Essay on Tax Law

Updated with the news report from Praxis Nov/Dec edition (Newsletter of Malaysian Bar).



I have won the second prize for this year Legal Essay Competition in National Language organised by Bar Council, Dewan Bahasa and Institut Terjemahan Negara.

The topic is "Akta Cukai Pendapatan: Siapa dapat, dia dicukai. Bincangkan." The first prize winner is an Associate Professor from UiTM. The third prize winner is also an Associate Professor from International Islamic University.

The panel of judges comprise of Yang Arif Datuk Zaharah Binti Ibrahim (High Court Judge, Shah Alam), Puan Hendon (Member of Bar Council) and representatives from DBP and ITN.

I receive a trophy, a dictionary and cash prize from Dato' Bentara Istana Dato' Nik Hashim (Federal Court Judge) who represents Chief Justice, Yang Amat Arif Tun Dato Seri Ahmad Fairuz.

The full text of the essay can be accessed at http://hwessay.blogspot.com

The excerpt is as following:
"2. Perdebatan tentang unsur kesukarelaan dan paksaan dalam percukaian

Cukai dalam konsep moden merupakan suatu sumbangan berbentuk kewangan yang dikenakan oleh negara ke atas rakyatnya untuk kebaikan masyarakat secara umumnya.

John Rawls dalam bukunya “A Theory of Justice” [i] telah menghuraikan unsur keadilan dari segi pembahagian kekayaan. Menurut beliau, sumber sosial mesti dilepaskan kepada kerajaan supaya kerajaan dapat membekalkan khidmat awam kepada masyarakat serta membolehkan kerajaan membahagikan kekayaan demi membantu mereka yang miskin atau kurang upaya. Cara mendapatkan sumber hasil yang dimaksudkan oleh John Rawls adalah melalui percukaian.

Robert Nozick [ii] pula menyangkal pendapat John Rawls. Beliau mengibaratkan percukaian dari pendapatan seperti buruh paksaan. Beliau berhujah sekiranya seseorang bekerja untuk memperolehi pendapatan dan membayar cukai berdasarkan kadar peratusan daripada pendapatan, maka kadar yang diterjemahkan kepada masa berkerja adalah kerja paksa yang dikenakan oleh negara. Nozick mempersoalkan tentang rasional pembahagian secara paksaan melalui percukaian. Sebagai alternatifnya, Nozick mengutarakan konsep derma secara sukarela untuk mencapai kesamarataan.

Saya berpendapat percukaian adalah berbeza dari segi buruh paksaan atau penghambaan. Beban kewangan serta hak yang dikongkong oleh buruh paksaan dan penghambaan adalah dalam julat yang berbeza sama sekali dengan percukaian. Tambahan pula, teori Nozick tersebut hanya akan meninggikan jurang pendapatan antara mereka yang berada dengan mereka yang kurang berada. Iaitu, orang kaya akan menjadi lebih kaya, manakala orang miskin menjadi lebih miskin.
[i] John Rawls, A Theory of Justice (Revised Edition), Harvard Universitiy Press, 1999, ms247.

[ii] Robert Nozick, Anarchy, State and Utopia, Oxford: Basil Blackwell, 1974, ms169. "

Land and Property

For the past two months, I have spent considerable time reading, advising and submitting on the issues related to land and property. In fact, I enjoy what I am doing as it involves policy and legislative issues which have a huge impact to the affected parties.

The issues I covered, inter alia,:

1. Sufficiency and validity of the notice to quit of a tenancy involving pre-war premises. Rent Control Act and Rent Control (Repeal) Act are the relevant legislations. It has been 7 years since the repeal of the rent control act but there are still such cases. The issue is whether the 3 months notice to quit is mandatory or merely directory.

2. The remedy for the landowner whose land is subjected to acquisition by the Government. Relevant Legislation: Land Acquisition Act.

3. The locus standi of a company claiming maintenance fees from the proprietors of high-rise building. Relevant legislations: Strata Title Act and Valuers/Estate Agents Act.

4. When does the cause of action commence for a claim on late delivery damages of a house under the Housing Developers Act? Is it started from the actual vacant possession or the contractual date of vacant possession? The starting date is material because the houseowner has 6 years under the Limitation Act to initiate a claim from the developer.

5. National Land Code (Penang and Malacca Title) is a piece of legislation on conversion of the land title on English Deeds System to the Torrens System. There are complex issues involving dispute of land title which has to be traced back to events happening on 1930s.

A Dynamic leadership Required for Penang

■ 行動黨檳州召開新聞發布會，力數許子根領導下檳州政府的不力。前排左起趙善輝、章瑛、曹觀友、林冠英、林峰成、羅興強，後排左起黃漢偉、陳宗興、鄭雨周、陳翰威及黃偉益。

Press Conference by DAP.
I am standing at the far left (back).

This photos appears in Sinchew Jit Poh (1.2.2007).
Please click here for the details (Chinese)

English version is available here.

Reflection on the New Year Eve

I used to celebrate the new year countdown at the Tanjong Bungah beach with my girlfriend (now my wife). We stopped practising it after our first baby arrived.

This year, I stared in front of the monitor by writing my year 2006 report card and year 2007 resolution.

Year 2006 was a significant year for me as I ventured into a new territory. I have switched from a high-tech world to the legal world. To put it in the management jargon, it is called "mid-career switch".

It is a 3-page long 2006 report card. Same length for my 2007 resolution. Both reports cover topics ranging from family, home improvement, NGO participation, political participation, financial, knowledge building, health etc. By doing this, I can monitor my progress on various areas. I can only monitor things that can be quantified such as LDL Cholesterol level. BTW, my daughter have a good head start by obtaining the first position in her class.

For year 2007, it will be an interesting year. My wife will finish her Bachelor of Social Science (USM). Being a part time student, it is a long march for her. Along the way, she gave birth to our three lovely kids. I also pray that the renovation of the Penang Court building to be finished on time so that I can have my long call ceremony there.

General election in 2007?

The headline of Nanyang Siang Pau "明年不大选" (General Election will not be next year).
Similar headline for all major Chinese newspapers.

New Straits Times and Utusan did not carry this piece.

My friend Ng Wei Aik has jumped into the early election bandwagon by throwing down the gauntlet to the Penang Chief Minister, Dr Koh Tsu Koon. He has to maintain his stamina for another 12 months.

The source from Bloomberg.

Here is the excerpt:
"Abdullah Says Malaysian Polls Can Wait, Targets Graft (Update3)
By Stephanie Phang and Angus Whitley
Dec. 12 (Bloomberg) -- Malaysian Prime Minister Abdullah Ahmad Badawi said he probably won't hold an election before 2008, giving himself more time to battle corruption and muster support.
``Next year is too early,'' Abdullah, 67, said in an interview at his home in Putrajaya, south of Kuala Lumpur. ``I have to prove that a lot of things can be done and have been done and we have succeeded.'' "

Cautioned statement

The Court of Appeal is sitting in Penang for the past three days. There is an interesting murder case coming up for appeal. Lim Chooi Huat v Public Prosecutor. The High Court sentenced the accused to death.

The crux of the argument of the appellant counsel is the admissibility of the cautioned statement (also known as s113 statement). The appellant is a Form 1 drop-out. The appellant counsel pointed up that the Recording Officer (RO) failed to administer the caution to the accused. The counsel argued that the RO read the caution but not explain to the accused (baca tapi tidak terangkan).

The defence quoted the cases of Hizbullah, Tan Ewe Huat etc.

The panel of three judges reached an unanimous decision today that the trial judge has wrongly admitted the caution statement and there is insufficient evidence to call the accused to enter defence.

The accused is discharged and acquitted. The defence counsel is Sithambaran.

For further details and the photos, please read the major newspaper.

Anyway, the issue of admissiblity of cautioned statement will be part of the legal history. The amended Criminal Procedure Code (effective 1-1-2007) will remove the clause.

Not an exact science

Quotable quote from the judgment of Singapore High Court in the divorce case of NK v NL

"Division of matrimonial assets is not and is never an exact science. The court can only attempt to make a just and equitable division, applying a broad-brush approach. "

The Court further awarded to the petitioner/wife by way of monthly maintenance a sum which was adequate for the standard of living she had been accustomed to in recent years, during the subsistence of the marriage.

Affirmative Action around the World

My learned friend, Sdr Yeap Cheng Liang, has written a letter to Malaysiakini. He quoted the book "Affirmative Action around the World" by Thomas Sowell. His letter can be accessed here.

Yeap also send me the book. I managed to finish the chapters on India, Sri Lanka and Malaysia. I am still reading the chapter on Nigeria. I will like to thank him for the kind gesture.

The issue on equity and marginalization would be the highlight of the coming General Election.

Kallang body parts muder case (Appeal dismissed)

On 22-5-2006, I have blogged the Singapore case of PP v Leong Siew Chor (also known as Kallang body parts murder case) . Leong Siew Chor was convicted for the murder of his girlfriend and sentenced to death by the High Court.

He filed an appeal against the conviction in the Court of Appeal.

The basis for the appeal was that the trial judge erred in admitting the cautioned statement.

The accused has made the cautioned statement on the ninth day after he was arrested. The accused was only granted the right to counsel on 20th day.

The argument by the defence counsel is that once an application was made to the subordinate court (on the seventh day) , then any further denial of a right to counsel would be unreasonable.

On 6-10-2006, the Court of Appeal dismissed the appeal.
The ground of the decision:
"It is not enough merely to say that this accused was denied access to counsel on the grounds given in this case. Counsel was inviting this court to make an important ruling on a constitutional point without sufficient material in law and evidence to sustain any cogent question of law. It may be that the police ought not deny a right to counsel in the narrow form of receiving advice on the right to remain silent, to the broadest form possible, but this is not the case to advance any such argument. It is too thinly supported on the facts; this is not the right case for the points of law alluded to."

It is a settled law in both Malaysia and Singapore that the right to counsel is not an immediate one but one that would be granted within a reasonable time after the accused is arrested.

Jasbir Singh v PP [1994] 2 SLR 18 and Lee Mau Seng v Minister for Home Affairs, Singapore [1969–1971] SLR 508 are the cases cited by the Public Prosecutor.

What amount to reasonable time is a question of fact. Case in point is Mohd Ezam (Federal Court), an ISA case.

Breakdown of lawyers by etnic groups

A few CLP (Certificate in Legal Practice) candidates wrote to The Star and NST complaining about the low passing rate of the exam and ask for more transparency.

• Be more transparent over CLP exam (The Star)
• Why are so many failing (NST)
• Low passing rate dishearthening (NST)

In a separate note, I came across the statistics on the breakdown of lawyers by etnic groups. The order of the data is Bumiputra, Chinese, Indian.

Year 2000: 3118 , 3861, 2588

Year 2005: 4465, 4354, 2834

I will leave it to you to make your own interpretation and judgement.

I am reading the book "Affirmative Action Around the World" by Thomas Sowell. I will blog it later.