Sunday, December 19, 2010

A bargain for justice

The authorities must always bear in mind that when implementing plea bargaining, the system is open to possible abuses. It is important to ensure the system is more advantageous than disadvantageous for all the stakeholders in our criminal justice system to practise it.

CHIEF Justice Tun Zaki Azmi announced on Monday that plea bargaining will be implemented soon. The plea bargaining will allow those who plead guilty to serve a prison term which is not more than half of the maximum punishment imposed under the law for the offence for which an accused has been convicted.

This is made possible after Parliament passed the Criminal Procedure Code (Amendment) Act 2010 (Act A1378). Royal assent was obtained on June 2, and Act A1378 was gazetted on June 10. It will now come into operation on the date to be fixed by Home Minister Datuk Seri Hishammuddin Tun Hussein.

What then is a plea bargain? In simple terms, it is an agreement reached after negotiation between the prosecutor and the accused in a criminal case whereby, if the accused agrees to plead guilty, the prosecutor will reduce the original criminal charge to a lesser charge or withdraw any other remaining charges or the accused will receive a lighter sentence if he faces the original criminal charge.

It is said that plea bargaining existed as far back as 1485 involving an English statute prohibiting unlawful hunting. The statute stated that an accused would be convicted only of a summary offence if he pleaded guilty; otherwise, he would be charged with a felony offence punishable by imprisonment.

In Malaysia, plea bargaining hitherto is done in an indirect way whereby the accused’s counsel will make representation to the Public Prosecutor to reduce the charge, for example, from a murder charge to a charge of culpable homicide not amounting to murder if the accused pleads guilty.

However, the court is not involved in this process, and sentencing remains the sole prerogative of the presiding judge. As put trenchantly by Justice Wan Yahya in New Tuck Shen v Public Prosecutor (1982):
“This court does not consider it bound by the private bargaining between the prosecution and the defence in respect of which bargaining it is not a party and in which it has been judicially prohibited to participate. The right to impose punishment on a guilty party is absolutely the discretion of the court. It will exercise that power judicially but will not tolerate any encroachment or even semblance of encroachment either by the prosecution or the defence in respect of such right.

“An agreement between the prosecution and the defence as to the nature of sentence to be imposed on the accused creates no obligation on the court and is good only for pricking the conscience of the defaulting party.”

In fact, this is still the current position practised in common law jurisdictions such as England, Canada and Singapore, albeit plea bargaining is now statutorily permitted in Pakistan and India since 1999 and 2006, respectively.

Sunday, November 21, 2010

Time to break the impasse

By not confronting racial and religious issues, civil court judges have abdicated their duty to uphold the people’s constitutional rights to equality and freedom of religion.

ON Nov 12, much to the dismay of many Malaysians, the Federal Court declined to answer five constitutional questions of public importance on unilateral conversion of children to Islam by one parent who has embraced Islam.

The case involved Shamala Sathiyaseelan, 38, and Dr Jeyaganesh Mogarajah, 42. The couple were married on Nov 5, 1998 according to Hindu rites in Alor Setar and the marriage was registered under the Law Reform (Marriage and Divorce) Act, 1976 (Act 164). Their sons, Saktiswaran and Theiviswaran – born in 1999 and 2001 – were Hindus at the time of their birth.

On Nov 19, 2002, Jeyaganesh converted to Islam. As a ‘saudara baru’ or muallaf, he is known as Muhammad Ridzwan bin Mogarajah. On Nov 25, 2002, Jeyaganesh converted the two minors to Islam without the knowledge or consent of Shamala. Saktiswaran’s Muslim name is Muhammad Firdaus Jeya while Theiviswaran is named Muhammad Asraf Jeya.

Shamala then went to the Kuala Lumpur High Court to challenge the conversions and seek custody of the minors. Justice Faiza Tamby Chik held on April 13, 2004 that since the two minors were now muallafs, Shamala should take them to Majlis Agama Islam Wilayah Persekutuan for help and advice to resolve the issue because under Article 121(1A) of the Federal Constitution, the civil court had no competency to determine the status of the minors’ conversion.

Meanwhile, Jeyaganesh had also obtained hadhanah (custody) of the two minors from the Mahkamah Tinggi Syariah Selangor on May 8, 2003. However, on July 20, 2004, in addition to an interim order made earlier in favour of Shamala on April 17, 2003, the High Court granted Shamala ‘actual custody’ or actual care and control, and the husband, ‘legal custody’ of the children.

Monday, November 1, 2010

Appreciation Dinner for Putik Lada Contributors (15 Oct 2010)

Written by Sumitra Penesar. Reproduced from Malaysian Bar Website

On 15 Oct 2010, the National Young Lawyers Committee (“NYLC”) of the Malaysian Bar Council hosted a dinner at Aliyaa Restaurant & Bar, Damansara Heights, in honour of all Putik Lada column contributors. Putik Lada (which means pepper buds in Malay), a fortnightly column in The Star, is a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society.

Sunday, October 24, 2010

Roger Tan:: Not a question of loyalty (Expanded Version)

Malaysians who live, work or study in Singapore should not be regarded as disloyal to their own country.

LIKE many Malaysians, I am naturally proud of ex-Muar High School boy Tan Zhongshan’s extraordinary academic feat (“Malaysian is top law student at Cambridge University”, The Star, Oct 19).

By chalking up the record as the overall best law student in the entire Cambridge University, his performance has probably even surpassed that of the university’s luminary alumni like Singapore’s Minister Mentor Lee Kuan Yew and his late wife.

Tan is but one of the thousands of young and bright Chinese Malaysians who have received scholarships from the Singapore government to study at different levels from secondary one to university in the city state.

It is no secret that Singapore officials would only recruit the “cream among the crop” for this purpose and those who excel will be sent to Oxbridge colleges and the Ivy League universities. Upon graduation, they would be bonded to work for a number of years in Singapore or elsewhere in Singapore-owned corporations. By then, most will not return to Malaysia.

Needless to say, many such children from poor families who were unable to get state aid in Malaysia have benefited immensely from this financial assistance. In return, they generally feel grateful to the Singapore government.

In Tan’s case, he said he would join the Singapore legal service. This is another achievement because only the very best of law graduates would be selected to join the Singapore judicial and legal services. It is also financially rewarding considering that a Singapore High Court judge is said to draw an annual salary inclusive of perks amounting to about S$1mil (RM2.4mil).

However, one has to take up Singapore citizenship if he aspires to become a judge or hold a senior position in their legal service.

This reminds me of my own experience. Unable to get financial aid from the state, my family had to privately finance my law studies in England. At that time, the then British government had begun imposing full-cost fees on foreign students as well as prohibiting them from seeking employment while studying there.

I wrote to Prime Minister Margaret Thatcher telling her that the common wealth of the Commonwealth ought to be commonly shared! I did receive a reply from the British Department of Education and Science on her behalf justifying the new policy on the grounds of national interest.

Saturday, October 23, 2010

Thursday, October 21, 2010

Well done, my dear sister

Today, I am pleasantly surprised to chance upon this letter written by the outgoing principal of Saint Andrew's Junior School, Singapore about my sister. All I want to say is, well done, sister. Below is the letter:

Dear Parents/Guardians

I am pleased to share with you that the new Principal for St Andrew’s Junior School, Singapore has been announced, with the appointment taking effect from 15 December 2010.

The new Principal is Mrs Wong Bin Eng, currently serving as Principal of Tampines Primary School.

Mrs Wong is a visionary principal who has taken her school to greater heights in her 7 years there. Tampines Primary School is one of the few primary schools in Singapore which have garnered the School Distinction Award, as well as the Singapore Quality Class Award. Her work in Staff Well Being and Staff Development is well recognised, and this has garnered awards like Work-Life Excellence Award.

Sunday, October 17, 2010

Eulogy for Sis Elizabeth Margaret, wife of our founding pastor

Eulogy delivered by Roger Tan for Sis Elizabeth Margaret at the Sunday Worship Service of Holy Light Church (English) on 17 October 2010 

This morning, it is with much sadness that I inform you of the passing of Sister Elizabeth Margaret, wife of The Revd. Dr. George Hood, the founder of this Church. Sister Elizabeth was promoted to glory on October 7 in Northumberland, England. She was 92. Her cremation funeral service was held last Friday, October 15. A thanksgiving service in celebration of her life has also been planned on October 30.

I also regret to inform you that Rev. Hood is in hospital after he had a fall. The doctors have given him a new ‘hip’, and we pray and wish him a speedy recovery.

Members of this congregation, the late Sister Elizabeth was born in Shantou (or historically known as Swatow), East Guangdong, China on October 2, 1918. This was also an area in which her parents and grandparents had worked as missionaries from 1869 onwards.

Tuesday, October 12, 2010

Book Review: “Constitutional Law in Malaysia and Singapore”

First published on Loyarburok on 12 October 2010. 

A review of the third edition of popular cases and commentary book, “Constitutional Law In Malaysia and Singapore”

Tempus Fugit indeed! Twelve years have passed since the publication of the second edition of this popular cases and commentary book on Malaysian and Singapore Constitutional Law in 1997 by two distinguished constitutional law scholars, Kevin Tan and Thio Li-ann.

During this decade of intermission, Kevin Tan had been out of full-time teaching but remained an Adjunct Professor to the Faculty of Laws, National University of Singapore. To Malaysians, Kevin Tan is also remembered as the constitutional law expert who was barred on technical grounds by the Malaysian authorities in December last year to speak about the Perak constitutional crisis in a forum organised by Merdeka Review.

On the other hand, as aptly described in the preface, Thio Li-ann engaged herself during this period with the “practicalities of constitutional politics” as a Nominated Member of Singapore Parliament from January 2007 to June 2009. Hence, the two of them no longer require any further introduction.

Wednesday, October 6, 2010

Eulogies for Mdm Kwa Geok Choo, wife of MM Mr Lee Kuan Yew

MM Lee's eulogy to his wife
By Minister Mentor Lee Kuan Yew

ANCIENT peoples developed and ritualised mourning practices to express the shared grief of family and friends, and together show not fear or distaste for death, but respect for the dead one; and to give comfort to the living who will miss the deceased.

I recall the ritual mourning when my maternal grandmother died some 75 years ago. For five nights the family would gather to sing her praises and wail and mourn at her departure, led by a practised professional mourner. Such rituals are no longer observed.

My family's sorrow is to be expressed in personal tributes to the matriarch of our family.

In October 2003, when she (Mrs Lee Kuan Yew) had her first stroke, we had a strong intimation of our mortality.

My wife and I have been together since 1947 for more than three-quarters of our lives. My grief at her passing cannot be expressed in words. But today, when recounting our lives together, I would like to celebrate her life.

Saturday, October 2, 2010

Netizens send condolences to Lees

The Straits Times, Singapore

WITHIN hours of the government announcement that Mrs Lee Kuan Yew, wife of Minister Mentor, has died on Saturday at 5.40 pm, ordinary Singaporean from all walks of life, including those living overseas, began sending in condolences and tributes on news blogs and online sites.

'She is one of the greatest people around. May she rest in peace. PM Lee hope you be strong,' said Facebook user Wljx Wayne on ST's Facebook page.

Another Facebook user Pearl Foong Lye Fong expressed sadness over Mrs Lee's death, and also wished 'MM Lee to be strong and recover soon'.

Netizen R.H.W.K, in comments on MSN Singapore, praised Mrs Lee as 'a great woman who did so much behind the scenes work for Singapore. Without her, we would be living in a different Singapore'.

Forummers on The Straits Times (www.straitstimes.com) discussion board expressed concern for MM Lee, who said in a recent interview that he has had '61 years of happiness' with his wife, Madam Kwa Geok Choo.

Sunday, September 19, 2010

Too much of a good thing

Venting their anger: Jones' threat to burn the Quran has resulted in worldwide condemnation against him.
If we adopt a free for all, which includes the right to indulge in hate speech or a right to foment and incite hatred and violence, our beloved country will be torn apart in no time.

MANY of us have heard of the infamous Pastor Terry Jones – the bewhiskered preacher from the diminutive Dove World Outreach Centre in Gainesville, Florida, in the United States who had threatened to hold “Inter­national Burn A Quran Day” on Sept 11. He subsequently backed down after worldwide condemnation against him.

This included our Foreign Affairs Minister Datuk Anifah Aman, who called the act of burning the holy book of Muslims a “heinous crime”.

US President Barack Obama warned that this could increase the recruitment of individuals who would be willing to blow themselves up in American or European cities, adding that it would be a recruitment bonanza for al-Qaeda.

As a Christian, I am ashamed by what Jones tried to do, especially when it came from a man of God.

But why were the US authorities, including the President, powerless to stop him from carrying out his threat?

The answer lies in Jones’ right to freedom of speech enshrined in the First Amendment to the US Constitu­tion.

The First Amendment is part of the United States Bill of Rights which contains the first 10 sacrosanct amendments to the United States Constitution.

CJ to meet Johor, Penang Bars

The Sunday Star
by Shaila Koshy

KUALA LUMPUR: Chief Justice Tun Zaki Azmi will meet representatives of the Johor and Penang Bars over their complaints on judicial measures to clear the backlog of cases and improve the administration of justice.

“I will meet the Johor Bar on Thursday. I received a letter from the Penang Bar requesting for a meeting and am in the process of fixing a date,” Zaki told The Star yesterday.

Wednesday, September 15, 2010

Keep an open mind over no-confidence motion, Johor Bar told

The Star
by Nelson Benjamin

JOHOR BARU: The Malaysian Bar Council feels that the Johor Bar Committee should keep an open mind to allow discussion by members on taking a no-confidence motion against its chairman.

Council chairman Ragunath Kesavan said it was not the first time that such a motion was brought up, adding that even in the council such a motion was allowed in the past.

Thursday, August 19, 2010

Putik Lada: Importance of making a will

When a non-Muslim dies without making a will, his estate will be distributed according to the law, except in the case of insurance and EPF savings, where the nominees are the beneficiaries.

AS WE are all mortals, and death often comes like a thief in the night, we owe it to our loved ones to make a will during our lifetime. I would like to advise our readers on the importance of making a will, and the consequences of not making one.

By not making a will, you will not be able to distribute the assets according to your wishes after your death. Instead the state will define who will actually benefit from your death.

When a person dies without making a will, he is said to have died intestate. His property is called his “estate”, and his children, his “issue”.

Sunday, August 15, 2010

Leading with an open heart

It remains one of the non-Muslims’ gravamina that they find it increasingly difficult to build their places of worship. But recently, the Johor state government not only approved the building of a church, it also contributed RM200,000 to its construction.

ON Aug 1, the congregation of my church, the Holy Light Church (English), Johor Baru (HLCE), was elated to learn at a special fund-raising service that Johor Mentri Besar Datuk Abdul Ghani Othman had granted a sum of RM200,000 towards the construction of our first church building.

A member of the congregation, Suzie Teo, who shed tears of joy upon hearing the announcement, said: “We are overwhelmed by the Mentri Besar’s kind gesture. What was initially a pipe dream is now a dream come true.

“I am so touched to learn that after waiting for 20 years, the Johor state government has not only approved our application but has also decided to partially contribute towards the construction cost of RM3mil.”

Indeed, the Mentri Besar’s thoughtful gesture in our time of need, which is not given at election time, will go a long way to assure the HLCE congregation that the state government is not just a government of one particular race or religion, but that of all Johoreans.

In fact, as we look back at the last 20 years, the entire journey is one of faith, which is obviously not suitable for the faint-hearted lacking any tenacity to persevere from the application stage to the final approval.

It was in September 1989 that HLCE acquired this piece of agricultural land in Pandan, next to the Ponderosa Golf Resort, measuring 8.925 acres. As the HLCE congregation has been worshipping on rented premises since 1952, it is hoped that a permanent place of worship would be erected on this land.

In 1991, the HLCE applied to the Johor state authority to convert the land use from “agriculture” to “religious use”, but this was turned down in 1993. In August 1993, the HLCE received notice that the land would be compulsorily acquired for a joint-venture project between a state agency and a private developer. The HLCE then filed a suit in 1995 against the state government challenging the validity of the acquisition. At this time, I had already moved from Kuala Lumpur and started worshipping at the HLCE.

When I brought to the attention of then Mentri Besar Tan Sri Muhyiddin Yassin that the land belonged to a church, Muhyiddin immediately instructed that the land acquisition be withdrawn. When Ghani became the Mentri Besar in 1995, he arranged for the withdrawal of the acquisition to be officially gazetted on Sept 3, 1996.

Being only too aware that it would be near impossible for the state authority to convert the land use to religious use over a piece of property measuring about nine acres, the HLCE then had it sub-divided equally into two plots.

Over the years, the HLCE applied for the two plots to be separately converted for institutional and religious purposes. In 2000, the state government approved the piece meant for institutional use. It was not until April 2008, and that also only after the personal intervention of Ghani, that the other piece was converted for religious use.

In June 2010 and early this month, the state security committee and the Johor Baru City Council respectively approved the building plans for the new church sanctuary. Piling work is expected to commence in October.

As shown above, the application and approval process for the erection of non-Muslim places of worship is most cumbersome. As it is almost unheard of that state governments would alienate lands for building non-Muslim places of worship, most lands involved are private lands. Hence, the necessity of having first to convert the land use to religious use before a place of worship can be erected thereon.

Only after the land conversion is approved can one submit the building plan for approval by the local authority. It must be emphasised that when applying for both the land conversion and building plan approvals, the entire approval process is repeated in that the approvals of the district and state security committees are mandatory for both stages. It is also open knowledge that representatives from the Islamic Affairs Department would sit in these committees.

It follows that it is not unusual to take at least five to 10 years from the time the application is submitted until the project finally comes to fruition. Perhaps what creates the most resentment among non-Muslims is the fact that the erection of their places of worship is treated as a security threat.

In the last general election and even today, it remains one of the non-Muslims’ gravamina that they find it increasingly difficult to build their places of worship. They are upset that the approving authorities have scant regard to Articles 3 and 11(3) of the Federal Constitution which guarantee them the right to profess and practise their religions as well as to establish and maintain institutions for religious purposes.

In the case of the HLCE, it had to seek the assistance of various high-ranking government officials and politicians in the last 20 years. While I find them most understanding and helpful, the same cannot be said of the junior and local government officers. As the civil service is almost mono-religious and often devoid of multi-religious sensitisation, it is understandable if they feel that it is against their religion to support the erection of other places of worship.

So when applications are so frequently turned down and approvals are so difficult to obtain, it is axiomatic that the only human reaction is, of course, to convert, albeit illegally, houses, shoplots and commercial premises into worship places.

In the true spirit of the Federal Constitu­tion, I wish to reiterate my calls made over the years on the need to establish a non-Muslim Affairs Committee/Department in each state to deal with all matters relating to non-Muslim places of worship.

Thursday, August 12, 2010

Taking the constitution to the rakyat

Edmund Bon
Free Malaysia Today
By Teoh El Sen

FMT INTERVIEW KUALA LUMPUR: Since it was launched in July last year, the first-of-its-kind national campaign to bring the Federal Constituion to the people has "taken on a life of its own".

These were the words of Bar Council president Ragunath Kesavan about the MyConstitution campaign and Edmund Bon couldn't agree more.

Bon, the lawyer-activist who heads the constitutional law committee in the Bar Council and the campaign, said he never expected it to become "so big".

"We started with over 100 members; we now have 200 in just two terms. It was a correct decision to open the Committee to non-lawyers," Bon said.

He said the amazing thing about the project was that in spite of differences in ideology and opinion, everyone seems to agree that the people have to be educated on the Federal Constitution.

"Surprisingly, everyone, liberal or conservative, is committed to the same aim of bringing the constitution to the people."

"People may hold different views, but at the end of the day, we can still sit down and say: 'Let's do this together'. It's something that is quite fantastic and invigorating," Bon said.

In a recent interview with FMT, Bon speaks on how the campaign has gone so far and what he hoped to achieve. Below are excepts:

FMT: One year has passed since the campaign, can you tell us what have you achieved?

Edmund Bon: Since July 2009 till now, it's already a year! We have launched five phases...

I think we have created greater public awareness of the constitution. I don't mean the elite, the people in power who are purposely manipulating the constitution. Our campaign has reached out to a lot of ordinary people through workshops. I believe a lot of people now have a basic knowledge of what the constitution says.

What are you doing to bring the constitution to more people?

The response has been very positive with the English- and BM-speaking Malaysians because we have published our booklets in both these languages. We are quite certain that people in the cities are well-versed in the constitution and our campaign merely strengthens their knowledge. But we have to reach the rural areas and that is very important. We are planning to translate our booklets into Mandarin and Tamil. We currently don't have enough funds for that.
Currently who funds this project?

The Bar Council, and at different stages whoever wants to partner with us. So far, the federal government, and the state governments of Kedah, Selangor, Sarawak have supported us.

What is the ideal vision you have about the outcome of this campaign?

We hope that by the time we launch all nine phases, we will be able to see changes in the way things are being discussed and expressed, especially in the media. So that immediately we can see a situation when people in power say something which is clearly against the constitution, the rakyat are able to say: 'Don't lie to me, don't fool me.'

What do you mean by that?

Okay, this is just an anecdotal example and it made its rounds as a joke; not based on research. But in Sibu, we had a very strong team who had been working very work to enlighten the people on the constitution led by a member Adrian Chew.

Sibu is quite an urbanised area and in the May (parliamentary by-election), everyone thought that the Barisan Nasional would win. Our team members had been doing a marvellous job on the MyConstitution campaign... they were not telling the people who to vote for or who to support but informing them of their constitutional rights.

It was jokingly said this was probably the reason people voted against what they did not like. But of course we can't take credit, or else the DAP will get angry with us (laughs).

I guess you can’t take take the Sibu people as fools and in a way they told off those in power by saying 'you are taking us for a ride'.



We are ‘non-political’ but I think our MyConstitution education campaign gave people the courage to vote when we tell them the constitution is the supreme law of the land.



Do you think the BN government is fearful of what you could achieve with the MyConstitution campaign?

Many in the BN government are supportive, like Ministers in the Prime Minister's Department Nazri Abdul Aziz and Koh Tsu Koon and Deputy Minister in Prime Minister's Department Liew Vui Keong. I believe they know we need such awareness (of our constitutional rights) after 50 years without a formalised education on the constitution.

Of course, there are some other ministers who are fearful I guess. We have approached a number of ministers'. For example, we have written to the Higher Education Minister (Mohamed Khaled Nordin) but he didn't reply. When our president Ragunath (Kesavan) met with Najib (Tun Razak), he said the prime minister expressed support. But we have not got any funding from him (Najib) directly though.

I am not really bothered whether it is supported by the government or opposition. Even if we don't have the money, we will go ahead and bring it to the people. However I think this is something everyone supports regardless of political ideology.

How does this campaign relate to the law and legal industry?

Many lawyers themselves have not even read the constitution, I don't blame them. Because it is a document that is very legalistic and very hard to read. With our campaign, we are hoping to educate lawyers too.

Why is the Bar Council taking this up?

We are doing this because under the Legal Profession Act, lawyers must uphold justice without fear or favour, and also to educate and assist the public, especially the poor. So in a way we are 'legally bound' to do it. This is something the government is supposed to do. But never mind, let us do it.

What are the most frequently asked questions by the people on the ground?

It depends on the particular issue at the moment, the week or the day. For instance, when we were in Perak, everyone was asking questions about the powers of the Election Commission, the speaker and rulers (in the wake of the Perak constitutional crisis). So the issue was all about the separation of powers...

The constitutional law committee is the biggest committee in the Bar Council -- with more than 200 members. How did this happen?



The formation of the constitutional law committee represented a great achievement for the Bar Council. In 2009, we set up the committee on the suggestion of a former council member Roger Tan. The unique thing about this committee is that it is not meant for lawyers only as the constitution is meant to be understood by the 28 million rakyat. The Bar Council agreed to allow anyone who is keen to give their views and share their expertise to join the committee. Even journalists and activists can be members. You don't need to be a lawyer or a council member. We have students as young as 16 years old, social activists, academics, law lecturers, and local councillors, among others. So this is really something by the Bar Council.

Sunday, August 8, 2010

Your land can land in the wrong hands

by Shaila Koshy

Crime syndicates are able to cheat people of their land through fraud and forgery because of weaknesses in the conveyancing process. It’s time to clean it up.

LANDOWNERS beware – especially those whose lands are vacant and idle, who are based overseas or are elderly.

Your title to that property can easily be stolen because any one of the key players in the conveyancing process – the Land Office, legal profession or the lending bank – may lack integrity or don’t observe the proper verification procedures.

According to police statistics on fraud and forgery cases involving land since 2005, there were 34 cases in 2005, 66 in 2006, 74 in 2007, 113 in 2008, 111 in 2009 and 37 in the first quarter of this year alone.

For almost a decade, the rise in the number of cases was blamed on the change in the legal position of whether it is the original land owner or the innocent buyer who has a better title under the National Land Code (NLC).

In 2001, the Federal Court in Adorna Properties held that the NLC supports the concept of immediate indefeasibility and not the previously accepted one of deferred indefeasibility. (See definition)

But in January this year, a different Federal Court decided in Tan Ying Hong to restore the position to deferred indefeasibility.

But are land owners and banks more secure now from fraud?

Based on fraud cases in Malaysia, the syndicates like to target vacant and idle lands, land owners based overseas and those who are elderly.

All an enterprising crook needs are loopholes in the law – unsuspecting landowners; corruptible people; commissioners for oaths, lawyers, bank officers who take a lax attitude in the verification of identities, signatures and original documents; and Land Office staff who register dealings relying on court orders without verifying their validity because they are not required to do so.

Include a land registration system that doesn’t require Land Office staff to verify information from an applicant to register a transfer of ownership, and what we have is the perfect set of circumstances for fraud and forgery to thrive.

National University of Singapore Assoc Prof Dr Tang Hang Wu does not think the Adorna decision was responsible for the rise in fraud.

“Singapore is a jurisdiction which subscribes to immediate indefeasibility (as in the Adorna case) and the instances of fraud are far fewer than in Malaysia,” he states.

While the concept of deferred indefeasibility may make it harder to commit fraud, the practical and mundane aspects of the conveyancing process are more crucial to preventing it, he adds.

Dr Tang, who was here for the 15th Malaysian Law Conference (MLC) recently, attributes the low incidence of fraud in Singapore to its “more rigorous conveyancing process.”

The higher incidence here, he says, is due to the presence of “sophisticated and organised crime syndicates” that engage in identity theft.

Malaysian lawyer Andrew Wong adds that in most of the cases here forgers assume the identity of the land owner, create fake identity cards and forge signatures.

Highlighting the modus operandi of fraudsters in Singapore, Dr Tang says that they “frequently feature conveyancing lawyers or their law clerks.”

“Another recurrent pattern of land fraud in the reported cases and news is clients who are defrauded by lawyers that they engage to act in land transactions.”

To reform the conveyancing process, Dr Tang and Wong say the following need to be addressed: the integrity and professionalism of the Land Office and the legal profession; attestation clause; identification and verification procedures; rules regarding the holding of conveyancing monies; and procedures relating to replacement of lost certificates of title.

Referring to a 2004 news report about some Selangor Lands and Mines Department staff being implicated in fraud involving land worth RM130mil, Dr Tang says the Land Office must purge itself of criminal elements as it is the principal bulwark against fraud.

He stresses the importance of training Land Office staff to detect any red flags.

In applications for replacement certificates of title, he suggests that the officer insists the applicant turn up in person for an interview and provide a thumbprint and photograph so that it would help with evidence-gathering if fraud occurs later.

“Otherwise, like in the case of Adorna, we are left none the wiser of the true identity of the rogues who perpetrated the forgeries.”

Wong, who was also at the MLC, says it is no secret that many solicitors here do not require the person executing an instrument of dealing to sign in his presence, even though this may make it “insufficient or void under Section 340(2)(b) of the NLC.”

He points out that attestation in New South Wales, Australia, and authentication of documents in Botswana require the person attesting a signature to “personally know the person signing”.

Wong adds that in Singapore the registrar may reject any instrument unless a Certificate of Correctness is included. This certificate, signed by a solicitor employed by a party to the instrument, implies, among others, the instrument is made in good faith and the matters set forth are substantially correct.

Former Bar Council Conveyancing Practice chairman Roger Tan, however, doubts whether introducing such a certificate here would reduce fraud.

“A certificate would impose personal liability on the lawyer but the crooks can still forge the lawyer’s signature and the certificate itself,” he says, adding that in many cases the crook had the help of a lawyer or Land Office staff.

He reckons that making it mandatory to use thumbprints on transfer forms and creation of charges is a better way to reduce fraud.

As for how to prevent lawyers from absconding with money (meant for buying a property) deposited in the client’s account, Dr Tang says there is currently a proposal in Singapore for all such monies to be held by its Academy of Law or commercial banks for safekeeping.

With regards to reducing risks to lending institutions, Wong says they should be required to take reasonable steps to confirm the identity of the borrower or the security party, and to maintain records of such steps for at least seven years.

Wong and Dr Tang also suggest that an Assurance Fund be set up to compensate victims of land scams.

However, Dr Tang admits that, unlike in Australia, defrauded land owners in Singapore face difficulties in claiming successfully because the law requires the land owner to have been deprived of his land through the “omission, mistake or misfeasance of the registrar or any member of his staff.”

Wong thinks that title insurance – a no-fault indemnity insurance which exists in several Commonwealth countries and throughout Europe – should also be introduced here.

No reform should be rushed into but they should address all the current weaknesses. It should be remembered that criminals are not encumbered by bureaucracy and that they adapt very quickly to whatever the authorities come up with.

In the mean time, all the stakeholders can work on improving their personal integrity and shoring up incorruptibility.

Definition

IMMEDIATE indefeasibility is a situation where a transferred title is valid, regardless of any element of fraud or forgery involved.

Countries such as Australia or Canada practise this, and their respective governments have in place a fund that compensates victims of such cases.

Deferred indefeasibility, on the other hand, only protects a subsequent purchaser to a title that is defeasible. Therefore, if one party obtains a title where fraud or forgery is involved, this title can be defeated.

However, if this same party sells it to another purchaser who buys it on good faith, that title is considered to be indefeasible. The indefeasibility therefore “defers” across one transfer of title (the one where fraud or forgery is involved) to the next purchaser who buys it in good faith.

(Internet source: http://www.asiaone.com/Business/My%2BMoney/Property/Story/A1Story20071227-42699.html)

Prime Targets: Based on fraud cases in Malaysia, the syndicates like to target vacant and idle lands of land owners based overseas and those who are elderly.
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A cautionary tale
By Shaila Koshy

IMAGINE looking through the “land for sale section” of the classifieds in your newspaper and finding an insert put up by someone else offering your property for sale. Then imagine seeing the same insert week after week.

This is what has happened to businessman M. A. and two others who are co-owners of five parcels of freehold land in Cheras, Kuala Lumpur.

In January, they went to the Land Office and put a caveat on the titles to warn prospective buyers that the parcels, measuring 17.35ha, were not for sale.

That, however, did not stop property agents from advertising the parcels, zoned as agricultural land, for sale.

The only effect is that many have written to M. A. saying they have prospective buyers lined up either for individual parcels or the whole lot.

Last month, the owners approached the Bar Council with their problem.

On July 12, council secretary George Varughese issued a circular to all members of the Bar informing them of the situation and to advise them to exercise caution if they were approached to handle any transaction involving the properties.

M. A., who has declined to be identified, says his discovery of the attempts to defraud him and the two other owners of the land last year happened by chance.

“A family friend who is an estate agent had seen an ‘Option for Sale’ document with my name indicating the lots were for sale and called me,” he relates.

“I told him that we had not authorised anyone to sell our property. They had copies of our MyKad and all our particulars were correct. How did they get them?”

How indeed, especially since he says he only got his MyKad five years ago and the only time he used it was at the Immigration Department.

“They also had certified true copies of the titles,” says the perplexed and angry M.A.

“How is that possible when the titles are with us?

“What did the Commissioner for Oaths base his certification on?”

The fraudsters were interested in the parcels – of which four are adjoined and the smallest, a short distance away – because of their development potential. Interest was especially high just before the 2010 Budget in October which re-introduced the real property gains tax.

The interest is still there as they found a man surveying the land earlier this year. Before they ejected him, they managed to get the information that a “Datuk Tan” had sent him to survey the land.

M.A. says he is getting more and more concerned, especially since he’s been told that the caveat they had put on their titles was of no use.

All it takes, he was told, was for someone to get a Commissioner for Oaths to witness a statutory declaration and the caveat could be removed!

Furthermore, the response to the council’s circular was disturbing, to say the least. Two lawyers have said they had clients who had been approached to buy the property.

According to M.A., one reported that the “vendor” had a power attorney – attested by a Commissioner of Oaths – that authorises him to sell the land.

The second lawyer reported that her client had deposited two per cent earnest money with her.

The interesting thing is that no lawyer has come forward to say he or she has acted as counsel for the purported vendor.

“Look at this!” M.A. says, pointing to the classified section of a newspaper dated Aug 4. Another agent – unauthorised by the owners – was offering their property for sale.

The owners have put a caveat on their property titles; M. A. has lodged a police report, reported the matter to the Bar Council, chased off a surveyor who entered the property without permission, and pulled down “For Sale” signs posted on the site by unknown persons. How much more diligent can an owner be?

Published in The Sunday Star on 08 August 2010.

Wednesday, August 4, 2010

37 land fraud cases in Q1

By Shaila Koshy

KUALA LUMPUR: If the syndicates keep their game up, they would have committed over 140 cases of fraud and forgery involving land dealings by the end of this year.

In the first quarter alone, the police recorded 37 cases.

According to Mohd Shukri Ismail, the Research and Development Section director at the Land and Mines Department (Federal), the process of administration of land dealings under the National Land Code did not appear to make it easy to commit fraud.

However, he acknowledged there were weaknesses within the land registration offices and the conveyancing system as well as problems in detecting forgery that needed to be addressed.

If not, the enterprising fraudsters will keep raking in millions of ringgit by selling or mortgaging someone else’s land.

“Between 2005 and April this year, the only state where no police report was lodged on fraud and forgery was Perlis,” said Mohd Shukri in his paper on ‘Measures undertaken to safeguard against fraud in land dealings’, presented during the recent 15th Malaysian Law Conference.

According to Commercial Crime Department statistics, the highest number of cases occurred in Sabah (86), followed by Selangor (56), Penang (47) and Kuala Lumpur (35).

While land owners, banks and conveyancing lawyers have been preoccupied with the changing interpretation of an indefeasible (secure) title under the land code in cases of forgery, syndicates focused on adapting their operations to the legal position of the day.

Mohd Shukri said based on police investigations, the majority of fraud occurred before the registration of the title.

Noting that all the cases in the table involved a dramatic increase in the use of false and forged documentation and fictitious identities, he said the rise in fraud had serious implications for conveyancers.

Listing the various measures put in place by the Natural Resources and Environment Ministry through the Lands and Mines Department, Mohd Shukri said a review of the land code was currently under way and the introduction of the several measures were being considered, among them:

● Torrens Insurance principle – compensation to innocent parties in consequence of fraudulent title;

● New provisions for electronic land dealing and electronic submission of applications;

● Establishing a “Land Court” to resolve land disputes; and

● Certificate of Correctness – a guarantee by a lawyer or real estate agent that the Registrar of Land Titles may accept an instrument at its face value.


Published in The Star on 04 August 2010.

Sunday, July 4, 2010

Function of law put to the test

The three legal issues that arose last week showed how pivotal it is to ensure our laws are enacted, interpreted and enforced accurately and efficiently. If not, these laws will be transformed into an ass.

Three interesting legal issues arose in the last two weeks. First, the Kuala Lumpur High Court (Appellate And Special Powers 4) last Monday ruled that the water concession agreement entered into by the Federal Government, the Selangor state government and Syarikat Bekalan Air Sdn Bhd (Syabas) could be made public, including an audit report which was said to have been presented to the Cabinet.

Second, the proposal by the Domestic Trade, Cooperatives and Consumerism Ministry to amend the Copyright Act, 1987 (Act 332) to hold landlords liable if their tenants have infringed intellectual property and copyright rights on the premises was greeted by an outcry from real estate owners.

Third, the Law Reform Committee headed by the Deputy Minister in the Prime Minister’s Department Datuk V.K. Liew proposed to amend the Statutory Declarations Act, 1960 (Act 13) to forbid Commissioners for Oaths (COs) to attest the execution of any statutory declaration (SD) which is contentious or criminal in nature.

Disclosure of Water Concession Agreement and Audit Report

Last Monday, Judicial Commissioner Hadhariah Syed Ismail allowed the disclosure of the documents to the Malaysian Trades Union Congress (MTUC) and 13 others on two grounds:

> The applicants were adversely affected by the decision of former Energy, Water and Communications Minister Tun Dr Lim Keng Yaik not to make public the documents and thereby they had the locus standi or legal standing to sue; and

> The disclosure would not be detrimental to national security or public interest.

The judge added that the applicants had locus standi because they were paying consumers within the water concession area. As Syabas has monopoly over the distribution of treated water in that area, the applicants would have no choice but to pay for any increase in water tariff as there is no other alternative water distributor there.

She added that as water is essential to life, the applicants’ implied constitutional right to life has also been infringed.

As regards the disclosure of the two documents, the judge said she had read through them and found no information detrimental to national security or public interest. She also took note that the Selangor government and Syabas had indicated no objection to the disclosure, and some of the information relating to the water tariff increase was already known to the media and public.

She also ruled that it was nonsensical to say that any document put before the Cabinet is automatically “RAHSIA” under section 2A of the Official Secrets Act 1972 (Act 88).

This is indeed a landmark judgment for the following reasons:

> Cabinet papers are now not automatically protected by Act 88; and

> The judge had taken a liberal approach in affording legal standing to the applicants.

Based on existing legal authorities, the applicants in this action, known to lawyers as public interest litigation, ought to have first shown they had suffered damage peculiar to them or over and above the remaining water consumers in the area, and that their rights had been “substantially” affected.

If the applicants’ position is no different from the other water consumers, then they could not have been said to have been “adversely affected”. There is a ruling from the apex court which requires this to be a stringent test.

In any event, last Friday the Federal Government had obtained a stay on the disclosure of the documents. It will be interesting to see how our appellate courts deal with the issue of locus standi when the matter goes on appeal.

This decision differs from a 1994 Johor Baru High Court decision which held that the late politician-cum-lawyer Abdul Razak Ahmad was not entitled to examine the privatisation agreement between the Johor state government and the company developing the Johor Baru “floating city” project.

Justice Haidar Mohamed Nor ruled that as there was no legal duty imposed on the Government under the Government Contracts Act, 1949 to consult taxpayers like the applicant in respect of contracts made by the Government, the applicant had no legal right to examine the said agreement.

In fact, there are both good arguments for and against the relaxation on standing rules.

The Government’s most common fear is, of course, that public interest litigation can be turned into a “publicity interested litigation” or “politically interested/inspired/inclined litigation” with the purpose being to embarrass them and stall genuine government business.

But to social activists, too rigid an approach will cause injustice and immunise government decisions from curial scrutiny.

Proposal to amend Copyright Act

I believe the proposed amendment is to hold owners of commercial premises like shopping complexes liable if their tenants have used the premises to sell pirated DVDs and VCDs. If this is not the case, and it extends to private premises, then such amendment is totally unjustified.

As I understand, the proposed amendment will also make it a crime for those who purchase even a single pirated copy of DVD or VCD. It follows that a landlord can technically be liable if the tenant of his residential property is caught having in his possession even a pirated DVD or VCD!

To my mind, the Government cannot expect landlords of private premises to police the activities of their tenants. Already, the law as it stands, is not in favour of landlords. The landlord is helpless if a defaulting tenant refuses to vacate the premises because Section 7 of the Specific Relief Act 1950 (Act 137) does not allow a landlord to recover possession of the tenanted property without first having obtained a court order.

Hence, this section has been much abused by recalcitrant and defaulting tenants. In this respect, an amendment to Act 137 is perhaps more urgent.

Proposal to amend Statutory Declarations Act

The debate between Liew and Bar Council chairman Ragunath Kesavan about amending Act 13 is, in fact, much ado about nothing. Some of the duties which Liew had wanted to impose on the COs have in fact already been provided for by law – not under Act 13, but under the Commissioner for Oaths Rules 1993, made under the Courts of Judicature Act, 1964.

Under Rule 13 of the 1993 Rules, a CO is required, among other things:

> To read over and explain the contents of the documents and the exhibits to the maker of the document;

> Not to affix his seal to any document unless the maker of the document signs or affixes his thumbprint before the CO; and

> To refuse to attest to any document if he suspects that the person before him is engaging in deception, fraud, duress, or any other illegal conduct.

If a CO is found guilty of acting in breach of Rule 13, he can be liable to a fine not exceeding RM1,000, imprisonment for a term not exceeding six months, or both.

Hence, it all boils down to enforcement. It is open knowledge that many makers of documents, particularly SDs and affidavits prepared by law firms, do not sign before the COs and these COs would affix their seals and sign the documents when they are brought to them by the clerks from various law firms.

In this regard, Liew’s concern that fraudulent land transactions can occur is not unfounded if a CO affixes his seal on a power of attorney when the makers are not before him.

In conclusion, the above issues go to show how pivotal it is the manner in which our laws are enacted, interpreted and enforced. If their enactment, interpretation and enforcement are not accurate and efficient, then these laws will be transformed into an ass.

Published in The Sunday Star on 04 July 2010.

Sunday, May 30, 2010

A pact-ful of joy


Johoreans are excited about the recent breakthrough in talks between Singapore and Malaysia and are looking forward to reaping the benefits of future developments.

As a Johorean, I welcome the historic agreement reached at the meeting last Monday between Prime Minister Datuk Seri Najib Razak and his Singaporean counterpart Lee Hsien Loong.

Finally, we can see some light at the end of the tunnel after being gridlocked for two decades over the interpretation on the Points of Agreement signed between former Malaysian Finance Minister Tun Daim Zainuddin and Lee Kuan Yew on Nov 27, 1990 – the day he stepped down as prime minister of Singapore.

Even though the agreement may have already thrown some politicians into conniptions, it is nevertheless reassuring to see both prime ministers, who are also sons of the founding fathers of our two nations, determined to improve and enhance ties by increasing connectivity between our two peoples geographically and economically.

In fact, Johor Baru residents are particularly excited over the announcement. Taxi drivers and commuters are overjoyed that authorised cabs will soon be able to pick up and drop off passengers from any location in Singapore or Johor Baru instead of at just two places – Bugis in Singapore and Kota Raya terminal in Johor Baru.

In addition, bus services between Johor Baru and Singapore will be doubled with the introduction of four new routes on each side.

It is also hoped that the reduction of toll rates at the Second Link will help ease the traffic congestion at the Causeway.

However, what local residents most want is the creation of a rapid transit system link between Johor Baru and Singapore as close to 100,000 Malaysians commute daily between both destinations to work and study.

To them, a new bridge is not the priority; instead, they want an effective mass rapid train system capable of moving thousands of workers and students to and from Singapore daily.

As this is projected to be ready only by 2018, Keretapi Tanah Melayu Berhad must immediately get down to prepare for a huge increase of Johor Baru residents opting to travel to Singapore by KTM trains during this transition period when its station is relocated from Tanjong Pagar to the Woodlands Train Checkpoint in July next year. Hence, KTM must improve on its services and the comfort of its train coaches.

There is no doubt that the integrated rapid transit system link will bring long-term benefits to Singapore as well as Johor, particularly to the two integrated casino resorts in Singa­pore and the Iskandar Development Region in Johor.

Similarly, the image of Johor Baru city will be transformed as, too often, the experience of travelling to Johor Baru from Singa­pore has been likened by many tourists to travelling to Tijuana, Mexico, from San Diego, USA.

In this respect, it is a wise decision to give up the KTM station in Tanjong Pagar. Surely, the old and unimpressive KTM station should not be the gateway to those who intend to visit Malaysia through this route. It makes no sense to hold on to these pieces of leased properties, the use of which is strictly restricted to railway operations by the 1918 Railway Ordinance. It is also not legally possible for Malaysia to turn the Tanjong Pagar station, for example, into a Kuala Lumpur Sentral type development.

For Singapore, this will substantially lighten the burden on their enforcement agencies in checking the KTM trains from Johor Baru to the Tanjong Pagar station for illegal immigrants and drug smuggling.

However, as soon as KTM vacates the Tanjong Pagar station, Singapore will own 40% of the six pieces of land to be jointly developed through the 40% stake held by Singapore’s Temasek Holdings Limited in M-S Pte Ltd (JVC) as the properties will be vested and transferred to the JVC. Malaysia’s 60% in the JVC will be held by Khazanah Nasional Berhad.

The six pieces of land can also be swopped for pieces of land in Marina South and/or Ophir-Rochor with equivalent value.

This is understandable since the value of these lands has been enhanced after conversion of land use. It follows for this joint development to succeed and for both countries to maximise the benefits of the venture, the JVC should be professionally managed and free from political interference.

Though Malaysia has majority control over the JVC, Singapore can still exercise control over it as it is still subject to Singapore property development laws and authorities.

Hence, judging from past experience, one has to concede that the success of this new venture is still very much dependent on the prevailing level of relationship between the two countries.

That said, Khazanah must never at any time for reason of making quick gains sell any part or the whole of its 60% stake to Temasek as this gigantic development is also a great opportunity for Malaysian workers to acquire skills and improve themselves. Preference should be given to workers and professionals from Johor, albeit this is sadly not enthusiastically pursued by Khazanah in the Iskandar Development.

With regard to water, Malaysians must now acknowledge that it is no longer our bargaining chip with Singapore. The fact that Singapore is prepared to allow the 1961 Agree­ment to expire next year without re-negotiation shows that Singapore is water self-sufficient.

Singapore has obviously over the years increased its water resources from two original taps – local catchment from their 14 reservoirs and imported water from Johor under the 1961 and 1962 Agreements – to five, which include treating waste water, desalinating sea water and importing water from Indonesia. The 1962 Agreement which allows Singapore to draw water from the Johor River will only expire in 2061.

But interestingly, after the Gunung Pulai, Skudai and Tebrau waterworks are handed back to us when the 1961 Agreement expires next year, Johoreans will find it more expensive to operate these facilities compared with buying treated water from Singapore. Since 1961, the price has been 50 sen for every 1,000 gallons. Singapore spends about RM2.50 to treat it.

All these go to show that Johoreans will be most affected whenever there is a deterioration or improvement in our relations.

Sadly, we are more influenced by rivalry and pride whenever we deal with one another, always forgetting that serious ramifications will follow as our peoples are closely related in family ties.

For now, though, Johoreans can only hail this latest breakthrough as it will bring long-term improvement to many ordinary lives on this side of the Causeway.

*Published in The Sunday Star, 30 May 2010.

Sunday, April 4, 2010

A Grave Injustice

Lives are lost but there is no recourse, thanks to diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations.

In a quick succession of two hit-and-run accidents in the early hours of Dec 15 last year, an inebriated Romanian diplomat, Dr Silviu Ionescu, 49, beat traffic lights and knocked down three men along Bukit Panjang Road in Singapore. One of them was Malaysian Tong Kok Wai, 30. He died on Christmas Day after his newly-wed wife Yenni Young, 31, grievingly had to take him off life support when the doctors declared him brain dead three days after the accident.

Ionescu, the man behind the wheel of the Romanian Embassy’s Audi A6, later claimed that the car had been stolen. He fled to his home in Romania three days later. Despite pleas from the Singaporean authorities for him to return to assist in the investigations, he refused and further claimed that he had been set up by the Singapore government. He had also been suspended from his duties by the Romanian Foreign Affairs Ministry.

A coroner’s inquiry was held last month with more than 50 witnesses coming forward to testify over a period of six days. It was revealed in the inquest that Ionescu was a regular at a KTV lounge and had been drinking alcohol before the accident.

On March 31, State Coroner Victor Yeo concluded that Ionescu was a liar in the entire tragedy. In his 42-page finding, Yeo described Ionescu’s conduct as “not only cowardly and irresponsible, to say the least, but utterly deplorable”.

Yeo went on to say that despite knocking down three men, Ionescu did not have the human decency to stop and help, and yet had the audacity to slow down, wind down his window and scold an eyewitness who tried to stop him from fleeing the scene. Yeo added that Ionescu lied because he was “motivated by his guilt for driving recklessly and causing the two accidents”.

The Singapore Straits Times also reported that when contacted by telephone, Ionescu dismissed the verdict as “bull****”. “Honestly, I don’t believe in the court of Singapore,” Ionescu was reported to have said.

The Singapore government is likely to press a set of 13 charges against Ionescu this week, ranging from causing Tong’s death and grievous hurt to two others by reckless driving to failing to stop, render assistance and lodge a police report after the accidents.

Singapore and Romania do not have an extradition treaty and the Romanian authorities have so far indicated that they have no power to compel Ionescu to return to Singa­pore as the latter has been suspended.

But the Singapore Foreign Affairs Ministry has also rebutted that despite his suspension, Ionescu has not been dismissed and is still an employee of the Romanian Foreign Affairs Ministry. However, even if Ionescu returns to Singapore and is charged, he still enjoys diplomatic immunity from prosecution under the 1961 Vienna Convention on Diplomatic Relations unless this is lifted by the Romanian government.

In fact, this case is rather similar to a 1998 case involving a Russian, Alexander Kashin, who was paralysed from the neck down after a car collision with the then US Consulate General in Vladivostok, Douglas Barry Kent. The US diplomat who was drunk at the time of the accident had earlier jumped three traffic lights before coming out of the car laughing. Witnesses then saw Kent fleeing to a nearby club where its owner alleged that Kent still managed to have a great time there, taking down the panties of a stripper with his teeth! Sadly, the US government did not lift his diplomatic immunity and Kent is still serving overseas while Kashin is still seeking justice and compensation from the US government.

To my mind, the callous attitude of both the Romanian and the US governments in these two cases involving their scofflaw diplomats is disgraceful. It is high time that the international community take a hard look at the 1961 Convention to curb further abuse of this ancient principle of immunity.

In this age when human rights, fairness and justice override everything else, innocent victims must be accorded recourse against personal abuses of immunity. The sending states must ensure that their representatives have the highest standards of personal conduct and character, and are ready to lift the immunity for any personal wrongs committed by their diplomats in the receiving states.

To quote a Singapore taxi driver Koh Beng Pheng, 55: “He (Ionescu) flirts and lies – how is a man with such poor character even fit to be a diplomat?”

As for the conduct of the Singapore government, I have nothing but praise for their authorities in ensuring that there is a due process of law. As a Malaysian, I am touched by the determination and resolve of the people and government of Singapore in their pursuits for justice for our countryman Tong.

However, I am rather embarrassed by the muted response from our own Foreign Affairs Ministry in this matter.

Tong’s family had earlier sought help from the MCA Public Services and Complaints Department, but our Foreign Affairs Ministry officials responded that they would not interfere as this was an internal matter (The Star, Jan 13, 2010: “Mum seeks justice for son knocked down by envoy’s car”). If Tong had been a citizen of a developed nation, the response from his government would have been different. Their representatives in Singapore would be at hand to assist Tong’s family. But here we did not see any representative of our Malaysian High Commission in Singapore present or render any assistance to Tong’s family during the Coroner’s Inquiry.

It is hoped that the Malaysian Government will convey our outrage to the Romanian government over this matter. Likewise, we expect our government to send a strong message to the international community that the life of a Malaysian is priceless, and that justice will be served in cases of this nature.

In this regard, our government must support the Singapore government by putting pressure on the Romanian government to waive Ionescu’s immunity and ensure that Ionescu will stand trial in Singapore for causing Tong’s death and grievous injuries to two others.

*Published in The Sunday Star, 04 April 2010.

Sunday, January 24, 2010

A tighter rein on land transfers

There is a general sigh of relief with the Federal Court’s decision in favour of a landowner who was cheated of his property, overruling the decision in Adorna Properties which has wreaked havoc in land transactions and increased the number of land scams in the last nine years.

THE decision by the Federal Court last Thursday in Tan Ying Hong v Tan Sian San & 2 Ors to depart from its previous decision made in Adorna Properties Sdn Bhd v Boonsom Boonyanit 2000 has finally and correctly restored the principle of deferred indefeasibility in our Torrens system of registration after a gruelling wait of more than nine years.

For the benefit of the readers, let me first explain this principle in simple terms.

Under the Torrens system , the State will guarantee an indefeasible title to anyone whose name is registered on the register of titles.

This is enshrined in section 340(1) of the National Land Code, 1965 (“NLC”) which applies to West Malaysia.

However, sub-section 340(2) provides that a title or interest can still be defeasible if it is acquired, inter alia, by fraud, misrepresentation, forgery or through an insufficient or void instrument.

Sub-section 340(3) then goes on to say that if the immediate purchaser subsequently transfers the title or interest to a subsequent purchaser, the said title or interest is still liable to be set aside unless the subsequent purchaser is a purchaser in good faith (or bona fide) and for valuable consideration.

In other words, only the subsequent bona fide purchaser/transferee and not the immediate bona fide purchaser/transferee will get an indefeasible title created out of a defeasible title.

(Under the NLC, a purchaser is defined to include a bank taking a charge over the land.) To put it in another way, for example, A is the registered proprietor of the land.

B forges A’s signature and transfers the land to himself. B later sells and transfers the land to C. C, who has no knowledge of the forgery, will obtain an indefeasible title. Or if B forges A’s signature and transfers the land from A to C and C later transfers the land to D, then, D and not C, who has no knowledge of the forgery, will obtain an indefeasible title. C and D in the first and second examples are known as subsequent purchasers under s 340(3).

However, if the principle of immediate indefeasibility espoused in Adorna Properties applies, C will still get an indefeasible title if B forges A’s signature and transfers the land immediately from A to C without first having transferred to B himself.

That was exactly what happened in Adorna Properties.

An impostor of the genuine landowner, Boonsom Boonyanit, made a false statutory declaration that she had lost the original title to two pieces of lands in Penang, and successfully managed to obtain a certified copy of the title from the land office.

With that, the impostor registered the transfer of the lands to Adorna Properties Sdn. Bhd. (“Adorna”) for a sum of RM12mil.

A three-member bench led by Chief Justice Tun Eusoffe Chin held that Adorna had obtained a good title because the proviso in sub-section 340(3) would apply to sub-section 340(2) even though Adorna was an immediate bona fide purchaser.

As a result, Boonyanit lost everything as the forger had also disappeared with the money.

Despite two attempts made by Boonyanit’s family to have the decision reviewed by a separate panel of the Federal Court in 2001 and 2004, the Federal Court dismissed both applications on the ground that no grave injustice had occasioned.

It is, therefore, not surprising to hear Chief Justice Tun Zaki Azmi last Thursday describe the error committed by the Federal Court in Adorna Properties as “obvious and blatant”.

In delivering the main judgment of the apex court, Chief Judge of Malaya, Tan Sri Arifin Zakaria ruled that the Federal Court in Adorna Properties had misconstrued s 340 and came to the erroneous conclusion that the proviso appearing in sub-section 340(3) equally applied to sub-section 340(2).

With the latest decision, the law as respects indefeasibility of titles is now settled, and all the other judges must hereafter follow it conscientiously as the decision of this strong five-member bench has effectively overruled Adorna Properties.

In fact, it cannot be gainsaid that Adorna Properties has wreaked havoc in land transactions, and incidents of land scams have also increased in the last nine years. The police had even revealed before that the computerised land registration system in several states, including Kuala Lumpur, Penang and Johor, had been compromised by syndicates using “inside people” to forge land titles resulting in several registered proprietors and purchasers losing millions of ringgit.

The former Director of Bukit Aman Commercial Crimes Investigation Department Datuk Ramli Yusoff was quoted in 2007 as saying the modus operandi of these perpetrators was to declare that they had lost their land titles and then obtained replacement titles with the assistance of “inside people” before selling the land.

In Tan Ying Hong’s case, the forger, Tan Sian San, had forged the signature of the landowner Ying Hong to create a forged power of attorney in order to charge the land to RHB Bank as security for loans totalling RM300,000 granted to a third party, Cini Timber Industries Sdn Bhd.

It follows that the apex court held that the charge was invalid because as RHB Bank was an immediate purchaser under s 340(2), the proviso under s 340(3) did not apply.

Of course, had Sian San first transferred the land to himself and then charged it to RHB Bank, the latter would have been a subsequent purchaser entitled to the protection of the proviso in s 340(3) .

At this juncture, it must be stressed that the latest decision of the Federal Court does not mean that a landowner is now legally incapable of losing his land to a forger.

The decision only makes it more difficult now for these thieves and conmen to fraudulently transfer the lands.

We must, of course, not underestimate these criminals as it is not difficult from now on for a forger to transfer the property to himself or another person before transferring it to a subsequent bona fide purchaser in order to enjoy the benefit of the proviso in s 340(3).

This is all the more so if there is help from “inside people”. Take Tan Ying Hong’s case, for example.

I am just bewildered as to how the Pahang state government could have “mysteriously” alienated a nine-acre plot of land in Kuantan to Ying Hong in 1976 when he did not even know about the existence of the land until he received a demand letter from RHB Bank in 1985.

As the alienation has not been challenged, it appears that the flawed system has mysteriously enriched Ying Hong with a property which is now probably worth millions of ringgit.

It is apposite to note that in every land scam like in Adorna Properties, there are two victims involved – the genuine landowner and the bona fide purchaser.

As everyone is either a landowner or a purchaser or both, it is indeed a balancing act when deciding whose interest requires more protection and to what extent the landowner should be protected in the entire chain of dealings.

In doing so, it must be borne in mind that if protection is given solely and wholly to the landowner, then Malaysia may not be so conducive for property investments.

In this respect, countries which practise immediate indefeasibility such as Australia, New Zealand and Singapore have an assurance fund to compensate victims of land scams.

That said, as land is a State matter here, implementation of such a fund may not be so straightforward.

All in all, the latest decision now requires the purchasers, banks and their lawyers to be even more vigilant and diligent when conducting land searches and verifying the identities of the sellers before purchasing any property or providing any finance.

It is also my considered opinion that notwithstanding this landmark decision, the NLC should still be amended to bring about more stringent procedures and measures as regards how replacement titles are obtained, and dealings are presented and registered in order to be one step ahead of the criminal minds of fraud and forgery.
*Published in The Sunday Star, 24 January 2010.