KES ZULFARHAN - ALASAN PENGHAKIMAN (MAHKAMAH TINGGI DAN MAHKAMAH RAYUAN)

For my personal reading later. MAHKAMAH TINGGI *Right click, choose "Save As"* MAHKAMAH RAYUAN *Right click, choose "Save As"*

How To Access Lexis Nexis If You Are Malaysian Bar Lawyer or Pupil

P.U. (A) 144 Stamp Duty (Exemption) Order (No. 7) 1994 (BI) - P.U. (A) 144/1994

STAMP ACT 1949

STAMP DUTY (EXEMPTION) (NO. 7) ORDER 1994

IN exercise of the powers conferred by subsection 80(1) of the Stamp Act 1949, the Minister makes the following order:

1.         This order may be cited as the Stamp Duty (Exemption) (No. 7) Order 1994.

2.          (1) Paragraph 4 and subparagraph 5(1) shall be deemed to have come into force on the 14th November 1970.

              (2) Subparagraph 5(2) shall be deemed to have come into force on the 1st October 1989.

.:DOWNLOAD PDF VERSION HERE:.

 .:DOWNLOAD BM VERSION HERE:.

P.U. (A) 144 Perintah Duti Setem (Pengecualian) (No. 7) 1994 (BM) - P.U. (A) 144/1994

Akta Setem 1949

PERINTAH DUTI SETEM (PENGECUALIAN) (NO.7) 1994

PADA menjalankan kuasa yang diberikan oleh subseksyen 80(1) Akta Setem 1949, Menteru membuat perintah yang berikut:

1.       Perintah ini bolehlah dinamakan Perintah Duti Setem (Pengecualian) (No. 7) 1994.

2.       (1) Perenggan 4 dan subperenggan 5(1) hendaklah disifatkan telah mula berkuatkuasa pada 14hb November1970.

           (2) Subperenggan........ 

.:DOWNLOAD PDF VERSION HERE:.

 .:DOWNLOAD ENGLISH VERSION HERE:.

Bahagian Pinjaman Perumahan (BPP) Transformation to Lembaga Pembiayaan Perumahan Sektor Awam (LPPSA)

Mulai 1 Januari 2016, Bahagian Pinjaman Perumahan Malaysia (BPP) akan di transformasikan kepada  Lembaga Pembiayaan Perumahan Sektor Awam (LPPSA), iaitu sebuah badan berkanun bagi menguruskan semua urusan pinjaman perumahan untuk pekerja-pekerja sektor awam.

Segala urusan oleh LPPSA akan diuruskan oleh panel-panel peguam mereka atau peguam ad hoc. Syarat-syarat bagi panel guaman adalah seperti berikut:-

Panel Peguam

Antara lain:
a) Mempunyai seorang rakan kongsi Bumiputera
b) Firma melebihi 7 tahun
c) Seorang rakan kongsi dengan 10 tahun pengalaman amalan perundangan dalam litigasi dan dokumen pinjaman
d) sekurang-kurangnya 5 orang peguam bertauliah
e) insurans sekurang-kurangnya RM2juta


Ad Hoc

Antara lain:
a) Mempunyai seorang rakan kongsi Bumiputera
b) Firma melebihi 7 tahun
c) Seorang rakan kongsi dengan 10 tahun pengalaman amalan perundangan dalam litigasi dan dokumen pinjaman
d) sekurang-kurangnya 5 orang peguam bertauliah
e) insurans sekurang-kurangnya RM1juta

Section 323 National Land Code 1965
 
Whether monetary claim is caveatable interest?

The 3 hurdles principle
 
#GOH PAIK SWAN v NG CHOO LUM [1996] 3 MLJ 437
(i) whether the respondent, on the material set out by him in his application under s 323(1) of the Code, has disclosed a caveatable interest;
(ii) if he has established a caveatable interest, then, whether the evidence he produced in support of his claim to that caveatable interest discloses a serious question to be tried; and
(iii) if the first two questions are resolved in the respondent's favour, then, whether the balance of convenience, or more appropriately, the balance of justice, lies in favour of the caveat remaining on the register pending the disposal of his suit

#DUSUN DESARU SDN BHD & ANOR v WANG AH YU & ORS (NO 2) [2001] 5 CLJ 8
A personal claim known as an in personam claim is enforceable against the registered proprietor and not the land itself and consequently, it is not caveatable.

“A monetary claim against the second plaintiff cannot in law constitute a “registrable interest” under s. 323(1)(a) of the NLC. The phrase “registrable interest” has a special meaning and it should not be diluted nor corrupted by any transaction outside the NLC.”
 
#INSTITUT TEKNOLOGI FEDERAL SDN BHD v IIUM EDUCATION SDN BHD [2007] 7 MLJ 23
Mere pecuniary interest in land does not entitle a person to lodge a caveat under S 323 of the National Land Code (see para 28)

#REGISTRAR OFTITLES, JOHORE v TEMENGGONG SECURITIES LTD [1976] 2 MLJ 44
Although Malaysian income tax became due and payable by the taxpayer to the Federation upon notice of assessment its legal nature was that of an unsecured civil debt. Until it was converted into a judgment by the recovery of judgment in an action, the unsecured civil debt gave rise to no legal rights in or over any property of the taxpayer nor to any remedies against the taxpayers property. It was a mere personal claim against him and did not come within the meaning of "interest" in section 320(1) of the National Land Code.

Conclusion: Monetary claim is not caveatable interest.

Procedures for Company voluntary winding up Malaysia.

Procedures for voluntary winding up.

Member’s voluntary winding up

 
Two circumstances (S 254)
i. When it is provided in Memorandum and Article of Association (M&A) of the company - S 254 (1) (a)
ii. Through special resolution – S 254 (1) (b)
 
1. During meeting of directors – made a written declaration (Declaration of Solvency - DOS) (S 257 (1))
The DOS shall contain:
- inquiry into the affairs of the company
- opinion form the director that the company will be able to pay its debts in full within a period not exceeding 12 months after commencement of W/U

Requirement for the DOS (S 257 (3)):
- made at the meetings of directors
- made within 5 weeks – preceding the passing of the resolution
- lodge with Registrar of Company – before the date which the notice of meeting for the resolution of W/U to be sent out – Lodge through F 66 of Companies Regulation 1966.

2. Notice for General Meeting to pass resolution – made by directors (S 145)

3. General Meeting - Pass resolution
- appoint the liquidator (S 258 (1))

4. Company shall then:
- lodge with the Registrar of Company the Notice of Resolution (F 11 of Companies Regulation 1966) – within 7 days after passing the resolution (S 254 (2)(a))
- give notice of the resolution in newspaper – within 10 days after passing the resolution (S 254 (2)(b))
ð Where a provisional liquidator is appointed before the passing of a special resolution, the W/U commences at the time when Form 65A is lodged with the ROC
ð For voluntary W/U the liquidator does not need to be an approved liquidator – a director/other officer of the comp may also be an appointed liquidator [S 10 (2)]
o However in CVWU, this is subject to the approval by a simple majority of creditors meeting

Creditor’s voluntary winding up
a. If company is insolvent/Directors did not make & lodge a declaration of solvency
Director – in addition for calling for members meeting – convene a meeting of creditors
- lay statement before them the company financial position (S 260(1))
b. If director lodged Declaration of Solvency
i. Liquidator appointed à Liquidator’s opinion – company unable to clear its debt within 12 months
ii. Liquidator must convene a meeting of creditors [S 259 CA]

S 176 of the Companies Act
- Provision enable the rights & liabilities of members and creditors of a company to be reorganized by a scheme of compromise or arrangement - the scheme once approved, will binds the company, members and creditors

- Several types of schemes of arrangement:
i. Arrangement between a company and its creditors – proposed when a company is in financial difficulties
- alternative to drastic step of winding up the company
- during the moratorium, the comp affairs are run by a scheme administrator or manager appointed by the creditors – scheme administrator is usually given extremely broad powers – often include the ability to sell the comp business & in some cases, sell members shares.
ii. Compromise scheme – creditors agree to accept payment of less than amounts they are owed in full satisfaction of their debts

- Procedure:
i. Comp, Member, Creditor or liquidator (if the comp is being wound up), may apply to the court for an order that a meeting of members or creditors or classes of members or creditors be convened so as to initiate a proposed schemes.

- in considering whether the meeting should be ordered to be held, the court will consider the terms of the proposal of the scheme of arrangement to be viable, feasible, workable or intelligible. Twenty First Century Oils Sdn Bhd v Bank of Commerce (M) Bhd & Ors (No. 2) [1993] 2 MLJ 353
Re Kuala Lumpur Industries Bhd [1990] 2 MLJ 180
-> S 176 (1), O 88 R 2 ROC 2012
a. OS order to convene meeting: Form 129 Atkins Court Forms (pg: 1225)
b. Affidavit in Support: Form 130 Atkins Court Forms (pg: 1301)
c. Notice of meeting of creditors: Form 131 Atkins Court Forms (pg: 1308)

ii. Scheme is binding only if it is approved by both the required majority (3/4 in value) of creditors or members and by the court [S 176(3)]
a. Petition for sanction: Form 683 Atkins Court Forms (pg: 2554)
b. Affidavit in Support: Form 684 Atkins Court Forms (pg: 2558)

iii. Scheme will only come into effect when the copy of the court order approving it is lodged with the Registrar. [S 176(5)]
a. Court Order: Form 691 Atkins Court Forms (pg: 2707)
- S 176 (10) also gives power to the court to restrain proceedings – period not more than 90 days
- S 176 (10A) provide for requirement that the court will look upon granting the restraining order.
- S 176 (10B) person approved/appointed by the court to act as a director of the company under S 176(10A) – have the right of access at all reasonable times to the accounting and other records of the company – entitle to require from any officer of the company such info. & explanation – he/she may require for the purpose of their duty.
- S 176 (10C) & (10D) – any disposal/acquiring of property of the company – other than made in ordinary course of business – made after the grant of the restraining order by the Court – shall be void.
- Where an order is made under S 176 (10), every company in relation to which the order is made shall, within seven days – lodge the copy of the order to Registrar – publish a notice of the order in a daily newspaper

Formation of Society in Malaysia

Formation of Society
 
Requirement
 
1. Conduct a meeting 

- must be attended by not less than 7 persons
- names of person attending must be written in the minute of the meeting

2. The meeting shall pass a resolution on the: 

- formation of the society
- name of the society
- the address/place of business of the society
- appointment of the Promoter committee – arrangement of the registration of the society
- the constitution & rules of the society

The minutes of the meeting shall be put on record.

3. Registration of the society [can be made online (http://www.eroses.gov.my/)]
 
- only can be made by the secretary
- what is needed for registration:

i. the constitution of the society – if using own constitution, must get approval from the ROS first – have to obtain the reference number with regard to the approval of the constitution from ROS.

- Go to ROS Perak at JPN building at Meru Raya – submit 2 copies of the constitution for approval – upon approval, ROS will give a reference number.

ii. The Promoter committee of the society – President, Vice-President, Secretary, Assistant Secretary, Treasurer and 2 committee members – 7 persons overall.

Particulars needed:
Position, Title, Full Name, Gender, Nationality, IC No., Birth date, Place of birth, Occupation, House address, Email, Telephone No (House, Mobile, Office) and Employer details (Name & address).

iii. Minutes from the first meeting

Date, Time, Place, Attendance, Name of the society and Committee members name

iv. Revisions and amendment of the Constitution

Applicant have to fill in the blank spaces if they intend to use their own constitution. (refer Page 62 of Panduan Penguna eroses)

v. Fees Payment

- Can be made through online or manually at the counter.
- RM 30 for new application

Restitution on Illegal Contract

Restitution on illegal Contract
 
“illegal contract”: CL: agreement which is forbidden either expressly or impliedly by the law, be it common law or statute, for reason of public policy.

illegal=void, void≠illegal

Malaysian - Contract Act– did not distinguish illegal/void contract

Section 24 – where consideration/object of an agreement is unlawful

General Rule: No person who is aware of the illegal nature of an agreement can enforce it or recover a benefit transferred under it.

#Singma Sawmill: Raja Azlan Shah “there was…an intention to make use the lease or agreement for an unlawful purpose…In such cases any party to the agreement who has the unlawful intention is precluded from suing upon it. Ex turpi cause non oritur action. The action does not lie; not for the sake of the defendant but because the court will not lend its assistance to such a plaintiff. The court will look behind such cosmetic arrangements to see the real intention”

General Rule criticized:
- it is suggested that the foundation of the ex turpi causa rule is public policy and that being so the rule must be applied pragmatically and flexible rather than rigidly and automatically.

Exception to the GR

1) Law of contract
- where it is found through the interpretation of the statute – infringement is not such a nature as to leave the PF remediless – the court will look at the intention of the legislature enacting such provision.

#YANGO PASTORAL COMPANY PTY LTD V FIRST CHICAGO AUSTRALIA
 
#MALAYAN BANKING BHD v TEGUH CONSOLIDATED

My Case Index

Law of Society

Law	Case Name	Description	Catchword
Societies Act 1966 S 7, 9(a), (b), (c),(e)(i),(ii), (f), (h), 17(1)(a), (b)	Lee Tak Suan & Anor v Tunku Dato Seri Shahabudin bin Tunku Besar Burhanuddin	- although the suit is not in the society's name, it is still a suit by or against the society, but through its agent. - where a suit against a registered society succeeds, the judgment is enforced not against the person or the property of the person in whose name the society is sued but 'against the property of the society', which fact in turn signifies that a society is recognised as a property-owning entity - where a registered society sues a member and loses, according to the proviso to s 9(f) the successful member may recover his costs either from the person in whose name the society sues or from the society itself, in which case the successful member may have execution 'against the property of the society'	-
	Tan Ying Hong V Tan Sian San	- Overuled Adorna Properties	- Proving fraud

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LONG CALL CHECKLIST 2014 - For Malaysian Chambering Student

LONG CALL CHECKLIST

Note:

· PLEASE BE ADVISED THAT THIS LIST IS NOT CONCLUSIVE, PLEASE UPDATE WITH YOUR RESPECTIVE STATE BAR/MALAYSIAN BAR. THIS IS MERELY A GUIDELINE, I WILL NOT BE RESPONSIBLE FOR ANY PROBLEM CAUSED BY FOLLOWING THIS GUIDELINE.

· If you are an outstation student, please do inform the RKKK staff because some of the procedure is quite different.

· Last edit is on 2/1/2014 – adopted the new e-fling system procedure & new court fees scale. You have the permission to edit this document to incorporate any new procedure. Together we share new knowledge and help the incoming new lawyer to be. :)

· Pupillage ends on the same day nine months after the Petition was filed, eg. If the Petition was filed on 1/3/11, pupillage should end on 1/12/11, not 30/11/11. If 1/12/11 falls on Saturday, then your date should be 30/11/11. Anyway, please check with Bar councils for confirmation.

· Items 1 to 5 can be done on the same day.

- Download the file attachment here:  LONG CALL CHECKLIST

A.	3 weeks before pupillage ends	Checklist
1.	Obtain Certificate of Completion of Legal Aid from the Legal Aid Centre at the respective State Bar. It should be ready 2 to 3 weeks after completion of the 14 days of legal aid duty.
2.	Obtain confidential report from the State Bar. Documents needed for the confidential report to be prepared are: i) relevant State Bar form with required signatures of the Selangor Bar committee members obtained at the orientation session; ii) Photostat copies of certificates of attendance for at least 4 talks; and iii) Certificate of Completion of Legal Aid.
3.	Submit a copy of the Certificate of Completion of Legal Aid to the Bar Council. Submit confidential report to the Bar Council. They will subsequently forward it to the Court. Follow up on this about a week or so later. (IMPORTANT – the confidential report must be in the Court file when Borang 6 is filed later)
4.	Pay Discipline Fund of RM200 to the Disciplinary Board at the 8th floor, Wisma Maran (above Ambank within walking distance of the Bar Council).
5.	Bring the Discipline Fund receipt to the payment counter of the Bar Council and inform the cashier that you wish to pay the Instrument of Admission fee of RM30. You will then be required to fill in a form. Pay the fee and keep the receipt. The person in charge of drawing up your Instrument of Admission will then ask you to check whether your details on the Instrument of Admission are correct. Put your signature down on the back of the Instrument of Admission after correction, if any, has been made.
6.	Check with the High Court, Bahagian Rayuan dan Kuasa-Kuasa Khas whether the posting of your notis Borang 2 (Notis Penampalan) is complete. If it is, you will be given 2 copies of Certificate of Posting Forms to fill up. Do so carefully, according to instructions, otherwise you will run the risk of paying RM20 to get a new set. After filing the Certificate of Posting Forms, go to http://efiling.kehakiman.gov.my/eFiling/ to extract the Certificate of Posting Forms duly executed by the registrar. This can possibly be done on the next day. Or, if you are outstation pupils, you can extract the Certificate of Posting on the same day in the evening, provided you need to file it during morning time. You have to tell to RKK that you are outstation pupils. Keep this carefully as it is an exhibit to Borang 6.
7.	Fill in Borang 6, 7 and 8. There should be 2 copies of Borang 7 (Sijil Kelakuan Baik) as there are 2 referees. Lawyers from your firm and family members cannot be your referees.
8.	Fill in Borang 8 and get your master to sign it. Make sure it is dated at least one day after your pupillage ends.
9.	Prepare Borang 6 and its exhibits, each duly accompanied by a ‘Sijil Perakuan Ekshibit’. Note that none of these need be certified true copies. Exhibit Document A Birth Certificate (duplicate) (front and back) B Identity Card (duplicate) (front and back) C CLP/Bar Certificate (duplicate) D Duly signed Borang 7 (original) E Duly signed Borang 7 (original) F Borang 8 duly signed by master (original) and Ethics Lecture Certificate (duplicate) - For outstation, may have to put Legal Aid completion letter together G BM Exemption (or Examination) Certificate (duplicate) H Certificate of Posting (duplicate)
10.	Prepare 1 copies each of the Notis Perbicaraan and Sijil Pengesahan Dokumen.
B.	1 day after pupillage ends or later	Checklist
11.	Affirm Borang 6 and the attached “Sijil-Sijil”. This can be done at the Court.
12.	Bring the following documents to e-filing counter for scanning. 1) Borang 6 and exhibits (RM16.00) 2) 1 copies of Notis Perbicaraan (RM200.00) 3) 1 copies of Sijil Pengesahan Dokumen (RM40.00)
13.	After finish scanning, and payment of the filing fees, the documents will be returned to you with a receipt by the cashier. Bring the following documents to the Bahagian Rayuan dan Kuasa-Kuasa Khas: 1) Borang 6 and its exhibits; 2) 1 copies of Notis Perbicaraan; 3) 1 copies of Sijil Pengesahan Dokumen; 4) 1 DUPLICATE copy each of the Discipline Fund receipt (RM200) and the Instrument of Admission fee receipt(RM30); and 5) all the original documents, the duplicates of which are annexed to Borang 6 as exhibits (birth certificate, I/C, CLP certificate, ethics lecture certificate, BM exemption certificate, and certificate of posting). Your long call date and time will be given to you. You will be requested to leave your original documents, photocopies of which have been attached as exhibits to your Borang 6, with them. Come back in 1 or 2 days’ time to collect your original documents, Sijil Pengesahan Dokumen and Notis Perbicaraan. You will not receive your original Borang 6 and exhibits. Or, If you intend to do your long call at outstation court (High Court other than KL HC), they will give you 2 copies of letter for you to fill in and then, return back to them 1 copy of that letter. You will be requested to leave your original documents, photocopies of which have been attached as exhibits to your Borang 6, with them. YOU JUST NEED TO WAIT FOR A WHILE AND THEY WILL RETURN BACK THE ORIGINAL DOCUMENTS TO YOU.
14.	Make 4 copies of both the Sijil Pengesahan Dokumen and the Notis Perbicaraan at the bookstore in the cafeteria at B1.
15.	Serve the following documents to the following bodies: Duplicates of: a) Notis Perbicaraan; b) Sijil Pengesahan Dokumen; and c) Borang 6 and exhibits. Bar Council Duplicates of: a) Notis Perbicaraan; b) Sijil Pengesahan Dokumen; and c) Borang 6 and exhibits. KL Bar Committee 8th Floor, Wisma Kraftangan No. 9 Jalan Tun Perak 50050 Kuala Lumpur To outstation student, to your respective statebar. The Duplicates of: a) Notis Perbicaraan; b) Sijil Pengesahan Dokumen; and c) Borang 6 and exhibits. AG’s chambers, Putrajaya Make sure the acknowledgement stamps from each body are fixed on your acknowledgement copy. When serving your documents at the Selangor Bar (STATE BAR FOR OUTSTATION STUDENT), check to see if your file is in order.
16.	PREPARATION OF AFFIDAVIT OF SERVICE (AOS) Photocopy the Notis Perbicaraan, Sijil Pengesahan Dokumen and Borang 6 with exhibits with the acknowledgement stamps to annex as an exhibit in your affidavit of service. Staple the whole bundle together.
17.	Go to the High Court, affirm the AOS and the certificate verifying exhibit, and take a number for the High Court payment counter. Pay the filing fees of RM 8.00 and file the affidavit.
18.	Make sure you have someone to move your long call. The mover must have at least 7 years’ standing and must not be from your firm.
19.	Prepare your long call speech following the prescribed format, give a copy to your mover.
20.	Inform the state bar of the court you are being called in of the identity of the lawyer who is moving your call.
C.	The week before your Long Call
21.	Find out the name of the judge presiding over your call and the relevant court. Also check the number of your petition on the list. This information can be gotten from the notice board in the Bahagian Rayuan dan Kuasa-Kuasa Khas at the High Court. Insert the name of the judge into your draft order.
22.	Prepare 2 copies of your draft long call order. Leave spaces for the names of the 3 representatives, which are to be filled in on the call day.
23.	MAKE SURE YOU HAVE BOUGHT (OR BORROWED) A BIB AND ROBE.
D.	The day of your Long Call
24.	Bring both copies of your draft long call order and a copy of your speech.
25.	Be at court at least half an hour before your call starts. Go to the court interpreter’s table at the front and check the number of your petition on the list. The names of the 3 representatives will also be at the end of the list. Fill in the names into your draft long call order. Sit at the long bench at the side in the order your petition will be called.
26.	After your Long Call, get your mover and the 3 representatives to sign your draft long call order. Get both draft orders signed if possible. MAKE SURE YOU USE A BLACK INK PEN. Try to get the representatives to sign your draft order before they leave or you will have to track them down individually to get their signatures.
27.	Give your signed draft long call orders to the Bahagian Rayuan dan Kuasa-Kuasa Khas (FOR OUTSTATION TO THE NORMAL FILING COUNTER or GIVE TO THE INTREPRETER). One will be kept by them, one will be returned to you. They will inform you as to when your draft order may be collected (Normally the day after). Get the judge to sign your Instrument. (That you had purchased from the Bar Council for RM30, remember?)
E.	After your Long Call
28.	Extract your corrected draft long call order, make sure you bring a soft copy along so that amendments can be made on the same day.
29.	When preparing your fair long call order, ENSURE THAT THE WHOLE ORDER FITS ON ONE PAGE. Use Arial font size 11. Make 2 copies.
30.	File both copies of the fair order along with the draft order and filing fees of RM150.00. (Check back the new filing fees!)
31.	After about 3 days, extract your fair order from efiling ekehakiman website. It is advisable you print it in colour. No need to CTC that copy. This is for the purposes of your application for your Practicing Certificate.

Che man che mud

But, on the evidence for the prosecution, did the appellant, in law, abet the offence of criminal breach of trust by Harun?

Abetment by instigation is out of the question, because there is no evidence for it.
As to abetment by conspiracy, from the evidence there is no doubt that there was a plan to divert a credit amount in Bank Negara from the Accountant-General's account to Bank Bumiputra's account and, from there, and so that the credit could be converted to money, to a private account in Bank Bumiputra. For the success of the plan certain people had to be engaged for certain roles. Harun was to effect the diversion and the appellant was to provide the facilities for the final destination and encashment of the credit. The mastermind could have been Harun or someone else. The appellant received for certain RM333,000.00 for his part. He might have received more. However, from the evidence, it cannot be said that he was the mastermind.

There is no evidence as to the circumstances in which the appellant took on the role that the

evidence showed he actually played. There are only probabilities that arise from the entire evidence. It is probable that the appellant had taken part in the formation of the whole plan right from the beginning with Harun and others, such as Norlah Khan. If that had been the case, he could be said to have engaged with one or more other person or persons in a conspiracy for the commission of breach of trust by Harun, and he would have abetted the commission of that offence by Harun. On the other hand - more so if one recalls what happened to Abdullah bin Che Man the businessman - it is equally probable that the appellant had been approached by someone, either Harun or someone else, and been offered the part he was to play and given instructions as to what he was supposed to do. The appellant might have asked where the money was coming from and he might have been told that Harun would take care of that, that the appellant did not need to concern himself with that problem and that all that he needed to do was to open the account and later issue the cheques and so on. If that had been the case, the appellant could not be said to have engaged with one or more other person or persons in a conspiracy for the commission of breach of trust by Harun.

In any case, if there had been an engaging in a conspiracy by the appellant, the time and place could not have been as in the charge, but earlier and at some place or places other than the Dayabumi branch of Bank Bumiputra.

Because there is no direct evidence of conspiracy involving the appellant, or any one else for that matter, and the evidence for the prosecution lays itself open as well to the probability that the appellant did, as to the probability that he did not, engage in any conspiracy for the commission of criminal breach of trust by Harun, there is no proof beyond reasonable doubt of abetment by conspiracy by the appellant.

For abetment by aiding, it is necessary to determine at what point in time Harun committed the criminal breach of trust. In my opinion it was not later than the time when the teller at the Kuala Lumpur branch of Bank Negara received the debit voucher that Harun had forged for crediting the RM22.2 million into Bank Bumiputra's account. After that the credit went into Bank Bumiputra's account and there is no evidence that Harun was entrusted with that account or with dominion over it, so that Harun's instruction to Bank Bumiputra Money Market to transfer RM22.2 million from that account to the Dayabumi account could not constitute an act of breach of trust, and the appellant's opening of the Dayabumi account could not constitute abetment of that act by aiding.

The offence of criminal breach of trust by Harun having been committed before the time Bank Bumiputra's account was credited, the opening of the Dayabumi account by the appellant cannot be said to have facilitated the doing of anything by Harun up to and including that point in time. It may be that Harun would not have performed his part of the plan in Bank Negara unless there was an account ready to which the amount of RM22.2 million would finally be credited, but nonetheless the facility provided by the account was a facility not for the commission of the criminal breach of trust but for the subsequent gathering of the fruit of the crime.

Therefore, on the evidence, the appellant did not, in law, abet the criminal breach of trust by Harun.
As to the offence of cheating, although the charge against the appellant did not specify who it was that Harun was alleged to have cheated, it must be taken from the charge against Harun that it was the management of Bank Negara and that the deception consisted in the presentation of the forged debit voucher to transfer RM22.2 million into the account of Bank Bumiputra. Therefore, if at all Harun committed the offence of cheating, it was the case for the prosecution that the offence was committed when the teller, upon being handed the forged voucher, credited the account of Bank Bumiputra, which is the same point in time as the offence of criminal breach of trust was, in my opinion, committed. I need not make a finding as to whether there was an offence of cheating because, even if there was, the appellant, for the same reasons as I have given in respect of criminal breach of trust, did not, on the evidence, abet the commission of the offence of cheating by Harun, whether by instigation, by conspiracy, or by aiding.

I think the learned trial judge was right in not finding that the prosecution had made out a case to answer on the principal charge or the first alternative charge.


In the result, I allow the appeal, quash the conviction of the appellant and set aside the sentence. As the compensation order under section 426(i)(b) of the section 426(i)(b) of the Criminal Procedure Code could only have been made against a convicted person, I also set aside that order.

Bankruptcy

INTRO

Defi: legal process – debtor asset by an order of court are taken by the DGI – to distribute the assets among his creditors
Jurisdiction: High Court

Party Involved

a) Debtor
- S 3 (3) of Bankruptcy Act define the word debtor
- S 5 (1)(d) of BA: conditions for Creditors Petition
Deceased Debtor
- S 122 (2) BA – proceeding stayed if the petition has been presented and served
Person capable to be adjudged bankrupt
i) Foreigner
If falls within the defi of debtor in S 3 (3) & 5 (1)(d) of BA
ii) Married Women
S 120 of BA
iii) Minors or infant
# Re Davenport
Through ad litem
iv) Lunatic, person of unsound mind
Mental Disorder Ordinance 1952
v) Companies
Cannot = S 121 BA
vi) Firms
S 103
Rule 219 & 221 Bankruptcy Rule
vii) Social guarantor
S 5(3) immune so long as creditor cannot proves he had exhausted all avenues to recover debt owed to him by the debtor.
S 2 of BA define “social guarantor”

b) Creditor
Preferential creditors – S 43
~ highest priority
Secured Creditors
~ Schedule C
Unsecured creditors
~ a person not entitled to any priority
DGI
~ the receiver of the property of the debtor upon making the RO

Irrecoverable debts
- S 40 BA demand of unliquidated damages
- Debts barred by LA
- Debts from illegal transaction
- Money claimed under under pending proceeding – there is uncertainty and no finality in the claim
- Debts incurred on / after the commission of bankruptcy
- Claim for non payment of alimony

Requirement
- Act of bankruptcy was committed
- Minimum debt owed: RM 30,000 or more (S 5 of BA)
Office copy of the judgment

Evidence 1. Jun 2012 Past Year Question - Identification Evidence

Evidence 1. Jun 2012.

Part B

Question 1

a) Whether the identification evidence made by all the witness admissible.



Section 5 – Intro



Section 9 – rules of admissibility of identification evidence

“facts necessary to establish the identity of any thing or person whose identity is relevant”



Visual identification - Turnbull guideline - principle when case depends wholly or substantially on the correctness of identification of the accused – judge need to warn himself – need for caution before conviction the acc – reliance of the correctness of the identification.





With regard to Wilson identification

- His description: a short, balding guy, weigh around 60kg.

- Incident happens at night

- #Jaafar bin Ali – visual identification of poor quality

- #R v Long – visual poor - may be good if corroborated

- Whether Identification Parade is in good quality – all must hv same physical appearance with the accused –

#Mohamed b majid: [A] dark, paraded with light person-unfair

#Pasupathy: diffirent age & height = unfair



With regard to Ruff identification

- Description: slightly short and heavy guy

- Robbed at 2pm – well lighted

- Have seen the robber before

- #Dato mokhtar hashim – if already recognize the robber no need IP

- However, #PP v Richard Devadasan – want (lack) of evid of earlier identification in an IP does not affect the admissibility of the evid of identification in court – mere evid of identification – first time in court – not sufficient to sustain the conviction - no conviction can be based on identification for the first time in court – and too by a solitary witnesss.

With regard to Gina identification

- Alice telephone her – care to be taken there may be many customer to call in a day – but she meet Alice before - but facts did not said whether she talked to Alice before.

- #Teng Kam Seng – victim able to recognice acc voice as the acc had telephoned them before – identity of acc established

- If Gina had talked to Alice before, her identification may be admissible. If not, it may not be admissible – based on above case.



b) Whether statement from Ins Johnson relevant and admissible

- S32 (1) (i): statement made in the course of an investigation 
#Mohd Jamil b Yahya: though applicable, taking into consideration of the witness – carries little weight. Must be examined with greatest caution – false stories – facts cannot be verifiedthrough cross-examination of the declarant – may falsely implicate an acc.

Section 176 of Companies Act 1965 Notes

Section 176 Case Study

Issues on S 176(1) of Companies Act 1965 (CA) - Scheme of Arrangement

1.  Consideration taken by the court before giving order to convene meeting

#Re Kuala Lumpur Industries Bhd [1990] 2 MLJ 180

VC George J “In my view, what must be available to the court when considering a [S 210 (1)] application must be a proposal of a scheme of compromise or arrangement not necessarily ready for presenting to the creditors to be voted upon but with sufficient particulars to enable the court to assess that it is feasible and merits due consideration by the creditors when it is eventually placed before them in detailed form. Further, the court has to be satisfied that there is or that there would be a bona fide [S 210(1)] application”

2. Scheme is not bona fide for benefit of creditors

 

#Re K Rees Emporiums

Facts: Application for an order for a meeting of creditors – comp had been put into voluntary liquidation. Issue arise (a) who were entitle to apply for the order of meeting if comp is being wound up (b) requirement for the application to convene a meeting

Held: in case of comp is being wound up, the right to apply under this section is not confined to the liquidator but includes any creditors/members of the comp

- In the application, it must be shown that:

  (i) the applicant has the requisite qualification under the section

  (ii) there is in existence a bona fide proposal for a compromise or arrangement – a proposal of such a character that it can be seen as a bona fide attempt to conciliate the relations between company and creditors for the common benefit of the creditors to whom the proposal was intended to be addressed; and

  (iii) it is proposed to summon the creditors in an appropriate way - that the creditors can be ascertained and notified.

- but apart from the above, court still retain discretion @

Application refused – not made bona fide – not all creditors received notice of meeting.

[www.eatz.me]

3) Scheme must be viable, feasible, workable or intelligible.

#Twenty First Century Oils Sdn. Bhd. v. Bank Of Commerce (M) Bhd. & 2 Ors. (No. 2) [1993] 2 CLJ 677

Fact: The applicant, Twenty First Century Oils Sdn. Bhd. applied ex-parte and obtained an order on 17 February 1993 pursuant to s. 176(10) of the Companies Act 1965. Ie: Restraining Order

An application to Court was made by Bank of Commerce (M) Bhd., a secured creditor of the applicant, (and supported by two (2) other secured creditors), to set aside the restraining order.

Held: 1. On a proper reading of the proposed scheme of arrangement the scheme is not viable, feasible, workable or intelligible.

2. The proposed scheme of arrangement has not and will not get the support of the statutory majority in number representing three-fourths (3/4) of the class of creditors, that is, the secured creditors.

3. On the considerations above, no purpose would be served under these circumstances in holding the proposed meeting of the creditors of the applicant, Twenty First Century Oils Sdn. Bhd.

Issues on S 176(3) of CA

#Transmile Group Bhd & Anor v Malaysian Trustee Bhd & Ors

Facts: Petition presented by TGB & TAS – seeking the sanction of this court for the schemes of arrangement between each of them and their respective creditors – S 176(3) of CA

The creditors/respondent: MTB (1^st Respt), STL (2^nd-13^th Respt.) & CB SPV (14^th Respt.)

13 July 2010: TGB & TAS filed OS – leave to convene meeting & restraining order – MTB raised a preliminary issue relating to the priority of claims – court answered the issues in negative – all creditors are to rank Pari Passu

Petitioner seek the court’s approval for the (1) scheme of arrangement between TAS – scheme creditors (2) scheme of arrangement between TGB – STLs – CB SPV who claim under guarantees given by TGB

MTB opposes the sanctioning of the TAS & TGB schemes on several bases.

Legal Principle:

Adopted the principle in Re Hawk Insurance Co. Ltd. [2002] BCC 300 – 3 stages in the process - arrangements becomes binding on the company and all its creditors. First, Application to the court – an order that a meeting or meetings  be summoned – decision needs to be taken as to whether or not to summon more than one meeting, who should be summon to which meeting. Second, scheme proposal – put to the meeting/s. Third, if approved at the meeting/s – there must be further application to the court  - to obtain the court sanction to the arrangement

Each of stages serves distinct purpose – first stage, court directs how the meeting/s are to be summon – to ensure that those who are to be affected by the arrangement have a proper opportunity – present at the meeting/s at which the proposal are to be considered and voted upon. Second, ensure the arrangement are acceptable to the majority. Third, (a) to ensure that the meeting/s hv been summoned & held in accordance with the order – (b) ensure that proposal hv been approved by requisite majority – (c) ensure that the view & interest of those who hv not approved the arrangement at the meeting/s receive impartial consideration.

The court is not bound by decision of the meeting - it can exercise it’s own discretion – if it satisfied that the meeting is unrepresentative/those voting at the meeting hv done with special interest.