Rainy day blues -- Countdown for QingMing

This week and next week is the Qing Min festival -- a traditional day for sweeping the graves and remembering the ancestor.

An often-quoted poem by Du Mu, a leading poet who lived in ancient China (AD 803-852) (杜牧)









Translation:
During the festival of Qingming,Rain drizzles without end,
A lone traveler on the road is overcome by grief.

He would like to know where to find a wineshop,
The shepherd points to the village ahead where the apricot tree blooms.

New Health Promotion Board

According to YB Chow Kon Yeow (DAP Tanjong), a new bill on Malaysian Health Promotion Board 2006 has been tabled for first reading on Monday.

Then, I started to relate that the news published on Sunday Star was actually a soft launch for the Health Promotion Board. The news title was "Soi Lek on a mission to check lifestyle diseases"

Well, this sounds familiar.

Check this out.
Singapore Health Promotion Board

Singapore Health Promotion Board Act 2001

Type the words "Health Promotion Board" in Google, you will find the equivalent statutory board and legislation of other commonwealth countries (Canada, Australia etc).

My resolution to maintain good health: 30 minutes jogging for three times a week. Hopefully, I can maintain this long enough and transform it into a habit. Let me register a caveat:I can achieve the target provided my alarm clock works and the sky is clear between 6am to 6.30am.

Reflection on France CPE: Where is the safety net?

The unemployment rate for France is all time high - 10%. The France right-wing Government passed a law known as CPE, the "Contract Premiere Embauche" (In English, the "First Employment Contract"). The CPE applies to those under 26 years old and gives the employer the right to terminate the new hire's within two years without giving to any reason.

On March 7, up to a million people in France demonstrated in opposition to the CPE.

The daily update on the France demonstration can be access via the blog of "Unrest in France".

From the Malaysian perspective, the France CPE is a piece of legislation that discriminates against the youth and transgress to the fundamental liabilities of right to life. According to the Malaysia Court of Appeal in the case of Tan Tek Seng, right to life in Article 5 of Federal Constitution is inclusive of right to livelihood. Furthermore, Article 8 is an equality clause and guarantees the procedural fairness in the dismissal hearing. The employers in Malaysia have to hold domestic inquiry and state the reason before terminate an employee.

I will write more on the employment safety net in the next blog.

No quota system for CLP Exam, court told

©Bernama KUALA LUMPUR, March 27 (Bernama)

There is no government policy or a quota system for the passing percentage for the certificate in Legal Practice (CLP) examination, a CLP Qualifying Board member told the Sessions Court, Monday.The member, High Court Judge Datuk Abdul Wahab Patail, said there was no such instructions or a written policy from the government.

He said results of the main and supplementary examinations of the CLP varied from year to year."In my experience as a board member since 2001, results mostly depend on the standard of question papers and quality of students sitting for the examination for that particular year," he said.He was testifying in the trial of CLP examination director Khalid Yusoff, 51, charged with tampering with the results of the 2001 CLP examination for pecuniary gains at the board's office at Menara Tun Razak in Jalan Raja Laut between August and Sept 13, 2001.

For full report, click here.

My first legal aid case

The deceased, ABC, died intestate (without a will) in 1996. Mr ABC was the sole strata title holder for an apartment unit. He left behind a wife and 3 children. One of them is a minor (now 17 years old).

His wife, DEF, retained a law firm to extract the Letter of Administration and transfer the name of the title to the beneficiaries. Her two children has renounce the right of claim to the apartment.

10 years has passed but DEF still not able to sell the apartment.

Since the value of the property is less than RM600K, it is within the jurisdiction of the Land Office under the Small Estate Distribution Act.

The conveyancing clerk did not consider the fact that one of the beneficiaries is a minor and had not execute a deed of trust. The representation to the land office was rejected.

DEF came to see me. She knew that I am on the path to become a lawyer.

I rang up the firm and talked to the legal clerk who handles the file. The clerk told me that she has to pay up a RM500 disbursement for the preparation of Deed of Trust.

The situation is like this:

The name on the strata title: DEF as administrator of the estate of ABC.

The correct name should be DEF and DEF as trustee for the XYZ (the daughter)..

When the daughter reaches 18 years old, the name on the title should be change to DEF and XYZ.

Thus, at this stage, it is imperative to execute the deed of trust.

In addition to that, according to Para 4 Schedule 2 of Real Property Gain Tax Act, there is no chargeable gain for inheritance of real property from deceased under a will or intestacy. Therefore, no tax liability under RPGT.

Conclusion:
1. Peoples always told me that they have bad experience with the law firm. Well, it is half truth.
Most of the time, they were actually dealing with the legal clerk and not the solicitor.

2. For those suffer a terminal disease, draw up a will to spare your love ones from all these legal hassles.

Dr Zao Lin, President of Fo Guan Buddhist University.

My wife and I attended a seminar organised by SinChew/Guan Ming. The speaker is Prof Dr Zao Lin, the President of Fo Guan Buddhist University, Taiwan. 佛光大學校長趙寧博士

About 200 peoples turned up for this seminar. Not bad for a raining night on a weekday.

Dr Zao is a fantastic speaker. He delivered a solid 2 hours talk show. He is definitely a better and polished talk show speaker than Haris Kandar or Phua Chua Kang.

Click here to find out his previous speech at St Louis, USA.

佛光大學是由佛光山星雲大師所創辦的大學，也是蘭陽地區的第一所大學，校址位於宜蘭縣礁溪鄉林美村山上，海拔約四百三十公尺.

Seminar Undang-undang Keluarga Islam di USM

I came across this posting on USM's website.

----------------------------------------------------

Seminar Undang-undang Keluarga Islam di USM

SEMINAR UNDANG-UNDANG KELUARGA ISLAM USM KUPAS PERUNDANGAN KELUARGA DARI PERSPEKTIF WANITA DAN MASYARAKAT

Dalam usaha penyebaran ilmu kepada masyarakat, Universiti Sains Malaysia (USM) akan menganjurkan Seminar Undang-undang Keluarga Islam pada hari Rabu, 29 Mac 2006, jam 9.00 pagi – 1.00 tengahari di Dewan Budaya, USM, Pulau Pinang.

Isteri T.Y.T. Yang di-Pertua Negeri Pulau Pinang, Y.A.Bhg. Toh Puan Datin Seri Hajah Majimor Shariff akan turut hadir ke seminar berkenaan.

Dengan tujuan untuk memperjelaskan kepada masyarakat mengenai Sistem Perundangan Keluarga Islam, seminar ini akan turut mengupas hak-hak orang ramai melalui pandangan pelbagai pihak termasuk wanita, pengamal perundangan dan kerajaan.

Empat kertas kerja seperti berikut akan dibentangkan di sepanjang seminar berkenaan:

Ø Undang-undang Keluarga Islam: Konteks, Penggubalan & Cabaran oleh Ustaz Hj. Ab. Walid Abu Hasan, Ketua Unit Aspek Syariah, Jabatan Peguam Negara;

Ø Islam, Hak Wanita dan Budaya dalam Penggubalan Undang-undang oleh Pn. Zainah Anwar dari Pertubuhan Sistes of Islam;Ø Undang-undang Keluarga Islam 2005 oleh Pn. Nik Noraini Nik Badlishah dari Pertubuhan Sisters of Islam;

Ø Undang-undang Keluarga Islam: Perspektif Pengamal Undang-undang oleh En. Yuslinov Ahmad, pengamal perundangan.

Untuk maklumat lanjut, sila hubungi Pejabat Perhubungan Alumni di talian:04-653 3115/3113/4359/4307; faks: 04-658 8740 atau e-mel: zamhari@notes.usm.my.

Deposit Insurance Coverage

Malaysia Deposit Insurance Corporation Act 2005 came into effect in year 2005.

Perbadanan Insurans Deposit Malaysia (PIDM) is the statutory body managing this deposit insurance scheme. Deposit insurance is a system established by the Government to protect depositors against the loss of their deposits in the event a member institution is unable to meet its obligations to depositors. As an integral component of an effective financial safety net, a deposit insurance system enhances consumer protection by providing explicit protection to depositors.

The maximum limit of coverage under the Act is RM60,000 per depositor per member institution. This includes both the principal balance of a deposit and the interest/return.

Example on how deposit insurance coverage is calculated is provided here.

The PIDM's website is htttp://www.pidm.gov.my and supports four languages namely BM, English, Chinese and Tamil.

Illustration :
1. If you have RM100K fix deposit in a single Bank, it is wise to split it to two portion, with each less than RM60K:
-- two accounts (conventional/Islamic or with different join account-holder) in one bank or
-- one account each in two banks.

If you put RM100K into one account at a bank, in the event that the Bank been wind-up, the PIDM has the statutory obligation to cover the first RM60K. The balance of RM40K has to be claimed through a civil proceeding in the Court.


所有存款者，无论商业或个人，皆获得保障。根据PIDM法令，每名存户在每一间成员银行机构的合格存款，皆可获得RM 60,000保障的顶额。这RM60,000的顶额包括存款本金利息/回酬在内。RM 60,000的保障顶额让95巴仙的存户完全受保。马来西亚存款保险制度提供个别保障予传统及回教式存款。

Two important events on March 18

March 18, 2006 is an important date for Bar Council and DAP.

Bar Council will hold the annual AGM at Legend Hotel. The quorum is 2400 members of the Bar (1/5 of the total members). The President of the Bar Council, Mr Yeo Yang Poh, has issued a press statement with the title "Let us rise to the challenge" urging the practising lawyers to attend the AGM.

On the other part of the town, DAP will celebrate the 40 years anniversary at Federal Hotel.
There is going to be an amendment to the DAP constitution. For the first time in the history, DAP convention will discuss on the issue of recognising Bahasa Malaysia as the sole national and official language.

To the younger generation, this is fait accompli. For the old-timers who speak limited bahasa pasar, it is hard for them to swallow.

For the DAP lawyers, both events are equally important. I would imagine they will have to rush from one hotel to another. Sometime, one has to wear different hats at different time.

New guideline on the deduction for loss of support - The Case of Noraini Omar

When I attended the General Paper (CLP exam) class at Brickfields College sometime in September 2004, the lecturer told us that the case of Chan Chin Ming (Supreme Court) was the authority on deduction for a personal injury and fatal accident claim.

Towards the later part of the CLP preparation, I came across the cases like Ibrahim bin Ismail (Court of Appeal) and Cheng Bee Teik (Court of Appeal) which departed from the guideline in Chan Chin Ming supra.

I was pretty confused at that time. When I answered my General Paper, I quoted Ibrahim bin Ismail and Cheng Bee Teik as the authorities. I deliberately left out Chan Chin Ming as I was running out of time to complete the discussion.

Court of Appeal in the case of Noraini Bt Omar v Rohani bin Said (Judgment date:17 Feb 2006) put all this uncertainty in rest. The case reconciled the position taken by Chan Chee Meng, Ibrahim Ismail and Cheng Bee Teik.

The court held that:
1. Chan Ching Ming, been a Supreme Court decision, is binding on the Court of Appeal.
This is in contrary with the decision of the Ibrahim Ismail and Cheng Been Teik.

2. In the case of Chan Ching Ming, the deceased was unmarried. Such loss of support would have reduced or ceased in the event of the deceased son getting married had he lived. Thus there was a deduction of one-third.

3. In the case Ibrahim bin Ismail and Cheng Bee Teik, the deceased was married. Thus, no deduction was allowed.

4. Court of Appeal is the apex court for civil actions and suits in respect of motor vehicle accidents. The hierarchy are namely Session Court, High Court and Court of Appeal.

5. The Federal Court is the apex court for all personal injury and fatal accidents not arising from motor accidents. The case in point is Takong Tabori, where the deceased died in an explosion at the premises of a bank.

KL trip - Part III -- Forum on Constitution Law at Crystal Crown Hotel

I stayed for one more day to attend the Constitution Law Forum jointly organised by a coalition of NGOs called "Article 11" and Bar Council.

The event was reported in The Sun, The Star and Malaysiakini.

Here is what I picked up. I would not repeat what has been carried in the above news reports.

During the Q & A session, one man asked the panelist what can we do now.
To me, the remedy is in the court and the ballot box.

1. Prof Shad Faruqi
-- Majority of Muslim in Malaysia are from Mazhab Shafie. This mazhab has placed the Hadith on a higher position than other mazhab. Prof Shad is a Hanafi.
-- He is open to multi-cultural. He sent his daughter to Kuen Chen Chinese Primary School. Now, his grand-daughter studies in Kuen Chen too.
-- He said Malaysia is neither a secular state nor Islamic State. It is kind of in the middle, a hybrid state to be exact. Cyrus Das disagreed on this point.

2. Cyrus Das
-- He promoted the idea of "culture of constitutionalism". The Federal Constitution has to be embraced to be part of our daily life.
-- He argued that Malaysia is a secular state. He found the support from the 1957 Constitution document and the case of Che Omar bin Che Soh.
--He also supported the view on the setup of the Constitutional Court. This is to enable the public to have direct access to the apex court instead of going through the three-tier court.

3. Ivy Josiah
-- She gave the case summaries of Lina Joy, Morthy, Kamariah Ali (wife of Ayah Pin), Sharmala etc.

4. Zaid Ibrahim
-- He said he is yet to be a cabinet minister, thus he wouldn't be able to comment on the decision of the cabinet. He also mentioned that some of his colleagues (read as UMNO MPs) believe that they are more equal than others.

5. Malik Imtiaz
-- He discussed about the fatwa issued by the Fatwa Council. He reiterated the view that one ijtihad does not bind another ijtihad.
-- He also told the audience that the AGs Chambers submission in a court case that the authoritative text of the Federal Constitution is now in the National Language. To him, this is tantamount to the rewriting of the Federal Constitution.

Trip to KL (Part II) -- Damansara Utama Methodist Church

My buddy, CL and his wife, in their usual hospitality, brought me to their church on Saturday night.

They are attached to Damansara Utama Methodist Church at SEA Park.

Pastor Chris Kam delivered an interesting sermon on the "Fruitfulness" (John 15:1).
One thing I picked up is that one has to prune in order to move on in life.

The other thing I learn is that spending quality time on a weekly fix schedule with kids. In Pr Chris words, it is called Father-Son or Father-Daughter session.

Although I am a Buddhist, I am open to the universal values emphasized by other religions.

In short, it was a fruitful night.

Trip to KL -- Part 1 (Bar Council Essay Competition)

I went to KL on the weekend to attend the prize giving ceremony held at the Auditorium of Bar Council, Leboh Pasar Besar.

I received the Consolation Prize (Hadiah Galakan). The first prize goes to an Assoc Professor from UIA. The second and third go to two young lawyers.
I am the only winner of the topic on the criminal procedure. The other winners chose another topics on press freedom and the digital evidence.

The Guest of Honour is Dato' Nik Hashim bin Nik Ab. Rahman (Federal Court Judge) representing the Chief Justice, YAA Tun Ahmad Fairuz. The panel of judges are Tan Sri Anuar (the former Chief Judge of Malaya), Pn Hendon (former President of Bar Council) and representatives from DBP.

The full text of the essay is available here. The title is "Kekurangan butiran dalam Pertuduhan Seksual: Wajarkan Tertuduh dibebaskan". The Federal Court in the case of Dato Seri Anwar Ibrahim has set a high hurdle for the prosecution. The prosecution has to prove the "date of the crime committed" beyond reasonable doubt. I have submitted that the ground of judgment on the case of Dato Seri Anwar Ibrahim (Federal Court) is misconceived in law. I argued that the Federal Court should adopt the 2 stages test proposed by the Supreme Court of Canada.

Nanyang Siang Pau is the only newspaper covered the event.

May his soul rest in peace.

新中律師趙漢榮病逝updated:2006-03-09 20:24:28 MYT
（北海訊）在威北新中學校的拆校官司尚未完結之際，校方律師團的4位代表律師之一的趙漢榮，不幸的在週四（9日）早上9時左右因心臟病發作而逝世。据知，現年才32歲的趙漢榮（未婚）在週四早上8時許原本要到法庭時，突然覺得不舒服，致電給家人要求送他到醫院治療。豈知在送到威南雙溪峇甲的政府醫院後，即因心臟病而不治身亡。趙漢榮是威南人，在大山腳日新國中畢業後，就在馬來亞大學法律系肄業，生前是民政黨法律局的委員，並在去年當新中學校被發展商手持庭令拆除兩次不果後，就毅然與謝隆泰、許文思及馮繼宗四人組成律師團，接手新中學校的拆校官司。

Teoh Hang Weng (32 years old), the counsel who acted pro bono for the Sin Chung School, passed away yesterday. It was reported he suffered a heart attack. He was an alumnus of University Malaya. May his soul rest in peace.

New interpretation on section 34 Penal Code

Section 34 of the Penal Code states as follows:-
"Each of several persons liable for an act done by all, in like manner as if done by him alone. When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if the act were done by him alone."

There has been authoritative decisions from the Privy Council that physical presence is necessary in order to convict the accomplice under the section 34 Penal Code.

In the case of Sabarudin bin Non & Ors v PP (2004), the Court of Appeal ruled that the presence is not necessary for section 34 to apply. Although the fourth and fifth accused were not present in the crime scene, they were acting in concert by means of the cell-phone and other conversations and participated in the abetment of the killing of the deceased. The Court of Appeal ruled that section 34 should be interpreted having regard to modern technogical advances. The Court of Appeal found the support from two recent Indian cases namely Suresh v State of Utar Pradesh (2001) and Hari Ram v State of Utar Pradesh (2004).

The evidence of itemised phone bill was admissible to show the state of mind of the first accused.

The case of Sabarudin bin Non has been reported widely in the press. It was known as the Hasleza Ishak case (the second wife of Raja Dihilir Perak). The fourth and fifth accused were sentence to 20 years imprisonment respectively.


In the case of Lee Kwai Heong & Others v PP, the Court of Appeal endorsed the new interpretation of the section 34.

Welcome to Faculty of Law, University of Malaya

The admission for the B Jurisprudence, University of Malaya is opened for application. The deadline is end of April, 2006.

The Bachelor of Jurisprudence is an external law degree programme offered by the University of Malaya. The programme is recognised for the purpose of entry into the CLP (Certificate in Legal Practice) programme for those intending to practice law in Malaysia.

The intake is around 200 students per year. The drop-out rate is extremely high.
The average passing rate is 50% for every paper. One has to pass 15 papers in 7 years time.
Around 50 out of 200 students will eventually finished the programme. Out of those 50 graduates, perhaps only 20 will sit and pass another high hurdle (the CLP).

I entered UM law school in year 2000 as an external student. It is about 6 of us in the class of 2000 who has successfully finished the B Juris and CLP so far. To be exact, we took 5 years to clear all the academic hurdles. Most of us are in the 30s with a demanding job and family.

There are two ways to prepare for the exam:
1. Attending classes at Kemayan College or Brickfield College.
This option is only viable for those residing in Klang Valley or neighbouring states.
If you choose this option, it means that you have to spend your weekends at Kemayan or Brickfield for at least 5 years.

2. Self-study.
I took this option. That was the only option open for me. I allocated 20 hours to 3o hours per week for reading text books and cases.

I still remember that I was reading Insurance law text book while waiting outside the labour room at Adventist Hospital. My first baby arrived while I was in my third year. My second baby arrived a month before the final year exam.

Credit to my supportive wife, parents and parents-in-law. My wife is now a third year external student (Econ and Politics) attached to USM.

"When there is a will, there is a way."

For those interested for the challenge, please let me know.

Leung Kwok Hung -- The Hong Kong Idol

Leung Kwok Hung 梁國雄 (also known as Long Hair 長毛) was first elected into the Legislation Council of Hong Kong Special Administrative Region representing people of New Territories (East) in year 2004.

Soon, he creates waves. He is not only a street fighter but indeed has made the proceedings of the HKSAR legislative more exciting. He has brought the political game into another level.

He is now playing the court room game.

He has asked the court to determine the constitutionality of an administrative order which allows the enforcement authorities to intercept private communication. It has been common knowledge that Hong Kong Government is intercepting communication not only for the purpose of combating crime and safeguarding public security, but also to monitor the political activities.

The court handled down the judgment on Feb 6th, 2006 , answered in affirmative that the administrative order is ultra vires the Basic Law of Hong Kong.

The court was of the view that any immediate declaration of invalidity would give rise to the danger of Hong Kong residents by way of a threat to the rule of law.

In order to close the legal vacuum, The High Court of HKSAR has to invoke the remedy of temporary validity for 6 months so that the corrective legislation can be put in place.

It means that, law declared to be in violation of a constitution may nevertheless be declared temporarily valid. The court found the support in a judgment of Supreme Court of Canada (Re Manitoba Language Rights under the Manitoba Act 1870) and also the constitution provision of South Africa.

Hartmann J observed that:" The remedy of temporary validity, whether it is incorporated into the direct language of a constitution or is employed by a court as a constitutional remedy, is today a recognised means by which, in admittedly exceptional circumstances only, the provisions of a constitution may be protected by the striking down of invalid subsidiary laws without that process itself pulling down the pillars of the constitution upon itself"

Invitation from Bar Council

I received the invitation from the Malaysian Bar Council to attend the prize giving ceremony for the Essay Competition 2005 scheduled on March 11, 2006 at KL.

I have submitted an essay with the title: "Kekurangan butiran dalam pertuduhan seksual: Wajarkah tertuduh dibebaskan?".

I have won book prizes in the previous contests (2001: second prize; 2003:consolation prize; 2004: second prize).

Hopefully, I don't come back empty handed.

For those interested, there is also a debate contest in conjuction with the prize giving ceremony.
The details are as following:

Tuan/Puan,
PERTANDINGAN MENULIS MAKALAH UNDANG-UNDANG 2005- ANJURAN JAWATANKUASA BAHASAMELAYU, MAJLIS PEGUAM MALAYSIA DENGAN KERJASAMA DBP & ITNMB

Kami merujuk kepada perkara yang tersebut di atas.Adalah dimaklumkan bahawa majlis pengumuman dan penyampaian hadiah untukPertandingan Menulis Makalah Undang-Undang 2005 akan diadakan pada hari yang sama dengan Pertandingan Debat Perdana 2005 yang dijadualkan berlangsung seperti yang berikut:

Tarikh : 11 Mac 2006
Hari : Sabtu
Jam : 10:00 pagi
Tempat : Dewan auditorium, Tingkat 1, Bangunan Majlis Peguam Malaysia,Leeboh Pasar Besar, Kuala Lumpur

Tajuk :‘ Demi keadilan, pengakuan si tertuduh tidak wajar diterima di dalam perbicaraan’

Sehubungan itu, tuan/puan dijemput hadir pada tarikh tersebut.