Wednesday, 2 December 2015

MALAYSIA-BANKRUPTCY-NO NEED TO ATTACH CREDITOR'S PETITION TO AFFIDAVIT VERIFYING; ON SUBSTITUTED SERVICE; MODE OF APPLICATION FOR SUBSTITUTED SERVICE-SUMMONS-IN-CHAMBERS

In the Court of Appeal case of Azman bin Jufri v Medtronic Australasia Pty Ltd [2015] 6 MLJ 841, it was held that:-

"...Whether the proceedings are nullified by the failure to annex the petition to the verifying affidavit?
[18] The fourth ground is more substantive. It deals with the question of whether the fact that a copy of the CP is not annexed to the affidavit of truth of statements in petition is fatal so as to nullify the proceedings.

[19] Section 6(1) of the BA 1967 provides that a creditor's petition shall be verified by the affidavit of the creditor or of some person on his behalf having knowledge of the facts and shall be served. The manner in which the affidavit is required to be filed is set out in r 106 of the Bankruptcy Rules 1969 :

106 Verification
(1) A creditor's petition shall be verified by affidavit.
(2) A petitioning creditor who cannot himself verify all the statements contained in his petition shall file an affidavit made by some person who can depose to them.

[20] The prescribed form for the verifying affidavit is Form 11 which requires that the petition be annexed to it. This is evident from the opening paragraph of Form 11 as follows:

I, the petitioner named in the petition hereunto annexed, affirm (if the petitioner declare or affirm, alter the form accordingly) and say: 1. ... (Emphasis added.)


[21] In Ooi Thean Chuan v Banque Nationale de Paris [1992] 2 MLJ 526, one of the objections taken by the judgment debtor was that the petition had not been verified by affidavit required by s 6(1) of the BA 1967 and Form 11 prescribed by r 106 of the BR 1969 in that although the verifying affidavit was filed together with the petition, the petition was not annexed to the affidavit. Edgar Joseph Jr J (as he then was) held that the verifying affidavit prescribed by r 106 is Form 11 which requires the petition to be annexed to it; the petition must be tied to or bound to or attached to or joined to or affixed to or stapled to the verifying affidavit, so as to avoid any dispute as to what exactly is being verified. The failure to do so goes beyond being a mere irregularity and amounts to something that renders the proceedings a nullity thereby sweeping away the jurisdiction of the court. The fact that no substantial injustice or no prejudice had been suffered by the debtor is beside the point and s 131 of the BA 1967 is without application.

[22] Ooi Thean Chuan was followed in Cho Yu-Lon v Arab-Malaysian Finance Bhd [2003] 5 MLJ 289; [2003] 2 CLJ 186 where Kamalanathan Ratnam J held that a copy of the creditor's petition introduced as an exhibit to the affidavit and stapled to the affidavit would suffice to meet the requirements of r 106 and Form 11.

[23] Ooi Thean Chuan was also followed in Re Dato' Dr Elamaran a/l M Sabapathy; ex parte RHB Bank Bhd [2010] MLJU 1424; [2011] 10 CLJ 262 where the judgment debtor applied to set aside the bankruptcy notice and creditor's petition. It was contended, inter alia, that the affidavit verifying petition accompanying the creditor's petition had not had the petition annexed to it. Varghese George JC (later JCA) held that the verifying affidavit did not comply with the requirements of the BA 1967 and the BR 1969. The omission to annex the creditor's petition to the verifying affidavit was a matter which went to the materiality of contents and hence a substantive matter.

[24] In Re Puan Sri Mona Kishu Thiratrai @ Mona Kishenchand; ex p Affin Bank Bhd [2007] 3 MLJ 223; [2007] 7 CLJ 657, Kang Hwee Gee J (later JCA) departed from the view taken by Edgar Joseph Jr J in Ooi Thean Chuan. His Lordship held that the purpose of Form 11 was merely to bring to the notice of the judgment debtor that the verifying affidavit had been annexed to the petition. If indeed the verifying affidavit and the petition had been brought to the notice of the judgment debtor that purpose would have been achieved. It is the substance not the form that matters. A minor infraction (even if proven) does not make the petition ineffective and bad.

[25] A similar issue arose in Re Teoh Thean Peng, ex parte D & C Leasing Sdn Bhd [1993] 2 MLJ 1; [1993] 2 CLJ 665 where Ooi Thean Chuan was referred to but not followed. KC Vohrah J (later JCA) held that the proceedings are not rendered a nullity even if the petition is not annexed to the verifying affidavit which has the same title and distinctive number as the petition does verify the statements in the petition with sufficient particularity. The verifying affidavit serves a limited purpose of enabling the registrar to investigate the petition in order to decide whether to seal copies of the petition and once the copies are sealed for service it is clear that the registrar adverted to the verifying affidavit for investigation under r 108 of the BR 1969 and that the affidavit must have borne the title and distinctive number borne by the petition itself unless the contrary can be shown.

[26] With respect, we think that Teoh Thean Peng is the better view. We agree with His Lordship's observation that in Ooi Thean Chuan Edgar Joseph Jr J's considered Re Daunt [1905] 5 SR (NSW) 553 and Re Abrahamson (1978) 22 ALR 749 both of which are Australian cases. In particular, the decision in Ooi Thean Chuan relied principally on a passage in the Tasmanian case of Re Abramson where Neasey J explained why it was necessary to annex a copy of the petition to the affidavit under s 52(1)(a) of the Australian Bankruptcy Act and stated that 'it provides that at the hearing of a creditor's petition the court shall require proof of the matters stated on the petition but for that purpose may accept the affidavit verifying the petition as sufficient'. His Lordship said at p 668 that 'That was, however, not the position in England in relation to English Bankruptcy Act 1952 (now replaced by the Insolvency Act 1986) and the Bankruptcy Rules 1952 (BR) (now replaced by the Insolvency Rules 1986) (our Act and Rules were substantially modelled on the 1952 Act and Rules) ... '. His Lordship also adverted to a passage from Williams and Muir on Bankruptcy (19th Ed) at p 56, which stated that the affidavit verifying petition cannot be used upon the hearing of the bankruptcy petition; reference being made to r 169 and Form 12 which corresponds substantially to r 122 and Form 11 of the BR 1969. Therefore, the affidavit verifying petition cannot be used at the hearing of the bankruptcy petition (see also Debtor, In re a (No 7 of 1910) [1910] 2 KB 59 at p 62).

[27] Section 6(1) of the BA 1969 and r 106 of the BR 1969 which lays out the procedure for compliance are similarly worded. It is pertinent to note that there is no express stipulation to say that the requirement to annex the petition to the verifying affidavit is mandatory. Form 11 merely adverts to 'the petition hereunto annexed'. Accordingly, we hold that the failure to annex the petition to the verifying affidavit is only a formal defect or irregularity. Therefore, the defect is one which is curable within the meaning of s 131 of the BA 1967 and r 274 of the BR 1969 which are as follows:

Section 131 Formal defect not to invalidate proceedings. No proceedings in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court be which an objection is made to the proceedings is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that court.
Rule 274 Effect of non-compliance with Rules.
Non-compliance with any of these Rules or with any rule of practice for the time being in force shall not render any proceeding void unless the Court shall so direct but such proceeding may be set aside either wholly or in part as irregular or amended or otherwise dealt with in such manner and upon such terms as the Court may think fit.

[28] Accordingly, we hold that the bankruptcy proceedings are not rendered a nullity by the omission to annex the petition to the verifying affidavit.

Whether orders for substituted service valid?

[29] The last point relates to the validity of the orders for substituted service of the BN and CP. The JD's attack is premised on (a) the argument that the wrong mode of application was used by the JC for the application; and (b) the letters of appointment dated 17 April 2013 and 13 June 2013 did not comply with practice note no 1 of 1968.

[30] It is contended that the applications were made by way of notice of application instead of summons in chambers in contravention of the mandatory provision of r 18 of the Bankruptcy Rules 1969 ('BR 1969'). As bankruptcy proceedings are quasi-penal in nature, it is imperative that procedural requirements are complied with strictly. In support of this contention, learned counsel referred the following authorities: Matthias Chang Wen Chieh v American Express (Malaysia) Sdn Bhd [2012] MLJU 214 (CA)); Development & Commercial Bank Bhd v Datuk Ong Kian Seng [1995] 2 MLJ 724 (FC)); Susila a/p S Sankaran v Subramaniam a/l P Govindasamy [2012] 9 MLJ 779; Re; Aris bin Massod; ex parte UOL Factoring Sdn Bhd [1999] 3 MLJ 358; Rohani @ Hamidah bt Nor v Sincere Leasing Sdn Bhd [1993] 1 AMR 225; Raman Chettiar v Ledchumanan Chettiar [1939] 1 MLJ 259; Re; Mohd Zuhri Mohd Idris; Ex Parte Bumiputra-Commerce Bank Berhad [2009] MLJU 491; [2010] 1 CLJ 786; Lim Boon Kiak v Affin Bank Bhd (formerly known as BSN Commercial Bank (M) Bhd) [2014] 1 MLJ 439; [2013] 6 CLJ 579; Soda KL Plaza Sdn Bhd v Noble Circle (M) Sdn Bhd [2002] 2 MLJ 367).

[31] On this point, the learned High Court judge referred to O 65 r 5 of the Rules of Court 2012 which provides that an application for an order for substituted service shall be made by notice of application. She found that as r 110 of the BR 1969 on substituted service did not prescribe the mode of application, the applications made by way of notice of application are correct and regular.

[32] Rule 110 of the BR 1969 gives the Bankruptcy Court power to order substituted service if it is satisfied by affidavit or other evidence on oath that prompt personal service cannot be affected because the debtor is keeping out of the way to avoid service of the petition or any other process. Whilst r 110 does not prescribe the mode of application for an order of substituted service, the mode of application is expressly stipulated under r 18(1) of the BR 1969 in the following terms:

18 Applications to be made by summons in chambers.
Except where these Rules or the Act otherwise provide, every application to the Court shall, unless the Chief Justice otherwise directs, be made by summons in chambers supported by affidavit. (Emphasis added.)

[33] In Mathias Chang, the appellant applied by notice of motion to set aside the bankruptcy notice issued against him. The Court of Appeal upheld the respondent's preliminary objection that the application should be made by way of a summons in chambers and not by way of a notice of motion. At para [22], Abdul Malik Ishak JCA speaking for the Court of Appeal said:

Rule 18 of the Bankruptcy Rules 1969 stipulates that every application to the Court shall be made by summons in chambers supported by affidavit. The word 'shall' is used and it denotes a mandatory act. Since the appellant filed enclosure 6 by way of a notice of motion, it runs counter to and in defiance of Rule 18 of the Bankruptcy Rules 1969. The learned High Court Judge was right in dismissing enclosure 6 (Development & Commercial Bank v Datuk Ong Kian Seng [1995] 2 MLJ 724 (FC)).

[34] In Ong Kian Seng, the appellant bank issued a bankruptcy notice against the respondent debtor on an unsatisfied judgment debt pursuant to a final consent judgment. The bankruptcy notice was followed by the filing of a creditor's petition. The respondent debtor filed an affidavit opposing the creditor's petition contending that the bankruptcy notice was invalid as the interest specified was wrongly calculated. At the hearing of the petition, the appellant bank raised a preliminary objection that the respondent debtor's affidavit was not a proper notice to oppose the petition under r 117 of the BR 1969 as he was required to file a notice in Form 16 specifying the statements in the petition which he disputed. The judge overruled the objection and held that the affidavit was sufficient to give notice to the appellant bank of the respondent debtor's intention to oppose the petition and that the failure to file a notice under r 117 was only a formal defect which did not cause substantial injustice to the appellant bank, relying on s 131 of the BA 1967 and r 274 of the BR 1969. The appellant appealed to the Federal Court on the grounds that the judge erred in law in treating the respondent debtor's affidavit as a notice to oppose the petition under r 177 of the BR 1969. The Federal Court held that r 117 clearly provides that a debtor shall file a notice specifying the statements in the petition which he intends to deny or dispute. The failure to file a notice under r 117 supported by an affidavit cannot be excused as a mere formal defect. At p 732, Mohamed Dzaiddin FCJ (as he then was) speaking for the Federal Court said:

... We hasten to add that no breach of a mandatory rule can be described as a formal at 853
defect or an irregularity that can be cured (Au-Yong v Dicum & Anor [1963] MLJ 349 (CA) at p 354).
We are also of the view that s 131 of the Act and r 274 of the Rules do not apply. Section 131, which is in the same terms as s 147(1) of the English Bankruptcy Act 1941, states:
No proceeding in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court before which an objection is made to the proceeding is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that court.
Lord Diplock, delivering the judgment of the Privy Council in Rengasamy Pillar v Comptroller of Income Tax [1970] 1 MLJ 233 (PC), drew a distinction between a defect which renders the bankruptcy proceedings a nullity and a mere form defect or irregularity in the following words (at p 236):
But there is relevant authority upon the construction of the identical words in s 147(1) of the English Bankruptcy Act 1941. It is implicit in the section that proceedings in bankruptcy may be so defective as to render them a nullity notwithstanding that no substantial and irremedial injustice has in fact been caused by the defect. The section draws a distinction between such a defect and a 'formal defect or irregularity'. It is only the latter which are validated by the section, provided that no substantial and irremedial injustice has been caused.
What then is 'a formal defect or irregularity' within the meaning of the section? This was discussed in relation to a bankruptcy notice in In re a Debtor ex p The Debtor v Bowmaker Ltd [1951] 1 Ch 313 in which the earlier authorities were considered. The test there laid down was whether the defect in the notice was of such a kind as could reasonably mislead a debtor upon which it was served. If it was, the notice was not validated by the section notwithstanding that the particular debtor upon whom it was served was not in fact misled. If on the other hand it could not reasonably mislead the debtor it was a formal defect and validated by the section. Their Lordships are here only concerned with the application of the section to a bankruptcy notice. They are not concerned with whether the same test is appropriate to determine the validity of subsequent steps in bankruptcy proceedings. In their view any failure to comply with the statutory provisions as to the form of a bankruptcy notice of a kind which could not reasonably mislead a debtor upon whom it is served is a 'formal defect' and validated by the section. (Emphasis added.)

[35] It is also contended that the order for substituted service is invalid and ought to be set aside for failure to comply with practice note no 1 of 1968 which is as follows:

Application for Substituted Service in The High Court in Malaya.
The practice governing applications for substituted service in the High Court in Malaya shall follow that in the High Court in England, as provided for in Order 10 rule 2 of the Rules of the Supreme Court 1975. The practice, taken from the 1957 White Book, page 88 is here reproduced.

  • 1
    Two calls should be made. 
  • 2 
  • The calls should be made at the defendants' residence, permanent or temporary, if known; otherwise, or if the claim relates to the defendant's business, at his nosiness address. If the defendant has left the address given on the writ, this should be stated in the affidavit. If a copy of the document to served is left, it must be in a sealed envelop addressed to the defendant. 
  • 3
    The calls should be made on weekdays and at reasonable hours. 
  • 4
    Each call should be on a separate day. 
  • 5
    The second call should be made by appointment by letter sent to the defendant by ordinary prepared letter post, giving not less than two clear days' notice, enclosing a copy of the document to be served, and offering an opportunity of making a different appointment. 
  • 6
    On keeping the appointment, the process server should inquire whether the defendant has received the letter of appointment with the copy document, and if it is stated that the defendant, is away, inquiry should be made whether or not letters are being, or have been forwarded to an address within the jurisdiction; the object is to show that the defendant has received communications sent to him. 
  • 7
    The affidavit is support of the application should deal with all the foregoing requirements and should further state whether the letter of appointment has been returned or not, and any answer received should be exhibited. A copy of the document to served should accompany the affidavit. 
No prescribed from is necessary for the letter of appointment.
The letter of appointment should ordinarily be sent by the solicitor for the plaintiff after ascertaining from the process servers in the High Court and other courts their available times and dates from the second call. The facts regarding the letter of appointment should be stated in the affidavit in support.
Compliance with the above practice will ensure that the application for substituted service will be grounded on other than a mere statement that the defendant is evading service. Such a statement should never be sufficient to apply for an order for substituted service. If the above practice is followed as required by the Rules of the Supreme Court 1957, the efforts which have been made to find the defendant and the reasons for believing that he is keeping out of the way to avoid service will be before the Senior Assistant Registrar/ Assistant Registrar before the order is made.
(Au Ah Wan)
Registrar
The High Court Registrar,
The Law Courts, Kuala Lumpur
10th June 1968

[36] In this instance, a perusal of the two letters of appointment in question show that the documents to be served were not enclosed; what was enclosed was a 'surat jawapan' for the debtor to fill in the time and date for service to be effected. There is nothing in the affidavits of non-service affirmed by Mohd Rezal bin Idris on 25 April 2013 and 21 June 2013 respectively to show that the documents to be served were enclosed with the letters of appointment. Paragraph no 5 of the practice note stipulates that the second call shall be made by appointment by letter sent to the debtor enclosing a copy of the documents to be served.

[37] We note that the requirement to enclose the documents are guidelines provided in the practice note. In of itself, the omission to enclose the documents in the letters of appointment may be regarded as a formal defect or irregularity capable of being cured. We do not see that substantial injustice has been occasioned by this omission on the part of the JC.

[38] We now return to the arguments on the correct mode of application. Applying the authorities cited above, it is settled law that the word 'shall' is mandatory and thereby imposes an obligation to comply with what is required to be done. We do not consider that since r 110 of the BR 1969 is silent on the mode of application, the applications made by notices of application are correct and regular. There is a clear stipulation in r 18(1) of the BR 1969 making it mandatory for an application to be filed by summons in chambers. In the circumstances, the filing of a notice of application by the JC as opposed to a summons in chambers is a clear breach of a mandatory provision. The breach is not a mere irregularity or formal defect capable of being cured. The application is in a sense the originating process upon which the JC seeks to obtain an order for substituted service. As such the wrong mode adopted by the JC undermines the very stratum of the application for substituted service itself and consequently, any order obtained thereunder must be equally tainted and rendered null and void.

[39] On the aforesaid grounds we are constrained to hold that the applications for substituted service of the BN and the CP are invalid and ought to have been dismissed; and consequently, the orders for substituted service of the BN and CP are null and void and set aside. Accordingly, the service of the BN and CP are set aside...."

Malaysia-Directors are not appointed to advance their own interests but to manage the company for the benefit of its shareholders to whom they owe a fiduciary duty

In the Court of Appeal case of Public Prosecutor v Mok Chin Fan & Ors [2015] 6 MLJ 857, it was held that:-

"...The responsibilities of directors under the law are onerous. Directors are not appointed to advance their own interests but to manage the company for the benefit of its shareholders to whom they owe a fiduciary duty..."

Acts Sermon Series: Facing The Fire

MALAYSIA-COMPUTER EVIDENCE

In the Court of Appeal case of Lau Chee Kai v Pendakwa Raya [2011] MLJU 1492, it was held that:-

"...[24] Learned counsel for the appellant further submitted that PW16 did not compare and check the seized money with Ex. P12 (1-5). What she did was to compare and check the seized money with Ex. P71 to find out whether the seized money was part of the ransom money. It was contended by the defence that Ex. P71 was not admissible as the provision of s 90A of the Evidence Act 1950 had not been complied with. Firstly, the serial numbers of the money found in Ex. P12 (1-5) were keyed in into the computer by PW16 and one Inspector Salwani. They took about 2 months to do that. Only PW16 gave evidence. Inspector Salwani was not called to give evidence. Secondly, the prosecution had not tendered a certificate under s 90A (2) of the Evidence Act 1950. The prosecution had not proved that the computer used by PW16 and Inspector Salwani was in the course of its ordinary use.

[25] S 90A of the Evidence Act 1950 provides:

  •  
    (1) In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement. 
  •  
    (2) For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used. 
  •  
    (3)(a) It shall be sufficient, in a certificate given under sub section (2), for a matter to be stated to the best of the knowledge and belief of the person stating it. 
  •  
    (b) A certificate given under sub section (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate. 
  •  
    (4) Where a certificate is given under sub section (2), it shall be presumed that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced. 
  •  
    (5) A document shall be deemed to have been produced by a computer whether it was produced by it directly by means of any appropriate equipment, and whether or not there was any direct or indirect human intervention. 
  •  
    (6) A document produced by a computer, or a statement contained in such documents, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. 
  •  
    (7) Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such documents, shall not be admissible in evidence in any criminal proceeding, where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was- 
  • (a)
    responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or 
  • (b)
    in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer. 
[26] The provision of s 90A of the Evidence Act 1950 was considered by this court in the case of Gnanasegaran a/l Parajasingam v Public Prosecutor [1997] 3 MLJ 1 where Shaik Daud JCA, at p 11, had this to say :

On reading through s 90A of the Act, we are unable to agree with the construction placed by learned counsel. First and foremost, s 90A which has seven subsections should not be read disjointedly. They should be read together as they form one whole provision for the admissibility of documents produced by computers. As stated earlier, s 90A was added to the Act in 1993 in order to provide for the admission of computer-produced documents and statements as in this case. On our reading of this section, we find that under sub-s (1), the law allows the production of such computer-generated documents or statements if there is evidence, firstly, that they were produced by a computer. Secondly, it is necessary also to prove that the computer is in the course of its ordinary use. On our view, there are two ways of proving this. One way is that it 'may' be proved by the production of the certificate as required by sub-s (2). Thus, sub-s (2) is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words 'Where a certificate is given under sub section (2)'. These words show that a certificate is not required to be produced in every case. It is our view that once the prosecution adduces evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-s (2) as sub-s (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. It is also our view that the prosecution can tender the computer printout through the investigating officer without calling any bank officer. Therefore, when they adopt this way of proof, then it would be incumbent upon them to establish that the document is produced by a computer in the course of its ordinary use by producing the certificate under sub-s (2). The reason seems to me to be obvious as the investigating officer will be in no position to say that the printout is produced by a computer in the course of its ordinary use, as he is not an officer of the bank.
In the present case, Zainal - the person in charge of the operations of current accounts - testified that the statement of accounts was a computer printout. Therefore, in our view, the first part of sub-s (1) has been proved, ie that the document is a computer printout. It would be superfluous for him to issue a certificate under sub-s (2) when firsthand evidence that 'the document so were produced by a computer' was given by Zainal. It would be superfluous to have a provision such as in sub-s (6) if in every case a certificate must be produced. It follows, therefore, that such a certificate need only be tendered if an officer like Zainal is not called to testify that the statement is produced by a computer. Then the certificate becomes relevant to establish that the document is produced by a computer in the course of its ordinary use. It is our view that when such an officer is not called, the court cannot rely on the deeming provision of sub-s (6). Once the court accepts the evidence of Zainal - and in this case we cannot see any reason whatsoever for the court not to as there was no challenge by cross-examination - the prosecution has succeeded in proving what s 90A (1) requires them to prove: that such document was produced by the computer and in view of the deeming provision of sub-s (6), the second part is also proved.

[27] In Ahmad Najib Aris v PP [2009] 2 CLJ 800 Zulkefli Makinudin FCJ, after referring to the decisions of this court in Gnanasegaran Parajasingam and Hanapi Mat Hassan v PP [2006] 3 CLJ 269, had this to say :

[33] I agree with the views expressed in the above passages from Hanafi Mat Hassan v Public Prosecutor in the analysis of s 90A. In substance therefore the fact that a document was produced by a computer in the course of its ordinary use may be proved by the tendering in evidence of a certificate under s 90A (2) or by way of oral evidence. Such oral evidence must consist not only a statement that the document was produced by a computer in the course of its ordinary use but also the matters presumed under s 90A (4). On the other hand the presumption contained in s 90A (6) can be resorted to only when the document was not produced by a computer in the course of its ordinary use.

[34] In this case no certificate was tendered as required by s 90A (2) for proof of the chemist report (P83). Neither was any oral evidence adduced to show that the report was produced by a computer in the course of its ordinary use. It therefore remains that the only evidence available is that the report was produced by a computer. It is thus appropriate to resort to s 90A (6) to presume that the report was produced by the computer in the course of its ordinary use. .....................

[28] In the instant appeal PW16 had testified that Ex P71 was a document produced by a computer. In fact she and Inspector Salwani had keyed in the data into the computer. It is true that the prosecution had not tendered a certificate under s 90A (2) of the Evidence Act and PW16 did not say whether Ex P71 was produced by a computer in the course of its ordinary use. However, by proving that Ex P71 was produced by a computer the prosecution, in view of the authorities cited earlier, could resort to the presumption under s 90A (6) which provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. We are of the view that Ex P71 was rightly admitted in evidence by the learned trial judge...."

Malaysia-'PERTANDINGAN DEBAT UNDANG-UNDANG'

'PERTANDINGAN DEBAT UNDANG-UNDANG'
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SBC/CIR/084/2015
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Kepada Peguam Dan Pelatih Dalam Kamar,

'PERTANDINGAN DEBAT UNDANG-UNDANG'



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SBC/CIR/089/2015
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Malaysia-Press Release | The IGP Must Recognise, Respect and Uphold the Rights and Obligations of Members of the Malaysian Bar

Press Release | The IGP Must Recognise, Respect and Uphold the Rights and Obligations of Members of the Malaysian Bar





__________________________________________________________________________________________________________________


Press Release

The IGP Must Recognise, Respect and Uphold the Rights and Obligations of Members of the Malaysian Bar

The Malaysian Bar is shocked by the comments attributed to the Inspector General of Police ("IGP") concerning Americk Singh Sidhu, a Member of the Malaysian Bar, in various press reports.

It has been reported that Americk Singh Sidhu was retained by Charles Morais, a brother of the late Deputy Public Prosecutor Kevin Morais, to prepare a statutory declaration ("SD") on, inter alia, events leading to, and subsequent to, Kevin Morais's death.

The disparaging remarks reportedly made by the IGP against Americk Singh Sidhu ("…bad reputation when it came to SDs…" and "not the first time Americk's client had disappeared after making an SD") are unjustified and unbecoming of the office of the IGP.  Instead of launching into this tirade of abuse, the IGP and the police should focus on investigating the veracity of the SD.

The apparent trend of targeting lawyers, such as in the recent case of Matthias Chang, is unacceptable.  It bears reiteration that "Lawyers shall not be identified with their clients or their clients' causes as a result of discharging their functions" (see Article 18 of the Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990).

It is also perplexing that the IGP appears to be indifferent to the rights and obligations of an advocate and solicitor representing a client under the Legal Profession Act 1976 and the Legal Profession (Practice and Etiquette) Rules 1978.  The independence of an advocate and solicitor to act for a client without fear or favour is fundamental to the administration of justice.  It must not be curtailed by acts of police intimidation, harassment or victimisation.  The IGP's reported statements are a serious violation of this independence, and an affront to the administration of justice.

The IGP must respect the principle of solicitor-client privilege, which is also critical to the administration of justice.  The limited exceptions to this principle are codified in Section 126 of the Evidence Act 1950, namely, where there is "(a) any such communication made in furtherance of any illegal purpose; (b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment".  Unless these exceptions apply, any attempt to ignore or circumvent solicitor-client privilege is reprehensible and must be condemned.

The Malaysian Bar urges the IGP to recognise, respect and uphold the rights and obligations of advocates and solicitors to discharge their professional responsibilities without obstruction or impediment.

Steven Thiru
President
Malaysian Bar

1 December 2015
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