bring your resume, transcripts, certificates and relevant documents to the interview.
IMPORTANT: If you cannot attend the confirmed interview for whatever reason, you must contact the employer at least one day beforehand to let them know.

Keeping a good interview attendance record will help to ensure opportunities for interview in the future, as employers have the right to share their "No show" and late cancellation records.

If you do not have the employer's contact details, look under the Company Profile in the Application Status page of your MyJobStreet account or look in the telephone book or Yellow Pages.
Send the employer a Thank You email after the interview.
Follow up with the employer on the status of the interview after two or three days. This shows your interest for the job and may increase your chances of success.

source: jobstreet.com

What will lawyer do for client in accident case?

2011-08-10T15:24:00.003+08:00

(1) Take down a full statement from client and examine all the documents that client has, consider the evidence and explain to client the types and the quantum of claims that the client may be granted.

(2) write letters to the police station for copies of the police reports as well as sketch map of the accident site.

(3) If client has not obtained the medical reports, the lawyer will write to the hospital for the medical reports.

(4) write to the insurance company concerned for the compensation.

(5) If no adequate compensation can be obtained, the lawyer will file a civil suit, prepare the documents and get ready for the trial.

Even at this stage, parties are free to arrive at a settlement.

Family Day of the Kelantan Bar

2011-08-02T12:56:00.017+08:00

KELANTAN BAR FAMILY DAY 2011

The Kelantan Bar organised a family day on 15th July 2011 at Sutra Beach Resort, Merang, Kuala Terengganu. It is a beautiful beach which is about 2 hours drive from Kota Bharu. The response was good with about 150 participants (including lawyers and their family members). Most of firms donate hampers, door gifts, drinks etc to make the event a success.

Below are some photos from the event. (click to enlarge)

briefing

having fun!

yeahh!!

chambering students

bye2

Young Lawyers Convention 2011: The Malacca Statement

2011-07-17T11:35:00.000+08:00

Recognising :-

1. That the National Young Lawyers Committee of the Bar Council represents ALL young lawyers of the Malaysian Bar;

2. That by seniority in the Malaysian Bar, more than 60% of the members of the Malaysian Bar are in practice for 3 years or less; and

3. The need for ALL lawyers to continuously strive for self-improvement and self-development in all areas of practice;

Acknowledging:-

1. The imminent liberalisation of the Malaysian Legal Services by the Malaysian Government by allowing non-Malaysian owned Legal Firms to operate and offer legal services in Malaysia;

2. The proposal by the Bar Council to put forward a Motion at the coming Annual General Meeting of the Malaysian Bar to call for the continuing compulsory professional development of the members of the Malaysian Bar;

3. The National Young Lawyers Committee's intent to conduct a working conditions survey for Young Lawyers of the Malaysian Bar with the view and intent to conduct forums and talks with relevant parties to improve the working conditions of Young Lawyers;

4. That a lawyer has a duty to uphold the cause of justice without regard to its own interests uninfluenced by fear or favour and that a lawyer has a duty to protect and assist the public in all matters ancillary or incidental to the law, Young Lawyers are now the forerunners of activism in Malaysia; and

5. That the bearing and standing of the members of the Malaysian Bar will create a better Bar.

To be continue..

Exceptions of the general rules of Charge

2011-03-12T01:49:00.005+08:00

General rule is that a person should be formally charged so that he is made aware of the offence with which he is charge and eventually convicted of. However there are exceptions to this rule. There are four exceptions to these rules as follows in s. 167, 168, 169 (i) and 169 (ii) of the Criminal procedure Code.For the first exception, it is provided under s.167 of the CPC. This section also must be read with s. 166 of the CPC.

According to s. 167, if the accused is charged with one offence and it appears in evidence that he had committed a different offence for which he might have been charged according to the section 166, he may be convicted of the offence which he has shown to have committed although he was not charged with it.

The qualification before this power may be exercised by the court is mentioned by the section itself, that is, the eventual offence must have been available to the prosecution under s. 166. It will be recalled that the section gives an option to the prosecutor whether to charge the accused with all the offences likely to be proved by a set of facts, or all the offences in the alternative. S. 167 show a situation where the prosecutor had chosen not to charge the accused with all likely offences but just one or two.

There are two tests in applying the s. 167 which has been stated in the case of Lew Cheok Hin. In this case, Tailor J stated that the first test is the facts must be such that the unframed charged was available from the start and could have been framed and tried concurrently under (s.166). The second test is the evidence must have been presented in such a way as to raise all the same issues of fact as would have been raised had the unframed charge been framed and trial claimed on it. Not only the evidence for the prosecution be the same but the court must be satisfied that the evidence for the defence could also be the same.

Now we can look at the cases that apply the exception of the general rule that apply in 167. In Sivalingam, the accused was charged for an offence of cheating under section 420 of the Penal Code. He was convicted and sentenced. He appealed to the High Court, where it was held that an offence of CBT under s. 409 was actually proved. The court substituted the conviction to one under s. 409 and maintained the sentence. The Federal Court, after hearing the question for reference held that in hearing an appeal from a conviction the power of the judge to alter a finding must be exercised subject to section 166 and 167 of the CPC. There must be clear evidence that a case for the substituted offence would have been made out or established in the court below.

In Gurdit Singh, the appellant was charged under s. 454 of the PC for the offence of housebreaking in order to commit theft. He was convicted and sentenced at the end of the trial at the magistrate’s court. His sole ground of appeal was that the sentence for four years imprisonment was manifestly harsh. Whe the appeal came before the high court, the DPP informed the court that from the appeal record the appellant could not have been convicted for an offence under s. 454. Instead, he should have been convicted for theft in a dwelling house punishable under s. 380. The HC was asked to exercise its revisionary powers by substituting a conviction for an offence under s. 380 of the PC. The judge then refeered to Sivalingam and Lew Cheok Hin, the latter where Taylor J. mentioned the two main tests required before s. 167 may apply. He was satisfied and he subsequently substituted the conviction to one under s. 380 of the PC and reduced the sentence to three years imprisonment.

Section 168 provides for the second exception where a person may be convicted for an offence he is not charged with. When an accused person is charged with an offence he may be convicted of having attempted to commit that offence, although the attempt is not separately charged. In the case of Quinn Howland, the court held that the accused could be convict for attempted robbery although he was tried for robbery.

The third exception is provided in s. 169 (1). When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence though he was not charged with it. Illustration (a) to the section serves as good example. If a person is charged under s. 407 of PC, among the elements which the prosecution has to prove are the offence of CBT, and that it is in respect to property and that the property is entrusted to him as carrier. If the prosecution succeed in proving CBT, and that it is in respect to property but not the fact that he is entrusted as a carrier, than the court may convict him of an offence under s. 406, instead. S. 406 requires proff of those elements only. Another example is the offence of voluntarily causing grievous hurt under s. 325 of PC. If, in the course of the trial, it is discovered that the hurt was only simple hurt, that is, that one of te conditions in s. 320 of the PC was not proved, then the court may proceed to convict the accused of voluntarily causing hurt under s. 323.

In Latip bin Ahmad, the first accused was charged under s. 148 of the PC with rioting while armed with a weapon. He was convicted under s. 147 with simple rioting. Terrel Ag. C.J. was of the view that this could be done in accordance with s. 169 (1) of the CPC without need to amend the charge. An accused person may be convicted of a minor offence of the same character without being charged. Hence, a person charged with murder may be convicted of culpable homicide not amounting to murder, or of voluntarily causing grievous hurt, without being specifically charged for it. In Kundan Singh, the appellants were charged with rioting under section 147 of the Penal Code but were convicted for causing hurt under section 323. The conviction was set aside on appeal. Murray-Anysley J stated that the The word “minor: means merely an offence with a smaller punishment attached than the offence with which an accused person was originally charged. On section 169 (1), his lordship said that the offence for which the accused is convicted must be one which necessarily included in the offence originally charge. Here, this was not the case, although causing hurt might have been an element in a case of riot.

Finally, s. 169 (2) provides for the fourth exception. Here, when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. Illustration (b) to the section provide a good example. When a person is charged with the offence of voluntarily causing grievous hurt under s. 325 of the PC, and he manages to prove that he acted so on provocation, then the court may convicted him under s. 335 of the PC. Provocation is an extraneous element which reduces the offence to minor offence. Likewise, when a person is charged with voluntarily causing hurt under s. 323 but he has managed to prove provocation, the court may convict him of an offence under s. 334 of the PC instead.

Subsection (ii) therefore covers the case where additional facts are proved, unlike subsection (i) which covers the case with only some of the facts constituting the original offence are proved. In the case Lew Cheok Hin, a “minor offence” understood in s. 169 is not identical with “less serious”. IT only means produced by deletion without other alteration. The maximum sentence for the comprised offence will usually be lighter.

In Francis Dang Anak Nuya, the accused was to have stood trial for the offence of murder. At the beginning of the trial, the DPP indicated that the accused wished to plead guilty to the lesser offence of culpable homicide not amounting to murder and sought the court’s advice as to whether the charge ought to be amended or not. According to Macdougall J, the correct procedure is for the charge of murder to be read to the accused for the plea. If he wishes to plead guilty to the lesser offence, it is open to him to plead not guilty to murder but guilty to culpable homicide not amounting to murder. The agreed facts should then be read to the accused. If he confirms that they are correct, it is open to prosecution to state whether it accepts that plea.

Impeachment proceedings: Cross-examination

2011-02-19T02:59:00.009+08:00

Cross-examination is a very important process in summary trial. The main object of cross-examination is to find the truth and defection of falsehood in human testimony. It is design to destroy or weaken the force of evidence a witness has already given in person or elicit something into your favour which he has not stated to discredit him by showing object of cross-examination from a litigious standpoint.

Whether a prosecution witness once had impeachment proceeding completed against him, ought to be still cross examined by the defence counsel or not ? The matter about the cross-examined has been stated in the section 173 (e) of the Criminal Procedure Code. Section 173 (e) of the CPC stated that :

(e) The accused shall be allowed to cross-examine all the witnesses for the prosecution.

So, we can see that this section makes provision for the accused to cross-examine all witnesses for the prosecution. Okay, that is the basic. Denial of opportunity to the accused to cross-examine the prosecution witness will be an improper exercise of judicial discretion and will amount to miscarriage of justice[1]. It is trite that there is an obligation on the defence during the stage of cross-examination to put all question that are relevant and known to the particular witness, which the accused intends to rely upon his defence to enable the witness a chance to agree or disagree with the defence case.[2] The problem is whether the defence counsel also can still cross-examine the prosecution witness although the impeachment proceeding has been completed against him. Actually in practice, our courts have been very liberal and does not deny or interfere in cross-examination. To the credit, of our courts, notwithstanding, there is no express provision to defer cross-examination. Our courts have permitted the cross examination of any witness to be deferred until any other witnesses to be recalled for further cross examination. If we look at the Evidence Act 1950, section 138 of the Evidence Act provided that :

Order of examinations and direction of re-examination

138. (1) Witnesses shall be first examined-in-chief, then, if the adverse party so desires, cross-examined then, if the party calling them so desires, re-examined.

(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-inchief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.

It is trite that there is an obligation on the defence during the stage of cross-examination to put all question that are relevant and known to the particular witness, which the accused intends to rely upon his defence to enable the witness a chance to agree or disagree with the defence case.

In the case of Paramasivam v PP[3] . The issue of before this case is whether the learned judge was right in refusing to allow a prosecution witness, to be cross examined. counsel for the accused asked that he be allowed to cross-examine the witness before the ruling was made and that in the interest of justice she should be allowed to complete her evidence. He was denied the opportunity asked for. The court then ruled that the witness was successfully impeached by the prosecution and that her evidence would not be considered. But, on the appeal stage, the appeal court held that the defence should at all times be allowed the opportunity of defending within the well-established principles of adversary trial as against the inquisitorial system, and where there is prima facie a valid complaint, however thin it might be, it must be entertained. In this case, the court had quashing the conviction and ordering a retrial.

Meanwhile, in PP v Munusamy[4], it was held that the refusal to allow a witness for the prosecutor who had been impeached to be cross-examined by the accused did not constitute a misdirection and even if it was, the Federal Court has power to dismiss the appeal, as there was no failure of justice. The respondent in this case had been convicted by the learned magistrate for an offence under section 197 of the Penal Code. One of the points submitted by the defence before the Federal Court was that paragraph (e) allows him to cross-examine every prosecution witness. Thus, when witness PW 16 was impeached by the prosecution, an application by the defence to cross-examine that witness should have been allowed. Refusal to allow such application was fatal to the proceedings. According to the Federal Court, after the rulling made by the learned magistrate to impeach the credit of PW 16, that witness was longer a witness for the prosecution in the real sense of the word for his evidence no longer constituted any part of the prosecution case. Even should there be a misdirection, since there was no failure of justice occasioned thereby the appeal should be dismissed.

In other case of Dato’ Mokhtar Hashim v PP[5], the court held that the order made by the learned trial judge in impeaching the credit of the witness Abdullah bin Ambek and denying the right to counsel for all the accused to cross-examine him was clearly wrong. Here, the Federal Court decided that when impeachment proceedings have been completed, no rulling should be made as to the credibility of the witness. This should be done only after all witness prosecution have been called and given evidence at the end of the prosecution’s or defence case. It would follow that according to this later view, when a prosecution witness had impeachment proceedings completed against him, he may still be cross-examined by the defence.

We can see that all the three main cases that have been mention by me above, it were held that all the judges agree that the defence counsel can cross-examine the prosecution witness although the impeachment proceeding had completed them. It showed us that the cross-examine process is so important to the right of the parties especially the right of an accused.

In PP v Abang Abdul Rahman[6] it was held that whenever a witness is not cross-examined, his evidence should be accepted. The other party to the proceedings accepts the evidence and the court should likewise accept it.

In Wong Swee Chin v PP[7], Raja Azlan Shah, CJ held that the failure to cross-examine a witness on material point of the case will amount to an acceptance of the witness’s testimony. Meanwhile, the importance of cross-examine the witness also held in the Indian case like in AEG Carapiet v AY Derderian[8], the court stated that it is therefore important for the accused to put his essential and material case to the prosecution witness in cross-examination. In section 256 of the Indian Criminal Procedure Code, and as also same as mentioned in the case Biswas v Stated[9] , the court held that an accused has an abosolute right to further cross-exam prosecution witness although they have been thoroughly cross-examined before the charge.

In conclusion, by referring to the new view of the main case of Dato’ Mokhtar Hashim we can understand that the cross-examine can be allowed although the impeachment proceeding against the prosecution witness or defence witness had completed.

[1] Janab’s Keys to Criminal Procedure and Evidence, Second Edition 2010, pages 340-341.

[2] Putting and Suggesting On Cross-Examination [1984] 1 MLJ xi.

[3] [1970] 2 MLJ 107

[4] [1980] 2 MLJ 133

[5] [1983] 2 MLJ 232

[6] [1982] 1 MLJ 346

[7] [1981] 1 MLJ 212

[8] AIR 1961 Cal 359.

[9] AIR 1950 Pat 550 (551).

Basic about Summary judgment

2010-11-29T02:27:00.004+08:00

Example: I would like to obtain judgment from the court without trial because the defendant has no defence and there is no triable issues.

The summary judgment provided in Order 14 of the Rules of The High Court 1980. The procedure is to enable plaintiff to obtain early judgment in cases where the defendant has no hope of success and any defence he raises would merely have the effect of delaying judgment (Jones v Stone). The summary judgment must file when the defendant has enter the appearance.

Reasons for summary judgment:
1. such defence is just a mock defence (pembelaan olok-olok)
2. that defence only a mere denial
3. there is no triable issues

What is 'triable issues' ?
It is an issue that the court cannot decided without hearing the disputes (defences and evidences) from both parties and if made, it will causes injustice to the other parties.

When to file the summary judgment?

If has been seen in the brief that the defendant cannot defend themselves. For example, in civil action (summon) by bank, where the debtor failed to pay the debts within the promised period. So, the plaintiff will file the summon in chamber for summary judgment. So, now, the summary judgment has to be heard by judge (in chamber), not in open court.

So, in that situation, the plaintiff must prove the case on the probability (must prove that the defendant has no defence). The plaintiff must prove it by supporting an affidavit that the defendant has no defence. Examples, all below should be exhibits:
1. the loan agreement become exhibit of affidavit
2. attach/show the receipt of loan payments
3. attach the reminders from the bank
4. attach the notice of demand

So, the plaintiff will show to the court that there is a cause of action to sue the defendant. ( the cause of action is the plaintiff has right to sue the defendant because the defendant failed to pay the credit).

When the summon in chamber has been submitted, the judge will read all the document, so, if there is the triable issue, or for example if the defendant has the reason that the bank has give him the re-schedule of the loan, the plaintiff cannot obtain the summary judgment. ( the court will set a side the summary judgment, but it does not mean that the plaintiff has lost the case, but the judgment will be given after the trial of the case. However, if the court held that the defendant has no defence, plaintiff will obtain the summary judgment after the court hearing the case in chamber.

Basic about Notice of appearance

2010-11-20T03:02:00.005+08:00

Order 12 Rule 4 of Rules of High Court 1980 provided about the notice of appearance. It is the rule about writ. It provides if the defendant failed to file the notice of appearance, the plaintiff will obtain the judgment in default (JID). Meanwhile, "notice of conditional appearance" is an indication that the defendant will objection to the jurisdiction of the court before the case start (in condition that the objection is going to be overruled by the court. In the case of Bank Negara v Gerald Glpsy the court held that plaintiff must file the appearance although defendant disagree that the courts has not have jurisdiction. But, the defendant will filed in the notice " notice of conditional appearance". It must file within 8 days. So, if there is not submitted within the day, the plaintiff will obtain JID. The short services only in two days. Moreover, if the defendant did not file the notice of defence, the plaintiff can file the JID.

How to file JID?
Plaintiff can file the JID when the other parties does not file the appearance within 8 days. So, the plaintiff will file the draft order of JID and the registrar must file in the JID to the defendant. But before that, the certificate of non-appearance also have to file in. Meanwhile, the defendant will file the summon in chamber to set aside the JID.

* this is only for basic understanding, for more info's please refer the books and ask your lecturer.

Selamat Hari Raya Aidiladha

2010-11-17T02:57:00.004+08:00

Malaysian Law Student wishes you Selamat Hari Raya Aidiladha to all Muslim around the world.

How to build up the cause of action?

2010-10-29T02:36:00.009+08:00

In easy words, the cause of action (COA) is a set of circumstances which brings the P to sue the D and the P is going to win. How to build up the cause of action? (without fabrication).

(1) get the evidence
(2) prove the fact
(lawyers should be able to take up the case, confident and win the case)
(3) Client: full story A to Z (whether there is a COA or not)

Example:

~what is the law to be applied? - Law Reform (Marriage and Divorce) Act
~Under section? Cases? What the remedies? (divorce or damages(money) )

~ Is there any gaps of facts that the client didn't tell? (if so, persuade client)

So, for the brief :

(1) summary

(2) structure frame

(3) fact

(4) evidence

(5) relevant Acts

(6) cases

(7) remedies

At the end of the brief, is there a cause of action or not? If no COA, forget the divorce! haha.. (because the court cannot provide any remedy if there is no COA).

Basic about an arrest by Police

2010-10-23T03:34:00.007+08:00

Basically, Article 5(1) of the Federal Constitution states that no person is to be deprived of his personal liberty save in accordance with law. Meanwhile, in Halsbury's Law defined arrest consists in the seizure or touching of a person's body with a view to his restraint. In the case Alderson v Booth 1969 the court held that words however amount to arrest it, in the circumstances of the case, they are calculated to bring, and do bring, to a person's notice that he is under compulsion and he thereafter submits to the compulsion. (problem always arise when the arrest is without warrant).

Who can arrest? Person who may effect an arrest are police officer, penghulu (village leader), private person and magistrate or Justice of the Peace. Section 23 of the Criminal Procedure Code allows a police to arrest without warrant. An arrest maybe made in relation to any seizable offence committed anywhere in Malaysia. What is seizable offence? S. 2 (1) CPC defined it as an offence and a "seizable case" which police may ordinarily arrest without a warrant according to the third collum of the first schedule. Whether there is or not a First Information Report is beside the point as the first information report is not a condition precedent to the setting in motion of a criminal investigation. This holds true for police officers as far as policing and enforcement in general is concerned, and the police knowing of a design to commit any seizable offence may arrest without orders from a Magistrate and without a warrant the person so designing if it appears to such officer that the commission of the offence cannot otherwise be prevented.

Moreover, arrest and investigation are not the same, though they are interrelated. Police investigation normally commences when the police have information whether receive through their own wits or intelligence (credible information) or reasonable suspicion. Investigation is also prompted if there is a First Information Report (reasonable complaint) made to them. In non-seizable cases, s 108 of the CPC clearly stipulates that an order to investigate from the Public Prosecutor is first needed to enable the police to exercise their special powers in relation to police investigations such as recording statements from witnesses under s 112 of the CPC. In seizable cases, ss 109 and 110 of the CPC state that the Police whose rank is at least a sergeant are not required to obtain an order to investigate from the Public Prosecutor and may exercise their special powers relating to police investigations. However, the police must forthwith report those cases to the Public Prosecutor unless the offence is of the type the Public Prosecutor has directed need not be reported to him.

A police officer whose rank is not less than a sergeant or the Officer in Charge of the Police Station may proceed with the investigation but if they deputed the task to a lower ranking subordinate police officer, such subordinate officer shall withhold from resorting to the special powers of investigation provided under ss 111 (summoning witnesses), 112 (interviewing witnesses), 116 (search of premises) and 117 (further detention of suspect). These are pro-active powers the Police have to ensure they can get hold of the evidence.

Basic about motive in s.8 Evidence Act 1950.

2010-10-14T22:40:00.003+08:00

Motive is a psychological fact which can be proved by the conduct of the accused. Motive is that which induces a person to do a particular act. Motive and intention are different. A person's intention is his decision to do or not to do a particular act, but his motive is the reason for forming that decision. For example, when a poor woman with a child steals a loaf of bread, her intention is to steal but her motive may be to feed her child. It is not always possible to discover motive behind an act but this does not man that motive was absent. Evidence of motive is relevant and material in criminal cases. But, if there is a direct evidence and and clear proof that the accused has committed the crime, the question of motive becomes irrelevant to sustain the conviction. In Nath Singh v R, the court held that the evidence to show alleged motive for a crime is admissible even though such evidence suggest the commision of another crime by the accused. In this case the accused was tried for the murder of Karnail Singh. Evidence was led to show that Karnail Singh was extorting money from the accused on the grounds that he knew the accused had killed one Bhan Singh. This fact was admitted to show motive for this murder. Meanwhile, in Lim Kong v PP the court held that the evidence showed that the accused was being pressed to find money to satisfy his debts is relevant as tending to show a possible motive . Furthermore, the evidence of financial instability supported equally the case for the defenmce as evidence of motive for prosecution.

DUTY AND LIABILITY OF THE DIRECTOR BEFORE AND AFTER AMENDMENDT OF MALAYSIAN COMPANY ACT 1965: PART 2.

2010-09-13T03:20:00.002+08:00

Amendment also generates the new Section 132 (1E) of Company Act 1965 also clarifying the position of the nominee director. Section 132(1E) provides that :-
‘A director, who was appointed by virtue of his position as an employee of a company, or who was appointed by or as a representative of a shareholder, employer or debenture holder, shall act in the best interest of the company and in the event of any conflict between his duty to act in the best interest of the company and his duty to his nominator, he shall not subordinate his duty to act in the best interest of the company to his duty to his nominator’
Besides that, the amendment also existed the Section 132 (2) of the Company Act 1965 which provides the prohibition against improper use of company’s property, position, corporate opportunity or competing with the company. The new section 132 (2) provides that:

‘A director or officer of a company shall not, without the consent or ratification of a general meeting-
(a) use the property of the company;
(b) use any information acquired by virtue of his position as a director or officer of the company;
(c) use his position as such director or officer;
(d) use any opportunity of the company which he became aware of, in the performance of his functions as the director or officer of the company; or
(e) engage in business which is in competition with the company to gain directly or indirectly, a benefit for himself or any other person, or cause detriment to the company.

So, from this new section we can see that this new provision amounts to a restatement of the common law conflict of interest situation. It assists directors in appreciating situations of conflict which may cause them to act in breach of their duty to the company.
Last but not least, the new section of 132C of the Company Act 1965 provides the Approval of company required for disposal by directors of company’s undertaking or property. Before the amendment, the old section provides :-
‘notwithstanding anything in a company’s memorandum or articles, the directors shall not carry into effect any proposal or execute any transaction for-
(a) the acquisition of an undertaking or property of a substantial value; or
(b) the disposal of a substantial portion of the company’s undertaking or property
which would materially and adversely affect the performance or financial position of the company, unless the proposal or transaction has been approved by the company in general meeting’. As we can see, the old S132C permitted ‘adverse’ transaction as long as the transaction has been approved by the company in a general meeting. The new section 132C(1) has removed the requirement that the transaction must adversely affect the performance or financial position of the company. Section 132C (1A) of the Company Act 1965 provides that :
‘For the purpose of subsection (1), in the case of a company where all or any of its shares are listed for quotation on the official list of the Stock Exchange as defined in the Securities Industry Act 1983, the term ‘substantial value or substantial portion’ shall mean the same value prescribed by the provision in the listing requirements of the Exchange-
(a) which relates to acquisition or disposals by a company or its subsidiaries to which such provisions applies; and
(b) which would require the approval of shareholders at a general meeting in accordance with the provisions of such listing requirements.

In conclusion, from my view the amendment of the Company Act 1965 in 2007 has incorporated especially for director duties as seen in section 132 and the amendment also laid down the function and powers of the board of directors further give the big effects for a good corporate governance in Malaysia.

Civil Procedure: Cause of Action

2010-08-11T06:53:00.004+08:00

Cause of Action means the cause or the set of circumstances which leads up to an action in court. Cause of action also refers to every fact, which is necessary to the plaintif to prove in order to entitle him to an order or judgment in an action. It is in other words a bundle of essential facts, which was necessary for the plaintif to prove before he can succeed in an action.
The cause of action is a condition precedent to the commencement of an action and every claim must disclose a cause of action before the court will be able to proceed to adjudicate the dispute. If there is no cause of action, the court cannot provide any remedy. In the case of Government of Malaysia v Lim Kit Siang,Lord President, Tun Salleh Abas observed that " cause of action is a statement of facts alleging that a plaintif's right, either by law or by statue, has, in someway or another, been adversely affected or prejudiced by the act of defendant in an action".
In Letang v Cooper, the judge defined 'a cause of action' mean a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. Meanwhile, in Hock Hua Bank Bhd v Leong Yew Chin, Syed Agil Barakbah SCJ, observed that " a cause of action is simply a factual situation the existence of which entitle plaintif to obtain from the court a remedy against the defendant". A cause of action founded on contract accrues on its breach. In the case Board of Trade v Cayzer, Irvine & Co., the judge describe the cause of action as that which makes action possible. What makes possible an action founded on a contract is its breach. In other words, a cause of action founded on a contract accrues on its breach. In the case of actions founded on contract, therefore, time runs from breach. In the case of actions founded on any other right, time runs from the date on which right is infringed or there is a threat of infringement.

DUTY AND LIABILITY OF THE DIRECTOR BEFORE AND AFTER THE AMENDMENT OF MALAYSIAN COMPANY ACT 1965.

2010-08-08T22:09:00.006+08:00

They are a few of changes we can see now when the company act was amended in 2007. Lots of amendment is relating to the duty and liability of the director which we can see starting in the section 131 of the company Act 1965. There are a few of amendments. I will touch some part of the amendment which especially that is relating to the duty and liability of the director which I think it is important to discuss in this topic. Firstly, before the amendment, the old section of 132 (1) Company Act 1965 provide that in the discharge of duties, director shall at all times acting honestly and use reasonable diligence when managing the company. We can see that the old section is not perfectly defined, the still some mischief in the section which are the word ‘honestly’ was not clearly defined and secondly in the aspect criminal liability, it only arises if it can be proven that the director is aware that the conduct is not in the company’s best interest. Besides that, the old section of 132 (1) of the Company Act 1965 was contrary to the common law position because at Common Law, the director must comply with both the interest of the company requirement and also with the proper purpose test and at Common Law, there is no requirement that the director had acted fraudulently or with deliberate intent to obtain personal advantage. The unclearly of the old section of 132 (1) brings lot of the cases relating to the duty and liability scope. In the case of Multi-Pak Singapore Pte Ltd v Intaraco Ltd, the court held that the word ‘honestly’ does not mean that a director would only be in breach of duty if he had acted fraudulently. It means to act bona fide in the interest of the company. In exercising their discretion, the director should only act to promote or advance the interest of the company. After the amendment in 2007, the new section of 132 (1) Company Act 1965 provided that a director of a company shall at all times exercises his powers in good faith in the company’s best interest for the purpose of the company. Therefore, if a director exercise his power in good faith in the company’s best interest but if it only for collateral purpose, the director will still be liable under the new section 132 (1) of the Company Act 1965.

Moreover, section 132 (1A) of the Company Act 1965 is also a new section after the amendment. This section provided the duties of care, skill and diligence imposed to the director. We can see that the duty of care and skill is derived from Common Law. The old section of 132 (1) is silent as to the standard of care and skill required of a director. It merely prescribes that a director has a duty to act honestly and use reasonable diligence. This new section is related to the Common Law case which is the leading decision in Re City Equitable Fire Insurance Co Ltd, it was held that, “ In discharging the duties of his position…a Director must…act honestly; but he must also exercise some degree of both skill and diligence…so long as a Director acts honestly he cannot be made responsible in damages unless guilty of gross or culpable negligence in a business sense”. Also to add, in the commonwealth jurisdiction like in New Zealand, Section 137 of the New Zealand Company Act 1993 provided that a company director must carry out his directorial functions with such care, skill and diligence that would be exercise by a reasonable director in the circumstances of the former. Despite these developments, the position in Malaysia remained to be Re City Equitable Fire Insurance, as the court in Abdul Mohd Khalid v Datuk Haji Mustapha Kamal had cited obiter Re City Equitable Fire as the’ applicable authority for directors’ duty of care and skill. Furthermore, Section 132 (1A) Company Act 1965 provided that a director of a company shall exercise reasonable care, skill and diligence with :

(a) the knowledge, skill and experience which may reasonably be expected of a director having same liabilities and ;
(b) any additional knowledge, skill and experience which the director in fact has.
Another amendment of the Company Act is included the section 132 (1B) which provided the business judgment rule imposed to the director. S. 132 (1B) of the Company Act 1965 provided that :
(1B) A director who makes a business judgment is deemed to meet the requirements of the duty under subsection (1A) and the equivalent duties under the common law and in equity if the director–

(a) makes the business judgment in good faith for a proper purpose;
(b) does not have a material personal interest in the subject matter of the business judgment;
(c) is informed about the subject matter of the business judgment to the extent the director reasonably believes to be appropriate under the
circumstances; and
(d) reasonably believes that the business judgment is in the best interest of the company.

So, based on this section 132 (1B), we can see that the overriding requirement is that the director must make a conscious decision or exercise a conscious judgment and if the director failed to make a conscious decision or exercise a conscious judgment, the Business Judgment Rule will not extend its protection. Meanwhile, the amendment also include section 132 (6) of the Company Act 1965 defines the business judgment which mean ‘ any decision on whether or not to take action in respect of matter relevant to the business of the company’. Also, the amendment includes S. 132 (1C) of the Company Act 1965 which permits permit the director to rely on expert advice but that reliance would only be considered reasonable if the director has made an independent assessment of the reports, advice, opinions and data receive from the experts and consultants employed to provide them. The business judgment rule was originated from the American cases Otis & Co. v Pennsylvania R. Co. and this rule was affirmed in Aronson v Lewis. In Otis, a shareholder’s derivative action alleged that corporate directors failed to obtain the best price available in the sale of securities, resulting in the loss of nearly half a million dollars. In this case, the court held that the director had acted in good faith and were not liable to the shareholders. The court also held that the mistakes or errors in the exercise of hones business judgment do not subject the officer and directors to liability for negligence in the discharge of their appointed duties. In Aronson v Lewis the court affirmed that the Business Judgment Rule is "a presumption that in making a business decision.. Directors.. acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interest of the company..”

To be continue..

Domain name dispute

2010-05-08T07:25:00.002+08:00

Watch this video below for basic understanding about the domain name dispute.

Good Luck to all Malaysian Law Students!

2010-04-07T00:50:00.007+08:00

Exam season has arrived! Good Luck to all of you. Wish you all the best for the exam. Study smart!

Internet Service Provider Liability under Copyright Infringement

2010-03-25T15:25:00.006+08:00

Actually, if we look at Copyright Act 1987, a party is liable for copyright infringement if they violate the exclusive right of the original copyright owner. For ISP, they are three categories that fall under ISP liabilities which are:

1. Direct liability
2. vicarious liability
3. contributory liability

For direct liability, it is quite impossible to make an ISP liable for it because the basis for this claim is the direct infringement from the provider. In the case of Religious Technology Centre v Netcom Online , the court held that the ISP is not directly liable for the automatic pass-through of the infringing messages posted to Usenet by its subscriber. This is because the act of posting the infringing material is not the act of the ISP but by it’s a subscriber.
The same goes in the subsequent case of Sega Enterprises v. Maphia where the court extended the logic of Netcom and refused to hold liable as a direct infringer the operator of a BBS for the uploading and downloading by subscribers of the unauthorized Sega’s video games.

But, the issue arises here is whether an ISP is liable for copyright infringement for the copies made by its equipment? In this case, the ISP's must be aware of the theories under the Copyright Act which also provide the provision which is known as the contributory liability. Under this liability, an ISP can be liable for infringement even if they do not directly take part in the copying or distribution of a work. Under this concept of "contributory infringement," an ISP may be guilty of copyright infringement when they cause or contribute to the infringing conduct of another with knowledge of the other party's infringing activities. In short, even they are not directly involved in posting the infringing materials but as the providers they indirectly facilitate the subscribers and users to post and upload the unauthorized copies illegally on their site. However, to succeed under this theory, an ISP must have knowledge that its users have posted such illegal copies on their sites which in my opinion is quite difficult and hard to prove.

Internet Service Provider Liabilty: Whether ISP liable under defamation(libel) or not.

2010-03-22T00:43:00.009+08:00

An ISP does not liable for the libel defamation because naturally or generally they do their duty only what the materials/information have been provided to their service and they doesn’t observing or monitoring all the information that they sending to their user or subscriber. They does doing their job as a courier of the information that have been provided by other party or its subscriber without doing any observation or doing editing to any information that provided to them.

In the case of Smith v California, an ISP is presumed similar like a book shop owners which is not liable for the liability on defamation on libel. The reason is the owner’s of book shop does not know all the contains of information in all of the books in their shop. The owner of a book shop is not a publisher that have the obligation to observe or control all the contains in the all books that they are sell. Similar to an ISP, an ISP is only as a courier or seller of the information provided to them by their subscriber or others internet user. It is a difficulty to the ISP to control or observe all the contain of the information that provided by third party like its subscriber. In the case of Cubby Inc v CompuServe Inc, the court held that CompuServe as an ISP, does not liable for the defamation of libel that have been provided by its subscriber. The court held that CompuServe is similar like a owner of book shop, newspaper seller or a librarian in public library. They does not rationally expect as have all the eyes, observation and energy to control all the contains of all the information that being provided to them.

But, if the ISP promoted their self as a controller and distributor and trying to filter, editing and observing all the messages or information in their websites, they must responsible and liable for the defamation action against them. Their position is same like a publisher that must take control, observe and edit all the messages or information in the book that will be published. In the case of Stratton Oakment v Prodigy Service, the court held that Prodigy as an ISP was liable under defamation because they had promoted their self as a controller provider to their subscribers. Their position is same like a publisher because they try to control all the information and messages that send to their site. But, in USA, the judgment of this case was protested by the section 230 of the USA Telecommunication Act 1996 which provided that the ISP does not liable under defamation even though they try to control all of the unwanted information and messages that comes to their site.

In Zenan v American Online, the court held that an ISPis exclude from the liability of all messages or information that have been provide by third party like subscriber and other internet users. The exception only for the ISP, not for the people that written or spread the information that is absolutely liable for the libel defamation. In Varian Medical System v Delfino , two researcher had found guilty on the act of spreading thousand of defamation messages in the website.

Important to say, if the ISP has realized the defamation information, the must delete the information, if they does not doing that or attempt or make an effort to delete that , the ISP also have the liability of the defamation. In the case of Godfrey v Demon Internet Ltd, the obscene and deflation was realize by the ISP, notice have been given to the ISP to delete the information, but the ISP does not take their action to delete the obscene and defamatory material, and the court held that the Demon has liable.

Animal Trust? Whether animal can be the beneficiaries of a trust or not.

2010-02-19T16:16:00.001+08:00

Actually, a gift for specific animal or animals may constitute a valid non-charitable trust. On the other hand, trust for animals generally could be charitable if we look in the case of Re Wedgewood [1915] 1 Ch 113, the court held that trust for animals generally could be charitable, principally because they “tend to promote and encourage kindness…and …stimulate humane and generous sentiments I man towards the lower animals, and by this means…promote feelings of humanity and morality generally, repress brutality, and thus elevate human race”. Besides, a trust for the maintenance of animals generally may qualify as a charitable trust, but trusts for the maintenance of a specific animal or animals may be valid purposed trusts. Specific animals include a cat, dog or horse. Furthermore, if we look into the three cases of Re Doughlas (1887) 35 Ch D 472, Re Moss [1949] 1 All ER 495 & Re Murawski Will Trust [1971] 1 WLR 707, the followings trust have been held to be charitable: for a home lost dogs, for the welfare of cats, an for protection of animals from ill-usages, cruelty and suffering. In order to be valid, the trust must either lead to the relieving of suffering of animals or its must not restrict access to public to view the animals.

Meanwhile, in the case of Murdoch v AG (Tasmania) (1992) 1 Tas R 117, SC (Tas), Zeman J explained “…a gift for the benefit of animals is not charitable per se. Something more, by way of a benefit to the community, is required. If the object of the gift is to prevent cruelty t animals such a benefit of animals would readily be perceive…Certain things which might be done for the benefit of animals are of no benefit to the community and may even be contrary to the best interests of the community. It is not enough to say that some things done for the benefit of animals will be for the benefit of the community”.

Importance to says, in the case of Re Grove-Grady [1929] 1 Ch 557, which the decision of this case will not be followed today is about a gift to a society to provide refuge to animals and birds free from human molestation. The English Court of Appeal held that the trust failed as it was not in the public benefit.

So, from the above case especially in Murdoch v AG & Re Grove-Grady, we can see in per se. that the court had depress that the charitable trust for animals must gives or brings the public benefit to the society. But, we must notice that there are still in certain circumstances that the trust to animal or animals can be a valid trust.

So, like I said before, a gift for specific animal or animals may constitute a valid non-charitable trust, but on the other hand, trust for animals generally could be charitable because there still an exception we can found in non-charitable trust, the exception follow the Common Law and also has been accepted in Malaysia. So, in easy words there are certain circumstances that the trust for the animal can be valid although it doesn’t give the benefit to the human. There are the maintenance of specific animals, tombs and monuments and trust for the purpose of Chinese ancestors pray. In the case of Pettingal v Pettingal (1842) 11 LJ Ch 176 , the court held the trust is a valid where the one of the trust includes the gift£50 per annum to maintain the testators’s favourite black mare. Besides, a lot of cases like in for the upkeep of the testator’s horses in Milford v Reynold (1848) 16 Sim 105, specific cats in Re Haines (1952) The Times , November 7, and an annuity £750 for the upkeep of the testator’s horses and hounds for a period of 50 years in Re Dean (1889) 41 Ch D 552. The last case “has been accepted as authority are valid for the perpetuity period; and its believed that this exception to the general rule has been relied on countless cases since Re Dean...:>End.

Certainty of Subject Matter & Object

2010-02-04T23:28:00.001+08:00

Certainty of subject matter

A trustee must be able to identify precisely the trust property he is to hold on trust. Doubt as to the quantum may result in the trust failing to satisfy the requirement. In the case Palmer v Simmonds, the word "bulk" show the uncertainty on how much should the property be given to the beneficiary, the court held that it is not sufficiently certain for the purpose to create trust.
Meanwhile, in Sprange v Barnard, the court held that the remaining part was left and it is not sufficiently certain, thus the husband took beneficially. In the case Jackson v Hamilton, the word "reasonable income" can be said as a certainty of subject matter.

Certainty of the Object

-refers to whether the beneficiaries who will receive the benefit can be clearly ascertained.
In the case Morice v Bishop of Durham, it was stated every trust must have definite object. There must be somebody, in whose favour the court can decree performance.
- non-charitable purpose are invalid unless they fall into limited exceptions.

Requirements of the Trust

2010-02-03T19:38:00.000+08:00

Certainty
3 certainty must be satisfied : ( based on the case Foreman v Hazard)
1. certainty of intention to create a trust
2. certainty of the subject matter
3. certainty of the object

Certainty of intention
- no particular words is required to created a trust (equity looks to intent rather that form)
- " a trust can be created by any language which is clear enough to show an intention to create it" (Halsbury's Law of Malaysia)
- the words used to convey the intention must be sufficiently expressive.
In the case of Quah Eng Hock v Ang Hoi Kiam, the court referred to the need for the words used to be clear & unequivocal & held that words indicating that the donor intended to divest himself
or herself of the beneficial interest woul be sufficient for the purpose.

In Comiskey v Bowring-Hanbury, majority House of Lords held that a trust had been created & on the death of the widow, the property would pass to the nieces as provided for in the will.
Besides, in the case Re Chianch Ke Hu, the expression " I direct my executorto distribute among such persons professing or practising the Budist religion..." was held that words were sufficiently imperative as to create a trust, although it failed as there was uncertainty in relation to the object.

To be continue..