By Khairul Anuar bin Shaharudin (Advocate & Solicitor)

There are a lot of politicians from the legal background either as a graduate of law school but never practice law or famous law practitioners who are fodder for their soundbites in or out of Parliament. They are well-known to be hardliners and don’t care what people say about them. Either to their face or behind them. Some of the best politicians, which are subjective (I mean, what is a good politician? A good bullshitter?) are lawyers. Either in the opposition side or the current government side. Either in the Parliament of Malaysia or as a state assemblyman. All are known for being very good in talking the talk. But do they walk the walk?

Currently, there is a kind of a upheavel among lawyers on the lack of lawyers willing to take the mantel of a presidency of the Bar Council or being on the council itself. There are a few articles in newspaper like in the Star newspaper on 21.11.08 by the Putik Lada columnist or a campaign by http://www.elawyers.com/ aboth the lack of voting papers being returned to the Bar Council secretariat. We vote by post you see.

If any one of the candidate want to rig the voting, I think its plausible as it is just a piece of paper with the name of the candidate and a column for you to tick your choice. This year, there are 23 candidates for 12 post. Everyody remember the fiasco of last year’s Bar Council election? I think, but am not sure, the case on that election is still on appeal. That what’s I love about the Bar Council, half of our yearly fees go to defending the Bar from litigations due to some members not being satisfied with the Council’s decision.

Choose me as the next Bar Council President and I will act cute to get what I want

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By Fahri Azzat

I was reading the decision of GS Gill Sdn Bhd v Descente, Ltd and another appeal [2008] 6 MLJ 181 recently where the Court of Appeal had yet another instance to reaffirm the principle (which really needs no further affirmation or re-affirmation, but perhaps things are the way they are because some judges still need regular reminders every now and again; so I’m also not quite sure why this case even merits a report since it just rehashes principles long stated) that an appellate court would not interfere with an actual finding of fact by a trial court. What they would interfere with is only the inference of fact drawn from a finding of fact. Gopal Sri Ram JCA wrote the lead judgment and referred to the decision of Clarke v Edinburgh Tramways [1919] SC 35 and the dicta of Lord Shaw of Dunfermline which bears reproduction so that the thoughts it provoked from me can be better appreciated:

When a judge hears and sees witnesses and makes a conclusion or inference with regard to what on balance is the weight of their evidence, that judgment is entitled to great respect, and that quite irrespective of whether the judge makes any observations with regard to credibility or not. I can of course quite understand a Court of Appeal that says that it will not interfere in a case in which the judge has announced as part of his judgment that he believes one set of witnesses, having seen them and heard them, and does not believe another. But that is not the ordinary case of a cause in a court of justice. In courts of justice in the ordinary case things are much more evenly divided; witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page. What in such circumstances, thus psychologically put, is the duty of an appellate court? In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, Am I — who sit here without those advantages, sometimes broad and sometimes subtle, which are the privileges of the judge who heard and tried the case — in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment.

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Hi, my name is Sasha Lyna Abdul Latif. I’m a member of the Malaysian Bar.

I’m truly sorry that I have to clog your email inbox but I would like to raise this important issue for your consideration.

As most of you are aware, November is when members of the Bar are given an opportunity to elect 12 members onto the Bar Council. Any time soon you will receive a ballot paper where you can vote for the 12 persons that you feel most qualified to lead the Malaysian Bar.

Every year, the Bar Council secretariat will issue more than 12,000 ballot papers but it is disappointing to note that only about 3,000 or so ballots are filled and sent back to the Secretariat.

Are we part of the 9,000 or so members who don’t bother to vote?  Are we the ones responsible for the trees that have to be cut down just so that these ballot papers end up in the waste bin?

I urge ALL of you, fellow members of the Bar not to put the ballot papers to waste! I urge you, to cast your vote; I urge you to tick those who you believe can get the job done; I urge you to urge others to vote!!
Send your ballot paper back to the Bar Council Secretariat by 30 November!

Get others to VOTE too!! Please end this email to all lawyers that you know!

The list of attendance of Council Members at Meetings from 15 March 2008 to 11 October 2008 is as follows:

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by Khairul Anuar bin Shaharudin (Advocate & Solicitor)

I am not an economist, an analyst or even a lawyer who advice banks how to close million dollar transactions. I am not even a stock player, unless you call owning ASB as stock trading. I have never has an amount larger than RM1,000-00 in my wallet and no more than RM10,000-00 in my bank account at any one time, other than the time my personal loans had just been approved where it ballooned, albeit very momentarily to just below RM50,000-00. My firm just do real estate and banking with corporate work for SMEs once in a while. Oh, and intellectual property. We would like to be known more as a boutique firm, more than anything. Hell, my staff knows each of their files by heart…We would like to keep it that way (is this advertising? I am writing this for friends and clients)

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By David Oh
Intellectual Property Consultant and Director
Mindvault Sdn Bhd

This is the first in a four-part series published on 30 June 2003 in the Netv@lue2.0 pullout of The Edge, Malaysia’s leading Business & Investment Weekly.

Would you like to earn US$35 million in a single day? Could your company do with a multi-million dollar cash injection?

This is what happened to MercExchange LLC on May 27 when a US Federal Jury ordered online auction giant eBay to pay US$35 million in damages for the infringement of two patents held by MercExchangei.

Who is MercExchange? Is it a manufacturing company? Does it own plant and machinery? Does it have a large workforce?

MercExchangeii is a company owned by Thomas Woolston, an inventor and patent attorney, whose main source of income is derived from the licensing of patents owned by Woolston.

MercExchange does not sell any tangible products, it does not own any distribution channels nor does it have many employees and yet, it is now US$35 million richer. Welcome to the knowledge economy.

The New Economy
The advent of globalisation and the k-economy has changed the playing field, bringing with it a new set of rules and perspectives.

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The Minority Shareholder’s Sword to Pierce the Majority’s Twin Shields of Corporate Personality and Majority Rule

Part A. Introduction

A derivative action is an action brought by a shareholder based on a cause of action that the company has, rather than a cause of action belonging to the shareholder. The common law allows a minority shareholder to bring this action on behalf of the company in situations where the company does not take action because the wrongdoer controls the company and is able to prevent the company from taking any action.

The new statutory derivative action, under sections 181A to 181E of the Companies Act 1965 (“the Act”), allows a complainant to apply for leave of the Court to bring an action on behalf of the company. This new action, which came into effect on 15 August 2007 under the Companies (Amendment) Act 2007, allows a shareholder to sidestep the restrictions of the common law derivative action.

The common law rule in Foss v Harbottle (1843) 67 ER 189 states that if a company suffers a wrong then, because it is a separate legal entity from its shareholders, prima facie it is the company that should bring an action. Such a rule allowed a shareholder to bring an action on behalf of the company if two elements could be proven. First, that the wrong is one that cannot be validly ratified by the majority as there has been a fraud on the minority, and second, that the perpetrators of the fraud were in control of the company.

The new statutory derivative action bypasses the narrow Foss v Harbottle rule. However, it is clear that the right to bring a common law derivative action continues to be maintained here in Malaysia (see section 181A(3) of the Act).

The new sections 181A to 181E of the Act are very similar to the statutory derivative action provisions of the Singapore Companies Act, which were in turn modelled after the provisions of the Canadian Business Corporations Act.
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LAWYERS

Lawyers are professional people trained in the law. You may seek their help to solve your problems. They are independent people and any information given to them is confidential and can only be released with your consent. Though a lawyer’s main duty is to protect your interest, he is also an officer of the Court and must not mislead the court or assist you in any way to break the law. He is bound by a strict code of conduct and rules of etiquette.
 
 
WHEN YOU MAY WISH TO SEE A LAWYER

Generally you may wish to see a lawyer to :

Get advice on a legal problem
Represent you in court, if necessary
Assist you in the handling of your legal rights.
 
You may therefore wish to see lawyer, in particular:

When you are charged with a criminal offence, to seek advice on matters relating to your defence, and to represent you in court.
When you wish to make a claim against another party you can ask a lawyer to file a claim for you and to represent you in court.
When some other party has unfairly filed a claim against you in Court, you may wish to seek the help of a lawyer to defend the claim.
 
 
When you are in doubt over any matter relating to the law, it is advisable to consult a lawyer. This is for your own protection. Also, taking legal advice at an early stage could save you a lot of time, trouble and money.
 
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Part A. Brief description

Malaysia’s pupilage system is slightly unique compared to other jurisdictions as the law students entering pupilage do not undergo some form of common graduate course. New pupils can be divided into 3 main groups: those that graduated with a local 4-year law degree, students who went through the CLP and finally students who have been called to the English Bar.

Therefore, the pupilage period is the only common period where you can ensure that a law graduate is sufficiently trained with a core set of skills necessary for them to be an advocate and solicitor. Pupilage is the last link in the chain prior to admission and hence it takes a particularly important role in ensuring that pupils are equipped with core set of skills to prepare them for legal practice.

Therefore, the pupilage period is the only common period where you can ensure that a law graduate is sufficiently trained with a core set of skills necessary for them to be an advocate and solicitor.

Part B. Strengths of the Present System

There are 2 aspects of pupilage that does ensure pupils are being trained: firstly, the ethics programme and secondly, I would argue, the fact that every pupil has to complete legal aid.

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The following are some useful information on renting a property in Malaysia.

1. FACTORS TO BE CONSIDERED:

(i) location;
(ii) neighborhood;
(iii) transportation access; and
(iv) usage

2. DIFFERENCE BETWEEN LEASE AND TENANCY

If the contract term is below three (3) years, it is called a tenancy. If the contract term is beyond three (3) years, it is called a lease.

Legally, leases are registrable with the Land Office and the lessees have a registered interest in the land upon registration.
The interests of a lessee is better taken care of / protected compared to a tenant under a tenancy as they only have an equitable interest on the land i.e. their interests would be subject to those with registered interests.

However, all tenants/ lessees are entitled to the quiet enjoyment of the property subject to the terms and conditions of the governing written document.

Under the common law jurisdiction of Malaysia, the right of quiet enjoyment and the actual possession of the tenants/ lessees are highly protected.

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