New beginning in strata management

Act for peace: An effective and efficient dispute resolution mechanism will help promote peace and good neighbourliness in stratified buildings.

The Sunday Star

by Roger Tan

With more and more people living in stratified buildings, the new Strata Management Act is timely in helping to reduce animosity among residents and owners during dispute resolutions.

LAST Sunday, I attended the annual general meeting (AGM) of the management corporation of an upmarket condominium as a proxy for my wife. Its last AGM was held in September last year.

This AGM was by far the most heated and disorderly since the management corporation was set up some six years ago. A fight almost broke out despite the presence of representatives of the Commissioner of Buildings (COB) and the police.

Let me now share with you my personal thoughts about the AGM, before examining whether the new Strata Management Act (SMA), when it comes into force, will help minimise and remove such animosity which appears to be rather prevalent and common among occupants living and undertaking business in stratified buildings.

In fact, trouble was already brewing before the AGM. In the AGM notice sent to owners of all the 170 parcel units, all the three outgoing 2011/2012 Council (CM2012) members – in their 30s (let’s call him CM1), 60s (CM2) and 70s (CM3) – jointly signed and attached a three-page letter containing allegations of impropriety against the previous Council (CM2011) members.

The CM2011 members, through their lawyers, demanded that their written explanatory response also be circulated to all the parcel owners before the AGM. This was refused.

Drama-charged

The situation was aggravated when CM2, the outgoing CM2012 chairman, used his welcoming speech, delivered in Mandarin, to reply to CM2011 members’ written explanatory response, which was also not circulated during the AGM. He also attempted to make more allegations of impropriety against CM2011 members until I intervened because the latter had not first been given any opportunity to be heard. Procedurally also, this should not have been done before first electing the chairman of the AGM.

I also observed that each time someone spoke up against any resolution proposed by CM2012, CM3 would shout and try to interrupt and intimidate the speaker. A fight almost ensued when some parcel owners confronted CM1 and CM3 during the break. They wanted to know why their parcel unit numbers had been displayed on the notice board as not having settled a one-time payment of RM400 for upgrading work, approved in the 2010 AGM. The parcel owners felt aggrieved that they had been publicly shamed, claiming and showing proof that at the time the notice was put up, CM1, CM2 and CM3 as Council members themselves had failed to pay maintenance charges for a few months, but their parcel unit numbers were not mentioned in the said notice. CM3 then raised his walking stick cum foldable chair, wanting to strike his fellow septuagenarian CM2011 member who questioned him until he was restrained by police and the former’s wife.

(Interestingly, I was informed by the COB that a fight virtually broke out before him during the extraordinary general meeting of a nearby condominium on Oct 28 when chairs were also thrown! Fortunately, goodwill prevailed when the injured decided not to press any criminal charges.)

It's time to end the death penalty

Anti-death penalty campaigners staging a demonstration in Los Angeles. Even in other countries, people are protesting against the death penalty. AFP pic

New Straits Times
By Datuk Sri Dr Muhammad Shafee Abdullah 

ABOLITION OF CAPITAL PUNISHMENT: Malaysia should rethink holistically and practically and take the lead and be the proponent in Asean countries to implement this.

THE death penalty is prescribed for several offences, ie murder and waging war against the King (offences under the Penal Code), kidnapping for ransom (an offence under The Kidnapping Act 1960 as opposed to simple kidnapping under the Penal Code), drug trafficking (offences under the Dangerous Drugs Act 1952 and other related drug statutes), certain scheduled offences for activities in relation to possession of firearms and ammunition or explosives [offences under the Firearms (Increased Penalties) Act 1971(FIPA)] and under the Internal Security Act 1960 (ISA) the latter of which was repealed recently.

Most of the death penalties are mandatory upon finding of guilt. This means the trial judge has no discretion in sentencing to consider a range of possible sentences such as life imprisonment or a prescribed jail sentence which could run up to the maximum sentence, being the death penalty, which of those is most suited to be handed down on a convicted person after considering the myriad circumstances in relation to the commission of the offence and/or the offender.

The Malaysian legislature used to entrust judges with this important discretionary function. For instance, we used to give this sort of discretion to the High Court judges in drug trafficking matters. But a previous attorney-general was frustrated with the fact that judges were opting to sentence certain drug trafficking convicted offenders to life imprisonment rather than mete out the death penalty.

Those judges had good reasons in most cases for opting out of the death penalty. In any case, if the judges were wrong there was always the appellate process which the prosecution could resort to press their point for the capital sentence.

But immaturity and myopic considerations seemed to have prevailed then. We have been stuck with this knee-jerk culture of our legislature, a legislature that is not well advised by the parliamentary draftsman and other relevant authorities. As a result amendments made were jaundiced and lack cohesion with the general scheme of the system.

Double joy for Holy Light Church

All praise for new hall: Church-goers during a worship session.

The Star

Congregation celebrates newly completed hall and 60th anniversary

JOHOR BARU: It was a poignant moment for the congregation of Holy Light Church (English) when their retired pastor Reverend Nicholas Yeo took the stage of the newly completed Faith Worship Hall to sing ‘My Tribute (To God)’. 

This is understandable considering that the congregation had waited close to 20 years to have their own Church building.

On Sunday Oct 28 their dream finally came true when the completion of the RM4Million multi-purpose hall in Persiaran Ponderosa Utama project finally came to fruition. Close to 700 worshippers turned up for the morning service. It was also a double celebration as the Church is 60 years old this year.

Of pleading guilty and going topless

The Sunday Star

by Roger Tan

 

Two newsworthy headlines in recent weeks merit some comments.

ON Sept 11 when I was taking a flight at Changi Airport, I came across the news report that a former Singapore prosecutor and crime buster, Glenn Knight, had apologised to former MCA president Tan Koon Swan for wrongly prosecuting him in the Pan-El crisis in 1986 (Koon Swan case ‘a mistake’, The Star, Sept 11).

I thought such a move was rather strange but then I was not able to get hold of a copy of the book, The Prosecutor, at the airport. Now that I have sighted it, some observations should be made.

Among other things, Knight wrote in his book, “He (Koon Swan) was charged in 1985 before Justice Lai Kew Chai and pleaded guilty to the charge. He was also given a two-year jail sentence. And a S$1 million fine, which he immediately appealed ...

“A similar CBT case came up for hearing, and Chief Justice Yong Pung How, who had replaced Justice Wee Chong Jin as Chief Justice in 1990, concluded that I was wrong to charge Koon Swan for the offence which got him convicted. Chief Justice Yong was of the opinion that the section that I had charged Koon Swan with was wrong in law, for we could not charge a person for stealing from a company because as a director, it was not a breach of the law in that sense ...

“In the United Kingdom, such a landmark judgment would have set aside Koon Swan’s conviction, but our jurisprudence does not allow for this, though technically Koon Swan could still have been granted a pardon ... The judgment meant that Koon Swan had been wrongly convicted and he was technically an innocent man.”

Firstly, there are some factual errors. Koon Swan was actually charged and he pleaded guilty in 1986, not 1985. Justice Lai’s decision was delivered on Aug 26, 1986. Apart from the two-year jail sentence, he was actually fined S$500,000, not S$1mil.

Glimmer of hope for Vui Kong

The Sunday Star

by Roger Tan

Singapore has announced that new laws will be drafted by the year-end to abolish the mandatory death penalty for some cases of drug trafficking and murder.

ON Nov 14, 2008, Sandakan (Sabah)-born Yong Vui Kong was convicted of trafficking 47.27g of heroin and sentenced to death in Singapore.

He was 19 when he was arrested at about midnight on June 13, 2007 near the Meritus Mandarin Hotel at Orchard Road by officers from the Central Narcotics Bureau (CNB).

The drugs were found in two packets in a Malaysian-registered car MBK 5317 which the prosecution said Yong had earlier collected from a man in Taman Sentosa in Johor Baru.

Yong then went to look for his friend, one Chai Chor Hsiang, and asked him to drive the car into Singapore.

At the trial, Yong made it clear that Chai had no knowledge of the packages hidden under the driver’s seat. Yong’s defence was that he thought he was collecting debts from his boss’ debtors and that his boss had made him promise not to open the packages.

Yong said even though he was suspicious, he did not think that they contained drugs.

Yong, who initially withdrew his appeal to the Singapore’s apex court, was later allowed to appeal and he did make several other but unsuccessful attempts at the Court of Appeal.

Among others, he unsuccessfully challenged the constitutionality of the mandatory death sentence.

He failed too in his arguments that his prosecution contravened the constitutional provision on equal protection when the Public Prosecutor decided to discontinue three capital charges against one Chia Choon Leng whom Yong had identified as the man in Johor Baru who on June 12, 2007 had asked him to deliver the “gifts” to Singapore.

Yong had also sought clemency from the Singapore President but it was turned down.

Yong’s plight attracted the sympathy of many people, both within and without Malaysia.

Described by his lawyers as “impoverished and vulnerable”, many felt that Yong should be given a second chance as he was too young and naïve to appreciate the gravity of the act when he was arrested.

There appears to be one glimmer of hope for his death sentence to be commuted to life imprisonment.

On July 9 this year, Singapore Deputy Prime Minister Teo Chee Hean announced in Parliament that new laws would be drafted by the year-end to abolish the mandatory death penalty for some cases of drug trafficking and murder.

Nefarious act of betrayal

The Sunday Star
by Roger Tan

Party-hopping is a potent threat to parliamentary democracy and it is hoped that politicians will come to grips with this issue in a bipartisan manner.

THE great Winston Churchill (1874-1965) was known for party-hopping. In 1904, he changed parties from the Conservative Party to the Liberal Party, and was made Under-Secretary of State for the Colonies in 1905. He officially returned to the Tories in 1925 after he failed in two successive attempts to win a seat as an independent.

On record, his reasons for defecting to the Liberals were the Conservatives' reluctance to undertake social reform and their protectionist policy of favouring trade with the British Empire. But on the other hand, the Liberals were then an up-and-coming party, and his calculated move obviously did catapult him to high office at the rather young age of 31.

Of course, admirers and detractors of Churchill would respectively describe his act as one of political conscience and opportunism. But that is immaterial as until today, the British parliamentary system still does not proscribe party-hopping which also has different nomenclatures such as party-crossing, party-switching, party-leaping, floor-crossing and waka-jumping.

Like any democracy, regardless of it being an established or an incipient one, Malaysia too faces this perennial problem of party-hopping and elected representatives resigning from their political parties to become an independent.

Hence, we are not short of inveterate party-hoppers. One of them is Sabah State Reform Party (Star) chairman Datuk Dr Jeffrey Kitingan. Prior to this, he had joined Parti Bersatu Sabah (PBS), the Parti Bersatu Rakyat Sabah (PBRS), Angkatan Keadilan Rakyat (now defunct Akar), United Pasokmomogun Kadazandusun Organisation (Upko) and Parti Keadilan Rakyat (PKR).

It is, therefore, not surprising for such politicians to be given various undignified names such as political frogs, traitors, lepers and chameleons.

Johor Baru church rejoices over RM500,000 govt aid

One for the albumn

The Star

MALACCA: The Holy Light Church (English) received a cheque for RM500,000 from the Government for the construction of its building in Jalan Persiaran Ponderosa in Johor Baru.

It was good news for church members who were having their annual camp at Puteri Resort here when they received the cheque from congregation member and senior lawyer Roger Tan.

Tan said they were grateful that the cheque was received so soon after Deputy Prime Minister Tan Sri Muhyiddin Yassin approved the grant.

Tan, who is also a Commissioner in the National Water Services Commission, was at the signing of the Water Services Restructuring Water Agreement on May 23 in Putrajaya when he approached Muhyiddin about the church being in urgent need of funds to complete its RM4mil building.

The building, which houses a worship hall, a multi-purpose hall and meeting rooms, is due to be completed in October for the church’s 60th anniversary celebrations.

Bar must be apolitical

The Star
by Roger Tan

I KNEW this was coming because as I said it would be painful for some lawyers to read what I wrote in “Unswayed by fear or favour” (Sunday Star, May 20).

I am indeed not wrong with my prognostication.

However, I am surprised that it was even necessary for the eight Loyarburoks to come together to give a 2,700-word response to something they felt were just mere fallacies being spun by me.

In a tweet sent out early yesterday morning, one of the eight, K. Shanmuga tweeted that their joint statement, “Bar’s resolution proper”, (The Star, May 23) was issued because my aforesaid article had got all of them so annoyed.

Hence, because I emphatise with them, I would oblige them in the best tradition of the Bar with a short reply which should suffice.

Firstly, my concern on the independence of the 80 monitors from the Bar is not totally unfounded. Of the 80 monitors, I personally know at least one whom I follow on Twitter.

Fallacies spun by critics of the Bar — LoyarBurokkers (loyarburok.com)

MAY 22 — The Bar Council and the Malaysian Bar (“the Bar”) have been criticised recently as being pro-opposition. This is because of the Bar’s press statements and its extraordinary general meeting resolution regarding the police brutality shown at the Bersih 3.0 sit-down rally. The common theme adopted by critics of the Bar is that the Bar was not fair, or even-handed, as the Bar were more critical of the police than it was of the other parties involved.

Some of the more popular criticisms were summarised in Roger Tan’s article “Unswayed by fear or favour” which was also published in the Sunday Star on May 20, 2012. In summary, he says the following:

1. The Bar in condemning the police brutality must be equally aggressive in its condemnation against the protestors who “behaved like rioters and anarchists”.

2. The Bar had prejudged the issues by passing the resolution because by doing so “the Bar had already come to a conclusion that all those acts listed therein had been committed by the police”.

3. The Bar should have demanded an apology from Datuk Seri Anwar Ibrahim because “it was his men who were reportedly the ones who removed the barrier” which was “the trigger point”.

This statement is written immediately in response to Roger Tan’s article, but also addresses others who have been critical of the Bar on this issue. We intend to address the second criticism first, then the third and first criticisms. Our reason for this will become apparent as our reply develops.

Unswayed by fear or favour

The Sunday Star
by Roger Tan

As much as we do not like the judiciary to be perceived as pro-government, we also do not want the Bar to be perceived as pro-opposition.

ON May 11, the Malaysian Bar passed a motion containing 12 resolutions related to the April 28 Bersih 3.0 public assembly by an overwhelming majority. The decision of the House with 939 votes in favour and 16 against is to be respected. The argument that it is not representative of the 14,000-member Bar has no basis whatsoever as Section 66 of the Legal Profession Act, 1976 (LPA) is clear, that is, a motion is carried if a majority votes in favour of it.

With that above overriding principle in mind, let me, however, put on record the reasons, whether rightly or wrongly, why I could not support the motion.

First and foremost, it must be acknowledged that Resolution (12) was amended to include, inter alia, that (1) the Bar is concerned by and does not countenance any acts of violence in a public rally and that such action by participants is not an appropriate response to the police; and (2) the Bar is equally concerned by reports that certain persons had crossed through the police barriers to Dataran Merdeka.

But this is a complete opposite of the language used to condemn police brutality and the manner in which the assembly was handled by the police on that day. I felt that merely expressing concern against the other law breakers is not strong enough. The Bar, in my view, must be seen in the forefront in upholding the rule of law regardless of whether they were police or protesters who had broken the law. If the Bar wanted to inveigh and condemn police brutality, the Bar must also do likewise against actions of those protesters who had behaved more like rioters and anarchists in assaulting policemen and jumping on and damaging police vehicles.

Secondly, I did not want the Bar to prejudge the issues. The way Resolution (1) was worded, it appears that the Bar had already come to a conclusion that all those acts listed therein had been committed by the police. On the other hand, Resolution (12) was worded very carefully to state that the breach of police barriers was based on reports.

As lawyers, we are trained that even if we have witnessed someone shoot another person, it does not mean the former is automatically guilty of murder. There could be other extenuating factors that require further investigation.

Think before you tweet

The Sunday Star

by Roger Tan

 

If not used wisely, tweeting obviously carries dire consequences, both civil and criminal, because of its limitless reach in this borderless world.

IN what appears to be the first case in Malaysia, the High Court at Kuala Lumpur ruled last Friday that a journalist had to pay half a million ringgit to a businessman as damages over two defamatory tweets.

The Sun columnist R. Nadeswaran was sued by businessman Datuk Mohamad Salim Fateh Din in his personal capacity as the two defamatory tweets sent on July 12, 2010 and December 22, 2010 were sent out from his personal Twitter account.

The first tweet which questioned Mohamad’s Pakistani heritage was sent to one “tonypua”. The other, which libelled Mohamad as a “land thief” and his association with PKR deputy president Azmin Ali, was sent to one “TerencetheSun”.

As Nadeswaran’s Twitter account was not a protected account, that is an open account, all his tweets could be read by the public including those who were not his Twitter account followers.

Justice Amelia Tee Hong Geok Abdullah also ruled that as Nadeswaran did not file any defence to Mohamad’s claim, the former was deemed to have admitted to the latter’s entire claim.

Nadeswaran’s counsel was therefore not allowed to call any witnesses or cross-examine Mohamad’s witnesses with regard to the latter’s claims except on the issue of the amount of damages.

Lawyers must constantly improve skills

The Star

by Roger Tan

The Bar Council will be advocating the CPD scheme at the 66th annual general meeting of the Malaysian Bar, and we, as lawyers, must not be averse to change.

TOMORROW at the 66th annual general meeting of the Malaysian Bar, the Bar Council will attempt for the fourth time, after failing in 2003, 2005 and 2006, to introduce a mandatory Continuing Professional Development (CPD) scheme for all practising lawyers and pupils in Peninsular Malaysia.

Under the proposed CPD scheme, a lawyer will have to chalk up 16 CPD hours or points in each 24-month cycle commencing July 1.

A pupil, on the other hand, has to accumulate eight CPD hours during his nine months of pupillage (training). The CPD points can be earned from participating in a variety of CPD activities - ranging from attending courses and seminars, lecturing, writing law books and articles (such as this I hope) to attending Bar’s general meetings and activities in accordance with a set of CPD Guidelines.

This scheme will be implemented on a voluntary basis for the first two years. After that, failure to accumulate the requisite CPD points within the stipulated period may result in the lawyer not being able to renew his practising certificate for the following year and the pupil not being able to be admitted to the Bar.

In addition to this, the non-CPD compliant lawyer may also face disciplinary proceedings as this may be tantamount to a “misconduct” within the meaning of section 94(3)(k) of the Legal Profession Act 1976 (LPA).

Up close and personal with Roger Tan

The Star
by Wong Wei-Shen 

Lawyer and SPAN commissioner gets...

ROGER Tan has come a long way since his small town boy days in Yong Peng, Johor. From living in poverty as a young lad to becoming a successful lawyer in Malaysia, it is not hard to see that Tan values hard work, discipline and determination. These values are what have made him the man he is today.

Despite having achieved a lot in his life so far, it is evident that Tan harbours a lot of pain and anguish. On May 23, 2000, his father, Tan Sue Yong, the person who inspired Tan to become the man he is today, went missing after a walk about in Yong Peng town. His anguish lingers as 11 years later, his father has still not been found.

Tan is emotional when speaking to StarBizWeek about his father. “11 years have passed. Actually I've done all I can but we still can't locate him. I've gone on national television and used the press in every form. This is one area I feel that I've failed him.” Tan's wish is to get closure on his father's disappearance. “Even if we can't find him alive, the least that we want is to find his body and give him a decent burial,” he said.

Personal mentor

It is obvious from the way that Tan speaks of his father, that he looks up to his father, just as every little boy does to his own dad: with a sense of admiration and awe. His father comes from the rich Zheng family in Fuzhou, China. Due to the onset of communism, Sue Yong and his wife Swee Mei left China and came to Malaysia.

Bar Council criticised over its stand

New Sunday Times

KUALA LUMPUR: The Bar Council should let justice take its course rather than suggest that the Attorney-General refrain from appealing against Datuk Seri Anwar Ibrahim's acquittal from a sodomy charge.

World Assembly Youth president Datuk Idris Haron said due processes should be followed.

"The provisions are there and we should utilise the resources available.

"Natural justice, the right to be heard and the maxim of innocent until proven guilty should be practised," he said when commenting on Bar Council president Lim Chee Wee's statement urging the A-G not to appeal against Anwar's acquittal as the High Court had ruled fairly in the case.

Lim had said that the case had unnecessarily taken up judicial time and public funds and the A-G should focus on more serious crimes.

The A-G has 14 days to file an appeal from the date of the verdict. Due to the Chinese New Year celebrations next week, the last day to file an appeal is on Jan 25.

Police warn protesters against stepping out of line

The Sunday Star

KUALA LUMPUR: Organisers of tomorrow's Free Anwar 901 rally must ensure that none of their supporters gather outside the designated area or police will be forced to disperse them, Inspector-General of Police Tan Sri Ismail Omar said.

“I wish to stress that the approval for the rally outside the court house is not a blanket approval for people to gather anywhere else in the city or the country,” he said.

He said the designated parking area outside the court complex could accommodate about 5,000 people and no more than that.

Otherwise, it would lead to traffic congestion and inconvenience others, he said.