Sunday, 25 December 2011

Malaysia-Talk on 'Guardianship Of Infants Act 1961'

Talk on 'Guardianship Of Infants Act 1961'
To:



SBC/CIR/099/11
23rd  December, 2011




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Saturday, 24 December 2011

Malaysia-Talk on 'Guardianship Of Infants Act 1961'

Talk on 'Guardianship Of Infants Act 1961'
To:



SBC/CIR/099/11
23rd  December, 2011




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A RESTATEMENT OF THE EXISTING LAWS: WINDING-UP/BANKRUPTCY PROCEEDINGS ARE NOT EXECUTION PROCEEDINGS


In Juara Aspirasi (M) Sdn Bhd v Tan Soon Ping [2012] 1 MLJ 50, it was held by the Court of Appeal that:-

"...[9] It was also argued before the High Court, and on appeal before us, that when the winding up petition was filed there was an ad interim stay of the order in place. This ad interim order of 14 November 2005 however had not been held out and disclosed as an exhibit by the company.
[10] On this issue we are of the view that the learned High Court was right in ruling that, even if there was an ad interim order in place, there was no legal impediment for the petitioner to file a winding up petition against the company. An ad interim stay does not mean that a winding up petition cannot be filed as bankruptcy and winding up proceedings was not within the ambit and meaning of 'execution' proceedings as provided by O 46 r 1 of the Rules of High Court 1980 which states as follows:
In this Order, unless the context otherwise requires, 'writ of execution' includes a writ of seizure and sale, a writ of possession and a writ of delivery.

[11] In Perwira Affin Bank Bhd v Lim Ah Hee @ Sim Ah Hee [2004] 3 MLJ 253 at p 265 Abdul Hamid Mohamad FCJ (as he then was) in delivering the decision of the Federal Court held that a bankruptcy proceeding is not a writ of execution, which was a continuation of the existing proceeding to enforce the judgment provided by the same rules of court, ie the Rules of the High Court. Bankruptcy proceedings are provided by separate law and rules, the focus being the judgment debtor, not the debt, and the object being to appoint a receiver in the person of the official assignee over the assets of the debtor and to convert the status of the debtor into a bankrupt with the loss of control over his properties
to the official assignee. The fact that it is based on a judgment does not necessarily make it a continuation of the existing proceedings. It is a proceeding by way of petition just like divorce, winding up or election to name a few, bears the characteristics of a fresh proceeding unlike an execution proceeding. This principle is equally applicable to winding up proceedings.
[12] In Re A Company [1915] 1 Ch 520, the question before the Court of Appeal was whether the execution on a judgment included the petition of winding up of a company. Lord Cozens-Hardy MR said at p 525:
... Now 'execution on the judgment' is a technical term. It is a legal process by which the judgment creditor, in that character and for his sole benefit, by a proceeding in the same action seeks to satisfy his judgment wholly or partially. I think it is plain that a winding up petition is not execution on a judgment. It lacks almost every element of such an execution...."

A RESTATEMENT OF THE EXISTING LAWS: WINDING-UP PROCEEDINGS-THE NON-FILING OF AN AFFIDAVIT IN OPPOSITION IS FATAL


In Juara Aspirasi (M) Sdn Bhd v Tan Soon Ping [2012] 1 MLJ 50, it was held by the Court of Appeal that:-

"...[8] On the technical point raised of non compliance by the company of r 30(1)of the Companies (Winding-Up) Rules 1972 of failing to file an affidavit in opposition to the petition, we agree with the submission of counsel for the petitioner that the failure to do so was fatal. See Crocuses & Daffodils (M) Sdn Bhd v Development & Commercial Bank Bhd [1997] 2 MLJ 756 where Siti Norma JCA (as she then was), r 30(1) to be mandatory. Rule 30(1) states as follows:

30

Affidavits in opposition to a petition that a company may be wound up shall be filed and a copy thereof served on the petitioner or his solicitor at least seven days before the time appointed for the hearing of the petition...."

Monday, 19 December 2011

Friday, 16 December 2011

Malaysia-Tallk on 'Guardianship Of Infants Act 1961'

Subject: Tallk on 'Guardianship Of Infants Act 1961'
To:



SBC/CIR/099/11
16th December, 2011






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Wednesday, 14 December 2011

Malaysia-Press Release: Malaysian Bar Welcomes Deputy Minister’s Announcement of the Establishment of an Independent Law Reform Commission

Press Release: Malaysian Bar Welcomes Deputy Minister's Announcement of the Establishment of an Independent Law Reform Commission






Press Release


Malaysian Bar Welcomes Deputy Minister's Announcement
of the Establishment of an Independent Law Reform Commission


The Malaysian Bar welcomes the announcement made by the Deputy Minister in the Prime Minister's Department, Datuk Liew Vui Keong,[1]  that it is time Malaysia establishes an independent law reform commission responsible for reviewing, drafting and making laws and the related processes equitable, modern, fair and efficient. 

The Deputy Minister was correct in acknowledging that "(o)ur country is probably one of the largest jurisdictions in the Commonwealth that has not got a law commission," and that "(t)o avoid the problems we recently experienced and anomalies created, we will have to look at the entire perspective on how laws are drafted and made in our country."

The Malaysian Bar has for some time now been calling for the establishment of an independent law reform commission which would undertake research, public consultations and legal policy development, and make recommendations to the Parliament, without fear or favour.

Malaysia only needs to look to the New South Wales Law Commission in Australia, the Australian Law Reform Commission and the English Law Commission for model legislation and set-up.

The Malaysian Bar also welcomes the proposed composition of the commission to be "made up of retired or serving federal court judges, retired or serving law professors, experts or specialists on law, senior and experienced lawyers as well as senior members of the civil society."

Another assurance by the Deputy Minister is that the proposed commission will be different from the present Malaysian Law Reform Committee (MLRC) that was established in 2009 headed, by the Deputy Minister and under the purview of the Prime Minister's Department. 

The Malaysian Bar expresses the hope that the words of the Deputy Minister are not merely "feel-good" rhetoric uttered ahead of a much-anticipated general election. The issue of law reform is too critical and too pressing to be used as a political gimmick to garner votes and electoral support.  If the Malaysian Government is genuine and has the political will to fulfil its stated desire, then the Malaysian Bar would be more than willing to assist and play an active role in the process of forming and participating in this long overdue law reform commission.


Lim Chee Wee
President
Malaysian Bar

14 Dec 2011


[1]  The Deputy Minister made the announcement during the parliamentary debate on the abolition of the Banishment Act 1933 and Restricted Residence Act 1957 in the Senate on 8 November 2011, when replying to questions from various senators.

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Tuesday, 13 December 2011

Malaysia-Press Release: Malaysian Bar Urges the Malaysian Government to Accede to the Rome Statute of the International Criminal Court without Delay

Press Release: Malaysian Bar Urges the Malaysian Government to Accede to the Rome Statute of the International Criminal Court without Delay








Press Release

Malaysian Bar Urges the Malaysian Government to Accede to the Rome Statute of the International Criminal Court without Delay


The 10th Assembly of State Parties to the Rome Statute of the International Criminal Court opened at the United Nations in New York City on 12 Dec 2011.  Both the Malaysian Government and Malaysian civil society (represented by the Malaysian Bar), will attend these meetings.

Malaysia participated in the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court in Rome in 1998.  It was also a signatory to the Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court.  However, it has yet to become a State Party to the Rome Statute.

In March 2011, the Malaysian Government announced its intention to accede to the Rome Statute.

The events leading up to this announcement were encouraging.  On 27-28 May 2010, the Malaysian Minister in the Prime Minister's Department in charge of Law and Parliamentary Affairs, Dato' Seri Mohamed Nazri Abdul Aziz, made a promise at the Kampala meeting of the Parliamentarians for Global Action to submit the accession papers to the Rome Statute to the Malaysian Cabinet upon his return from that meeting.

Then on 7 June 2010, all members of the Dewan Rakyat, the lower house of the Malaysian Parliament, unanimously supported a series of 15 motions in the aftermath of Israel's attack on the fleet of ships carrying humanitarian aid bound for Gaza.  Two of the motions are of particular relevance:

Motion 5: calling on like-minded countries to bring a resolution to the United Nations Security Council to refer Israel's attack (on the aid ship) to the International Criminal Court.

Motion 7: proposing that Turkey consider action under the Rome Statute of the International Criminal Court.

Then in February 2011, the Malaysian Parliament played host to a two-day Asia-Pacific Regional Consultation on the Universality of the International Criminal Court.  This was organised by the Parliamentarians for Global Action.  The Consultation brought together parliamentarians from Bangladesh, Indonesia, the Maldives, New Zealand, the Philippines, Vanuatu and Malaysia.  It was also attended by the Speaker of the Parliament of Kiribati, the Attorney-General of the Maldives, and additional participants from Ireland, Italy, South Korea, the Netherlands and Malaysia.  The keynote address of the Consultation was given by the guest of honour, H.E. Judge Sang-Hyun Song, the President of the International Criminal Court.

The Malaysian Bar was pleased to have participated in this Consultation.  The Malaysian Bar, together with the Malaysian Coalition for the International Criminal Court, has been involved in the campaign to persuade the Malaysian Government to accede to the Rome Statute since 2006.  This would be consistent with Malaysia's membership in the United Nations Human Rights Council, which is responsible for upholding the highest possible standards in the promotion and protection of human rights.  The Malaysian Government should honour its promises and pledges to meet those standards when it sought and obtained re-election to the Human Rights Council in 2010.

What is interesting is that three of the countries that participated in that Consultation have since gone on to become State Parties to the Rome Statute.  On 23 Aug 2011, the Senate of the Republic of the Philippines passed SRN546, concurring in the ratification of the Rome Statute.  On 30 Aug 2011 it deposited its instrument of accession.  On 14 June 2011, the Parliament of the Maldives voted to accede to the Rome Statute.  On 21 Sept 2011, it deposited its instrument of accession.  On 2 Dec 2011, Vanuatu deposited its instrument of accession.

The speed in which these countries have commenced and completed the process of accession to the Rome Statute, especially that of the Maldives, is exemplary and is to be applauded.  This is to be compared and contrasted with that of Malaysia.

Although it hosted the Consultation in February 2011, and announced in March 2011 its intention to accede to the Rome Statute, the Malaysian Government has still not deposited its instrument of accession.  The oft-given and oft-repeated reason for this is that the Malaysian Government wishes to ensure that implementing legislation is in place and that its other domestic legislation is in accord with the requirements of the Rome Statute before it will actually accede to the Rome Statute.

Some of the issues it has raised pertain to compatibility with Syariah law, the position of the Yang di-Pertuan Agong, the constitutional Supreme Head of State of Malaysia, and the existence of the death penalty in Malaysia.  No time-frame for any implementing legislation has been announced.  Indeed, the particular division of the Ministry of Foreign Affairs tasked with drafting the implementing legislation has been disbanded and its responsibilities transferred to other divisions.  

One has only to look at countries like Afghanistan, Bangladesh, Chad, Jordan, Maldives, and Tunisia to see that countries with a predominantly Muslim environment have been able to accede to the Rome Statute.  Further, one has only to look at Australia, Belgium, Cambodia, Canada, Denmark, Japan, Jordan, the Netherlands, Norway, Spain, Sweden and the United Kingdom to see that countries with a constitutional monarchical system of government have also been able to accede to the Rome Statute.  The Malaysian Government need only consult with the governments of these nations to understand how concerns about the Syariah and the constitutional monarchy have been addressed.  

The Malaysian Bar is of the view that it is not a pre-requisite and neither is there a necessity for domestic implementing legislation to be in place prior to a country acceding to the Rome Statute.  In order to identify immediately with the goal to end impunity for crimes against humanity, genocide and war crimes, it is more important for countries to accede to the Rome Statute as quickly as possible.  Thereafter, work can progressively be undertaken to bring domestic legislation into compliance with the requirements of the Rome Statute, and for the introduction of implementing legislation.

The Malaysian Bar wholeheartedly concurs with Malaysian Minister in the Prime Minister's Department in charge of Law and Parliamentary Affairs, Dato' Seri Mohamed Nazri Abdul Aziz, that joining the International Criminal Court would not threaten or compromise Malaysia's sovereignty.  The fact that the International Criminal Court operates on a principle of complementarity means that the international jurisdiction of the International Criminal Court is carefully balanced with the jurisdiction of the Malaysian courts.  

In order for the international community to comprehensively address the issues of crimes against humanity, genocide, war crimes and crimes of aggression, the support of all countries is important.  Malaysia as a leading nation of the Organisation of Islamic Cooperation, the Non-Aligned Movement, the Commonwealth and the Association of Southeast Asian Nations, and as a member of the United Nations Human Rights Council, should pursue a course of action commensurate with the role that it seeks to play in these organisations and bodies.

As it stands, in the context of Southeast Asia, only Cambodia, the Philippines and Timor-Leste are members of the International Criminal Court.  Thailand signed (on 2 Oct 2000) the treaty that brought about the Rome Statute but has yet to accede.  As such, only these three countries will enjoy the right to nominate candidates to all the organs of the International Criminal Court, including the offices of judges, the Prosecutor and the Registrar.  We note that the Philippines, which has only recently become a State Party (on 1 Nov 2011), nominated a candidate to become a judge of the International Criminal Court from the Asia-Pacific region.  Their candidate was successfully elected yesterday, 12 Dec 2011.

The Malaysian Bar, and also on behalf of the Malaysian Coalition for the International Criminal Court, calls upon the government of the member states of the Rome Statute to continue their engagement with and encouragement to the Malaysian Government to expedite the depositing of the instrument of accession to the Rome Statute.  We also call on them to offer the relevant expertise to the Malaysian Government in its drafting and implementation of the necessary domestic legislative changes.

The Malaysian Bar, and also on behalf of the Malaysian Coalition for the International Criminal Court, calls upon the Malaysian Government not to delay any further and to deposit its instrument of accession to the Rome Statute immediately.


Lim Chee Wee
President
Malaysian Bar

13 Dec 2011


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Malaysia-Postponement of Workshop on Shifting from a Practice to a Business (14 Dec 2011)

Postponement of Workshop on Shifting from a Practice to a Business (14 Dec 2011)





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Circular No 292/2011
Dated 13 Dec 2011


To all Members of the Malaysian Bar

Postponement of Workshop on Shifting from a Practice to a Business 
(14 Dec 2011)

We refer to Circular No 288/2011 dated 6 Dec 2011, where we informed Members of the workshop on "Shifting from a Practice to a Business", to be held on 14 Dec 2011 (Wednesday), at the Raja Aziz Addruse Auditorium, Bar Council.

We regret to inform that due to unforeseen circumstances, the workshop has been postponed until further notice.

Please do not hesitate to contact Christina Gomez by telephone at 03-2050 2087, or by email at christina@malaysianbar.org.my, should you have any queries.

We apologise for any inconvenience caused.

Thank you. 


George Varughese
Chairperson
Small Firms Committee




This circular may also be accessed here.






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Saturday, 10 December 2011

Malaysia-Press Release: Democratic Space in Malaysia | Realising Aspirations of Human Rights

Press Release: Democratic Space in Malaysia | Realising Aspirations of Human Rights






Press Release

Democratic Space in Malaysia: Realising Aspirations of Human Rights


The Malaysian Bar notes the decision by the Higher Education Minister, Datuk Seri Mohamed Khaled Nordin, as reported in the media, to appoint a committee (albeit subject to Cabinet approval) to draft the amendments to section 15 of the Universities and University Colleges Act (UUCA) 1971.  The stated intention of this committee is to permit university students above the age of 21 the freedom to join political parties and participate in political activity.

We, however, remind the government of its obligations under the Convention of the Rights of the Child (CRC), to which it acceded in February 1995.  The CRC contains provisions that recognise the right of a child – defined as anyone under the age of 18 - to freedom of assembly and expression.  The proposed intention to amend section 15 of the UUCA will thus still be contrary to Malaysia's international law obligations.  If those under the age of 18 are entitled to such rights under the CRC, the same rights must apply to those aged 18 and above. The proposed amendment, while a widening of existing Malaysian law, is nonetheless not sufficiently broad to bring the position in Malaysia in line with international human rights norms.

The Malaysian Bar reiterates that wide and meaningful public consultation must always be conducted by both the government and Parliament prior to any amendment or enactment of legislation being approved. The indecent haste and lack of meaningful consultation in respect of the Peaceful Assembly Bill must never be repeated.  Incidentally, the Peaceful Assembly Bill also contains provisions restricting the participatory rights of children that are contrary to the CRC.  It also contains other restrictions that are in breach of international human rights norms as confirmed by a substantial number of international organisations such as the United Nations Human Rights Council, Amnesty International, Human Rights Watch and Lawasia.

Such a public consultation process would be a realisation of the eve of Malaysia Day promise by the Honourable Prime Minister of an "inclusive democracy" and placing "trust in the Malaysian people's intelligence to make decisions that will shape the path of their own future".

The restrictive and repressive attitude adopted by the government in some of its proposals contained in the Peaceful Assembly Bill is being repeated by certain quarters who are now threatening legal action against a peaceful gathering of the public in the KLCC shopping centre area.  These parties allege that such a gathering constitutes a threat to the safety of shoppers and will drive away business.

The Malaysian Bar begs to differ.  It may be that even more people will be attracted to the KLCC area by their curiosity about this proposed peaceful gathering.  The gathering itself, and any additional visitors, could translate into potentially even more sales than usual.  It may be instead that it is the over-bearing response of the management of KLCC itself that would create a sense of alarm and concern that deters shoppers.

As we commemorate International Human Rights Day on 10 Dec 2011, let us all, government and private sector, come together in support of peaceful public gatherings and the freedoms of assembly and expression.


Lim Chee Wee
President
Malaysian Bar  

9 Dec 2011


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Friday, 9 December 2011

Wednesday, 7 December 2011

MALAYSIA-A RESTATEMENT OF THE EXISTING LAWS: STAY OF EXECUTION OF JUDGMENT PENDING APPEAL (IN RELATION TO A WINDING-UP PETITION)


In Motif Era Sdn Bhd v Hock Kheng Construction Sdn Bhd [2011] MLJU 644, it was held that:-

"...It is trite that for an application for a stay of execution, the onus is on the applicant to demonstrate the existence of special circumstances. An appeal itself shall not operate as a stay of execution unless the court so orders and the paramount consideration governing an application for such a stay is that the appeal, if successful, should not be rendered nugatory; see Kosma Palm Oil Mill Sdn Bhd (supra).
On the meaning of 'special circumstances', learned counsel for the Applicant urged this Court to adopt the approach in Jaya Harta Realty Sdn Bhd (supra) where His Lordship Vicent Ng J (as he then was) had held, inter alia that:

"Held:
Thus 'special circumstances' does not mean very special or exceptional or peculiar circumstances but is a term to denote a combination of certain determining factors that are demonstrated by affidavit evidence to persuade the court that it is a just and appropriate case to grant a stay of execution in the circumstances."

InLeong Poh Shee v. Ng Kat Chong [1966] 1 MLJ 86, His Lordship Raja Azlan Shah J (as His Royal Highness then was), on the other hand gave the meaning of the term 'special circumstances' to be:
"Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common."

Special circumstances need not be 'very' special or very exceptional circumstances but must nevertheless be exceptional in character and unusual or uncommon as distinct from ordinary circumstances. I think the definition given by His Lordship Raja Azlan Shah J above is clear enough and 'special circumstances' should not be accorded with any other too liberal interpretation for otherwise, its meaning and purpose would be defeated.
From what has been deposed by the Applicant's deponent vide the aforesaid affidavit in support, the special circumstances seem to be that the execution proceeding would harm the construction business of the Applicant wherein their bank accounts would be frozen and they would be deprived from doing their business; in addition, their workers would be deprived of their source of income. I find all these to be common consequences as a result of a successful winding up petition. On this point, His Lordship Abdul Hamid Mohamad JCA (later CJ) has proposed a solution to all these fears when he held in Ming Ann Holdings Sdn Bhd (supra), inter aiia, as follows:
"Held:
(3) On the facts, the grounds relied on by the applicant are nothing more than 'fear of losing'; fear of losing business, fear of losing customers, fear of losing suppliers; fear of losing goodwill, fear of not being able to collect its debts from third parties, in case the applicant company is wound up. All that the applicant has to do to avoid such 'fears' is to settle the judgment debt. These factors are not 'special circumstances' nor do they show that the appeal, if successful, will be rendered nugatory. They are nothing unusual. Execution is a natural process after obtaining a judgment."

Therefore I hold that the fears of the Applicant's bank account being frozen and that their workers may probably lose their job are not special circumstances as, to reiterate, these would probably be the natural consequences if a company is unable to settle a debt, for example, which leads to a winding up proceeding. The Applicant could eliminate this problem by settling the judgment debt.
On the submission that the Applicant has a counterclaim in this case, I agree with Respondent's submission and the decision in Eddie Lee Kim Tah's case that the existence of a counterclaim cannot be construed as a special circumstances for the purposes of an application for stay of execution.
The issue left to be considered is whether the grounds relied on by the Applicant will render the appeal, if successful, nugatory. I am of the view that the contention of the fear of losing the business, the bank account being frozen and the workers running the risk of out of job on account of the Respondent's execution of the judgment, does not render the appeal if successful, nugatory. ...".

Tuesday, 6 December 2011

Malaysia-Bar Council Human Rights Committee Celebrates Human Rights Day 2011 (10 Dec 2011)

Bar Council Human Rights Committee Celebrates Human Rights Day 2011 (10 Dec 2011)








This circular may also be accessed here.





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MALAYSIA-A RESTATEMENT OF THE LAW-REMOVAL OF A LIQUIDATOR


In Wiraflor (Malaysia) Sdn Bhd v Bio Science Capital Sdn Bhd [2011] MLJU 514, it was held that:-

"...The Law Relating to the Removal of a Liquidator
Section 232(1) of the Companies Act 1965  provides that the Court may remove a liquidator 'on cause shown':-

"A liquidator appointed by the court may resign or on cause shown be removed by the court.'

In Abric Project Management & Anor v Palmshine Plaza Sdn. Bhd. & Anor. [2007] 5 MLJ 685 Ramly Ali J. (now CJA) reviewed the leading cases of Re Sir John Moore Gold Mining Co [1879] 12 LR Ch D 325, Re Adam Eyton Limited; Ex parte Charlesworth [1887] 36 Ch 299 as well as several other cases and adopted the tests set out therein. I respectfully adopt His Lordship's decision formulating the relevant test to be applied:-
In Re Sir John Moore Gold Mining Co. (above), Jessel MR defined the words due cause to mean 7 should say that as a general rule, they point to some unfitness of the person - it may be from personal character, or from his connection with other parties, or from circumstances in which he is mixed up - some unfitness in a wide sense of the term.'
And in Re Adam Eyton Cotton LJ in commenting on the judgment of Jessel MR above held "...if the court is satisfied on the evidence before it that it is against the interest of the liquidation, by which I mean all those who are interested in the company being liquidated, that a particular person should be made liquidator, then the court has power to remove the present liquidator and of course then appoint some other person in his place.

In the same case Bowen L.J. stated:-
"..the due cause is to be measured by reference to the real, substantial, honest interest of the liquidation and to the purpose for which the liquidator is appointed. Of course fair play to the liquidator himself is not to be left out of sight, but the measure of due cause is the substantial and real interest of the liquidation."

And in Re George A Bond & Co. Ltd. (1932) 32 SR (NSW) 301 Long Innes J. said:-
"..ln my view neither suspicion alone, nor even a prima facie case which might be rebutted, would either justify or require removal unless there were reason for apprehension that the interests of the liquidation would be imperilled by the continuance in office of the suspect, or unless it were shown that such removal would before the advantage of those interested in the assets of the company."

In Advance Housing Pty. Ltd. (in liq) v Newcastle Classic Developments Pty Ltd. [1994] 14 ACSR, Santow J. held inter alia that there must be a real and not merely theoretical possibility of conflict and that the guiding principle in the appointment by the court of a liquidator is that he must be independent and must be seen to be independent. The foregoing comprise a summary of the accepted principles with regards to the removal of a liquidator. ..."

MALAYSIA-DUMC CHILDREN'S CHURCH PRESENTS "3 WISE MEN AND A BABY"



Thursday, 1 December 2011

Talk on Use of Technology amongst Lawyers (6 Dec 2011)

Talk on Use of Technology amongst Lawyers (6 Dec 2011)









This circular may also be accessed here.




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Proview eBook Bi-Weekly Offer - Get your copy at 20% off!

Proview eBook Bi-Weekly Offer - Get your copy at 20% off! ...