Sam and basikal lajak

My 2 sens worth 

Sam dituduh mengikut Seksyen 41(1) Akta Pengangkutan Jalan 1987. Elemen yang perlu dibuktikan oleh pihak pendakwaan adalah -

a) Sam telah memandu secara cuai atau dengan kelajuan yang membahayakan orang awam dengan mengambil kira keadaan, kondisi dan saiz jalan dan juga kesesakan pada masa kemalangan atau yang dijangkakan diatas jalan; dan

b) Sam telah mengakibatkan kematian hasil daripada pemanduan cuai dan atau kelajuan yang membahayakan orang awam dengan mengambil kira keadaan, kondisi dan saiz jalan dan juga kesesakan pada masa kemalangan atau yang dijangkakan diatas jalan.

Tertuduh hanya akan dihukum apabila tertuduh telah disabitkan dengan kesalahan sepertimana dalam kertas pertuduhan. Ini bermakna, Mahkamah perlu berpuashati bahawa kesemua elemen pertuduhan telah dibuktikan oleh pihak pendakwaan ketahap prima facie dihujung kes pendakawaan dan tanpa sebarang keraguan apabila tertuduh selesai memberi keterangan.

Maka apabila keputusan dibuat oleh Hakim, Hakim semestinya sudah berpuashati bahawa kesemua elemen pertuduhan telah terbukti. Dalam kes Sam, saya yakin Hakim telah berpuashati bahawa Sam -

a)telah pandu secara cuai atau dengan kelajuan yang membahayakan orang awam dengan mengambil kira keadaan, kondisi dan saiz jalan dan juga kesesakan pada masa kemalangan atau yang dijangkakan diatas jalan; dan

b) telah berlaku kematian akbitan daripada kemalangan tersebut.

Perkara (b) mudah dibuktikan sebab sememengnya ada anak muda meninggal akibat daripada kemalangan tersebut.

Namun adakah Sam cuai -

Untuk isu ini perlu diambil kira keadaan, kondisi dan saiz jalan dan juga kesesakan pada masa kemalangan atau yang dijangkakan diatas jalan.

Memandangkan permohonan kebenaran untuk merayu telah difailkan oleh Sam, saya tidak akan komen isu ini kerana sub sudice. Namun, anda-anda boleh sahaja buat kesimpulan dan andaian masing-masing.

Tiada sebab ibu bapa yang meninggal perlu disalahkan. Tiada undang-undang yang melarang sesiapa daripada berbasikal lajak dan tiada undang-undang yang menyatakan bahawa sesiapa yang ingin berbasikal lajak perlu berbasikal lajak pada masa-masa tertentu. Maka isu berbasikal lajak jam 3 pagi dijalan raya tidak timbul. 

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Agreed - win win situation, I think

Last week I wrote, Civil prison - pay up or go to jail. Read here. On Monday, 21/02/2022, both the Judgment Debtors and the Judgment Creditor came to our office to discuses a settlement. Both the Judgment Debtors and the Judgment Creditor were complying with the Judge's directions that any discussion towards settlement must be done in my presence.

It became quite simple when everyone present had the interest of the others in mind. The actual debt due as at 27/09/2019 was RM147,447-75 with interest accruing on the principal sum of RM125,281-65 at 5% per annum from 28/09/2019 till settlement. More of less RM160,000-00 outstanding as at to date.

After a short discussion, and taking into consideration the financial position of both the Judgment Debtors, the Judgment Creditor agreed to accept a sum RM100,000-00 in full and final settlement, on condition that the same is paid before the next hearing date which is fixed on 17/04/2022. Even the Judge had warned, that if the matter is not settled before 17/04'/2022, the Judge will have no other choice but to send both the Judgment Debtors to prison.

I must confess that I have never send anyone top prison before and even the Judge confessed that the Judge has done once thus far.

Well, getting back to the settlement, the Judgment Debtors, will sell a plot each of the land and pay up RM100,000-00 before 17/04/2022.

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Civil prison - pay or go to jail

Came back from Pulau Pinang on Friday, rested on Saturday and shot off to Gua Musang, Kelantan on Sunday. 2 application to commit Judgment Debtors to prison was fixed for hearing.

One of the Judgment Debtor addressed the Court seeking that the Order of Court ordering the Judgment Debtors to pay the whole outstanding sum in one payment be set aside as the same was obtained without examination of the Judgment Debtors. After checking the file, the Sessions Judge agreed that there was in fact no examination done and I agreed.

However, I explained that the Judgment Debtors' lawyer was informed of the date but neither the lawyer not the Judgment Debtors turned up in Court on the appointed date and hence the earlier Sessions Judge granted an Order that the whole judgment sum be paid in one lump sum.

The Judge was steadfast with his view that the Debtor ought to be examined to which I said I was amenable but I explained to the Judge that if an examination is carried out and an instalments Order is made, the new order will run smack against the earlier Order which is good until set aside. I also explained that no application to aside the earlier Order has been made and neither can the Court set aside the earlier Order ex debito justitae. On this point, the Sessions Judge agreed with me and decided that no examination will be carried out and the earlier Order stands.

The Sessions Judge then went on to explain the consequences of not paying and gave the Debtor till April to pay or go to jail. 

Today, I got a call from my client saying that the Judgment Debtors are in the process of selling some plots of their land and will pay the Judgment sum of slightly more than RM145,000-00 very soon.

One more file successfully closed

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Datin Sharifah vs Ong Bee Ean and 2 ors

After some hectic days in Kuala Lumpur, we drove to Pulau Pinang to hear 2 applications. Remember our appeal which was allowed by the Court of Appeal. I wrote about it earlier and can be read here. These 2 applications were made in the High Georgetown subsequent to the decision of the Court of Appeal.

Well, due to shuffle of Judges and Judicial Commissioners and the appointment of new Judicial Commissioners, both the applications were brought before the Deputy Registrar for further instructions and/or directions instead of the Judge.

The Deputy Registrar fixed 07/04/2022 for oral submissions, clarifications and decision by the Judge, if any. His Lordship Datuk Sri Tun Majid will decide both the applications.

Briefly, the 1st and 2nd Defendant filed enclosure 104 to stay all proceedings pending their appeal to the Federal Court and enclosure 106 was filed by the Plaintiff (my client) for an Order that the 3rd Defendant be restrained from selling and/or departing the 2 plots of land, the subject matter of the suit, in any manner whatsoever until disposal of the suit.

While nothing much happened in Court on Friday 11/02/2022, we nonetheless had a wonderful time in Pulau Pinang. If not for a hearing I had today (13/02/2022) in Gua Musang, I would have stayed over the weekend in Pulau Pinang for a much needed rest.

As usual my partner cum photographer cum mamarazzi (read paparazzi) did not waste any time when she got busy taking pictures. Here are some for you guys to see.

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Dr K v Wan Anwar

The Court had fixed 7th, 8th and 9th February 2022 to hear a defamation suit brought by Dr Kamarul Zaman Yusoff against Wan Anwar Wan Ibrahim over a statement made by the Defendant and published by Malaysia Dateline and Kelab Greeboc.

On the 7th, as I arrived at the Court premises, I was approached by the Defendant's Counsel who wanted to know if the Plaintiff was amenable to an out of Court settlement as his client was.

After a short discussion with Dr K, we agreed that settlement be discussed in the presence of a Court mediator.

The Court mediator was informed and after about 3 hours of discussions, offers and counter-offers, the matter was finally settled.

As the Judge had gone out for lunch by the time settlement was reached, we waited till 2 pm to have the settlement recorded. Sorry, I cannot set out the terms of settlement here, as there was a partial gag as to a certain part of the settlement .

Parties went back happy smiling from ear to ear.

Sometimes, it takes a little push to put parties together to kick start and have matters resolved amicably.

I was the happiest, as I was awarded, on a silver platter, 2 days of rest, before I shot off to Penang on Thursday for a matter in Georgetown High Court which was fixed for hearing on Friday, 11th February. More about that tomorrow

Before I forget to mention, my partner, Alia, who loves photography, as usual gets busy taking pictures of me, herself and surroundings. Hence, some pictures of what happened on 7th February.

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Dr K v Hanipa Maidin

Had been a very hectic week for me. Dr Kamarul Zaman Haji Yusoff v Hanipa Maidin trial proceeded at the Sessions Court Kuala Lumpur on 3rd and 4th February. Dr Kamarul himself and his wife gave evidence on the 3rd and Professor Dr Mohd Redzuan Tee gave evidence on 4th. Our 4th witness, one Haznizul, was involved in his company's retreat and hence could not take the stand on the 4th. The Court adjourned the trial to 9th February for Haznizul and Hanipa to give evidence.

However, due to some technical issues that arose on 7th February, we were told that the trial fixed for 9th February had to be adjourned. After obtaining common dates from both Counsels, the Court fixed the matter for continued hearing on 23rd February.

Both parties are expected to close their respective cases on 23rd February, after which written submissions will be prepared for the Judge's consideration. Decision will follow after the Judge has considered all issues of facts and law as submitted by parties via their respective written submissions.

Here are some pictures taken before Court came into session and during rest time. I must confess that it was, for both the days, a very friendly environment.

We will keep our fingers crossed while we await the continuation, the submissions and the decision. 

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Appeal allowed

Interesting day today. Finally, the Court of Appeal agreed that the matter be fully ventilated via full trial.

Some brief facts

on 02/05/2003, my client agreed to purchase 2 plots of land in Penang for a total consideration RM2,862,893-88. After executing the Sale and Purchase Agreement, our client did some investigations and realized that a portion of 1 of the lot purchased was subject to acquisition to expand the Penang International Airport. Hence, the Sale and Purchase Agreement,  according to our client, was mutually terminated. The Vendor, however, could not afford to refund the deposit amounting to RM200,402-57 paid by our client.

After some discussions, our client, on 24/03/2004, decided to repurchase 1 lot for RM1,450,211.00 and the deposit of RM200,402-57 paid on 02/05/2003 was retained and via Sale and Purchase Agreement dated 07/09/2004, purchased the remaining 1 lot for RM1,412,682.80. A sum of RM100,000-00 deposit was paid. Our client subsequently stopped payment on the cheque for RM100,000-00 as the deposit amounting to RM200,402-57 was deemed sufficient.

Subsequently, the Vendor terminated the Sale of Purchase Agreements dated 24/03/2004 and 07/09/2004, alleging failure on the part of our client to pay deposit. Upon terminating the Agreements, the Vendor died. The executor of the estate thereafter sold both the properties to a third party.

Our client sued the executor for specific performance and the matter was struck off by the High  Court Penang when the executor applied to have the same struck off. Our client appealed and the appeal was dismissed. Appeal to the Federal Court was subsequently withdrawn when our client found out that the Will of the Vendor may have been forged.

When all the above happened, we were not Solicitors representing the Purchaser.

The Purchaser thereafter come to see us and we decided to take up the matter and challenge the Will, the Probate, the Order for sale and the subsequent sale to the third party.

Again the Vendor and the subsequent purchaser applied to strike out our suit and the Penang High Court allowed their applications. We appealed, and today, the Court of Appeal allowed our appeals and reverted the matter back to the High Court Penang to be heard on merits.

Long and colorful isn't it.

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22 years of lawyering

How time flies.

26/08/1999, I was admitted an enrolled as an Advocate and Solicitor of the High Court Malaya. Hence, yesterday saw me in practice for a good 22 years. 

In the 22 years, I met many different types of characters; people with attitude, arrogant people, down to earth people, friendly people and you name them.

Cheated, fooled by clients but yet I proudly will say - I have no regrets - not at all. But along the way, I made some very good friends who stood by my through thick and thin.

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Lockdown

Hi guys,

Been sometime since I last updated my website. You all must be aware that we were under MCO for a while and than came the lockdown. We had to close our office for slightly over a month; no courts, no meetings, office closed and hence nothing to report or update.

Yesterday, the Legal Affairs Unit of the Prime Minister's Department decided to list legal services as essential services and hence allowed to operate subject to strict SoP and with approval from the Legal Affairs Department via MITI.

We applied for permission this morning and we got our approval this afternoon.

Will be back to office tomorrow as usual ..

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Tak perlu

The word essential if translated into Bahasa Malaysia will mean perlu. Non-essential will mean, tidak perlu. Essential services will mean perkhidmatan perlu and non-essential services will mean perkhidmatan tidak perlu.

Some joker in MKN has classified services rendered by lawyers as non-essential or tidak perlu.

Let's wait and see if someone from MKN or the family members of any one from MKN are arrested. Baru dia akan tahu samada lawyer atau firma lawyer perlu atau tidak.

😀😀😀

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