Friday, December 18, 2015
Saturday, July 25, 2015
Discuss the legal position of loan agreements cum assignments, and any problems which may arise in relation thereto, with reference to the relevant case law.
What is LACA?
LACA usually arises where there is no separate individual title yet, and a financial institution cannot issue a charge, so it gives borrower a loan on the execution of LACA.
#1 WHETHER ABSOLUTE OR CHARGE ONLY?
S4(3) Civil Law Act states that for a loan to constitute LACA:
- the assignment must be absolute
Nouvau Mont Dor (M) Sdn Bhd v Faber Development Sdn Bhd
- whether or not an agreement is an absolute one, not purporting to be by way of charge only, within the meaning of s 4(3) of the CLA
- gather from 4 corners of the instrument itself
- the assignment must be in writing & signed by the assignor
- assignee must give notice to the debtor
- not purporting by the way of charge
If by way of charge, assignor qualified to sue housing developer.
But if absolute assignment, problematic for the buyer if developer defaulted.
#2 WHETHER ASSIGNOR HAS RIGHTS TO SUE?
Homebuyer buys property from developer, no individual separate title yet. Bank would want them to execute deed of assignment. Assign rights of purchaser under SPA to the bank. Equitable interest, but is contractual right. Because no separate individual title, purchaser cannot create a charge in favour of bank.
Although the purchaser signed SPA, rights invested in bank. Confer power of attorney on the lender so that lender given power to deal with property on your behalf, able to sell property on default of repayment. That’s why issue arise when default on housing developer, does purchaser still have locus standi to bring case against developer without concurrence of bank?
Does assignor have right to sue developer in case of developer late delivery/faulty workmanship?
- If absolute assignment under s4(3), only the assignee can sue the developer/debtor, not the assignor (cos already assigned all his rights and has no more right to sue).
- Assignor has to persuade the assignee to personally sue the developer or sue in the name of the assignor. In most cases, the assignee bank will be reluctant to do so and it is always a time-consuming process to get the assignee to agree to this course of action, much to the advantage of the developer
- However, Look at Housing Developer (Control and Licensing) Amendment Act - purchaser has right to sue developer if default unless in assignment expressly stated need to get consent of assignee.
- FC in Nouvau Mont Dor (M) Sdn Bhd v Faber Development Sdn Bhd  2 MLJ 268 and Hipparion (M) Sdn Bhd v Chung Khiaw Bank Ltd  2 MLJ 149 held: clause in question is absolute assignment clause under s 4(3) CLA, notwithstanding would later be converted into a legal charge under the National Land Code 1965 (“NLC”) upon issuance of the individual title.
- unfair to the assignor if the assignee refuses to sue the developer
- especially when thousands of apartment and condominium units without individual strata titles were sold in Malaysia, and loans were secured by LACA similar to the one in Nouvau Mont Dor
- takes years before strata titles are issued when the assignments are then converted into a legal charge under the NLC which would then confer the assignor now a chargor the right to have direct recourse against the developer.
What if assignor default in loan repayment?
- absolute assignee bank can dispose of the property by way of assignment to a third party with notice to the developer and without the concurrence of the assignor borrower – assignor rights not guaranteed
What about assignment given by company?
- Requires registration as a charge under s 108(3)(e) of the Companies Act 1965 because it is an equitable mortgage (see Chuah Eng Khong v Malayan Banking Berhad  3 MLJ 97); otherwise the charge will be void against the liquidator and any creditor of the assignor. (s 108(1) Companies Act 1965.)
#3 WHETHER SHOULD BE TREATED AS EQUITABLE CHARGE / EQUITABLE MORTGAGE?
Should not be treated as equitable charge. Difference lies in document of title.
FC: there was title in Arunasalam Chetty (equitable charge), in Chuah Eng Kong & Phileo - no title - mortgage - no legal estate - cannot have said to have acquired equitable charge, where there is title, and it is possible to create a charge.
Chuah Eng Kong v Malayan Banking - LACA under which a borrower assigns absolutely his rights, title and interest under SPA is equitable mortgage. Different from an equitable charge where IDT has already been deposited with the lender.
Malayan Banking v Zahari Ahmad - NLC does not prohibit the creation of equitable charges and based on a body of authorities, Malaysia land law recognize equitable charges. In this case, the loan agreement and the deed of assignment between the parties created an equitable charge both in form and substance; the bank was an equitable charge as the IDT was yet to be issued.
Phileo Allied Bank v Bupinder Singh (FC) - described as equitable mortgage
Court should give effect to contract between parties, in relation to whether lender needs to get an order from court to sell the property. By POA, assignee has been given the power to handle the property, without need to get an order from court – can sell by private treaty.
LACA not possible to create charge yet cos no issuance of IDT, so should be treated as equitable mortgage, bank only acquire equitable interest, no title.
In conclusion, the latest position of LACA under the Malaysian land law is being recognised as an equitable mortgage but ONLY enforceable contractually. Under an absolute assignment, the rights, title and interest of the assignor in respect of the property under the sale and purchase agreement are transferred to the assignee.
Thus, the assignee is entitled to do anything once notice of default and notice of remedy has been issued to the assignor, including selling the property without obtaining a judicial order. However, by not requiring the sale to be judicially endorsed, the interests of the borrower would be left unprotected in the event of a default as the courts can no longer protect the borrower from any wrongful sale of the land.
Thursday, June 25, 2015
Disclaimer: For sharing with juniors. My foolproof answering guideline for criminal law. No guarantees of A, for that you'll have to work harder than study this 10 pages worth of notes, but I think you'll pass with this.
S363 - <7 years +fine
S361 – kidnap from lawful guardianship
#1 Age of kid – Jamaluddin Hashim – PP must est prima facie evidence of age
Here boy 14, girl 16
#2 Lawful guardian – DPP v Abdul Rahman - refer s5 GIA – both parents
#3 AR – takes/entice minor out of keeping of lawful guardian
#Dalchand – no need force, taking without express consent of guardian
#Neelakandan – love can be blandishment that forms enticement
#Chajju Ram – distance of taking does not matter
*Generally guardianship of Muslim with dad, though boy <7y/o or girl before akil baligh custody with mom
*Guardianship of Infants Act already adopted by all States, so can apply to Muslim.
*Exp s361 guardian incl person lawfully entrusted with care and custody #Syed Abu Tahir (can be mom)
* just have to prove that the person from whom the child was removed was "entrusted with the care and custody of that child".
*Exception only for illegitimate child
#4 MR – intention (to do #3 without consent)
#Jaganada Rao v Kamaraju – Df was consented by the girl’s father to taking care of her while she stays in sister’s house, but it does not extend to marrying her off
See whether aggravated:
a) S365 – kidnap with intent to secretly and wrongfully confine
AR – Kidnap
MR – intention to secretly and wrongfully confine
#Akbar Ali v Emperor – Df argued not ‘secretly’ cos victim’s cousins knew of her location
b) S366 – compel marriage
#Wahab Osman v PP
c) S368 – wrongfully concealing or keeping in confinement
AR - Wrongfully conceal
MR – Knowledge
#Emperor v Zamin – Df must know of the kidnapping
Death: Wawan Sarego v PP – victim already died, death caused by Df
No break in causation: R v Smith – no intervening factors
AR – act by accused that caused death
MR - intention to cause death
#Tan Buck Tee – 5 substantial wounds to heart and liver caused by heavy sharp weapon shows intention
#Khairul Anwar Zakaria – stab wounds to heart and lungs can cause instant death
#Tan Chew Bok – stab mouth with kitchen knife passing through back of head – intention to kill
#Tham Kai Yau – death most probable result
AR – must have bodily harm
#Virsa Singh – must present, caused by Df
MR – intention cause bodily harm
#Virsa Singh – not accidental
#Tan Hoi Hung – conscious forming in mind action to bring intended result
#Brij Bhukan – can be assessed cumulatively
Sufficient in ordinary nature to cause death (objective test)
#Virsa Singh – based on medical opinion
Exception to murder
- Grave and sudden provocation – Sameer Klom Klom
- Caused by accused – Ikau Anak Mail
- Deprived of self-control (reasonable man) Ghulam Mustafa Ghano
- Act done while lose control (cooling off? Selvaraju Mudaliar 20 hours. Proportionate?)
Take into acc r/s – if husband and wife – Mat Sawi v PP
- Not sought by Df – Wong Kim Poh failed as he was the one who stabbed the victim
- Harm towards Df self or ppt – wong teck choy – victim 14 feet away from Df, no weapon – no threat to justify Df shooting victim with pistol
- No other reasonable way – Chung Chek Chen – Df said victim threaten to hit him if meet again, he go buy 2 knives to protect. Then victim attacked him, he stabbed victim to death. Threat not enough to raise threat towards Df’s life or body.
- Necessity to cause death – Wong Teck Choy – shooting someone who uttered vulgar words more than necessary
- In good faith s52
- In good faith
- Lawful and necessary to discharge duty as public servant – Dakhi Singh – Df police constable, tried to capture thief who ran away, shot thief but accidentally hit victim.
- Without ill-will towards victim
- Sudden fight - ramasamy sebastian
- Without premeditation – awang radhuan awang bol (fail)
- In heat of passion – hanie hamid – fight in burger stall – no opportunity to cool off
- No undue advantage – mohd kunjo (got undue advantage cos take exhaust pipe beat victim’s head, victim fall to ground continue beating until he died)
S309B 20 twenty years, fine
- Df – birth mother, victim – baby, Infanticide Act UK – within one year old
- At the time of omission not fully recovered from effect of giving birth #Zamihiyah v PP
- Balance of mind disturbed - puerperal psychosis
DEATH BY NEGLIGENCE
S304A – 2 years or fine or both
MR – act of Df which caused death
AR – rash or negligent
2<X<10 years jail
5K – 20K
AR – driving motor vehicle
MR – reckless / speed / manner in which whole circumstances danger to public #Zulkifli Omar
Df – male, Victim – woman #Corbett v Corbett
AR – Insert penis into labia – must know for sure is the Df’s penis - PP v Nasrul Annuar (fail to prove)
MR – s375(b) without consent
#Teo Eng Chan – s90
#Augustine Foong – lack of resistance not consent, difference between consent and submission
Result of crime – sex
S375A – PP v N
S377A - #Anwar Ibrahim v PP – sodomy, MR presumed #Sukma Darmawan
S377D – outrage decency #Ng Huat – no clear limit to define
#Sukma Darmawan – for allowing Anwar to insert penis into his anus, MR presumed
S392 < 14 yrs + fine/whip
S390(1) in all robbery is theft/extortion
S390(2) theft is robbery – prove theft!
Must voluntarily cause or attempt to cause death / hurt / wrongful restraint / fear of instant death / instant hurt / instant wrongful restraint (illus A)
#Chen Chong – 3 ppl overtake lorry, block passage, pointed gun at victim ask him to get out, later drive lorry away – put in fear of hurt
In committing theft/carry away ppt: #Kalio Kelio – if hurt cause to run away not robbery
S379 - < 7 years / fine / both (if prove robbery no need this)
(i) Moveable ppt – s22 – R v Lim Soon Gong
(ii) Take out of possession of any person
§ Prove possession, even if not in owner’s own possession can still be regarded as his possession if wife, clerk, servant s27
§ No need to take out of possession permanently
#Pyare Lal Bhargava – officer in civil service, took file containing info from office, brought home. Allowed someone else to take few papers from file and replaced with other papers, then bring back to office. Court held guilty for theft even though only take out of possession temporarily.
(iii) Without consent – s90
(iv) AR – move property in order to such taking
· Exp 2-4, illus (a)-(c)
(v) MR – intention to take dishonestly
S24, 23, KN Mehra – Df drove plane without permission, for own use, wrongful loss to owner of plane. Talha – no dishonesty if Df is beneficial owner as is his right.
See if can aggravate form (if robbery no need this)
s379A theft of motor vehicle
s380 theft in dwelling house
· building - #Gurdit Singh
· vessel (s48 anything in conveyance by water) - #Gurusamy
s381 theft by clerk or servant of property in possession of master
s382 theft after preparation made for causing death or hurt in order to commit theft
S390(3) extortion is robbery – prove extortion!
Where Df caused fear of instant death / instant hurt / instant wrongful restraint to victim or someone else, induces person to deliver thing extorted (illus c)
#Subramaniam – Df put knife at victim’s stomach before taking ring, bangle and necklace. Occurred at night. Court held liable for robbery.
S384 – 10 years / fine / whipping / any two combo
#1 AR: Put in fear of injury to victim or any other person
Illus a – to victim
Illus b – to some other person
Injury – s44 harm illegally caused - body mind reputation property
Illegal – s43 anything which is an offence, or prohibited by law
#Vincent Lee – threaten to arrest a victim who was using drugs. Df was police. Threat to arrest made in carrying out legal duty.
#Ling Kai Huat – Df police, threaten victim to give him amount of $ for not taking action towards victim who operated business w/o license.
#2 MR: Intention
Threat made must compel victim to deliver property to Df
Property must be valuable security (s30 – legal right created)
Must be induced dishonestly – must prove Df intend to cause wrongful loss to victim
When ppt passed from victim to Df, must be induced by fear of injury to self
#Abdul Wahab Mohd Noor – Victim had informed the matter to Badan Pencegah Rasuah before hading over the RM200 to Df. Court held in this case, passing of ppt not induced by fear, therefore no extortion.
See if can upgrade (if discuss robbery no need)
S386 extort put person in fear of death or grievous hurt
S385, 387, 388, 389 is put in fear in order to commit extortion
No extortion yet, but fear already arise, no passing of ppt yet
S395 - <20 years + whip
S400 – being a member of gang of robbers - <20 years + whip
S402 – assembly for purpose of committing gang-robbery
#Talib bin Haji Hamzah – must show assembly is for purpose of gang-robbery
S397 – robbery when armed or with attempt to cause death or grievous hurt
#Muda Zainal – s397 is not intended to create a gang robbery offence distinct from s395, cos punishment under s395 is heavy enough, while s397 does not list down additional punishment. Limited to robbery using weapon, more serious, whipping can be imposed in addition to other punishment.
#Tan Chew Man – Dfs charged under s34/ As s397 non-substantive, can only use additional to s394, used on person who committed crime, not the others.
DISHONEST MISAPPROPRIATION OF PPT (CMA)
S403 – 6 months < x < 5 years + whip + fine
#1 - Ppt x belong to Df
#Khairuddin Hj Musa - $ belongs to Bank Rakyat
#Tuan Puteh v Dragon – cheque belong to company
#Sinnathamby – stones belong to quarry JKR
#2 – AR - Misappropriate or convert for own use (permanent / temporary not important) / cause any person to dispose of
#Sohan Lal – misappropriate – set apart to wrong person, must be dishonestly
#K – misappropriate and convert to own use RM109975 belonging to Bank Rakyat
#TP – forged owner’s sign on cheque to withdraw $ (failed attempt), although there was no conversion since he did not manage to encash the cheque, he clearly misappropriated the cheque when he dishonestly attempted to encash it.
Exp 1 – temporary also CMA. Defence of return in future cannot apply.
#3 – MR: Dishonestly
S409B(1) – assume dishonest
#4 – see if can upgrade – s404 – must prove ppt belongs to the deceased @ time of death
CRIMINAL BREACH OF TRUST
S406 - <10 years + whip + fine
S405 – defines CBT
#1 – Property – include moveable s22 and non-moveable - #Dalmia
#2 – Entrustment of ppt / entrustment with dominion over ppt (argue both together)
· Must have trust relationship – see illus (a) (b) (c)
CLIENT ACCOUNT #Gnanasegaran Pararajasingam – hold money on behalf of client
FIRM ACCOUNT #Lee Siong Kiat – partnership – relationship of trust and confidence – one of them may be entrusted with property on behalf of partnership
#Sinnathamby – Df is worker of Jabatan Kerja Raya, given power to the stones in his employer’s quarry
#Wickrasooriya – Df is accountant for Sime Darby, CBT for misusing money accepted on behalf of company
o In trust r/s, must have dominion over ppt – enables him to misuse the ppt / agst law or trust
- Sufficient control over the property
#Chang Lee Swee v PP - A (executive director in charge of financial affairs) was not in the position to manage the funds of the company without overall control of Tan and was therefore not entrusted with or had complete dominion over its funds.
#PP v Lawrance Tan Hui Seng - To prove entrustment with dominion over that property, must establish that dominion was the result of entrustment
*Note: for dominion to establish, usually have entrustment first, as in Sinnathamby.
But if you want to prove mere entrustment only also can.
· Other situation – no requirement in law regarding creation of trust
#Gan Beng – Df borrowed bicycle, promised to return within 2 hours but not returned until day of trial
#Chin Wah – Df borrowed necklace from complainant for wife to wear, no return.
#2 AR – one of the following, MR is underlined:
(i) Dishonestly misappropriates for own use - S409B(1) – assume dishonest
(ii) Dishonestly convert for own use
(iii) Dishonestly use or dispose in violation of any law prescribing mode of discharge
#Yeoh Teck Chye – approving OD against mode money is to be discharged
#Gnanasegaran Pararajasingam – lawyer misuse compensation payment belonging to client which was banked into client’s account.
#Sathiadas – offence complete when dishonest misappropriation for in violation of law prescribing mode to be discharged
(iv) Dishonestly use or dispose against legal contract prescribing discharge of trust – #Jaswantrai Manilal - wl, wg in disposal of ppt
(v) Willfully suffers any other person so to do
#Yeow Fook Yuen & Anor - evidence that money was misappropriated by the 2nd A with the 1st A’s approval and knowledge, the 1st A also failed to show that he bona fide believed that the he the had lawful authority to make these loans to the 2nd A.
#4 Whether can upgrade to aggravated form
S408 CBT by clerk or servant
S409 CBT by public servant (s21) #Gnanasegaran or agent (s402A) #Chong Chiew Nam – court clerk, accept summons before entering to Federal Govt’s account.
RECEIVING STOLEN PROPERTY
S411 – < 5 years or fine or both
[Elements – dishonestly (s24,23), receive/retain stolen property, knowing/RTB is stolen ppt.]
#1 – prove is stolen ppt – s410(1), s410(2)
#2 – AR: dishonestly receive/retain stolen ppt
(i) State dishonestly – s24,23
(ii) Prove possession
#Hong Ah Huat - Physical ability to manage a thing according to own will
- Implied control and conscience of the thing
- Accused must know and realize presence of thing
#Tan Kee Poh – Bring police to place where stolen ppt hidden x enuf 2 prove possession, more so if place x exclusively belong to Df.
#Wong Kia Heng – Df who has possession must gv exp how goods come into his possession, if no rsnble exp, regard as stolen ppt. Exp must arise genuine & rsnble doubt to exculpate.
(iii) Prove is stolen property
# Albakhar – PP failed to prove orchid in Df’s house is stolen ppt
#Ajendranath – no need to prove thief convicted b4 Df found guilty for receiving stolen ppt.
#3 – MR: Know/RTB is stolen ppt
Court will look at facts of case
#Ahmad Ishak – cheque was given by someone who does not usually deal with cheques in working capacity, cheque not written with name of the person who pledged it to Df – RTB
#Razalitono – Df has RTB is stolen PPT cos lower than market $ and x explained why so by seller.
S417 – < 5 years or fine or both
#1 AR – deceiving any person
(i) #Seet Soon Guan – as long as Df acts with intention to deceive AND by that deception, accrue advantage to himself, loss to someone else
#Low Cheng Swee – dishonest concealment of fact is deception (Exp 1)
#Khoo Kay Jin – make post-dated cheque when he knows acc x sufficient balance
#Shalby Ahmad – a misrep is a deception
#Mohd Jalani – caused by Df to induce – can be words or conduct
#2 MR – either one, (a) or (b)
(a) Fraudulent s25/dishonest s24,23
Effect: induce person deceived to deliver ppt/consent any person retain ppt
#Low Cheng Swee – Df insured car with 2 insurance companies, made claim and both awarded him compensation. Liable for cheating as dishonestly conceal info from companies.
Effect: induce person to do/omit to do, this act/omission cause or likely to cause damage or harm to any person’s body, mind, reputation, property (s44 type of injury)
#Balboo Khan – not fall under s415(b) cos need to prove victim was deceived and victim suffered loss/damage. Here dad deceived into letting son operated in the eye by Df, the boy suffered damage.
#Mohd Jalani - The person who by deceiving another intentionally induces the person so deceived to do an act although the deceiver have not acted fraudulently or dishonestly
OTHER: CHEATING BY IMPERSONATION
S419 - < 7 years or fine or both
S416 – pretending to be some other person / by knowingly substituting one person for another / representing he is some other person
#1 Need to prove cheating in s415 first (follow above)
#2 R v Barnard
The court held that where a person at Oxford, who is not a member of the University, goes to a shop for the purpose of fraud, wearing a commoner’s cap and gown, and obtain goods, this appearing in a cap and gown is a sufficient cheating although nothing passed in words.
#3 Balboo Khan
S465 – 2 years or fine or both
S463 – def. forgery
#1 – AR: make false document
(i) Whole or part of doc is false
#Dato Haji Harun Idris: Court held meeting minutes (whole/part) is false doc in order to defraud FNCB to release a promissory note to Tinju Dunia SB.
#Hoo Chee Keong (No.2) – use fake credit card
#United Asian Bank Bhd v Tai Soon Heng Construction – Df forged signature on 97 company cheques and withdraw money from company account
(ii) Forged dishonestly/fraudulently according to one of the ways in s464
#Dato Haji Harun Idris – s464(a) Fraudulently/dishonestly signs doc, intent to cause FNCB to believe it was signed by bank authority
#2 – MR: intention
Choose either one effect:
(i) To cause damage/injury to public/any person
(ii) To support any claim/title
(iii) To cause person part with ppt
(iv) To enter exp/imp contract
(v) To commit fraud/facilitate fraud
#Dato Haji Harun Idris (ii), #Hoo Chee Keong (iii)/(iv)
Tuesday, June 16, 2015
Muhamad Juzaili bin Mohd Khamis v Government of State of Negeri Sembilan  MLJU 65
s66 is against
Directly taken from the case report
- The appellants were male Muslims suffering from Gender Identity Disorder (GID), as testified by medical practitioners.
- In 1992 NS state legislature enacted the Syariah Criminal Enactment.
- S 66 of Syariah Criminal Enactment makes it an offence for any Muslim male person to do any of the following in a public place: to wear a woman's attire, or to pose as a woman.
- Those convicted can be liable to a fine < RM1,000 or to imprisonment for a term < 6 months or to both.
- This section makes no exception for sufferers of GID like the appellants. No explanation has been given by the State for this unfortunate omission.
- They have been repeatedly detained, arrested, and prosecuted by the religious authority of Negeri Sembilan acting pursuant to section 66 for cross-dressing.
s66 is against
- Art 5(1) - cos it deprives A to live with dignity.
- Art 5(1) - cos prevent them from stepping out from the house to work (get caught immediately if go out dressed like a woman)
- Art 9(2) - cos no freedom of movement.
- Art 10(1) - cos it is against their freedom of expression! Shad Saleem Faruqi: 'symbolic speech' like one's dressing and grooming can be treated as part of one's freedom of expression.
Directly taken from the case report
1. The legislative competence of the State Legislature of Negeri Sembilan on matters pertaining to the religion of Islam