The curious case of the Batu Pahat Mall

By Low Teck Kuan

Just two days after delivering a highly contentious decision in Dato’ Seri Anwar Ibrahim’s case, the Federal Court judges delivered a full judgment on the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd, where both disputing parties had been locked in legal wrangles in the Court for almost ten years.

However, despite it being a lesser known case, this case has a much bigger impact to the public especially to property owners. Through this decision, any bona fide property owner who, during the course of concluding a sale and purchase transaction, allows the purchaser to enter into the property and carry out improvement works with the expectation that the purchaser will fulfill its payment obligations, may have to fork out more monies just to evict the purchaser in the event the transaction fell through and the purchaser refuses to leave the property.

Case background

For all Johor folks, this case is centered on the now famous Batu Pahat Mall, where the current landowner is Atlas Housing Sdn Bhd and the building owner being Dream Property Sdn Bhd owned by Tan Sri Tang Yeam Soon.

In year 2004, Atlas Housing entered into a sale and purchase agreement (SPA) to sell their 14.4 acres land to Dream Property at the price of RM 33.5 million to build the Batu Pahat Mall. However unlike most SPA, at the persuasion of Dream Property, Atlas Housing agreed to allow Dream Property to enter upon its land right after the 10% deposit had been paid to commence construction.

At the same time, as there were squatters and a primary school on the land, Atlas Housing was given 9 + 3 months to relocate them. Thereafter, there will be a joint inspection and handing over of the vacant possession of the land to Dream Property. The purchaser Dream Property is then given 4 + 2 months to pay the remaining 90% of the purchase price to conclude the transaction.

Despite Atlas Housing relocating both the squatters and the school on time, Dream Property had repeatedly failed to make good the balance purchase price even after reminders for payment and further extension were given in year 2006. The SPA was later automatically terminated and Atlas Housing proceeded to serve a notice to Dream Property to cease construction of the Batu Pahat Mall (which were only 50% constructed at that time). Atlas Housing also took the matter to the High Court to resolve the dispute.

However, instead of halting construction pending the resolution to their dispute, Dream Property rushed the construction and eventually completed the Mall 6 months later. After completing the construction, Dream Property even took a step further by creating third party rights in the Mall by selling part of the Mall to Pacific Hypermarket & Departmental Store Sdn Bhd, a subsidiary under The Store Group and it leasing the rest to tenants without the consents of the landowner. At this juncture, it is worth noting here that Pacific Hypermarket is related to Dream Property by virtue of having the same shareholders where Tan Sri Tang Yeam Soon are both Managing Director in The Store Group and Dream Property Sdn Bhd.

At the same time, Dream Property also challenged Atlas Housing’s claim at the High Court by disputing, amongst others, that the final date of payment was at a much later date. And when the matter was ordered to a full trial by the Federal Court two years later to determine the factual matrix of the case, the High Court in year 2011 decided for Atlas Housing. The High Court’s decisions were later affirmed by the Court of Appeal in year 2013.

The High Court and Court of Appeal’s decisions

The High Court found that Dream Property was indeed in breach of the SPA when it had failed to pay the balance purchase price on time. In addition, the High Court also found in evidence that Dream Property had acted in bad faith when it was served with a notice to cease construction. Instead of abiding by it, Dream Property had rushed the construction of the mall in order to ensure that the nature of the land is changed forever and thus making it difficult for Atlas Housing to get it returned to its original state. It was done mala fide, and undoubtly carried out to defeat Atlas Housing’s rights to its land and to ensure that it would not ever obtain repossession of its own property.

When the case was later appealed by Dream Property, the Court of Appeal affirmed the decision of the High Court. The appellate court further stated that the landowner Atlas Housing, does not have any obligations to file for an injunction in court to prevent Dream Property from continuing construction when dispute arose. Furthermore, there is no certainty that the court would have granted the injunction.

In addition, as the Power of Attorney granted to Dream Property by Atlas Housing only allowed Dream Property to enter into the land and commence construction, the Court of found that Dream Property had abused the Power of Attorney when it sold part of the Mall and leased the rest to third parties.

Both the High Court and Court of Appeal, after deciding that Dream Property had indeed acted in bad faith and breached the SPA, ordered that the land together with the fully functional Mall be returned to Atlas Housing, with Atlas Housing paying Dream Property all costs of constructing the Mall.

As Dream Property had took the risks to proceed with the construction despite there being a genuine dispute and Atlas Housing being the landowner at all times, the Court of Appeal decided that Dream Property is liable to the use and occupation of the land to the landlord and therefore it needs to account to all the profits it gained from the land to Atlas Housing.

Both Courts had ensured that the contract breaker Dream Property was not allowed to profit from its own breach. Apart from Atlas Housing forfeiting Dream Property’s 10% deposit under the SPA, Dream Property was only to be returned to its original financial position before it had entered into the SPA.

Unfortunately, what seemed to be a fair decision by both the High Court and the Court of Appeal was subsequently reversed by the Federal Court.

Federal Court’s decision

The Federal Court, despite completely agreeing that Dream Property was liable under the contract, unanimously reversed the decisions of both the lower Courts on the reliefs sought by Atlas Housing. In a 5-0 ruling led by the YA Tan Sri Raus Shariff, the Federal Court decided that Atlas Housing must pay for the market value of the Mall to the contract breaker Dream Property, minus the market value of the land without the Mall before the land can be returned to them.

Simply put, Atlas Housing as the landowner must pay for the value of improvement of the land despite Dream Property failing in their fundamental obligation as purchaser to pay the 90% balance purchase price! In addition, Dream Property is allowed to keep all the profits earned on Atlas Housing’s land without the need to account to the landowner even when the profits were made without the consent of the landowner.

The Federal Court justified this bizarre decision by relying mainly on the principle of unjust enrichment, and stated that it will be manifestly unjust for Atlas Housing to profit from Dream Property’s  “bona fide improvement and enhancement of the Land”. The Federal Court reasoned that Atlas Housing will be unjustly enriched as it did not obtain an injunction to stop Dream Property from constructing the Mall.

It further stated that Dream Property who had “lawfully constructed the Mall on the land” did not intend Atlas Housing to benefit from its effort, expertise and all at its own resources in establishing the Mall.

And as there is no defence available to extinguish or reduce Atlas’s liability to make restitution, it is only fair that Atlas Housing pays the current market value of the Mall excluding the market value of the land.

Erroneous judgment

This, without a doubt is a wrong decision as the Federal Court had not only failed to judicially appreciate the factual matrix of the case but also consider the commercial repercussions of this decision.

By ordering Atlas Housing to buy the Mall at market price, it is essentially allowing Dream Property who is the contract breaker to profit an amount to the tune of hundreds of millions in Ringgit when it had only paid RM 3.35 million as 10% of the purchase price.

The market value of the Mall is inextricably linked to the value of the land and its position in the geographical sense. It also factors on its future profits in the next 5 to 10 years (depending on negotiation) that a business owner would have made if he had not part with the business. Hence, by awarding market price of the Mall to be paid by Atlas Housing to Dream Property, the Federal Court had essentially forced Atlas Housing to pay a ridiculous sum of profits to Dream Property who had already profited tremendously on the land which it was never authorised to do so.

And what would the legal and public repercussions be? Firstly, it will allow future contract breakers to benefit from their wrongdoing. Secondly, it will also encourage irresponsible purchasers to take advantage of this legal loophole. As purchasers, if you managed to convince the landowner to allow you to enter into the property for improvement works first despite only paying 10% of the purchase price, you can comfortably sit and enjoy possession of the property even when you have not paid the balance purchase price.

This Federal Court decision will essentially allow contract breakers to possess the property until the owner pays them the value of improvement made on the property. Better, contract breakers can even sell or lease out part of the property without the authorisation of the landowner and keep these profits while the landowner take years of legal action just to evict them in the court of law!

As for property owners, they will also have the added responsibility to ensure that an injunction is filed against the purchasers if they ever took possession of their property, spent monies on them but refuses to pay the balance purchase price and leave. Serving a notice will clearly not be enough, as the Federal Court has decided that it is insufficient to prevent the purchasers from benefiting on your property.

Clearly, the Federal Court had failed to consider these pertinent consequences. How could the Federal Court not considered these possible repercussions? The Court had even failed to discuss the mala fide actions of Dream Property which were established through evidence in the High Court and highlighted by the Court of Appeal!

It was in evidence that Dream Property had rushed the construction of the mall despite there being genuine dispute to the land. It even took a step further by selling part of the Mall to 3^rd parties including one which is related to itself when it is not authorised to do so. The lack of consideration on these is perplexing to say the least.

Atlas Housing as the plaintiff to the case, had pleaded for the land to be returned after having Dream Property repeatedly failing to pay the balance purchase price. And to aid the Court in arriving at a just decision, even as a victim to the breach of contract, Atlas Housing had submitted to the Court that it was willing to pay for all construction costs to Dream Property even when it did not have to so. Atlas Housing was willing to return Dream Property to its original financial position to aid the Court in dispensing justice expeditiously and fairly.

Thus, in judicially failing to appreciate these facts, conducts and the motives of both parties equally, the Federal Court had unfortunately erred in deciding the relief for this case. 

Gerakan lawyer’s credibility is the problem, not the Bar Council

By Low Teck Kuan

I refer to the online exclusive piece of opinion written by Ivanpal Singh Grewal titled “The Bar Council’s credibility problem” published in The Star yesterday. Ivanpal is a graduate in law and also currently the Gerakan Selangor Youth Vice-Chairman and Secretary of the Gerakan Political Bureau.

In his article, Ivanpal made an attack against the Bar Council’s credibility by citing three points:

1. That in the course of his chambering when he was attending legal training organised by the Bar Council, the seminars were “peppered with critiques of the government and government policy”.
2. That the the Bar Council in an Extraordinary General Meeting (EGM) condemned the government’s handling of the Bersih 3.0 rally even before any official findings could be made by the Human Rights Commission of Malaysia (SUHAKAM) is wrong, as “no one should be pronounced as guilty of any wrongdoing before a full and proper investigation is made”.
3. And finally that the Bar Council is mischievous to insinuate that the executive had influenced the judiciary in Anwar’s because “Malaysia is a constitutional democracy that practices the doctrine of separation of powers”.

On the first point, similar to Ivanpal, I completed my legal education in year 2009, obtained my Certificate in Legal Practise in year 2010, and underwent chambering in year 2011. During the course of my pupillage, I had also diligently followed the legal training and seminars conducted by the Bar Council as part of my legal training.

Here, I wish to put my point across strongly that at no time did the Bar Council delivered the contents in their courses and seminars to put the government to shame. In fact, the courses were only designed to equip pupils on matters in relation to their legal practice which had nothing on the government’s actions and policies.

Even through checks with my peers who had all done chambering in years 2010, 2011 and 2012, none of them had found that the legal courses conducted by the Bar Council for pupils had any contents which criticises the government.

Hence, it is wrong and highly dishonest for Ivanpal to insinuate that the entire Bar Council and the relevant state bar committees have a hidden political agenda and are abusing the mandatory pupillage course to undermine the government.

Secondly, Ivanpal had claimed that it was wrong for the Bar Council in its EGM to condemn the government in its handling of Bersih 3.0 rally as the government is innocent until proven guilty. Now, Ivanpal should take note that the Bar Council committee themselves did not issue the criticism. Rather, it was done via a motion passed and voted overwhelmingly by lawyers.

The Extraordinary General Meeting of the Malaysian Bar (11 May 2012)

After the public rally, an EGM was called to discuss the motion tabled by fellow lawyers. And after two hours of discussion, of the total attendance, 939 lawyers voted in favour of the motion against 16 who disagreed, to condemn the police’s actions who had used excessive force against rallygoers including observers from the Bar Council.

In fact, the motion even stood the test of times as in April 2013, after conducting a public enquiry Suhakam found that the police had used excessive and disproportionate force against the rally participants.

The Bar Council takes no sides of any political divide. But in cases where any parties (be it government or not) breaches natural justice, the Bar Council, with the approval of majority lawyers as its members has an onerous duty to speak against it. On the Bersih 3.0 rally, the Bar had definitely stood up against the misconducts by the police.

Finally, Ivanpal naively (or perhaps deliberately) state that Malaysia as a constitutional democracy is currently practicing the doctrine of separation of powers where there are clear separation between the judiciary and the executive. Hence to insinuate that the executive influences the judiciary is plainly wrong.

But this statement does not hold water, nor it is reflected as such in our legal system. Under Judicial Appointments Act 2009, a Judicial Appointment Commission (JAC) was established to place the powers of appointment of judges under the thumbs of the head of executive aka the Prime Minister. Even in the JAC website, it is stated that one of the functions of the Commission is “to select suitably qualified persons who merit the appointment as judges of the superior court for the Prime Minister’s consideration”.

Based on this alone, clearly the Judiciary is not of the same level as the Executive but it is under the influence of the government instead. Hence, there are no separation of powers between the executive and the judiciary as judges actions are subjected to the scrutiny of the Prime Minister alone.

Justice Hishamudin’s snub to the Federal Court is one fine example. Despite being well known as the most respected serving judge, he was snubbed twice by the Prime Minister in the promotion of judges to the Federal Court for reasons that the Prime Minister himself knows best.

Hence, for Ivanpal to say otherwise, he has either misunderstood the legal system and the laws in place or had deliberately chose to close an eye to these laws. Coupled with his unsubstantiated insinuation against the Bar Council, unless he corrects it, Ivanpal has once again prove to the public that Gerakan has degenerated to the most unprincipled party in their history.

100 Lawyers & The Judiciary

This article was published in The Malaysian Insider

I refer to the statement made by President of the Bar Council Christopher Leong, statement by Aidil Khalid & 99 other lawyers who supported it, and a slew of others who criticised Christopher for purportedly directly attacking “the Federal Court without any legal basis with the effect of bringing the Federal Court into disrepute and odium”.

I find it incredulous for Mr.Aidil and his other unnamed 99 fellow lawyers to make such accusations loudly. More so when the statement made by Christopher did not make any reference to the Judges nor did he comment on the decisions made.

If we read the statement in full, Christopher Leong merely questioned why Datuk Seri Anwar Ibrahim was not charged under section 377C of the Penal Code for forced sodomy or sodomy rape, and why the complainant, Mohd Saiful Bukhari Azlan, who was alleged to have been a participant in the act of sodomy, was not similarly charged for abetment under sections 377A and 377B, read together with section 109, of the Penal Code.

Criminal charges are framed by the Attorney General who forms part of the Executive/Government, not the Judiciary. This is a common knowledge even among law students. So where is it in Christopher's statement where he had allegedly attacked the Judiciary? Did these 100 lawyers read his statement properly?

The statement of the Bar Council President must be read in the context of the decision of the Attorney General in framing the charges against Datuk Seri Anwar Ibrahim. Nowhere in Christopher’s statement where he had claimed that the Federal Court had persecuted Datuk Seri Anwar Ibrahim nor that the court was complicit in any conspiracy or was bias in arriving at its judgment.

It is perplexing to say the least that other than Mr. Aidil who had obviously misread Christopher’s statement, the other 99 lawyers had also concurred with Aidil. Perhaps these lawyers who (I am very sure) all excels in speed reading should relook at Christopher’s statement before jumping the gun.

But this does lead us to an interesting question, even if one (be it lawyer or not) is to question the decision of the Judiciary, should it be seen as contempt against the Court?

Criticism of the Judiciary must be allowed.

Criticism on the reasoning of the Judiciary’s judgment cannot and must not be construed as an attack or seen as an act of disrepute against Judges. Decisions made by the Judges in reading, applying or even extending the interpretation of the law affects the public at large and not just Datuk Seri Anwar Ibrahim alone. What is applied and laid out as precedents in Federal Court cases will be used as benchmarks for litigators to argue their case for any members of the public.

In worst case scenarios, one wrong decision, or an erroneous reading or application of the law by the Judges in the Federal Court may even lead to injustice to parties in the case and anyone who has similar facts to the case precedents. As Judges in the Court of Appeal and below are bound to follow the precedents made by the Federal Court, if the lower Court Judges cannot distinguish the case, they will have to apply the precedents even if it is wrong.

Unless the bad precedents are reversed or rectified by the Parliament, it normally takes years of litigation and appeal by affected individuals just to get their case heard at the Federal Court to relook into its own precedents. As is in most cases, affected individuals who were wronged by bad precedents may not even have the time or resources to appeal their matter to the Federal Court.

Hence, if members of the public cannot criticize the decisions made by Judges, then how is it possible for us to keep Judges accountable to the decisions they make? Where will that leave the public if they were wronged by the decisions? Judges, as wise as they may be, are fallible human beings after all and the decisions they make affects the public directly. If every criticism of the Judiciary, however reasonable they are, is seen as contempt of the Court then we may end up having a tyrannical judiciary where wrong decisions are condoned instead with little or no recourse to the public.

Finally, for Aidil and the remaining unnamed 99 lawyers, here is my question to you: When you or your client is affected by the wrong decision of the Courts, and in no manner where anyone of you can question the decisions made by the Judges for fear of contempt. Where does that leave you?

Why hudud is unconstitutional and impractical

This article was published in The Malaysian Insider & Malaysia Today.

An edited version was also published in The Star.

PAS has recently been extremely persistent in pushing for the implementation of hudud in Kelantan. Despite numerous warnings by other political parties against their agenda, PAS seems hell bent on introducing a Private Members Bill in Parliament to further their own political agenda.

However, here lies the big question: Is it possible to implement one set of criminal law (hudud) in one state and have the rest of other states and Federal Territories obeying another set of criminal law?

Certainly no, because let’s be clear on this, you cannot have one set of law for one state on crime and another set of criminal law for other states. Not only it is impractical, it also seeks to disrupt the basic structure and relationship between the Federal and the states which was laid down by our founding father Tunku Abdul Rahman. It is also unconstitutional as PAS’s constant attempt at introducing hudud also seeks usurp federal powers at the same time.

Part VI of the Federal Constitution defines the relations between Federal and the states, where therein lies Article 73 to 79 of the Federal Constitution which laid down Parliament’s (Federal level) exclusive power to make law. Specifically, Article 74 (1) states that “…Parliament may make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List…” while Article 74(2) states that “…the Legislature of a State may make laws with respect to any of the matters enumerated in the State List…”

And if we look at the Federal list which is the First fist set out in the ninth Schedule of the Federal Constitution, internal security (including police, criminal investigation, public order etc.) clearly forms part of the Federal’s exclusive power and responsibility. Any attempt by any states to usurp this power is therefore unconstitutional. Even Article 75 demonstrates Federal’s superiority over all other states, where it is stated that “if any State law is inconsistent with a Federal law, the Federal law shall prevail and the State law shall, to the extent of the inconsistency, be void”. Supremacy of the Federal Constitution as stated under Articles 4(1) also provides for the prevalence of the Federal Constitution against any conflicting laws passed by Parliament.

Crime is and has always been under the Federal’s jurisdiction, not the state. You cannot have one criminal court sentencing criminals to stoning or amputation with the rest of the country's criminals committing the same offence being jailed. Even the police force will be acting separately and confused. It’s akin to Kelantan seceding, running and acting on its own. It also creates a dangerous precedent where any one state could at any time decide and choose to act on Federal matters on its own which will defeat the very purpose of forming a federation in the first place.

In addition, implementation of hudud is clearly unconstitutional as it seeks to cover crimes that are already well covered in the Penal Code. Although PAS legal bureau chairperson Mohamed Hanipa Maidin disagreed and stated that two criminal justice systems namely civil law and syariah law, have existed "since the time the federal constitution was created" and therefore is constitutional. However, I beg to differ as Syariah offences tried in the Syariah Court are only permitted on the premise that the State law stipulating Syariah offences is not in conflict with the Penal Code. Syariah Court only has jurisdictions over Islamic criminal offenses that are not covered by Federal law.

Common crimes, such as theft, murder, rape and any other offences which are already covered by the Penal Code are obviously beyond the state’s reach. By attempting to introduce hudud which has the effects of replacing provisions in the Penal Code, it is essentially in conflict of it and thereby unconstitutional. A good case to note here is the case of Che Omar bin Che Soh v. Public Prosecutor [1988] 2 M.L.J. 55, where the Court held that although Islam is the religion of the federation, it is not the basic law of the land and Article 3 (on Islam) does not impose any limit on Parliament to legislate. Therefore, Federal law takes precedence.

To implement hudud, PAS will need to significantly amend the Federal Constitution and redefine the basic structure of Federal-State relationship and responsibilities that has proven to be successful since the Merdeka days. Is it then advisable for us now to allow PAS to disrupt this core system and let Kelantan manage crime on their own with their own set of police force and criminal court? 

What happens then if there is a conflict between Federal and state institutions during execution of these two distinct laws? For example, what if a Kelantan Muslim commits a crime in other state? Or a non-Kelantan Muslim who commits a crime in Kelantan, but ran off to Penang? Which set of law applies? Should these people too be subjected to hudud law? Which police force will be responsible to nab them? Is the civil criminal court responsible to hear this crime? Or the Syariah criminal court?

Perhaps the more pressing question will be, does the Kelantan Muslims even want to be subjected to hudud where other Muslims living outside Kelantan would not? What if they still want to be governed by the existing Penal Code? Do they want to be treated differently from the rest?

Should Malaysian Muslims and non-Muslims alike who reside outside Kelantan start subjecting Kelantan Muslims to different treatments? Thereby discriminating them? Is it even just, fair and equitable to do so?

Have the wise ulamas in PAS ever considered these possible jurisdictional and enforcement problems? They could not even offer a constructive solution to the existing conflicts between two sets of law on marriage yet (Deepa’s case), what guarantees do we have that they can solve more complex situations as mentioned above? Especially when it comes to crime where hudud punishments and repercussions are far more severe and long lasting?

The Federal Constitution was accepted by our founding father Tunku Abdul Rahman to be supreme. Since our early school days, we were taught to cite the Rukunnegara every Monday morning. One of the key Rukun was “Keluhuran Perlembagaan”, which simply means the “Supremacy of the Constitution”. Tunku Abdul Rahman wanted us to remember that the Constitution is supreme and any attempt to alter its nature and structure must be defended against fervently.

By PAS seeking to introduce hudud, PAS is essentially trying to erode Federal's exclusive power on crime and alter the system that our founding father had put in place which is clearly wrong. This is the one of the reasons why Karpal Singh fought against the implementation of Hudud, not because he was against Islam (and so do I, as I sincerely believe that Islam is a good religion) but that he was against any attempt by anyone to undermine the mechanism that defines and functions this country which is the Federal Constitution. In fact, throughout Karpal’s years of service as a Member of Parliament he had not opposed any other policies or laws which were formulated based on Islamic principles (such as Islamic banking).

Hence, in the good memory of Tunku Abdul Rahman and Karpal Singh, and in protecting the fundamentals and principles that were laid down by them, all Members of Parliament should oppose PAS’s attempt to introduce hudud (not on the basis that they are against Islam) but on the basis that there is a need to preserve Federal jurisdiction and protect the Federal Constitution. 

PAS should also reconsider its stance in seeking to push through Hudud in Kelantan due to its unconstitutionality and impracticality. Even if the Bill is passed with a simple majority in Parliament allowing Kelantan to adopt hudud, it will still be unconstitutional and can easily be challenged in the Court of law on grounds that it conflicts with the Penal Code.

Admitted to the Malaysian Bar Council as Advocate & Solicitor!

I was admitted to the Bar Council on the 27th January 2012 by Richard Wee (a great lawyer). Here's my long call speech!

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Admission to the Malaysian Bar (Long Call) Speech.

If it pleases you My Lord,my name is Richard Wee and I appear for the Petitioner, Mr. Low Teck Kuan and my learned friends representing the Attorney General, the Bar Council and the KL Bar Committee have already been introduced earlier.

My Lord, people pursue a career in law for many reasons. Some pursue it due to their passion for the law while others pursue it for its bright career prospects. The Petitioner however, chose an education in law for other unconventional reasons. Firstly, he chose it due to his developed interest in politics which eventually led to his interest in law and secondly, due to his desire to join a highly respectable profession.

During the petitioner’s pre-university days, after realizing that he had no interest in any science-related subjects he decided to narrow his college education to business, accounting and law. As the petitioner is greatly inspired by his father (who is a businessman himself) and many other successful entrepreneurial stories such as those of Donald Trump & Robert Kiyosaki, itbecame natural to him that he would choose a business degree. That was what the petitioner had in mind until one day, when the petitioner was searching for an Australian case-law for his Legal Studies subject, he stumbled upon an article written by the famous Raja Petra Kamarudin. The article’s discussion was focused on the 1998 constitutional crisis.

My Lord, for the first time in the petitioner’s life, he was exposed to important legal doctrines such as the rule of law, separation of power, and independence of the judiciary. This discovery did not just ignite a great sense of curiosity, it had also opened his eyes and challenged his perceptions on the state of the country. It also made the petitioner realized how naïve and ignorant he was to think that Malaysiaand its system had no shortcomings.

After months of reading colourful articles written by Raja Petra, the petitioner developed a strong interest in law and politics.In addition, it introduced the attractive idea of getting involved in politics someday. As a result, this had led to the petitioner deciding to enroll himself in Law School at the University of Readingin year 2007.Although law school was not an easy ride, the petitioner did his best and managed to obtain a Second Class Upper Degree with Honours in July 2009.

First involvement in politics

My Lord, upon graduation the petitioner continued to pursue his interests by working as Personal Assistant to YB Tony Pua, who currently is the Member of Parliament for Petaling Jaya Utara. After spending 3 fruitful months inpublic service, the petitioner continued his legal education by enrolling himself into the Certificate in Legal Practise course in Brickfields Asia College. After completion of the course, the petitioner continued to work and learn under YB Tony Puafor another 5 months before applying to chamber at Messrs Shook Lin & Bok in January 2011. Thereafter, my learned friend Mr. Steven Thiru became his master.

At this juncture the petitioner wishes to thank YB Tony Pua for providing him an opportunity to work in the public service. Through this employment, the petitioner has gained valuable experiences and insights that he would not have obtained elsewhere. More importantly, it has also taught him the importance of keeping the government in check as lack of accountability will allow rooms for corruption and abuse of power by irresponsible decision makers.

Legal practise

My Lord, the petitioner wishes to highlight thatbefore chambering under Mr. Steven Thiru, he initially wanted to learn corporate practise. The petitioner remembers clearly that during the interview with Mr. Too, the Managing Partner, he requested to be placed under a Corporatelawyer. However, to the wisdom of Mr. Too he was placedin the chambers of Mr. Steven Thiru(who specializes in litigation) instead. It came as a complete surprise to the petitioner but unknown to him at that time, he could not have found a better master.

Mr. Steven Thiru is an excellent master. Despite the petitioner having no experience in practise his master placed an extremely high expectation on him. He pushes the petitioner to his limit, even if it means the petitioner had to work four days continuously without sleep. And when the petitioner makes mistakes, his master was not shy to point out exactly what was wrong or lacking in the petitioner. The criticisms and expectations had certainly grown the petitioner from a boy to a man.

What impresses the petitioner most about his master was his working ethics. His master takes an extremely professional approach to his cases and does to the best of his ability for his clients, even if it means him having to work during weekends. Under his tutelage the petitioner had certainly learnt that beyond talents, the true ingredient of success lies in effort and hardwork. In his master’s own words, he said to the petitioner that “you may not be the most talented man, but with hard work you can go far in this life”. And for thatadvise, the petitioner thanks his master.

During chambering, the petitioner also had an opportunity to work with another talented litigator, Mr. Faisal Moideen. He was the petitioner’s immediate supervisor after his master. The petitioner wishes to thank him for giving great advises and teaching the important values of the legal profession. Of the many advises, the one that the petitioner was most fond of is “regardless of how heated the battle in the Court is, never take your case too personally against your opponent, as clients come and go, but the brotherhood (i.e. fellow lawyers in the Bar Council) remains”.

Apart from working on the cases his master assigned him to, the petitioner also had a priceless opportunity to work and contribute in the Royal Commission of Inquiry into the death of Teoh Beng Hock. Although the result the petitioner envisaged for did not materialise, this once in a lifetime experience had nevertheless affirmed the petitioner’s ambition to someday participate actively in politics and hopefully, put those unscrupulous individuals who would do anything for their political gains (including risking the life of an innocent) into accountability.

Hence, for this memorable experience the petitioner wishes to first thank Richard Wee and Cheow Wee for recruiting him. If Richard Wee had not called his master, the petitioner would have missed a great opportunity to work on an extremely meaningful case. For that again the petitioner thanks his master for graciously allowing the petitioner time away from office to participate in this case. Working collectively in the Royal Commissionwith many experienced and talented lawyers had truly added flavour and colours into the petitioner’s nine months of pupilage.

Expression of thanks

My Lord, the petitioner also wishes to take this rare opportunity to express his deep gratitude to his family; his parents Low Tee San and Wu Sheet Cheng, his sister Low Wah Chin who is also a practicing lawyer herself, and his brothers Low TeckEng, Low Kah Haw and Low YauJuhfor all the love and care they gave him. Without their support the petitioner would definitely have not made it this far.

In addition, the Petitioner would also like to extend his sincere gratitude to his girlfriend, Jamie Lai for standing by him through thick and thin until today; his best friends(whom he had known for more than 10 years since high school) for their loyal friendship and support; his good University and College friends for all the fun times he had with them during his higher education years; all his friends whom he had befriended in Shook Lin & Bok and the Royal Commission of Inquiry for their patience, willingness to share their knowledge, and most importantly the amazingly wonderful nine months; andfinally, not forgetting his “Dock Freak” friends, who had gave him a memorable whacky experience during his legal aid months. The petitioner feels truly blessed with all of their presence.

My Lord, I believe that all cause papers are complete and in order and I know not of any objection from my learned friends and I sincerely hope that my learned friends representing the relevant parties will support this application. Therefore, My Lord, I respectfully pray that this Honourable Court admits and registers Low TeckKuan as an Advocate & Solicitor of this Honourable Court.

Much obliged, My Lord.

The imperative march against the Peaceful Assembly Bill

This article was published in Malaysian Insider.


*update: this post was also posted in Lim Kit Siangs blog here.
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Have you ever felt a sense of discomfort sitting on your chair whenever you read the news?

Or sometimes (most of the time for me) a sense of disbelief and appal at how politics has screwed our rights, liberties and monies over and over again?!

Just when we had to digest all the poor spending and misappropriation (for example, the Auditor-General’s Report, the National Feedlot Corporation scandal and Kedai 1 Rakyat Malaysia fiasco), now we are told that a Bill will be passed to restrict our natural right to assemble!

The government tells us that we can assemble, and it says it is “revolutionary”. However, they seek to implement various criteria and obstacles before we “can”, or rather more accurately, be allowed to assemble (one fine example would be the requirement of a 30 days’ notice). This clearly illustrated the government’s pure hypocrisy in singing the tune of “best democracy”, “revolutionary” or even “upholding democratic principles” when it in fact it seeks to restrict the rakyat’s natural right to assemble!

Taking into consideration the beautiful wording of section 2 (a) of the Bill which recognises “... citizens... right to organise assemblies or to participate in assemblies, peaceably and without arms”, one ponders how he/she can exercise that right if he/she has to subject himself/herself to unreasonable conditions first.

In addition, this Bill and its restrictions can only point us to the fact that the government intends to stifle dissent of the people who express themselves through street protests. One would also suspect that such a proposal was drafted in the memory of the previous Bersih 2.0 rally, which was organised to advance the cause of having a free election (much to the embarrassment of our government who had handled the situation poorly).

As the rushed Peaceful Assembly Bill is already at its second reading, a quick and drastic action must be taken. A strong message with the force of changing federal lawmakers’ actions must be sent across collectively. At this rate, any delay or indecisiveness will only permit this Bill to be passed into an Act. As this Bill only requires a simple majority from Parliament, any opposition or proposed amendments in the parliamentary debate by opposition lawmakers will have insufficient effect or inadequate persuasion for this Bill to be thoroughly reviewed. Hence, a mass collective voice is urgently needed. More so from the organisation that eats, sleeps and breathes the law (i.e. the Bar Council).

Legal practitioners are bound by the Legal Profession Act 1976, and one most important provision which defines the very soul of this noble profession lies in section 42 (1)(a) which states that:

“(1) The purpose of the Malaysian Bar shall be —

(a) to uphold the cause of justice without regard to its own interest or that of its members, uninfluenced by fear or favour.”

Therefore, let us, as lawyers (and pupils alike), pursue the cause of justice by protecting the very fundamental human right that is the right to freely assemble! Let us show to the public the true reason why the legal profession is said to be a noble one by upholding and promoting just laws and fundamental legal principles in accordance to our moral and legal obligation! Let us also demonstrate to the lawmakers, without fear or favour, our opposition (as readers of the law) against such a restrictive Bill!

Fellow honourable members of the Bar, regardless of the location you reside or practise in, let us step out of practise momentarily and appear on November 29, 11.30am at the Royal Lake Club in Kuala Lumpur to object against this Bill that threatens the supremacy of the Constitution, rule of law and respect for basic human and individual rights!

* Low Teck Kuan reads The Malaysian Insider.

* This is the personal opinion of the writer or publication. The Malaysian Insider does not endorse the view unless specified.

This is what you call a "Bankrupt and Desperate" politician

I was catching up with all the news for the past few weeks since the afternoon, and it shocked me when i read this piece of news.

Zaid Ibrahim actually lodged a police report against Karpal Singh. and for what reason? He alleged that Karpal Singh had "threatened" him. That Karpal had made a statement which contains serious threats to his safety.

Malaysian Insider never really wrote what Karpal said previously, so i did some checking in other news portal and found out that Karpal had issued a statement saying this:

“As Anwar's defence counsel, I am warning all quarters, including politicians, not to defy Justice Mohamed Zabidin's (Mohd Diah) reminder that anyone committing an act of contempt in the ongoing trial will face the music. Any act by anyone, however, subtle, to influence the decision of a judge in an ongoing trial amounts to contempt of court."

now, how is this a threat to his personal safety again?

I can perhaps, force myself a little to understand if a laymen who went to the streets protesting against the Court's ruling interprets Karpal's statement as a physical or personal threat. but Zaid Ibrahim? the lawyer who founded one of the largest law firm in Malaysia? you got to be kidding me!

first and foremost, how on Earth did Karpal's statement amounts to a threat to his safety?

was it directed to him? or did Karpal merely issued a general warning to all who tried to pressure Anwar into giving his DNA? even if Karpal was indirectly warning Zaid about it, how did a valid legal threat (if ever Karpal or the Court decide to charge him for contempt of court) to which Zaid will have the opportunity to defend himself, become a threat to his personal safety?

secondly, what offence will the police pursue to investigate Karpal anyway? even if the police were to forcefully open an investigation and charge Karpal in court for the so called "threat to his personal safety" will they be able to establish a prima facie case in the first place?

surely Zaid, as a former practising lawyer himself would consider all this before lodging a police report?

but no, like an illiterate or an uneducated person he went on to stretch his imagination so wide and desperately so as to gain back his political relevance, did the unthinkable by bringing his supporters to the police station and lodged a formal complain against Karpal. i really do not know whether the intention was to get into the headlines, or score against Karpal. but one things for sure. it is certainly foolish to do so. with more statements and illogical actions such as these, I simply think that he is branding himself as an irrelevant politician.

and this is what you call a bankrupt and desperate politician. its petty and sad really, he could have become a real powerhouse in the political arena. he had so much of respect from the people including myself. but by his own actions Zaid has truly threw all those respects that people had about him away

this picture depicts how truly principled, the public perceived Zaid as previously.

i kinda regret purchasing his autobiography a couple of years ago. i really admired him last time. but like many others i'm really really disappointed with him. i feel like i was fooled into believing that he's one of the rare principled politician around here. obviously i was wrong. and proved wrong by none other than Zaid Ibrahim himself.