Tuesday, 10 November 2015

Malaysia-Companies-Financial Assistance

In the Court of Appeal case of Fujasa Property Sdn Bhd & Anor v Idaman Unggul Bhd & Anor [2015] 5 MLJ 810, it was held that:-

"[18] A plain reading of s 67 of the CA 1965 indicates that the words 'financial assistance' is widely construed. This may be inferred by the provision that the giving of financial assistance may be 'whether directly or indirectly'; and the means by which it may be given such as a loan, guarantee or provision of security 'or otherwise'.

[19] There are two components to the meaning of financial assistance within the scope of s 67 of the CA 1965. In the first instance, there must be some financial assistance given by the company. Secondly, the financial assistance should be given 'for the purpose of or in connection with' the purchase of the company's shares.

[20] In determining whether or not there was any financial assistance in the sense prohibited under s 67, the courts have adopted a practical approach in the construction of the meaning of financial assistance in the light of the commercial realities of the transaction.
[21] In Charterhouse Investment Trust Ltd and others v Tempest Diesels Ltd [1986] BCLC 1 Hoffmann J said at p 11:

The words (giving financial assistance) have no technical meaning and their frame of reference is in my judgment the language of ordinary commerce. One must examine the commercial realities of the transaction and decide whether it can properly be described as the giving of financial assistance by the company, bearing in mind that the section is a penal one and should not be strained to cover transactions which are not fairly within it.


[22] In Wallersteiner v Moir; Moir v Wallersteiner and others [1974] 3 All ER 217; [1974] 1 WLR 991 (CA) at p 1014, Lord Denning described how financial assistance may have been given in the following words:


You look to the company's money and see what had become of it. You look to the company's shares and see into whose hands they have got. You will then see if the company's money has been used to finance the purchase.

[23] As there are multifarious ways in which such financial assistance may be provided, it would be instructive to review some cases by way of illustration.

[24] In Chung Khiaw Bank Ltd v Hotel Rasa Sayang Sdn Bhd & Anor [1990] 1 MLJ 356, a company bought shares in the hotel using a loan from a bank on the security of the hotel's land. The Supreme Court held that there was financial assistance which was prohibited under s 67 of the CA 1965.

[25] In Kidurong Land Sdn Bhd & Anor v Lim Gaik Hua & Ors [1990] 1 MLJ 485; [1990] 1 MSCLC 90, at p 402, shareholders in a company owing land transferred their shares to a developer. It was agreed that the developer would build houses on the land and transfer some of the houses to the shareholders. The developer financed the development by charging the company's land to a finance company. As the developer failed to deliver on its promise, the shareholders sued and obtained judgment under the contract. The developer appealed and argued that the transaction was in breach of s 67(1). The Supreme Court held that the arrangement to fund the building and transfer of the houses amounted to financial assistance within the meaning of s 67(1).

[26] In Utama Wardley Bhd & Anor v Lenggang Laut Development Sdn Bhd & Ors [1991] 3 MLJ 490; [1991] 3 CLJ 2233, the company gave a negative pledge to a bank which was financing a purchaser to acquire its shares in the company. Pursuant to the pledge, the company deposited the title deeds to its land with the bank. The court held that there was no financial assistance as the negative pledge and the deposit of the title deeds by the company was not by way of security; it being merely an assurance by the company that it would not encumber its assets without prior consent of the bank.

[27] In Yap Sing Hock Holdings Bhd & Ors v Chuah Teong Hooi & Ors [1989] 2 MLJ 503, the purchaser created a debenture over its existing and future assets in favour of a bank to obtain finance to acquire shares in three other companies. As the debenture would also include the future assets of the purchaser in the three companies whose shares were being acquired, it was contended that this amounted to financial assistance. However, the court held that this did not constitute financial assistance as it was not the companies that created the debenture but the purchaser.

[28] In Simmah Timber Industries Sdn Bhd v David Low See Keat & Ors [1999] 5 MLJ 421, the plaintiff, and the first and second defendants entered into a lease-back agreement. Under the agreement, the second defendant would transfer, among others, all his shares in the plaintiff to the first defendant and settle in full all outstanding loans and liabilities of the plaintiff, in consideration that the plaintiff would transfer its assets as enumerated in a schedule, a lease of land and the tenancy of its office to the second defendant. The second defendant would, thereafter, lease-back the assets, and assign and transfer the tenancy back to the plaintiff. The first defendant having gained control of the plaintiff, entered into a sublease agreement with the third defendant. Under the sublease agreement, the third defendant would pay the plaintiff monthly rental and electricity and water charges in consideration to the plaintiff for subletting a portion of its business premises. The plaintiff's claims, as against the first defendant, as director and trustee of the company, an account of all monies received under the sublease agreement and payment of all sums received and found due after the taking of the account, and as against the second defendant, as constructive trustee, similar account and payment of all sums found due from the second defendant to the plaintiff. Alternatively, the plaintiff's claim against the first, second and third defendants for damages for conspiracy to injure. In addition, the plaintiff contended that the agreement was in contravention with s 67. The second defendant, however argued that the agreement fell within the exception in s 67(2)(c) which permits for the giving of financial assistance by a company to its employees to purchase fully-paid shares in the company.

[29] In that case the court found that the first defendant had breached his duties as a director under s 132 of the CA 1965 and as a fiduciary of the plaintiff because he had taken the monies paid by the third defendant for the subrentals and the electricity charges and that he did not account at all to the plaintiff. Under the agreement, the first defendant had received shares in the plaintiff by transferring the company's assets to the second defendant. This is a clear case of fraud on the company by its director. There was a depletion of monies due to the company when monies were paid out to the second defendant and a depletion of the company's assets when the assets were transferred to the second defendant, and thereafter, by them being leased back to the company for which payments were made. The court found that it was a cleverly planned subterfuge to deplete the assets of the company; there was no financial assistance to the employees of the company to buy into the shares of the company.

[30] In Kidurong Land Sdn Bhd & Anor v Lim Gaik Hua & Ors [1990] 1 MLJ 485 (SC), a company, Chen Hua Development (M) Sdn Bhd was the registered owner of a piece of land known as Taman Hilltop. The vendors of the shares in Chen Hua Development entered into a joint venture agreement with Kidurong Land Sdn Bhd, a housing developer, whereby the vendors transferred their shares to Kidurong for RM3.8m; the consideration to be paid in kind by the transfer of certain specified units of houses to be constructed on Taman Hilltop. Kidurong had agreed to develop Taman Hilltop. The issue for determination before the Supreme Court was whether the joint venture agreement to develop Taman Hilltop had infringed s 67(1) in that the transfer of the shares in Chen Hua to Kidurong was financed by Chen Hua by charging the Taman Hilltop land; the land which is Chen Hua's asset. The Supreme Court held that the provisions of s 67 is very wide [#65533] the financial assistance can be direct or indirect. Kidurong had used all the money it obtained from the charge of Chen Hua's land for the projects, ie to build the houses and that the payments of the shares was to be by the transfer of part of the project. The Supreme Court found that the funding of the project which in effect is the funding of the houses to be transferred is any direct or indirect financial assistance and as such is a breach of s 67.

[31] In Belmont Finance Corporation v Williams Furniture Ltd and others (No 2) [1980] 1 All ER 393 (CA), the Court of Appeal held that there was financial assistance where a company purchased property from a person at an inflated price with the sole purpose of enabling that person to purchase the company's shares. Buckley LJ, speaking for the Court of Appeal said at p 403:

It was an exceptional and artificial transaction and not in any sense an ordinary commercial transaction entered for its own sake in the commercial interests of Belmont. It was part of a comparatively complex scheme for enabling Mr. Grosscurth and his associates to acquire Belmont at no cash cost to themselves, the purchase being found not from their own funds or by the realisation of any asset of theirs (for Maximum continued to be part of their group of companies) but out of Belmont's own resources.


CONSEQUENCES OF BREACH OF FINANCIAL ASSISTANCE PROHIBITION

[32] Both criminal and civil consequences flow from a breach of the prohibition.

[33] Briefly, criminal consequences fall on the officers of the company in default; the company is not liable as the law recognises it as the victim of the breach. Under s 67(3) each officer who is in default is liable to a fine of up to RM100,000 or five years imprisonment or both.

[34] Civil consequences are governed by sub-s (6) of s 67. Subsection (6) was amended by the Companies (Amendment) (No 2) Act 1992 came into effect on 10 September 1992. According to the unamended version, it was provided that 'the company' was not prevented from recovering the amount of any loan made in breach of s 67.

[35] Subsection (6) of s 67 was amended by the insertion of the words 'or any person' after the words 'the company'. The amended sub-s (6) is as follows:

Nothing in this section shall operate to prevent the company [or any person] from recovering the amount of any loan made in connection of this section or any amount for which it becomes liable, either on account of any financial assistance given, or under any guarantee entered into or in respect of any security provided, in contravention of this section.


[36] In Hotel Rasa Sayang, the Supreme Court held that a transaction made in breach of the financial assistance prohibition would be null and void under s 24 of the Contracts Act 1950. The Supreme Court held that the words 'the company' referred to the company itself which had provided the financial assistance and the meaning of the words did not include a third party [#65533] the lender in that case. The Supreme Court in Kidurong, also arrived at the same conclusion that an agreement which contravenes s 67 is void and unenforceable under s 24 of the Contracts Act 1950.

[37] Subsequently, sub-s (6) also came to be considered in Lori (M) Bhd (Interim Receiver) v Arab-Malaysian Finance Bhd [1999] 3 MLJ 81; [1999] 3 AMR 3161 (FC) where the Federal Court departed from the Supreme Court's approach in Hotel Rasa Sayang. It is pertinent to observe that even though Lori, was decided after the amendment of sub-s (6) of s 67 of the CA 1965, the Federal Court did not apply the amended sub-s (6) because the impugned financial assistance occurred prior to the date the amendment took effect.

[38] In Lori, the High Court had granted an order for the sale of land which was charged by way of security by Lori (M) Bhd ('Lori') in favour of Arab-Malaysian Finance Bhd ('AMFB') for a loan pursuant to the National Land Code. Lori was originally owned by Majlis Amanah Rakyat ('MARA'). MARA had appointed Technivest Sdn Bhd to manage Lori. Later MARA offered to sell its shares in Lori to Technivest. Technivest applied to AMFB for a term loan of RM4.3m. Technivest informed AMFB that the purpose of the loan was to pay MARA for the settlement of Lori's liabilities with MARA and its subsidiaries. AMFB required a charge over the land owned by Lori as part of the security for the loan facility. However, this offer was revoked as the proceeds of the loan provided by AMFB would be used by Technivest to purchase the shares owned by MARA in Lori; as such it would fall foul of the financial assistance prohibition under s 67. Subsequently, Lori applied to AMFB for a fresh loan facility. By that time the shares in Lori had already been transferred to Technivest. AMFB required a charge of the land owned by Lori as security for the loan facility. The charge and loan facility agreement were executed on 11 October 1990. Eventually Lori defaulted in the repayment of the loan and AMFB applied to the High Court to enforce the charge. At the High Court, Lori, through its interim receiver, contended that the charge was unenforceable as it contravened the financial assistance prohibition under s 67 of the CA 1965. Lori's argument was rejected and the High Court granted an order for sale in favour of AMFB. Lori appealed to the Federal Court arguing that the High Court erred in holding that the loan facility arrangements did not contravene the financial assistance prohibition. The Federal Court dismissed the appeal.

[39] The Federal Court in Lori, took the position that Hotel Rasa Sayang, was decided per incuriam because the Supreme Court failed to actually construe the words 'for which it becomes liable' in sub-s (6) and placed undue stress on the provisions of s 24 of the Contracts Act 1950 and held that because the bank had knowledge of the illegality and the nature of the transaction at the material time, the bank's claim failed. The Federal Court took the view that sub-s (6) creates an important exception to s 24 of the Contracts Act 1950 by allowing recovery under an illegal contract, thereby excluding the operation of s 24. Subsection (6) was enacted for the protection of the company's funds and the interests of shareholders as well as creditors and the general public. The Supreme Court in Hotel Rasa Sayang, had been unduly swayed by certain English cases as the relevant legislation on which they were decided did not have an equivalent sub-s (6) saving provision. Another difference was that the prohibition under the relevant English legislation imposed criminal liability not only on officers of the company but also the company itself, whereas under s 67, criminal liability is only imposed on officers of the company. The Federal Court also held that sub-s (6) of s 67 appears to be a statutory recognition of the rule in Victor Battery Company, Limited v Curry's Limited And Others [1946] Ch 242 where it was decided that an illegal security given by a company to finance the purchase of its own shares contrary to s 45(1) of the Companies Act 1929 (UK) (being the equivalent to our s 67(1) of the CA 1965) was not avoided. The Federal Court noted, however, that the Companies Act 1929 (UK) did not have a provision equivalent to our sub-s (6) of s 67; and added that even if Victor Battery was wrongly decided, it matters not for the principle enunciated therein had been statutorily recognised in sub-s (6) of s 67."

Malaysia-non-registration of lease under the National Land Code

In the Federal Court case of S & M Jewellery Trading Sdn Bhd & Ors v Fui Lian-Kwong Hing Sdn Bhd [2015] 5 MLJ 717, it was held that:-

"[55] We now answer the leave question as follows. A lease or sublease (exceeding three years) is not rendered void by reason of non-registration. A lease or sublease (exceeding three years) is imperfect without registration. Unless perfected, it will not operate to transfer title to the lessee or sublessee. It is nonetheless an agreement for a lease. An agreement for a lease does not create a relationship of landlord and tenant. But if the tenant is let into possession under the imperfect lease or sublease, he becomes a tenant at will (for further reading on the creation of a tenancy at will, see Megarry & Wade, at paras 17[#65533]102). A tenancy at will, is determinable at the will of either party, and being such it cannot co-exist with a periodic tenancy or an equitable lease. When the tenant pays or expressly agrees to pay rent, the tenancy at will changes into a periodic tenancy upon the terms of the intended lease or sublease, that is, from year to year or for other periodic period, according to the computation of the rent. Where appropriate, equity may treat an agreement for lease as an equitable lease, that is, treat the unregistered lease as registered, and compel specific performance against the proprietor."

Malaysia-duty of care-land office to the public

In the Court of Appeal case of Pendaftar Hakmilik, Pejabat Pendaftaran Wilayah Persekutuan Kuala Lumpur & Anor v Poh Yang Hong [2015] 5 MLJ 830, it was held that:-

"[12] The subsequent official searches on the next day by the plaintiff's solicitors led to the discovery that these was in fact two different sets of titles issued for the land:

  • (a)
    the first defendant was registered as the owner of GRN 232 Lot 349 Seksyen 71, Bandar Kuala Lumpur Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur; and 
  • (b)
    Mohamad was registered as the owner of FN 20992 Lot 349 Seksyen 71 Bandar Kuala Lumpur Daerah Kuala Lumpur Negeri Wilayah Persekutuan Kuala Lumpur. 
[13] The two sets of titles for the same land in the land registry leads to no other conclusion that there is something amiss with the records in respect of that piece of land. It should not have happened. It could only happen by another person in the land registry having access by way of password to access the database of the land registry to create the set of title record. Clearly, it could only happen with the participation of someone in the land registry and not some third party outside alone. Certainly, there is no evidence it could be accomplished by a third party alone. The submission it was the act of a third party holds no merit. The High Court did not err in finding the second and third defendants had failed to ensure the records for the land are accurate.

[14] No doubt the realisation that the second and third defendants are responsible for the act of an employee in the land registry prompted the submission that the second and third defendants owe no duty of care to the plaintiff. The submission fails to take into consideration that the second and third defendants are required by the National Land Code to keep and maintain a register of title of lands. The register does not only serve the administrative function of recording who owns what to protect landowners, but also a more important economic objective of providing assurance to intending purchasers of land that it is safe to purchase land from the person whose name is on the register. Once he gets his name registered as the proprietor in the register of title, his title is indefeasible. Without such assurance, it would be a risky act to buy property, or accept property as security, with the result demand and therefore prices would fall. History has shown that the introduction of the land registration system had a direct correlation with economic development. The submission that the second and third defendants owed no duty to the plaintiff is therefore without merit. Authority carries with it responsibility, and authority over every citizen carries with it responsibility to every citizen affected by the actions or inactions in carrying out that responsibility. It is the basis upon which the relationship of proximity and duty of care is founded, and liability, where the damage suffered is, as in this case, clearly foreseeable.

[15] That the particulars supplied at the time of the first search was accurate at that time is equally without merit. It does not explain why particulars obtained upon a search in the registry can be accurate at one point of time and cease to be accurate at another. Certainly that militates against the raison d'etre, the very reason for the existence, of the National Land Code. The submission suggests the private search particulars were accurate until Mohamad emerged as a registered owner of the same land. Even if that were so, it supports the claim that the plaintiff's loss was the result of the particulars supplied at the private search.

[16] There can be no double standard that the record made available upon a private search is, as in this case, wholly erroneous as to who is the owner as opposed to what is expected that it may be less up to date in respect of the dealings recorded. Effectively, the plaintiff was not shown by the land office the correct register when he did the private search."

Malaysia--Contracts-Illegality

In the Federal Court case of Merong Mahawangsa Sdn Bhd & Anor v Dato' Shazryl Eskay bin Abdullah [2015] 5 MLJ 619, it was held that:-

"[1] The question upon which leave was granted to appeal against the order of the Court of Appeal in respect of the matter decided by the High Court in the exercise of its original jurisdiction, reads:


Whether an agreement to provide services to influence the decision of a public decision maker to award a contract is a contract opposed to public policy as defined under s 24(e) of the Contracts Act 1950 and is therefore void?...

[79] For the above reasons, we (on 14 May 2015, Mohamed Apandi Ali FCJ, as he then was, now AG, agreed with the draft of this judgment) unanimously answer the leave question, surely obviously, in the affirmative, allow this appeal with costs, affirm, for different reasons, the order of the trial court and set aside the orders of the Court of Appeal."

LLB Bulletin #11/2015

LLB Bulletin #11/2015





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IN THIS ISSUE BULLETIN 11/2015
1. Latest Highlights
    - Case Highlights
    - ILR Issue 10 of 2015
2. Media Info



LATEST HIGHLIGHTS
CASE HIGHLIGHTS
ABDUL HAMID MYDIN v. MALAYSIA AIRPORTS HOLDINGS BERHAD (MALAYSIA AIRPORTS SDN BHD)
INDUSTRIAL COURT, PENANG
DUNCAN SIKODOL
AWARD NO. 914 OF 2015 [CASE NO: 17(9)(18)/4-1311/11]
28 JULY 2015
DISMISSAL: Performance - Medical Boarding Out - Claimant medically boarded out due to his medical condition - Whether proven by the company - Whether the company had relied on a valid medical report to dismiss him - Evidence adduced - Effect of - What the company should have done - Whether the claimant's dismissal had been without just cause and excuse
DISMISSAL: Performance - Medical Boarding Out - Claimant medically boarded out due to his medical condition - Whether the claimant had consented to it - Evidence adduced - Effect of - Claimant's evidence and the company's evidence directly in opposition to one another - Whose evidence had been more probable - Factors to consider
EVIDENCE: Adverse inference - Company failing to call Dr. Anna Letchumi - Whether she had been a material witness - Whether the company had made any genuine effort to secure her attendance at trial - Whether an adverse inference ought to be drawn against the company
EVIDENCE: Documentary evidence - Findings of the Medical Board - Whether it had been flawed - Factors to consider - Duties of the Medical Board - Whether its findings had been void ab initio
EVIDENCE: Documentary evidence - Two contradictory medical reports existing - Company objecting to the one less favourable to it - Whether its objections should be allowed - Factors to consider - Effect of - Company failing to clarify why there had been two contradictory reports - What it should have done
EDWIN THOMAS v. F&N BEVERAGES MARKETING SDN BHD
INDUSTRIAL COURT, KUALA LUMPUR
ANNA NG FUI CHOO
AWARD NO. 1046 OF 2015 [CASE NO: 3(22)(3)/4-778/13]
25 AUGUST 2015
DISMISSAL: Breach of company rules and policies - Negligence - Claimant charged with not following the company's SOP on stock take - Whether he had knowledge of the SOP - SOP only shown to him after the event - What that meant - Whether it had justified the company dismissing him - Whether the charge had been proven by the company - Whether dismissal without just cause and excuse
DISMISSAL: Breach of company rules and policies - Negligence - Claimant charged with not following the company's SOP on stock take - Whether proven by the company - Evidence adduced - Effect of - Claimant's explanations - Whether could be accepted - DI panel finding the claimant not guilty - Company dismissing him nevertheless - Whether his dismissal had been justified - Whether dismissal without just cause and excuse - Industrial Relations Act 1967, ss. 20(3) & 30(5)
DOMESTIC INQUIRY: Procedural impropriety - Whether the DI had been properly conducted and valid - Factors to consider - Effect of
EVIDENCE: Adverse inference - Company failing to call Mr. Lu and Mr. Saravanan to give evidence - Whether they had been important and material witnesses - Factors to consider - Whether an adverse inference ought to be drawn against the company - Effect of
EVIDENCE: Documentary evidence - Findings of the DI panel - Whether perverse - Factors to consider - Effect of - Whether the findings had been valid
LATEST CASES (ILR Issue 10 of 2015)
Award Parties Citation Links
Kempas Edible Oil Sdn Bhd v. Prabdhial Singh Dardara Singh
[Civil Appeal No: W-02-397-02-2014]
[2015] 4 ILR 1 cljlaw
labourlaw
Lau Poh Lee v. Dato Dr Kamalasothy Kandiah & Ors
[Judical Review Application No: 25-6-02-2015]
[2015] 4 ILR 17 cljlaw
labourlaw
Suraya Amdah v. Ketua Setiausaha Kementerian Kesihatan Malaysia & Anor
[Judicial Review No: 25-40-07-2013]
[2015] 4 ILR 28 cljlaw
labourlaw
759/2015 Ahmad Pazli Mohamed v. Petronas Gas Berhad
[Case No: 22/4-392/13]
[2015] 4 ILR 50 cljlaw
labourlaw
806/2015 Aznan Harun v. Malayan Banking Berhad
[Case No: 2/4-731/11]
[2015] 4 ILR 60 cljlaw
labourlaw
894/2015 Electrical Industry Workers' Union v. OYL Manufacturing Company Sdn Bhd
[Case No: 1/1-464/14]
[2015] 4 ILR 71 cljlaw
labourlaw
914/2015 Abdul Hamid Mydin v. Malaysia Airports Holdings Berhad (Malaysia Airports Sdn Bhd)
[Case No: 17(9)(18)/4-1311/11]
[2015] 4 ILR 85 cljlaw
labourlaw
940/2015 Abdul Rashid Jamaludin v. Ultimate Manufacturing Solutions (M) Sdn Bhd
[Case No: 18/4-758/11]
[2015] 4 ILR 99 cljlaw
labourlaw
976/2015 National Union Of Hotel, Bar & Restaurant Workers, Peninsular Malaysia v. Ramada Plaza Hotel Melaka (MTB Realty Sdn Bhd)
[Case No: 1/1-199/15]
[2015] 4 ILR 120 cljlaw
labourlaw
989/2015 Lee Kit Suan lwn. Yesmore Pacific Sdn Bhd
[No. Kes: 5/4-1386/12]
[2015] 4 ILR 128 cljlaw
labourlaw
1018/2015 L Anantheswaran Lechmiannandan v. Inetmon Sdn Bhd
[Case No: 13(25)/4-486/2011]
[2015] 4 ILR 156 cljlaw
labourlaw
1028/2015 Ahmad Tarmizi Mohd Ghazali lwn. Fineplus (M) Sdn Bhd & Superior Lime Sdn Bhd
[No. Kes: 10/4-1241/12]
[2015] 4 ILR 168 cljlaw
labourlaw
1046/2015 Edwin Thomas v. F&N Beverages Marketing Sdn Bhd
[Case No: 3(22)(3)/4-778/13]
[2015] 4 ILR 188 cljlaw
labourlaw
1060/2015 Pritam Singh Kernail Singh v. Philip Morris (Malaysia) Sdn Bhd
[Case No: 12(14)/4-446/12]
[2015] 4 ILR 206 cljlaw
labourlaw
To Subject Index
MEDIA INFO
Articles
Keep it cool (The Star, Malaysia)
Conducting a job search over a period of weeks or months can make most people wonder why they haven't been hired yet. Of course, over time, this feeling of wonder can change into one of desperation - especially if you're not receiving so much as an interview callback.
Business/Management Skills
Connect with yourself first before others (New Straits Times, Malaysia)
Patricia has all the qualifications of what a professional coach would love to have. Not only she's a certified coach from a reputable coaching association, she also has a string of degrees and many solid years of corporate experience. Anyone would have quickly jumped into the conclusion she is a first-class coach. But the truth is, she is not and is struggling to make ends meet.
Human Resource
Bosses must adhere to minimum wage ruling, says Riot (The Star, Malaysia)
There will be no deferment of the new private sector minimum wage scheduled on July 1 next year. Human Resources Minister Datuk Seri Richard Riot said employers must adhere to the ruling "without giving any more excuse".
Opinion
Keeping it current (The Star, Malaysia)
One of the biggest concerns for job seekers over a certain age is age discrimination. While some employers do discriminate, it's often because they fear that candidates over 50 won't be up-to-date with their skills or familiar with not-so-new things like social media.
Tips
Reward productivity, not busy behaviour (New Straits Times, Malaysia)
All organisations have a mixed variety of employees who work in their own unique way. There are, however, some employees who are always occupied but not necessarily productive! They are what I call "actors and actress".
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Malaysia-PRAKTIS PII Policy Made Easy Series #6: Your Base Excess (Part 2)

PRAKTIS PII Policy Made Easy Series #6: Your Base Excess (Part 2)
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Malaysia-Unabated Deaths in Custody Demonstrate that Police Cannot Police Themselves

Unabated Deaths in Custody Demonstrate that Police Cannot Police Themselves





​_____________________________________________________________________________________________________________________________


Press Release
Unabated Deaths in Custody Demonstrate that Police Cannot Police Themselves
The Malaysian Bar notes that the Inspector General of Police ("IGP"), Tan Sri Dato' Sri Khalid Abu Bakar, has reportedly pledged that any police personnel involved in the death in custody of Syed Mohd Azlan Syed Mohamed Nur would be brought to justice.

It is shocking that individuals continue to die in such highly suspicious circumstances while under the care of the police.  The report recently released by the Enforcement Agency Integrity Commission is a severe indictment of the management and protection of detainees being held in custody.  It points to a deeply entrenched and systemic problem within the police force that defies resolution.

The Malaysian Bar is concerned that the IGP's announcement may be a mere platitude, as deaths in custody have continued unabated, despite the news in May 2013 that the IGP would head a special committee established to take measures to prevent deaths in police lockups. 

In the wake of the death in police custody of N Dhamendran at that time, the Minister of Home Affairs Dato' Seri Dr Ahmad Zahid Hamidi had reportedly proposed that closed-circuit surveillance cameras ("CCTVs") be installed in all holding cells in police lock-ups, and that detainees should be held in centralised holding centres instead of police lock-ups, with adequate monitoring and CCTV coverage.  He had also announced that the standard operating procedures for police interrogations would be re-evaluated.  A year later, the Minister announced in May 2014 that CCTVs would be installed in all police lock-ups, as only one police station lock-up had a CCTV then.

The Malaysian Bar calls upon the IGP and the Minister to now provide a comprehensive account of the steps that have been taken in the intervening 17 months, and to account for the failure of the measures intended to eradicate the occurrence of deaths in custody.

Death in custody, especially by foul means or under dubious conditions, is among the most heinous crimes imaginable in a civilised society under the rule of law.  The present state of affairs has led to much public outrage and an erosion of confidence in the police.  The police must be proactive in ensuring that the wrongful actions of some amongst them do not tarnish the standing of the whole force.  Unless this is addressed, the police force will unfortunately remain a diminished institution in the eyes of the public.

Such tragedies reinforce the Malaysian Bar's repeated calls for the Government to implement the recommendation of the Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police, in its report published in May 2005, for the setting up of an Independent Police Complaints and Misconduct Commission ("IPCMC") to function as an independent and external oversight body to investigate complaints about police personnel and to make the police accountable for their conduct.

The Malaysian Bar calls on the IGP to take concrete and immediate action, as this is a matter of utmost public interest that warrants the highest level of priority.  Public confidence can only be restored, and justice seen to be done, if swift action is taken to ensure that the perpetrators are brought to book and prosecuted to the fullest extent of the law.

We also call on all government authorities to further strengthen the standard operating procedures in every circumstance of detention and custody, to ensure the safety and welfare of detainees.

Every death in custody is inexcusable, and Syed Mohd Azlan Syed Mohamed Nur's demise is another death in custody that demonstrates that the police are unable to police themselves.

Steven Thiru
President
Malaysian Bar
7 November 2015

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FINAL CALL FOR 2015!

FINAL CALL FOR 2015!





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