Under Sale of Goods Act 1957 (SOGA) Section 12(1), terms of contract can be in the form of 'Condition' or 'Warranty'.
As stated in Section 12(2), condition is a stipulation which is essential to the main purpose of the contract; its breach leads to repudiation of contract. In other words, the injured party has the right to treat the contract as terminated.
However, under certain circumstances, the innocent party cannot repudiate the contract but instead can only claim for damages:
1) where the buyer waives the condition;
2) where the buyer elects to treat the breach of condition as a breach of warranty and claims damages only;
3) where the contract of sale is not severable and the buyer has accepted the goods or part thereof, the breach of any condition must be accepted as a breach of warranty unless otherwise provided in the contract; and
4) where the contract is for specific goods the property in which has passed to the buyer, the breach of any condition must be accepted as a breach of warranty unless otherwise provided in the contract.
(Source: Lee Mei Pheng, "General Principles of Malaysian Law" 5th Edition)
On the contrary, Section 12(3) mentioned that warranty is a stipulation which is collateral to the main purpose of the contract and its breach only leads to a claim for damages.
At times, there is no certainty whether the terms of contract is a condition or warranty. If there is any breach of terms of contract and the matter is brought to the court, the court will determine whether the matter argued is a condition or a warranty.
Sunday, April 25, 2010
Personal Relief
There are a few computations needed to be made before one can reach to chargeable income. The sequence is as follows:
1) Gross Income
2) Adjusted Income
3) Statutory Income
4) Aggregate Income
5) Total Income
6) Chargeable Income
Chargeable income is calculated by deducting personal relief from total income. Shown below is a list consisting of a few types of individual relief and its amount:
1) Self and Dependent - RM 9000
2) Medical expenses for parents - RM 5000 (Limited)
3) Basic supporting equipment - RM 5000 (Limited)
4) Disabled Individual - RM 6000
5) Education Fees (Individual) - RM 5000 (Limited)
6) Medical Expenses for serious diseases - RM 5000 (Limited)
7) Complete medical examination - RM 500 (Limited)
8) Purchase of books, journals and magazines - RM 1000 (Limited)
9) Purchase of personal computer - RM 3000 (Limited)
The list above is only partially from the list of tax relief for Resident Individual 2010. The information is obtained from official website of Inland Revenue Board of Malaysia. For more information, please visit http://www.hasil.gov.my.
1) Gross Income
2) Adjusted Income
3) Statutory Income
4) Aggregate Income
5) Total Income
6) Chargeable Income
Chargeable income is calculated by deducting personal relief from total income. Shown below is a list consisting of a few types of individual relief and its amount:
1) Self and Dependent - RM 9000
2) Medical expenses for parents - RM 5000 (Limited)
3) Basic supporting equipment - RM 5000 (Limited)
4) Disabled Individual - RM 6000
5) Education Fees (Individual) - RM 5000 (Limited)
6) Medical Expenses for serious diseases - RM 5000 (Limited)
7) Complete medical examination - RM 500 (Limited)
8) Purchase of books, journals and magazines - RM 1000 (Limited)
9) Purchase of personal computer - RM 3000 (Limited)
The list above is only partially from the list of tax relief for Resident Individual 2010. The information is obtained from official website of Inland Revenue Board of Malaysia. For more information, please visit http://www.hasil.gov.my.
Indemnity
Indemnity is compensation for loss. For individuals who has insured against a loss, the insured is eligible for a compensation, but the amount compensated will not exceed the actual loss. There are few forms of imdemnity, which includes cash payments, repairs, replacement and reinstatement.
Based from Wikipedia, indemnity insurance compensates the beneficiaries of the policies for their actual economic losses, up to the maximum limit of the insurance policy. The insured has to prove the actual loss sufferred before he or she will be compensated. There are two types of indemnity insurance, which are personal and professional indemnity insurance.
In contrast with indemnity insurance, a contingency insurance involves payment on a contingent event and the amount paid will be based on value stated in the policy regardless of the loss incurred. An obvious example is the life insurance. The death of a person whose life is insured for reasons not excluded from the policy obligate the insurer to compensate the whole policy amount to the beneficiary. The amount of the compensation paid is irrelevant to the loss incurred by beneficiaries.
Based from Wikipedia, indemnity insurance compensates the beneficiaries of the policies for their actual economic losses, up to the maximum limit of the insurance policy. The insured has to prove the actual loss sufferred before he or she will be compensated. There are two types of indemnity insurance, which are personal and professional indemnity insurance.
In contrast with indemnity insurance, a contingency insurance involves payment on a contingent event and the amount paid will be based on value stated in the policy regardless of the loss incurred. An obvious example is the life insurance. The death of a person whose life is insured for reasons not excluded from the policy obligate the insurer to compensate the whole policy amount to the beneficiary. The amount of the compensation paid is irrelevant to the loss incurred by beneficiaries.
Nemo dat Quod non habet
Regarding the issue of transfer of title, it is often linked to the legal principle of "Nemo dat Quod non habet", which means 'no one can give a better title than (from) what he has himself'. This principal is stated in Section 27 of Sale of Goods Act 1957. Nemo dat Quod non habet is sometimes refered to as the nemo dat rule.
This rule is aimed to protect the right of ownership. Under this rule, individual who purchases stolen goods will not obtained the ownership even though there is no indication that the goods purchased are stolen. Therefore, this showed that the interest of the real owner is protected.
Example of case law related to nemo dat rule is the case of Lim Chui Lai v. Zeno Ltd [1964].
However, there are six exceptions to nemo dat rule, which are:
1) The operation of estoppel (Section 27)
- by record
- by deed
- by conduct
2) Sale by merchantile agent (Section 27)
3) Sale by one of joint owners (Section 28)
4) Sale under a voidable title (Section 29)
5) Sale by a seller in possession after sale (Section 30(1))
6) Sale by a buyer in possession (Section 30(2))
This rule is aimed to protect the right of ownership. Under this rule, individual who purchases stolen goods will not obtained the ownership even though there is no indication that the goods purchased are stolen. Therefore, this showed that the interest of the real owner is protected.
Example of case law related to nemo dat rule is the case of Lim Chui Lai v. Zeno Ltd [1964].
However, there are six exceptions to nemo dat rule, which are:
1) The operation of estoppel (Section 27)
- by record
- by deed
- by conduct
2) Sale by merchantile agent (Section 27)
3) Sale by one of joint owners (Section 28)
4) Sale under a voidable title (Section 29)
5) Sale by a seller in possession after sale (Section 30(1))
6) Sale by a buyer in possession (Section 30(2))
Income Tax Act 1967
Malaysian income tax is based on territorial basis. As mentioned in Section 3 of Income Tax Act 1967, a tax known as income tax shall be charged for each year of assessment upon the income of any person accruing in or derived from Malaysia or received in Malaysia from outside Malaysia. However, with effect from year 2004, foreign source income (income received in Malaysia from outside Malaysia) is exempted from tax under Paragraph 28, Schedule 6 of Income Tax Act 1967.
There are different classes of income subjected to Income Tax under Section 4 of Income Tax Act 1967, which are:
a) Profits or gains of a trade, business, profession or vocation
b) Profits or gains from personal services - employment
c) Dividends, interests and discounts
d) Rents, royalties and premiums
e) Pensions, charges or annuities or other periodical payments; and
f) Gains or profits not falling under any of the foregoing paragraph.
From Year of Assessment 2004, self-assessment for individuals was implemented. Under Self Assessment System (SAS), taxpayer himself or herself holds the responsibility to correctly compute the amount assessable, file the return and make payment of any tax due and payable within the stimulated dateline.
There are two types of forms available, which are BE Form for employment income only and B Form for business income and/or other income. The dateline for individuals without business income is 30th April while individuals with business income is 30th June.
There are different classes of income subjected to Income Tax under Section 4 of Income Tax Act 1967, which are:
a) Profits or gains of a trade, business, profession or vocation
b) Profits or gains from personal services - employment
c) Dividends, interests and discounts
d) Rents, royalties and premiums
e) Pensions, charges or annuities or other periodical payments; and
f) Gains or profits not falling under any of the foregoing paragraph.
From Year of Assessment 2004, self-assessment for individuals was implemented. Under Self Assessment System (SAS), taxpayer himself or herself holds the responsibility to correctly compute the amount assessable, file the return and make payment of any tax due and payable within the stimulated dateline.
There are two types of forms available, which are BE Form for employment income only and B Form for business income and/or other income. The dateline for individuals without business income is 30th April while individuals with business income is 30th June.
Friday, April 16, 2010
Doctrine of Utmost Good Faith
Doctrine of Utmost Good Faith is known in its Latin form as "uberrimae fidei". The common law doctrine of "good faith" in insurance contracts originated in the 18th Century. Lord Mansfield is credited with first articulating this concept in Carter v Boehm (1766) 3 Burr 1905.
Doctrine of utmost good faith means that each party to a proposed contract is under a duty to disclose to the other all information which would influence his decision to enter into the contract, whether such information is requested or not. This doctrine is applied to many common financial transactions.
According to Investopedia, in the insurance market, the doctrine of utmost good faith requires that the party seeking insurance discloses all relevant personal information. The duty to disclose all the material facts of information rests more heavily on the insured than the insurer because the insured knows more about the subject matter of the insurance. For example, when taking a life insurance, the insurer would like to know the state of health, previous ailments or operations, family history and lifestyle habits like smoking or exercise. The premium that will be charged to the potential insured would be based on all the information that he or she has given.
A person is only required to disclose material facts and the non-disclosure of non material facts does not affect the validity of the contract. Take back the example of life insurance. The information regarding the insured's health and previous ailments are material facts as these will influence the mind of the insurer in deciding whether to accept the risk in insuring the insured and at what premium. On the other hand, the insured does not need to tell the insurer regarding his or her education background or the number of siblings in his or her family.
The failure to disclose material facts will give the other party (insurer) the right to avoid the contract. Two cases that are related to the doctrine of utmost good faith are case of Goh Chooi Leng v. Public Life Co. Ltd (1964) and case of New India Assurance v. Pang Piang Chong (1971).
Doctrine of utmost good faith means that each party to a proposed contract is under a duty to disclose to the other all information which would influence his decision to enter into the contract, whether such information is requested or not. This doctrine is applied to many common financial transactions.
According to Investopedia, in the insurance market, the doctrine of utmost good faith requires that the party seeking insurance discloses all relevant personal information. The duty to disclose all the material facts of information rests more heavily on the insured than the insurer because the insured knows more about the subject matter of the insurance. For example, when taking a life insurance, the insurer would like to know the state of health, previous ailments or operations, family history and lifestyle habits like smoking or exercise. The premium that will be charged to the potential insured would be based on all the information that he or she has given.
A person is only required to disclose material facts and the non-disclosure of non material facts does not affect the validity of the contract. Take back the example of life insurance. The information regarding the insured's health and previous ailments are material facts as these will influence the mind of the insurer in deciding whether to accept the risk in insuring the insured and at what premium. On the other hand, the insured does not need to tell the insurer regarding his or her education background or the number of siblings in his or her family.
The failure to disclose material facts will give the other party (insurer) the right to avoid the contract. Two cases that are related to the doctrine of utmost good faith are case of Goh Chooi Leng v. Public Life Co. Ltd (1964) and case of New India Assurance v. Pang Piang Chong (1971).
Thursday, April 15, 2010
Caveat Emptor
Caveat Emptor is a Latin word and in English, it is "let the buyer beware". It is a warning that notifies a buyer that the goods he or she is buying are "as it", or subject to all defects. Under the doctrine of caveat emptor, the buyer could not recover from the seller for defects on the property that rendered the property unfit for the ordinary purposes.
With Caveat Emptor, seller is not liable to disclose all the information of the product. The buyer must examine, judge, and test the product himself or herself before making the decision to purchase the product. Although Caveat Emptor may sound unfair to the buyer, this rule is not designed to protect the seller from any fraud or making any false statements on the quality and condition of the products that they intended to sell.
Usually, people use the phrase "caveat emptor" in eBay. eBay is an e-commerce model and buyer is not able to examine the products that they are interested in. Thus, it means buyers themselves have to be beware and aware of the quality of products that they are going to purchase.
Corresponding with caveat emptor, there are a number of implied conditions and warranties to protect the buyer. There are seven implied terms:
- Implied Condition as to Title
- Implied Warranty to Quiet Possession of the Goods
- Implied Warranty against Encumbrance of Charge
- Implied Condition on Sale by Description
- Implied condition of Fitness for Purpose
- Implied Condition of Merchantable Quality
- Implied Condition on the Sale by Sample
Opposite with the caveat emptor is the doctrine of caveat venditor. It is Latin for "let the seller beware". Despite the responsibilities imposed on buyers, sellers also have to bear the responbilities on goods to prevent themselves from being deceived. The case of MacPherson v. Buick Motor Co. (1916) is regarded as the origin of caveat venditor.
With Caveat Emptor, seller is not liable to disclose all the information of the product. The buyer must examine, judge, and test the product himself or herself before making the decision to purchase the product. Although Caveat Emptor may sound unfair to the buyer, this rule is not designed to protect the seller from any fraud or making any false statements on the quality and condition of the products that they intended to sell.
Usually, people use the phrase "caveat emptor" in eBay. eBay is an e-commerce model and buyer is not able to examine the products that they are interested in. Thus, it means buyers themselves have to be beware and aware of the quality of products that they are going to purchase.
Corresponding with caveat emptor, there are a number of implied conditions and warranties to protect the buyer. There are seven implied terms:
- Implied Condition as to Title
- Implied Warranty to Quiet Possession of the Goods
- Implied Warranty against Encumbrance of Charge
- Implied Condition on Sale by Description
- Implied condition of Fitness for Purpose
- Implied Condition of Merchantable Quality
- Implied Condition on the Sale by Sample
Opposite with the caveat emptor is the doctrine of caveat venditor. It is Latin for "let the seller beware". Despite the responsibilities imposed on buyers, sellers also have to bear the responbilities on goods to prevent themselves from being deceived. The case of MacPherson v. Buick Motor Co. (1916) is regarded as the origin of caveat venditor.
Wednesday, April 7, 2010
Salomon v. Salomon & Co. Ltd.
In this case, the main issue is the doctrine of corporate legal entity. After Salomon transferred his sole proprietor business into a company, he ran his business as before and he was issued a debenture. However, his business floundered and as a holder of the debenture, the assets of the company were used to pay Salomon and this caused the liquidator to sue Salomon. The Court of Appeal held that he was liable to indemnity the company against the losses. But, the House of Lords held that even though the business of the company was the same hands that received the profits, yet the company was not an agent or a trustee for the members and thus the members were not liable in respect of the company's obligations.
I agree that Salomon is a member of the company and he and the company are two separate legal entities. He has limited liability. Furthermore, he is a holder of debenture and as a separate legal entity, he had the right to be paid as he is a secured creditor. When the liquidator wanted to sue Salomon for not paying back the debt, the liquidator should be sueing the company, which is Salomon & Co. Ltd and not Salomon himself.
I agree that Salomon is a member of the company and he and the company are two separate legal entities. He has limited liability. Furthermore, he is a holder of debenture and as a separate legal entity, he had the right to be paid as he is a secured creditor. When the liquidator wanted to sue Salomon for not paying back the debt, the liquidator should be sueing the company, which is Salomon & Co. Ltd and not Salomon himself.
Thursday, April 1, 2010
Holding and Subsidiary Company
In class, when we were taught of Company Law, we came across different classifications of companies. They are Unlimited & Limited Co., Public & Private Co. and Holding & Subsidiary Co. Here, I am going to give some examples on Holding & Subsidiary Co.
A company is a subsidiary of a holding company if the holding company controls the composition of the board of directors; controls over half of the voting power of the subsidiary; and holds more than half of the issued share capital of the subsidiary company.
Naim Holdings Berhad is a holding company while Naim Cendera Sdn Bhd (NCSB) is its subsidiary. NCSB is Naim Holdings Berhad's 100% owned subsidiary. It means that Naim Holdings Berhad controls more than half of the voting power of NCSB.
Another example is Berjaya Assets Berhad. Its subsidiary is Berjaya Times Square Sdn Bhd and Natural Avenue Sdn Bhd. Berjaya Times Square Sdn Bhd is a 100% owned subsidiary while for Natural Avenue Sdn Bhd, Berjaya Assets Berhad owns 65% of its shares.
A company is a subsidiary of a holding company if the holding company controls the composition of the board of directors; controls over half of the voting power of the subsidiary; and holds more than half of the issued share capital of the subsidiary company.
Naim Holdings Berhad is a holding company while Naim Cendera Sdn Bhd (NCSB) is its subsidiary. NCSB is Naim Holdings Berhad's 100% owned subsidiary. It means that Naim Holdings Berhad controls more than half of the voting power of NCSB.
Another example is Berjaya Assets Berhad. Its subsidiary is Berjaya Times Square Sdn Bhd and Natural Avenue Sdn Bhd. Berjaya Times Square Sdn Bhd is a 100% owned subsidiary while for Natural Avenue Sdn Bhd, Berjaya Assets Berhad owns 65% of its shares.
Thursday, March 18, 2010
Breach of Contract
A contract can be discharged by breaching a contract. There are four remedies for breach of contract, which are damages, specific performance, injunction and quantum meruit. Below is an example of alleged breaching of contract:
In The Star Online dated 12 February 2010, a Kuala Lumpur-based development oompany and a legal firm have been sued for a whopping RM 324.2 million over an alleged breach of contract involving two projects in Perlis.
The plaintiffs are Real Tech Entrepreneur (M) Sdn Bhd and Beta Semarak Sdn Bhd and the defendants are Sekutu Saujana (M) Sdn Bhd and legal firm of Azhari and Sumari.
As quoted from the news article, Real Tech and Beta Semarak are seeking RM 144mil for four million tonnes of granite at a price of RM 36 per tonne for a reclamation project in the Perlis coastal area, RM 80mil for four million tonnes of granite at a price of RM 20 per tonne for the electrified double track project also in Perlis and RM 150000 in deposit paid for the two projects. Besides that, they are also seeking RM 100mil in general damages, exemplary damages and cost.
In The Star Online dated 12 February 2010, a Kuala Lumpur-based development oompany and a legal firm have been sued for a whopping RM 324.2 million over an alleged breach of contract involving two projects in Perlis.
The plaintiffs are Real Tech Entrepreneur (M) Sdn Bhd and Beta Semarak Sdn Bhd and the defendants are Sekutu Saujana (M) Sdn Bhd and legal firm of Azhari and Sumari.
As quoted from the news article, Real Tech and Beta Semarak are seeking RM 144mil for four million tonnes of granite at a price of RM 36 per tonne for a reclamation project in the Perlis coastal area, RM 80mil for four million tonnes of granite at a price of RM 20 per tonne for the electrified double track project also in Perlis and RM 150000 in deposit paid for the two projects. Besides that, they are also seeking RM 100mil in general damages, exemplary damages and cost.
Friday, March 12, 2010
Safety on the Roads
"PUTRAJAYA: Road deaths recorded during this year’s safety campaign for the Chinese New Year period dropped to 201 from 212 in the same period last year, said Transport Minister Datuk Seri Ong Tee Keat.
“There has also been a 27.8% drop in the daily average of deaths, and a 3% drop in the number of accidents." - The Star Online, 25 February 2010
In order to cut down on accidents and road fatalities, a traffic enforcement system has been proposed, which is Automated Enforcement System (AES). There will be two types of digital cameras under this system, which are static cameras and moveable cameras.
Under AES, digital cameras would be installed at accident-prone areas, expressways and state roads to capture offences commited by motorists. After the images have been captured, they will be registered in the Road Transport Department (JPJ)system and summonses will be issued to the offenders.
Offenders of road safety will be charged under Road Transport Act 1987. Sani Express bus driver, Mohd Kamil Rashid, which was charged with reckless driving was charged under Section 41(1) of the Road Transport Act 1987. He is liable to not more than 10 years' jail and a fine of not less than RM 5,000 if found guilty.
“There has also been a 27.8% drop in the daily average of deaths, and a 3% drop in the number of accidents." - The Star Online, 25 February 2010
In order to cut down on accidents and road fatalities, a traffic enforcement system has been proposed, which is Automated Enforcement System (AES). There will be two types of digital cameras under this system, which are static cameras and moveable cameras.
Under AES, digital cameras would be installed at accident-prone areas, expressways and state roads to capture offences commited by motorists. After the images have been captured, they will be registered in the Road Transport Department (JPJ)system and summonses will be issued to the offenders.
Offenders of road safety will be charged under Road Transport Act 1987. Sani Express bus driver, Mohd Kamil Rashid, which was charged with reckless driving was charged under Section 41(1) of the Road Transport Act 1987. He is liable to not more than 10 years' jail and a fine of not less than RM 5,000 if found guilty.
Monday, March 1, 2010
Protection of Wildlife
MALACCA: A week-long surveillance by authorities off the coastal waters of Ujong Pasir for possible illegal wildlife trade paid off when marine police rescued 35 pangolins destined for cooking pots. - The Star Online, 20 February 2010
The cases of illegal smuggling of wildlife have increasing rapidly and based on The Star/Asia News Network's news article titled "Malaysia a hub for wildlife smuggling" dated 19 January 2009, Malaysia is ranked among the top illegal wildlife smuggling hubs in the world, specialising in transporting pangolins, birds and clouded monitor lizards. Smuggling and illegal trading of endangered animals have posed a major threat to those animals and an act that is related to protecting wildlife is the Protection of Wild Life Act 1972.
There is more and more attention given to the issue of protecting wildlife, especially for endangered animals. This is proven by a news article in the star online dated 4 March 2009 titled "Stiffer penalties proposed to safeguard wildlife". It stated that "The proposed amendment to the Wildlife Protection Act 1972 (PWA) will have increased penalty of up to 30 times and mandatory jail term for offences against endangered wildlife species".
Apart from all the efforts done, we should also play a part in protecting wildlife. Take an example from the case of smuggling pangolins. People try to smuggle pangolins due to the existence of demand and they can make a sum of money from it. Thus, if there is no demand for wildlife, the cases of smuggling wildlife will be decreased as money is no longer an attraction in these illegal trades.
The cases of illegal smuggling of wildlife have increasing rapidly and based on The Star/Asia News Network's news article titled "Malaysia a hub for wildlife smuggling" dated 19 January 2009, Malaysia is ranked among the top illegal wildlife smuggling hubs in the world, specialising in transporting pangolins, birds and clouded monitor lizards. Smuggling and illegal trading of endangered animals have posed a major threat to those animals and an act that is related to protecting wildlife is the Protection of Wild Life Act 1972.
There is more and more attention given to the issue of protecting wildlife, especially for endangered animals. This is proven by a news article in the star online dated 4 March 2009 titled "Stiffer penalties proposed to safeguard wildlife". It stated that "The proposed amendment to the Wildlife Protection Act 1972 (PWA) will have increased penalty of up to 30 times and mandatory jail term for offences against endangered wildlife species".
Apart from all the efforts done, we should also play a part in protecting wildlife. Take an example from the case of smuggling pangolins. People try to smuggle pangolins due to the existence of demand and they can make a sum of money from it. Thus, if there is no demand for wildlife, the cases of smuggling wildlife will be decreased as money is no longer an attraction in these illegal trades.
Thursday, February 25, 2010
Cyber Crimes
What is cybercrime? Based on the definition from TechTerms.com, cybercrime is criminal activity done using computers and the Internet. According to the latest statistics from CyberSecurity Malaysia, local cybercrime activities are increasingly becoming more money-motivated. According to Chief Executive Officer Lt Col (R) Husin Jazri, these cyber threats, which previously were done for thrills, are now done for financial gains. He also stated that hackers, fraudsters and criminals are working in tandem, across border.
Cybercrime cases have increased in a rapid state and based on a news article at thestar.com which dated January 17, 2009, there were more than 4,000 cybercrime cases reported in two years. Lt-Col Husin said that the complaints lodged were mostly consisted of hack threats, fraud, denial of services and other computer problems such files lost or corrupted by viruses.
As a step taken to enhance the cyber security, CyberSecurity Malaysia has introduced Cyber999, which is a service to serve the local internet community, addressing cyber security and safety issues such as identity theft, system intrusions and virus attacks.
On the other hand, a news article in thestar.com dated August 5, 2008 reported that Malaysian and Thai police will cooperate to stem the rising tide of cybercrime. In the article also mentioned that Inspector-General of Police Tan Sri Musa Hassan said the two countries would share intelligence to get more information and identify the groups involved in internet-related scams, as well as their modus operandi.
As for Act, Computer Crimes Act 1997 is related to the offences using computers. Another law is the Digital Signature Act 1997. It allows for the development of, amongst others, e-commerce by providing an avenue for secure online transactions through the use of digital signatures.
With all the initiatives taken to protect the public from becoming a victim of cybercrime, public should be aware of this issue and take all the necessary effort and precautions to protect themselves against cyber threats.
Cybercrime cases have increased in a rapid state and based on a news article at thestar.com which dated January 17, 2009, there were more than 4,000 cybercrime cases reported in two years. Lt-Col Husin said that the complaints lodged were mostly consisted of hack threats, fraud, denial of services and other computer problems such files lost or corrupted by viruses.
As a step taken to enhance the cyber security, CyberSecurity Malaysia has introduced Cyber999, which is a service to serve the local internet community, addressing cyber security and safety issues such as identity theft, system intrusions and virus attacks.
On the other hand, a news article in thestar.com dated August 5, 2008 reported that Malaysian and Thai police will cooperate to stem the rising tide of cybercrime. In the article also mentioned that Inspector-General of Police Tan Sri Musa Hassan said the two countries would share intelligence to get more information and identify the groups involved in internet-related scams, as well as their modus operandi.
As for Act, Computer Crimes Act 1997 is related to the offences using computers. Another law is the Digital Signature Act 1997. It allows for the development of, amongst others, e-commerce by providing an avenue for secure online transactions through the use of digital signatures.
With all the initiatives taken to protect the public from becoming a victim of cybercrime, public should be aware of this issue and take all the necessary effort and precautions to protect themselves against cyber threats.
Wednesday, February 24, 2010
Drug Trafficking
Today when i'm browsing through the star online website, i came across a news article titled:"Boat maker to hang for trafficking". Panizan Sunan Achayari was sentenced to hang under Section 39B of the Dangerous Drugs Act 1952.
JOHOR BARU: A boat maker was sentenced to death by a High Court here after he was found guilty of trafficking in 1.6kg of cannabis.
Panizan Sunan Achayari, 32, an Indonesian national with permanent resident status, appeared calm when the judge read out the sentence.
According to the facts of the case, the drugs were found in a red bag labelled with the words “best wishes” on a motorcycle used by Panizan.
The offence was said to have been committed at 10.20pm outside the Surau Kg Tok Siak in Bakar Batu, Majidee here on March 22, 2006.
Lawyer Norman J. Fernandez, who represented the accused, told the judge that Panizan had committed the offence because of poverty. He added that Panizan was remorseful.
Justice Datuk Mohd Zawawi Salleh, however, said it was a serious offence.
“The accused has failed to raise doubt in the prosecution’s case and therefore the court has no choice but to sentence the accused to hang under Section 39B of the Dangerous Drugs Act 1952,” he said.
According to Section 39B of Dangerous Drugs Act 1952,
(1) no person shall, on his behalf or on behalf of any other person, whether or not such other person is in Malaysia -
(a) traffic in a dangerous drug;
(b) offer to traffic in a dangerous drug;
(c) or do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.
Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death.
By trafficking 1.6kg of cannabis, Panizan had violated this law and was sentenced to hang. Cannabis is also known as marijuana, marihuana and ganja. In Malaysia, there are various anti-drug campaigns designed to educate young people on the dangers of drug use. Malaysia views drug trafficking as a serious offence and once the offender is proved guilty, he or she will be sentenced to hang.
JOHOR BARU: A boat maker was sentenced to death by a High Court here after he was found guilty of trafficking in 1.6kg of cannabis.
Panizan Sunan Achayari, 32, an Indonesian national with permanent resident status, appeared calm when the judge read out the sentence.
According to the facts of the case, the drugs were found in a red bag labelled with the words “best wishes” on a motorcycle used by Panizan.
The offence was said to have been committed at 10.20pm outside the Surau Kg Tok Siak in Bakar Batu, Majidee here on March 22, 2006.
Lawyer Norman J. Fernandez, who represented the accused, told the judge that Panizan had committed the offence because of poverty. He added that Panizan was remorseful.
Justice Datuk Mohd Zawawi Salleh, however, said it was a serious offence.
“The accused has failed to raise doubt in the prosecution’s case and therefore the court has no choice but to sentence the accused to hang under Section 39B of the Dangerous Drugs Act 1952,” he said.
According to Section 39B of Dangerous Drugs Act 1952,
(1) no person shall, on his behalf or on behalf of any other person, whether or not such other person is in Malaysia -
(a) traffic in a dangerous drug;
(b) offer to traffic in a dangerous drug;
(c) or do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug.
Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence against this Act and shall be punished on conviction with death.
By trafficking 1.6kg of cannabis, Panizan had violated this law and was sentenced to hang. Cannabis is also known as marijuana, marihuana and ganja. In Malaysia, there are various anti-drug campaigns designed to educate young people on the dangers of drug use. Malaysia views drug trafficking as a serious offence and once the offender is proved guilty, he or she will be sentenced to hang.
Monday, February 22, 2010
Group Assignment - Law of Contract
Chong and Wei went shopping and decided to shop at Super Supermarket. Wei looked at the goods which were on display and decided to purchase three bottles of face cream which were on offer. She took the bottles to the counter where she paid for them. As they were leaving the supermarket, the cashier came up to them and told them that they have to return the goods. Advise Wei according to Contracts Act 1950 and relavant decided case(s).
The issue in this situation is whether there is a legally binding agreement between Wei and the cashier and whether Wei has to return the goods to the cashier. In order for a contract to be legal and valid, it must have offer [Section 2(a) of Contract Act] and acceptance [Section 2(b) of Contract Act] which the acceptance must be absolute and unqualified [Section 7(a) of Contract Act].
According to the case of Pharmaceutical Society of Great Britain v. Boots Cash Chemist, displaying of goods is merely an invitation to treat and not an offer. However, when Wei took the bottles and took them to the counter, she is making an offer to buy those goods and there is acceptance if the cashier accept the payment for the goods. In this situation, the cashier did accept the money paid for the goods. In other words, Wei made the offer to buy the goods and the cashier accepted it. Thus, with the existence of offer and acceptance (the acceptance is absolute and unqualified), this is a legal contract. Another case that can be refered to is the case of Fisher v. Bell.
Since there is a legally binding agreement between Wei and the cashier, Wei does not need to return the goods to the cashier.
The issue in this situation is whether there is a legally binding agreement between Wei and the cashier and whether Wei has to return the goods to the cashier. In order for a contract to be legal and valid, it must have offer [Section 2(a) of Contract Act] and acceptance [Section 2(b) of Contract Act] which the acceptance must be absolute and unqualified [Section 7(a) of Contract Act].
According to the case of Pharmaceutical Society of Great Britain v. Boots Cash Chemist, displaying of goods is merely an invitation to treat and not an offer. However, when Wei took the bottles and took them to the counter, she is making an offer to buy those goods and there is acceptance if the cashier accept the payment for the goods. In this situation, the cashier did accept the money paid for the goods. In other words, Wei made the offer to buy the goods and the cashier accepted it. Thus, with the existence of offer and acceptance (the acceptance is absolute and unqualified), this is a legal contract. Another case that can be refered to is the case of Fisher v. Bell.
Since there is a legally binding agreement between Wei and the cashier, Wei does not need to return the goods to the cashier.
Wednesday, February 3, 2010
Doctrine of Stare Decisis
Doctrine of Stare Decisis is also known as doctrine of binding judicial precedent. It holds that judges are bound to follow the decision made by other judges before them in dealing with cases with similar facts. The doctrine of stare decisis works in two ways:horizontal and vertical. It works horizontally when a judge is bound by decisions of earlier judges of similar or coordinate level and it works vertically when a judge is bound by decisions of judges made at the superior courts.
There are advantages and disadvantages of doctrine of stare decisis. It increases the efficiency by acting as a convenient and time saving mechanism. If there are similar issues or cases occurred, judges can refer back to the decisions made by earlier judges and came out with the same conclusion. At the same time, it promotes stability and uniformity in law. It is natural for similar situations and problems to have the same solution in terms of law.
Also, with the doctrine, judges can minimize the risk of making mistakes. The decision-making process will be guided by past cases.
Doctrine of stare decisis also has its disadvantages. When judges refer back to old cases, there may be too many of them and this may cause confusion. The cases were not exactly the same but similar to each other.
Besides that, this doctrine also limits the development of law. As stated by 'Sixth Form Law', "practical law is founded on experience but the scope for further experience is restricted if the first case is binding".
There are advantages and disadvantages of doctrine of stare decisis. It increases the efficiency by acting as a convenient and time saving mechanism. If there are similar issues or cases occurred, judges can refer back to the decisions made by earlier judges and came out with the same conclusion. At the same time, it promotes stability and uniformity in law. It is natural for similar situations and problems to have the same solution in terms of law.
Also, with the doctrine, judges can minimize the risk of making mistakes. The decision-making process will be guided by past cases.
Doctrine of stare decisis also has its disadvantages. When judges refer back to old cases, there may be too many of them and this may cause confusion. The cases were not exactly the same but similar to each other.
Besides that, this doctrine also limits the development of law. As stated by 'Sixth Form Law', "practical law is founded on experience but the scope for further experience is restricted if the first case is binding".
Thursday, January 28, 2010
What Do You Think?
Case 1:
When driving his car home in Georgetown, Ryan called and talked with his wife through his mobile phone without the use of hands-free device. While talking, he lost control over his car and eventually hit a walking pedestrian.
1. Is Ryan liable under civil or criminal law?
Ryan is liable under criminal law. Based on Wikipedia, criminal law, or penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply.
Ryan is liable under Road Transport Act 1987, Section 42 - Reckless & Dangerous Driving. Under this section, it is stated that:
"Any person who drives a motor vehicle on a road recklessly or at a speed or in a manner which having regard to all the circumstances (including the nature, condition and size of the road and the amount of traffic which is or might be expected to be on the road) is dangerous to the public shall be guilty of an offence and shall on conviction be liable to a fine not exceeding six thousand ringgit or to imprisonment for a term not exceeding three years or to both and, in the case of a second or subsequent conviction, to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both."
Ryan was driving recklessly as he did not use hands-free device while talking to his wife using mobile phone. He should realise that using mobile phone without hands-free device will distract his attention on the road and at the end, he lost control over his car and knocked a pedestrian.
Criminal law is implemented to preserve the order in the community by punishing. Ryan is liable under criminal law as he, the offender, will be presecuted by a prosecutor in the criminal law and he may be convicted if he is guilty and acquitted if he is innocent.
2. What should the pedestrian do to recover his injuries/loss?
Before the pedestrian, who is a victim in the accident, can claim a compensation, he needs to go to the court and prove that he is innocent (which means he did not contribute to the accident), the other party (in this case, it refers to Ryan) is guilty and Ryan was negligent in his conduct and did not exercise reasonable care.
3. Should this case go to the court, what will be Ryan's right?
Ryan can hire a lawyer and plead not guilty.
Case 2:
Geena runs an unregistered online investment portal from her home in KL where she managed to get people deposit money to her account.
It was discovered that the investment was a scam and she attempted to flee with the money, only to be arrested in the airport by immigration officers because she held a fake passport.
1. Determine Geena's liability: civil or criminal?
Geena is liable for civil law and criminal law. Civil law is the body of laws established by a state or nation for its own regulation. The disputes created were among her and the victims of the unregistered online investment portal. On the other hand, by holding a fake passport and committing computer crimes, Geena has offended the criminal law.
2. What law(s) and statutes you think Geena has violated?
Under civil law, Geena has violated the Consumer Protection Act 1999 under Section 16 (a). Under this section, it stated that "no person shall demand for or accept, any payment or other consideration for goods or services, if at the time of the demand or acceptance that person does not intend to supply the goods or services." With her unregisted online investment portal, Geena is receiving deposits from the public but did not offer any investment services for the investors.
As for criminal law, Geena is liable under Passports Act 1966, which stated "any person who forges, alters or tampers with his passport or internal travel document, or any visa or endorsement thereon, or without lawful authority uses or attempts to use, or has in his possession, any passport or internal travel document which has been so forged, altered or tampered with shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding RM $10,000 or to imprisonment for a term not exceeding 5 years or to both." Geena has violated this act and was arrested in the airport by immigration officers because she held a fake passport.
Also, Geena has violated the Computer Crimes Act 1997 under Section 4(1)(a) - A person shall be guilty of an offence under this section if he commits an offence referred to in section 3 with intent to commit an offence involving fraud or dishonesty or which causes injury as defined in the Penal Code [Act 574]. Geena has used computer technology to create a fraud that deceiving people to deposit money to her unregistered online investment portal.
When driving his car home in Georgetown, Ryan called and talked with his wife through his mobile phone without the use of hands-free device. While talking, he lost control over his car and eventually hit a walking pedestrian.
1. Is Ryan liable under civil or criminal law?
Ryan is liable under criminal law. Based on Wikipedia, criminal law, or penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply.
Ryan is liable under Road Transport Act 1987, Section 42 - Reckless & Dangerous Driving. Under this section, it is stated that:
"Any person who drives a motor vehicle on a road recklessly or at a speed or in a manner which having regard to all the circumstances (including the nature, condition and size of the road and the amount of traffic which is or might be expected to be on the road) is dangerous to the public shall be guilty of an offence and shall on conviction be liable to a fine not exceeding six thousand ringgit or to imprisonment for a term not exceeding three years or to both and, in the case of a second or subsequent conviction, to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding five years or to both."
Ryan was driving recklessly as he did not use hands-free device while talking to his wife using mobile phone. He should realise that using mobile phone without hands-free device will distract his attention on the road and at the end, he lost control over his car and knocked a pedestrian.
Criminal law is implemented to preserve the order in the community by punishing. Ryan is liable under criminal law as he, the offender, will be presecuted by a prosecutor in the criminal law and he may be convicted if he is guilty and acquitted if he is innocent.
2. What should the pedestrian do to recover his injuries/loss?
Before the pedestrian, who is a victim in the accident, can claim a compensation, he needs to go to the court and prove that he is innocent (which means he did not contribute to the accident), the other party (in this case, it refers to Ryan) is guilty and Ryan was negligent in his conduct and did not exercise reasonable care.
3. Should this case go to the court, what will be Ryan's right?
Ryan can hire a lawyer and plead not guilty.
Case 2:
Geena runs an unregistered online investment portal from her home in KL where she managed to get people deposit money to her account.
It was discovered that the investment was a scam and she attempted to flee with the money, only to be arrested in the airport by immigration officers because she held a fake passport.
1. Determine Geena's liability: civil or criminal?
Geena is liable for civil law and criminal law. Civil law is the body of laws established by a state or nation for its own regulation. The disputes created were among her and the victims of the unregistered online investment portal. On the other hand, by holding a fake passport and committing computer crimes, Geena has offended the criminal law.
2. What law(s) and statutes you think Geena has violated?
Under civil law, Geena has violated the Consumer Protection Act 1999 under Section 16 (a). Under this section, it stated that "no person shall demand for or accept, any payment or other consideration for goods or services, if at the time of the demand or acceptance that person does not intend to supply the goods or services." With her unregisted online investment portal, Geena is receiving deposits from the public but did not offer any investment services for the investors.
As for criminal law, Geena is liable under Passports Act 1966, which stated "any person who forges, alters or tampers with his passport or internal travel document, or any visa or endorsement thereon, or without lawful authority uses or attempts to use, or has in his possession, any passport or internal travel document which has been so forged, altered or tampered with shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding RM $10,000 or to imprisonment for a term not exceeding 5 years or to both." Geena has violated this act and was arrested in the airport by immigration officers because she held a fake passport.
Also, Geena has violated the Computer Crimes Act 1997 under Section 4(1)(a) - A person shall be guilty of an offence under this section if he commits an offence referred to in section 3 with intent to commit an offence involving fraud or dishonesty or which causes injury as defined in the Penal Code [Act 574]. Geena has used computer technology to create a fraud that deceiving people to deposit money to her unregistered online investment portal.
Sunday, January 24, 2010
A New Opening for a New Blog
This is the first time i involve in blogging and this is my first blog post. More will come and hope you will enjoy it =)
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