TESTE TO WRIT AMENDED

Effective 18th October 2008, all Writ of Summons filed in the High Court must be issued under the name of Y.A.A. Hakim Besar Malaya as follows:-


" YANG AMAT ARIF DATO' ARIFIN BIN ZAKARIA, S.P.S.K., D.P.C.M., D.P.M.K., HAKIM BESAR MALAYA ATAS NAMA DAN BAGI PIHAK SERI PADUKA BAGINDA YANG DI PERTUAN AGONG"

SIJIL ANNUAL RENEWAL

Kindly be informed that the Bar Council has extended the period for filing of members’ application for Sijil Annual 2009 to 15^th November 2008.

The Bar Council has distributed soft copies of the application forms to members with e-mail address registered with the Bar Council. For members, who do not have e-mail address and/or who did not receive same, you may obtain a copy of the said form from the Perak Bar Secretariat. You may make arrangement with our Ms.Prem / Ms.Sarah to obtain a copy of the said forms.

Thank you.

Yours sincerely,

Danial Rahman

Honorary Secretary

Perak Bar Committee

SMILE! ITS A BEAUTIFUL DAY!

Some jokes to bring a smile to those overworked lawyer's brows.

Woman Says, Man Hears

What a woman says:
This place is a mess! C'mon, you and I need to clean up. Your stuff is lying on the floor and you'll have no clothes to wear if we don't do laundry right now!

What a man hears: Blah, blah, blah, blah, C'MON, blah, blah, YOU AND I, blah, blah, blah, blah, ON THE FLOOR, blah, blah, blah, blah, NO CLOTHES, blah, blah, blah, blah, RIGHT NOW.

There were nine blondes and a brunette hanging of a rope 100 stories high. They had decided that one of them had to get off. They argued and argued and finally the brunette said ''I'll go.'' The brunette made a touching speech and all the blondes clapped.

Two rednecks, Bubba and Cooter, decided that they weren't going anywhere in life and thought they should go to college to get ahead.

Bubba goes in first, and the professor advises him to take math, history and logic.

"What's logic?" asked Bubba.

The professor answered, "Let me give you an example. Do you own a weed-whacker?"

"I sure do," answered the redneck.

"Then I can assume, using logic, that you have a yard," replied the professor.

"That's real good," the redneck responded in awe.

The professor continued, "Logic will also tell me that since you have a yard, you also have a house."

Impressed, the redneck shouted, "AMAZING!"

"And since you own a house, logic dictates that you have a wife."

"Betty Mae! This is incredible!"

"Finally, since you have a wife, logically I can assume that you are heterosexual," said the professor.

"You're absolutely right! Why, that's the most fascinating thing I ever heard of! I can't wait to take this here logic class."

Bubba, proud of the new world opening up to him, walked back into the hallway where Cooter waswaiting.

"So, what classes are ya takin?" he asks.

"Math, history and logic," replies Bubba.

Cooter asks, "What isis logic?"

"Let me give you an example. Do ya own a weed-eater?"

"No."

"You're a queer, ain't ya?"

An English professor told her students that there would be no excuse for not showing up for their final exam, except for serious injury, illness, or a death in the student's immediate family. A smartass jock in the back of the room asked, "What about extreme sexual exhaustion?"

The entire class did its best to stifle their laughter. When silence was restored, the teacher smiled sympathetically at the student, shook her head, and sweetly said, "You can write with your other hand."

MONEY ORDER OR CASH PAYMENTS ONLY!

As of 16.10.2008, there is a circular issued that all payments to the Court Registries are to be made via money orders or cash payment only! I am one of many voices in the chorus of dismayed lawyers. I had read about this directive early July but breathed a sigh of relief when I heard that the directive had been stayed for a few months to allow for consultation with the Bar, which has apparently not been successful.

It is all well for the Court Registries to take this stand, which to me smacks of arrogance because the difficulties faced by the lawyers by this new directive are not considered. The use of Cash and Money Orders in lieu of cheques is a regressive move not to mention fraught with risk.



Generally people do not carry cash for fear of theft and so cheques and credit cards have become hugely popular in line with this sentiment. Therefore to expect filing clerks to carry substantial sums of cash to make payments or to buy money orders in the post office is in my view, ridiculous and a waste of time and also money as there is a commission levied on the money orders purchased. I forsee a time in the future where lawyers may have to carry out the filing personally in a bid to try and overcome such risks!!

If for example, a firm is filing an appeal to the High Court and a Summons and Statement of Claim all on the same day, the filing fees (including the deposit payable) will come up to hundreds. It is not prudent to carry around cash in those quantities. The Court areas and post offices may become a hunting ground for snatch thieves looking for an opportunity.

If the rationale behind this directive is because of cheques by certain firms bouncing for whatever reason, well the simple solution will be to identify those repeat offenders and their code numbers and block their code in the system so no cheque issued by them is accepted. Why should other firms who have conscientiously issued valid cheques be made to suffer the consequence of the actions of an errant few?

No doubt there have been and will be cases where there have been genuine mistakes made, but then there should also be an avenue to explain to the Registrar and appeal for the unblocking of their code numbers after due consideration.

Finally, having delved into some of the alternative options available, I am reminded of Rules that provide that documents will only be used in Court proceedings upon payment of the prescribed fee. Where cheques have bounced, all the Court Registry has to do is reject the documents and strike those documents from the record whilst noting the same on the Court file, in case of a future dispute and notify the firm concerned.

When I was talking to a fellow member of the Bar on this issue, he mooted the idea of the Courts implementing an e-system as some government departments do where each firm is given a e-account which the firm can top up accordingly depending on the filing to be done. This I thought was a brilliant idea as issues such as cheques bouncing will be a thing of the past.


Surely there are better, safer and more progressive alternatives to using cash and money orders which have not been explored!

Submitted by Navit Kaur Randhawa

FRUIT OF THE POISONOUS TREE

Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence gathered with the aid of information obtained illegally. The logic of the terminology is that if the source of the evidence (the "tree") is tainted, then anything gained from it (the "fruit") would be likewise.

Such evidence is not generally admissible in court.For example, if a police officer conducted an unconstitutional (Fourth Amendment) search of a home and obtained a key to a locker in a train station, thus obtaining evidence of a crime from the locker, then that evidence would more than likely be excluded in accordance with the fruit of the poisonous tree doctrine. The discovery of a witness is not evidence in itself because the witness is attenuated by separate interviews, in-court testimony and their own statements.

The doctrine is an extension of the exclusionary rule, which, subject to some exceptions, prevents evidence obtained in violation of the Fourth Amendment from being admitted in a criminal trial. Like the exclusionary rule, the fruit-of-the-poisonous-tree doctrine is intended to deter police from using illegal means to obtain evidence.

The doctrine is subject to three main exceptions. The tainted evidence will be admissible if

(1) it was discovered in part as a result of an independent, untainted source;
(2) it would inevitably have been discovered despite the tainted source; or
(3) the chain of causation between the illegal action and the tainted evidence is too attenuated.

The Fruit of the Poisonous Tree doctrine stems from the 1920 case of Silverthorne Lumber Co. v. United States.

Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), was a U.S. Supreme Court Case in which Silverthorne attempted to evade paying taxes. Federal Agents illegally seized tax books from Silverthorne, and created copies of the records. The issue in this case is whether or not derivatives of illegal evidence are permissible in court.

The ruling was that to permit derivatives would encourage police to circumvent the Fourth Amendment, so the illegal copied evidence was held tainted and inadmissible. This precedent is known as Fruit of the Poisonous Tree and is an extension of the exclusionary rule.

The Fruit of the Poisonous Tree phrase is a reference to the biblical passage originally found in Matthew 7:17-20

Mat 7:17 Likewise every good tree bears good fruit, but a bad tree bears bad fruit.

Mat 7:18 A good tree cannot bear bad fruit, and a bad tree cannot bear good fruit.

Mat 7:19 Every tree that does not bear good fruit is cut down and thrown into the fire.

Mat 7:20 Thus, by their fruit you will recognize them.

FORUM ON BLOGGING & DEFAMATION LAWS

The Information Technology Committee of KL Bar is organising the above Forum. Details as follows:-

Date : 23rd October 2008
Day : Thursday
Time : 6 pm to 8 pm (But may stretch to 830pm)
Location : Bar Council Auditorium.
Entrance : Free

Speakers:-

1. Jeff Ooi (Member of Parliament & Blogger)

2. Foong Cheng Leong (Advocate & Solicitor & Blogger)

3. Nizam Bashir (Advocate & Solicitor & Blogger)

The Forum is open to the public. Feel free to attend. Should you have any enquiry, and wish to book a place to sit, please contact KLBC's Executive Officer, Ms Melissa at melissa@klbar.org.my or at 603-2693 3585

Thanks

OF SHARKS AND LAWYERS

“Q : Why did the shark not eat the lawyer when his boat sank in the ocean?
A : Professional Courtesy”

There are many more jokes of that nature to be found everywhere. So the question is, why would one still want to be a lawyer? Especially in this day and age. Is it because it is an easy path? Does it pay really well? Maybe they just like to be the brunt of a multitude of jokes out there? Who knows? I cannot say for certain why others read law but I know why I did.

I would like to say that I was inspired by the likes of Clarence Darrow or Abraham Lincoln but that would be lie! And as George Washington said when he cut down the cherry tree, “I cannot tell a lie!” (Not really in this case – but I digress…) I would say that television played a greater part in influencing me rather than the great lawyers out there.

I was first influenced by my father who gave up teaching and turned to law. Much of what I knew about law and lawyers came from television. So much so, I read law in the Thames Valley University (TVU) – TV University? Get it?

I remember watching movies such as Ally McBeal, The Practice and a number of other “lawyer” movies thinking that these people had it great! Cool cars and lots of money to boot! Wow… this is the life for me.

So I found myself on the path of becoming a lawyer, reading law, getting myself a law degree and then found myself chambering (doing my pupilage) at a reknowned law firm in Ipoh and finally found myself in practice on my own.

Did the path lead to riches and cool cars as promised? Not really… but in becoming a practicing lawyer I have come to realise something that I have never known before but it is something I feel that one should know about way before thinking of taking up this profession. A small word, seven letters in all but with a whole lot of implications and responsibilities. JUSTICE.

Now what do I mean by this? This may sound a bit naïve or aloof; but I believe that lawyers are the last line of defence against tyranny. As Edmund Burke once said, “All that is necessary for the triumph of evil is that good men do nothing” and I truly believe that lawyers are good men and women. They have been trained to do good, to uphold justice; to make sure that each and everyone gets his day in court. Of course many other factors are needed to contribute to ensuring a just society.

Having said that; to me, the most important thing to ensure that justice is upheld or preserved is the man itself. As lawyers, we are trained to assist the courts in interpreting the law. Whilst we are advocating our client’s rights and case we must be aware that we are first officers of the court. Our loyalties should lie with the law first, the courts second and then only the client. You would notice however that the lawyers themselves are not even mentioned in the top 3! I know that most of the people who think of lawyers associate us with Sharks and other things which I will not repeat here but that view may not be entirely true (There are always bad apples in any basket!)

For me, in order for someone to take up this profession they must bear in mind that as in everything we do, hard work is essential. Reading and keeping ourselves updated on the law is a requirement. A passion for law and justice should be a pre-requisite. It’s not easy if we want to be a good lawyer.

We lawyers (some of us anyway) are probably the only ones in this world that has set up a Legal Aid centre entirely funded by the lawyers themselves. We pay a yearly subscription towards this fund to help underprivileged and deprived people who cannot afford to engage lawyers on their own and we help them advocate their case in court. Of course there are criteria which have to be met before we can help but at the end of the day the lawyers through the Bar Council has set up such centres throughout the country to assist the public in their woes for FREE!

There are also some lawyers out there who have been remanded, jailed and fined for upholding their client’s rights. Giving up their own liberty to ensure that others may have theirs!

In recent times, we have seen the Bar Council take up issues which affect the public in general such as the independence of the Judiciary as in the case of the Tun Salleh Abas fiasco. The lawyers marched for judicial independence then and recently the Bar council stand has been proven to be the right one. An independent judiciary is the cornerstone of any successful legal system and democratic country.

The Bar council again walked for Justice after the V.K.Lingam recordings were made public, asking for a Royal Commission to be set up to investigate the recordings and the allegations therein contained in the video recordings. The lawyers wore full court attire (jackets and ties) and walked in the sun and the rain for almost 5 kilometres to Putrajaya to hand over the memorandum to the Prime Minister’s office.

So its not always about the money and the cool cars (having it doesn’t hurt of course!) but at the end of the day its about justice and how as lawyers we are there to ensure it is available to all. So before anyone seeks to venture into this profession, make sure you are willing and able to contribute positively towards the profession and to the people. If you cannot, then this path may not be the right one for you; for it is not always paved in gold but mostly in pain and heartbreak in the pursuit of justice.

As Martin Luther King once said, “Injustice anywhere is a threat to justice everywhere”

I truly believe that lawyers can and will pursue justice wherever they may be. I still do!

Are we still the sharks that we are thought out to be? You decide…

Submitted by Kenny Lai Choe Ken

MANO MANIAM TO GRACE THE PERAK BAR ANNUAL DINNER 2008

Dear Members,

Hear ye! Hear ye!

The Perak Bar Social Committee is glad to inform you that the star attraction for the night’s entertainment is none other than Mr. Mano Maniam of the Kopitiam fame.

The price for the tickets for this exclusive show is RM100.00 per person OR RM1000.00 per table. Bookings may be made for tables or tickets by contacting Prema at the Perak Bar Secretariat at 05-2415457. Payment for the tickets are to be made before or upon collection of tickets.

So come on and join the festivities in our first ever Awards Night at our Annual Dinner and find out who the winners are! This is an event not to be missed.

Remember the dinner is on the 8^th of November, 2008 @ 7.30pm at the Casuarina Hotel.

The earlier you get your tickets the better seats you would have so come and get the tickets early before they all run out!

Yours faithfully,

Kenny Lai Choe Ken

Social & Sports Committee Chairman 2008/2009

Talk On Recent Developments In Construction Law

Topic : Recent Developments In Construction Law
Speaker : Mr. Teng Kam Wah
Venue : Perak Bar Secretariat
Date : 15th October 2008
Time : 3.00p.m – 5.00p.m


This talk will be a journey of discovery of developments in construction law covering latest judicial pronouncements from Malaysia, Singapore and the United Kingdom. Mr.Teng Kam Wah will analyse the legal concepts and principles emanating from these cases to illustrate how construction disputes are decided in real life. These include whether a letter of intent constitutes a binding contract, the Architect’s power to issue instructions, the Architect’s obligation to inspect, whether the Engineer is liable for economic loss, acts of prevention by the Employer, differences between force majeure and frustration, whether a Contractor’s demand for sums which are not due amounts to a repudiation, whether the Employer is entitled to cost of demolition and rebuilding, or cost of repairs, whether a party can sue another in respect of loss or damage for which they are both co-insured, when interest starts to accrue for construction disputes, quantum meruit claims, mitigation of damages, when remedial works should be carried out, whether a sub-contract entered into on a back-to-back basis with the main contract incorporated all the terms of the main contract, whether a Sub-Contactor has the right to view the main contract, the kind of damages claimable for negligence and whether the parties are liable for negligence/breach of contract if there is insurance against a peril.


About the Speaker

Mr Teng Kam Wah is an Advocate & Solicitor. He graduated with Bachelor’s and Master’s degrees in law from the University of London. He also holds a Science degree from the University of Malaya where he was a Book Prize Winner. He is the fellow of the Chartered Institute of Arbitrators.

He was the Group Legal Manager of one of the leading construction and infrastructure companies listed on the Main Board. He had also acted as the Legal Manager of a group of public listed companies with diversified interests.

Mr. Teng Kam Wah has conducted seminars for various organizations including Universiti Tunku Abdul Rahman and the Malaysian Institute of Accountants. He had lectured law part-time at the University of Malaya.

He has acted as counsel in court proceedings till the Federal Court level. His law articles have been published in professional journals including the Malayan Law Journal the Current Law Journal and the Insaf.

Kindly RSVP to the Perak Bar Secretariat by 14th of October 2008 as refreshments will be served and so that the talk can be held as scheduled.

Rashpal Singh
Chairman
Professional Standards &
Development Sub Committee
Perak (PSDC)