Saturday, November 1, 2014

If You Don't Know The Law, Don't Talk........

Hantu Laut

If you don't know the law, don't talk!

Obviously, the defence lawyer is talking cock here and Malaysiakini talking bigger cock here.

The whole idea is to mislead Malaysians, the unthinking society.

Malaysians are easily swayed by what they read or hear.

The CJ is right here.

Malaysia is not short of half-past-six lawyers.

Illegally obtained evidence is also called "fruit of the poisoned tree"


What constitutes illegally or improperly obtained evidence?

It is a fundamental principle of English law and a requirement of the European convention of Human Rights that in a criminal trial, the prosecution bears the burden of proving the guilt of the accused. Article 6 European Convention of Human Rights requires a presumption of innocence on the accused. To prove guilt, the prosecution must obtain evidence to support their position. The prosecution may resort to improper means to gather evidence in support of their position especially if obtaining evidence in conventional ways proves unfruitful.  

Is all evidence admissible?

In criminal proceedings, all relevant evidence presented by the parties is prima facie admissible as the UK courts have adopted an inclusionary approach towards evidence in order to favour the victim and ensure a fair trial. In a case in 1861 it was confirmed evidence is admissible even if it were stolen. The rationale for this approach is that the court considers the primary aim of the justice system to be the discovery of the truth and the unearthing of guilt. This is prioritised above the protection of the accused’s right to private life. Nevertheless the courts have discretion under s.78 Police and Criminal Evidence Act 1984 to exclude evidence which lacks relevance and which might, by its admission, endanger trial fairness. This contrasts with the exclusionary approach of the courts of the USA to illegally obtained evidence, which prioritises the need to deter the police from unconstitutional behaviour. Although the UK courts do not wish to encourage illegally methods to obtaining evidence on the part of the police, discovering guilt is prioritised. 

Real and confession evidence

Trial fairness may be endangered by the admission of unreliable evidence. English case law distinguishes between illegally obtained real and confessional evidence. Improperly obtained confession evidence, such as confessions obtained under torture contrary to article 3 ECHR, can be seen as inherently unreliable, however real evidence, although improperly obtained, such as evidence obtained through searches or covert listening devices, will remain reliable.

Our laws are mostly based on the English Law.  

Monday, October 27, 2014

In The Doghouse: PKR's Christina Liew To Pay Record RM557 Million To Borneo Samudera



Liew to pay record RM557mil
Published on: Sunday, October 26, 2014
KOTA KINABALU: The High Court has ordered three people – including an elected representative – to pay damages to Borneo Samudera Sdn Bhd (BSSB) for unlawfully inducing the Bahagak Smallholders Scheme participants to breach their Joint Venture Agreement (JVA) with BSSB. 
Justice Chew Soo Ho in his judgement on Sept. 30 found that BSSB had proven the requisite conditions in law of inducement of breach of contract. BSSB had claimed damages of RM557,641,716.29. 
In the suit, BSSB as plaintiff had named Siti Rahfizah Mihaldin as first defendant, Samsuri Baharudin as second defendant and opposition PKR's Api Api Assemblywoman Christina Liew as the third defendant. It is understood to be the highest amount in damages in Malaysian judicial history ever to be awarded either singly or jointly against a serving elected representative. 
In his judgement, Chew allowed BSSB's claim and also granted a declaration that the smallholders be relieved from all and every liability under the respective Sale and Purchase Agreements purportedly entered into by them with Siti. 
An injunction was also granted to restrain the trio from committing further breaches or unlawfully interfering in the JVA with loss and damages against the Defendants to be assessed by the Deputy Registrar of Tawau, with interest and costs. 
In the suit, BSSB, a subsidiary of government-linked company Sawit Kinabalu Sdn Bhd, alleged that the defendants had jointly and intentionally designed and schemed to unlawfully induce the breach of JVA to obtain the lots from about 819 smallholders (the JV land approximately 12,000 acres) for their own use and benefit, knowing that the said lots had been injected to the JV company and that the land has been fully developed by the JV company and BSSB in accordance with the JVA. BSSB further pleaded that Liew as an advocate and solicitor in preparing the alleged sale and purchase agreements ('SPA') had advised, conspired and colluded with her accomplices the first Defendant, Siti, the purchaser, who was her staff at the time of signing the various purported SPA, together with Samsuri Baharudin, the purported attorney of the smallholders to unlawfully wrest the JV land by inducing the smallholders to sell their land. The Court also found that the various sale and purchase agreements purportedly signed by the smallholders dated sometime in 2005 and 2006 were prepared by Liew based on her unilateral legal opinion that the JVA had been allegedly breached or terminated and that the smallholders were entitled to sell their respective lots. The Judge stated that "the third Defendant's role was not merely confined to giving advice to the smallholders but had taken active steps to get the smallholders through the second Defendant to allegedly sell their lots to the purchaser who was her own employee, knowing fully well that the smallholder lots had been pledged with the Plaintiff and/or JVC in return for shareholding in the JVC which the third Defendant had prepared the Form 32A to be executed by the smallholders in favour of the first Defendant. There was no termination of the JVA whether by the smallholders or through the third Defendant or by an Order of the court. The third Defendant knew that the said JVA was not terminated and the smallholders would have no right to sell their lots but still persisted on her own unilateral legal opinion to allegedly advise that the lots could be sold and proceed with the sale and purchase agreement of those smallholder lots with her own employee as the purchaser. The judge felt that Liew had been instrumental and played an active and major role in the whole transaction herein ignoring the fact that there was an existing JVA between the Plaintiff and smallholders whose lots in the said land had been pledged under the JVA. 
During the trial, the smallholders testifying as witnesses claimed they were misled into signing the purported sale and purchase agreements and power of attorney. 
Being illiterate they relied on the representation of Samsuri and Liew and that they did not know that they were signing sale and purchase agreements and power of attorney. They also claimed having no intention of selling their lots but that they were asked by Samsuri and Liew to sign or thumb print documents in blanks and were told that if they do so they would be paid certain sums of monies as "incentive payments" or "wang hangus". It was also stated in the trial that the three defendants under the guise of championing the smallholders' cause in actual fact took advantage of the smallholders' disadvantaged bargaining position for their own advantage. Under the SPA, vacant possession and profit of the land was to be given by the smallholders to Siti upon payment of RM1,000. In the event of breach by the smallholders, apart from refunding the monies already paid, they also need to pay to the purchaser a sum equivalent to 50 per cent of the purchase price as agreed liquidated damages. The total purchase price of the said land is to the tune of RM83 million. 
The first Defendant, Siti, although a material witness, did not attend or testify in the trial. The fact that she was a staff of Liew was never disclosed until BSSB discovered before the trial and challenged Liew who responded that Siti was acting as a nominee for an "undisclosed principal." 
However, this matter of the purported "undisclosed principal" was never pleaded by the Defendants and this mystery person, if any, remained a mystery. The Judge stated that "the non-disclosure and/or concealment of the first Defendant being an employee of the third defendant as the purchaser, to the Court, was a deliberate act tainted with ulterior motive to conceal their scheme, as submitted by the Plaintiff, to buy up all the smallholders' lots in the said land which by then had been developed into oil palm plantation and was yielding." 
The Judge further stated that "it is abundantly clear that the first and second Defendants are going for the smallholders lots which the third Defendant had been directly involved with the first and second Defendant to buy up the smallholders' lots in the said land which had been by then developed into an oil palm plantation by the Plaintiff." 
"They were going after the lands and not the smallholders' interest under the said JVA. It is a common knowledge that a developed oil palm plantation would have escalated in the land value as compared to a mere undeveloped State land. "The benefit that the Defendants will obtain and enjoy in purchasing and acquiring the smallholders' lots which had been developed into oil palm plantation is easily inferred as such developed land is insurmountable in value or land price when they are resold. "The deliberate and direct interference with the Plaintiff's said JVA with the smallholders is undoubtedly for the Defendants' ultimate personal gains or benefit or enrichment." 
Incidentally, most of the smallholders who have purportedly entered into sale and purchase agreements with Siti had lodged police reports and commenced legal proceedings against Siti and Samsuri for fraudulent misrepresentation to induce them to sign the sale and purchase agreements. They alleged that being illiterate they relied on the representation of the purchaser's solicitor, Liew and they were not given the opportunity to obtain independent legal advice. Therefore, they sought declaration among other things that the purported sale and purchase agreements are null and void and of no legal effect and claim for loss and damages. BSSB was represented by Jeyan Marimuttu, Jimmy Chang and Vanessa Marimuttu of Messrs J. Marimuttu & Partners while the three Defendants were represented by Alex Decena, Azimi Fahad Yahya and Sherzali Asli. 
Daily ExpressKOTA KINABALU: The High Court has ordered three people – including an elected representative – to pay damages to Borneo Samudera Sdn Bhd (BSSB) for unlawfully inducing the Bahagak Smallholders Scheme participants to breach their Joint Venture Agreement (JVA) with BSSB. 
Justice Chew Soo Ho in his judgement on Sept. 30 found that BSSB had proven the requisite conditions in law of inducement of breach of contract. BSSB had claimed damages of RM557,641,716.29. 
In the suit, BSSB as plaintiff had named Siti Rahfizah Mihaldin as first defendant, Samsuri Baharudin as second defendant and opposition PKR's Api Api Assemblywoman Christina Liew as the third defendant. It is understood to be the highest amount in damages in Malaysian judicial history ever to be awarded either singly or jointly against a serving elected representative. 
In his judgement, Chew allowed BSSB's claim and also granted a declaration that the smallholders be relieved from all and every liability under the respective Sale and Purchase Agreements purportedly entered into by them with Siti. 
An injunction was also granted to restrain the trio from committing further breaches or unlawfully interfering in the JVA with loss and damages against the Defendants to be assessed by the Deputy Registrar of Tawau, with interest and costs. 
In the suit, BSSB, a subsidiary of government-linked company Sawit Kinabalu Sdn Bhd, alleged that the defendants had jointly and intentionally designed and schemed to unlawfully induce the breach of JVA to obtain the lots from about 819 smallholders (the JV land approximately 12,000 acres) for their own use and benefit, knowing that the said lots had been injected to the JV company and that the land has been fully developed by the JV company and BSSB in accordance with the JVA. BSSB further pleaded that Liew as an advocate and solicitor in preparing the alleged sale and purchase agreements ('SPA') had advised, conspired and colluded with her accomplices the first Defendant, Siti, the purchaser, who was her staff at the time of signing the various purported SPA, together with Samsuri Baharudin, the purported attorney of the smallholders to unlawfully wrest the JV land by inducing the smallholders to sell their land. The Court also found that the various sale and purchase agreements purportedly signed by the smallholders dated sometime in 2005 and 2006 were prepared by Liew based on her unilateral legal opinion that the JVA had been allegedly breached or terminated and that the smallholders were entitled to sell their respective lots. The Judge stated that "the third Defendant's role was not merely confined to giving advice to the smallholders but had taken active steps to get the smallholders through the second Defendant to allegedly sell their lots to the purchaser who was her own employee, knowing fully well that the smallholder lots had been pledged with the Plaintiff and/or JVC in return for shareholding in the JVC which the third Defendant had prepared the Form 32A to be executed by the smallholders in favour of the first Defendant. There was no termination of the JVA whether by the smallholders or through the third Defendant or by an Order of the court. The third Defendant knew that the said JVA was not terminated and the smallholders would have no right to sell their lots but still persisted on her own unilateral legal opinion to allegedly advise that the lots could be sold and proceed with the sale and purchase agreement of those smallholder lots with her own employee as the purchaser. The judge felt that Liew had been instrumental and played an active and major role in the whole transaction herein ignoring the fact that there was an existing JVA between the Plaintiff and smallholders whose lots in the said land had been pledged under the JVA. 
During the trial, the smallholders testifying as witnesses claimed they were misled into signing the purported sale and purchase agreements and power of attorney. 
Being illiterate they relied on the representation of Samsuri and Liew and that they did not know that they were signing sale and purchase agreements and power of attorney. They also claimed having no intention of selling their lots but that they were asked by Samsuri and Liew to sign or thumb print documents in blanks and were told that if they do so they would be paid certain sums of monies as "incentive payments" or "wang hangus". It was also stated in the trial that the three defendants under the guise of championing the smallholders' cause in actual fact took advantage of the smallholders' disadvantaged bargaining position for their own advantage. Under the SPA, vacant possession and profit of the land was to be given by the smallholders to Siti upon payment of RM1,000. In the event of breach by the smallholders, apart from refunding the monies already paid, they also need to pay to the purchaser a sum equivalent to 50 per cent of the purchase price as agreed liquidated damages. The total purchase price of the said land is to the tune of RM83 million. 
The first Defendant, Siti, although a material witness, did not attend or testify in the trial. The fact that she was a staff of Liew was never disclosed until BSSB discovered before the trial and challenged Liew who responded that Siti was acting as a nominee for an "undisclosed principal." 
However, this matter of the purported "undisclosed principal" was never pleaded by the Defendants and this mystery person, if any, remained a mystery. The Judge stated that "the non-disclosure and/or concealment of the first Defendant being an employee of the third defendant as the purchaser, to the Court, was a deliberate act tainted with ulterior motive to conceal their scheme, as submitted by the Plaintiff, to buy up all the smallholders' lots in the said land which by then had been developed into oil palm plantation and was yielding." 
The Judge further stated that "it is abundantly clear that the first and second Defendants are going for the smallholders lots which the third Defendant had been directly involved with the first and second Defendant to buy up the smallholders' lots in the said land which had been by then developed into an oil palm plantation by the Plaintiff." 
"They were going after the lands and not the smallholders' interest under the said JVA. It is a common knowledge that a developed oil palm plantation would have escalated in the land value as compared to a mere undeveloped State land. "The benefit that the Defendants will obtain and enjoy in purchasing and acquiring the smallholders' lots which had been developed into oil palm plantation is easily inferred as such developed land is insurmountable in value or land price when they are resold. "The deliberate and direct interference with the Plaintiff's said JVA with the smallholders is undoubtedly for the Defendants' ultimate personal gains or benefit or enrichment." 
Incidentally, most of the smallholders who have purportedly entered into sale and purchase agreements with Siti had lodged police reports and commenced legal proceedings against Siti and Samsuri for fraudulent misrepresentation to induce them to sign the sale and purchase agreements. They alleged that being illiterate they relied on the representation of the purchaser's solicitor, Liew and they were not given the opportunity to obtain independent legal advice. Therefore, they sought declaration among other things that the purported sale and purchase agreements are null and void and of no legal effect and claim for loss and damages. BSSB was represented by Jeyan Marimuttu, Jimmy Chang and Vanessa Marimuttu of Messrs J. Marimuttu & Partners while the three Defendants were represented by Alex Decena, Azimi Fahad Yahya and Sherzali Asli. 
Daily Express

Tuesday, September 30, 2014

Bro,You Are Only De Facto Leader Lah!

Hantu Laut

Probe into Khalid’s deals for sake of transparency, says Anwar

Poking his nose where he shouldn't. Anwar still want to control everything. 

You are only de facto leader lah, brother! 

You have no legal right or power to order or direct what the MB should or shouldn't do. The MB and his Exco are responsible to run the state without referring to you, or interference from you and the party. 

That's why Khalid was fed up with you and asked you to fly kite of your interference with state matters, which are none of your business. Unhappy with Khalid's treatment, you found it expedient to muckraking him to remove him from office.

You are not PM yet, or de facto PM, even if you were one, you can't interfere if it was opposition state, like what BN doing now, respecting the democratic process by not interfering in the state administration of opposition states.

I am surprise none of the sycophantic lawyers that surround you tell you this, or are they just as clueless as you are?

You are de facto (unelected) leader of the party only, you are a non-entity as far as the state administration is concerned, therefore, know your place, stop interfering in state matters.

All along we know why you wanted your wife to be MB. 

Unfortunately, the Almighty was not ready to grant your wish and desire to control the state of Selangor yet.

For goodness sake, please refrain from asking Azmin to reappoint you as financial adviser to the state because you will again become a pest.

A time will come when Azmin will also tell you to FO!

You are an amazing man, no matter how wrong you are, most Malaysians think you are right, which is how dictators are born.

Friday, September 26, 2014

Belittling, Demotion And Punishment Of PAS: A Fool On The Hill!

Hantu Laut

The denigration, belittling and demotion of PAS by its partners in Pakatan Rakyat has started, which without any doubt a punishment.

Is the new Selangor MB Azmin Ali a democrat extraordinaire, or a fool on a hill?

PKR has 13 ADUN seats but gets 5 Exco seats, while PAS and DAP has 15 seats each but get 3 Exco seats each.

This is called tyranny of the minority. Very common in the Middle East. It happened in Iraq, Bahrain and Syria, where minority ruled over the majority.

PAS, should by now reconsider its position in Pakatan.

If what Azmin did was with the knowledge and blessing of Anwar Ibrahim, I feel sorry for him, he fell into Anwar's trap. 

Anwar has the perfect shot to kill him........vote of no confidence with the help of his disgruntled allies, PAS and DAP.

Some people just too smart for their own good.

Whether Anwar will succeed or not is another matter, but Azmin has left himself an open target.

Story here.

If you like the Beatles the song here.