Thursday, August 30, 2007

Did Sri Ram & Mokthar Siddin declare the gaming industry invalid?

First, some background on the history of gaming companies in Malaysia,using Berjaya Sports Toto as an example:
Sports Toto Malaysia Sdn Bhd was incorporated in 1969 by the Government of Malaysia. The eighties witnessed the making of a significant milestone in Sports Toto’s corporate history. The Company was privatised on 1st August 1985, relinquishing henceforth, status quo as a state-owned gaming enterprise. Sports Toto is currently a wholly-owned subsidiary of Berjaya Sports Toto Berhad which is listed on the Kuala Lumpur Stock Exchange.
(http://sportstoto.com.my/m_info/profile.htm)

Another more complete version of Sports Toto's history was provided by the Business Times,27 May 1987.

Sports Toto, which will become the second gambling enterprise in Malaysia to be listed (after Magnum Corp), was privatised in 1985, with the government retaining a 30% stake. Presently, bumiputra-owned B and B Sdn Bhd owns 60% and the Melewar group 10% of the company's M$1m capital, which is to be expanded to M$30m before the public offer. This is likely to consist of 5.25m shares of M$1 each, or 17.5% of its enlarged capital, priced at M$2 a share, with B and B offering 4.5m shares, reducing its stake to 45% and Melewar 0.5m shares, diluting its stake to 7.5%.

Then later, in 1988,according to the Financial Times UK, on 12 May 1988:

B and B, owned by Mr Vincent Tan and Malay businessmen believed to be nominees of prominent politicians, will buy 20.1 per cent of the Raleigh group for 38.8m ringgit (US$15m). Raleigh itself has announced two acquisitions: a 32.8 per cent stake in Sports Toto, a fast-growing lottery organisation, and a 55.3 per cent stake in the diversified Berjaya Corporation. Raleigh is paying nearly 90m ringgit for its Sports Toto stake, acquired mainly from the Ministry of Finance, and some 190m ringgit for the holding in Berjaya which is controlled by B and B. Berjaya holds 52 per cent of Sports Toto, 48 per cent of Regnis Malaysia (distributor of Singer products), 28 per cent in South Pacific Textiles, and 19 per cent in United Prime Insurance.


Readers ought to note that as at March 22 2006, B and B was registered only as
a business name, not as a company.

And now to the judgement where it was held that gaming licenses cannot be transferred or assigned.


DATUK YAP PAK LEONG V SABABUMI (SANDAKAN) SDN BHD
[1997] 1 MLJ 587


GOPAL SRI RAM, ABDUL MALEK AHMAD AND MOKHTAR SIDIN JJCA
Judgement written by very learned Sri Ram:
In regards to Sections 5 and 21 of the Pool Betting Act 1967,and providing their reasons why licenses issued pursuant to the Act cannot be assigned or trnsferred:

In our judgment, these two sections -- ss 5 and 21 -- should be read in this
way. The Minister is empowered to issue a licence to any person to carry out
the activities to which the Act applies. He may impose conditions in the
licence. A person to whom such a licence has been issued may carry on those
activities; whether by himself or by his duly authorized employees or
agents. It is in the public interest that such agents are not undesirable
persons; for example, persons with criminal records. That is why the
Minister in the present case imposed a condition in the new licence
requiring the club to submit for the Minister's approval the list of agents
whom the club wanted to engage.

If any person engages in those activities specified in s 21(1) without a
licence, he commits an offence. If a licensee conducts those activities in
breach of the conditions appearing in the licence, he too commits an
offence. The object is to ensure that only a limited class -- the licensee
and his employees and agents -- conducts gaming business.

When viewed in this way, it becomes clear that Parliament intended not
merely to prescribe a penalty but to prohibit the performance of those
activities set out in paras (a)-(c) of s 21(1). The prohibition is not
express. But it is plain enough for us to discern by necessary implication.
If we read s 21(1) in any other way, we will negate its true effect and
frustrate Parliament's true intention.


In interpreting s 21 in the way which we have done, we have had regard to
the whole Act, including its object and purpose. It is plain from a reading
of the Act as a whole that Parliament's intention in passing it was to
regulate and control gaming activity throughout the country. Courts are the
obedient of the will of Parliament as expressed in the words of the written
law enacted by the latter. They must therefore render an interpretation of
the provisions of a statute as best advances the intention of Parliament. By
that we do not, of course, mean that we should re-write a statute. We have
no authority to do so. We must pay heed to the language of the Act and give
it the meaning that advances legislative purpose. And this is what we have
done.

Wednesday, August 29, 2007

Datuk Ian Chin in the matter of Ritz v Osu Sukam

In refusing to register the UK judgement The Ritz Hotel Casino Ltd had obtained against Dato Seri Osu Sukam, a Sabah politician, Ian Chin, of the HC Sabah and Sarawak said:



"Malaysians are a God-fearing people, at least that is what the Rukunegara wants us to be, and to allow a foreign judgment which had enticed a person to gamble on credit and to gamble away the welfare of the family, and leaving the state to pick up the pieces and thus lead one away from the path God has shown us, would surely be against the principle of Belief in God, and believing in God means eschewing gambling since it is a form of covetousness, that is to desire to be rich quickly without working. "In other words, it is against the Rukunegara. Anything that seeks to go against the Rukunegara must surely be regarded as against public policy."

Nice sentiments-unfortunately seems to have ignored Government sanctioned gaming in Sabah, Sarawak, Peninsular Malaysia, the Genting Casino..........
See also comments on this judgement at http://www.raslanloong.com/serlah/SERLAH-12-2005.pdf

Tuesday, August 28, 2007

On Mr Justice Mokthar Siddin ,and THAT judgement

This is from the Parliament of the Government of Malaysia website:http://www.parlimen.gov.my/opindex/pdf/AUM-DR-18-10-1999(TAMBAHAN).pdf

http://malaysianjudges.blogspot.com/2007/08/on-mr-justice-mokthar-siddin-and-that.html



Tuan Lim Kit Siang [Tanjong]: akan mencadangkan:-
Bahawa Dewan ini:

menyuarakan rasa khuatir mengenai tuduhan serius bahawa berlakunya ketidak
senonohan kehakiman yang berlaku dalam bidang kehakiman di bulan Ogos
dalam kes fitnah Asian Wall Street, Journal (AWSJ) iaitu:

Bahawa keputusan mahkamah yang dilakukan oleh Datuk Mohtar Sidin
dalam tahun 1994 berkenaan kes fitnah Tan Sri Vincent Tan lawan
MGG Pillai adalah written in part by the plaintiff’s counsel Dato V.K.
Lingam
and initially typed by the said Dato V.K. Lingam’s secretaries, viz. one Jayanthi and Sumanthi”, bahawa keputusan mahkamah berkenaan telah ‘corrected by the said Dato V.K. Lingam and the final
draft dispatched’ kepada hakim berkenaan dalam bentuk floppy disk .
Bahawa Datuk Lingam menghantar Ketua Hakim Tun Eusoff Chin dan
keluarganya bercuti bersama di New Zealand menyebabkan Tun Eusoff
Chin terhutang budi kepadanya. Percutian berkenaan melibatkan
perbelanjaan penerbangan bersama ke tempat peranginan mewah di
Queenstown dan Christchurch, di mana Dato V.K. Lingam dan Ketua
Hakim ‘posed for pictures with their arms around each other and with
each other’s families’.
memerhatikan bahawa kedua-dua Tun Eusuff Chin serta Datuk Mohtar Sidin
tidak memberikan sebarang tindak balas atau membersihkan nama mereka
sungguh pun telah lebih sebulan sejak tuduhan mengenai ketidak senonohan
kehakiman ini dibuat yang menggoncang dengan seriusnya keyakinan orang
ramai terhadap kebebasan dan integriti kehakiman;
menyeru supaya Tun Eusuff Chin serta Datuk Mohtar Sidin tampil ke Dewan
Rakyat ini untuk menjawab segala tuduhan mengenai ketidak senonohan
kehakiman ini serta mempertahankan integriti mereka.

Monday, August 27, 2007

When Fairuz ,Sri Ram, Mokthar Sidin decided James Foong " did not have sufficient regard for public interest"

In June 1997 James Foong, then of the High Court, ruled in favour of three residents affected by the Bakun dam, ordered the project developer Ekran Bhd to suspend work on the dam in Sarawak state until it complied with Malaysia's Environmental Quality Act 1974. He ruled as invalid an order by Malaysia's Minister for Science, Technology and Environment Law Hieng Ding that delegated powers to Sarawak state authorities to approve the project's Environmental Impact Assessment (EIA). The order had deprived the residents of their right to give their views before the EIA was approved, he said.

"This court shall not stand idly by to witness such injustice especially when the plaintiffs have turned to this institution to seek redress," Judge Foong said in a 44-page judgement. The suit was brought by Tahu Lujah, 70, Saran Emu, 48, and Kajing Tubek, 39, who had wanted EIA reports to be made available to them for their views. (Source:Malaysia's High Court issues ruling against Bakun dam ,AFP,19 June 1996 )

The principal defendants in the matter were the Governments of the Federation of Malaysia and the State of Sarawak.They took the matter on appeal to the Court of Appeal.
On February 17 1997 the Court of Appeal comprising Gopal Sri Ram the then Datuk Ahmad Fairuz Sheikh Abdul Halim and Datuk Mokhtar Sidin, ruled to allow their appeal.

Their reasons included: "In particular he (James Foong) did not have sufficient regard for public interest. Additionally he did not consider the interests of justice from the point of view of both the appellants and respondents." (Source:Grounds for allowing appeal in Bakun case ,K. Kabilan , 30 April 1997 ,The New Straits Times)

Thursday, August 23, 2007

Azmel Maamor of the Federal Court and VK Lingam-Part 2

Despite the findings of the Court of Appeal in the Ayer Molek matter,
and despite the obvious bias, on 29 February 2004, Azmel Maamor then still of the High Court , sitting with ZULKEFLI AHMAD MAKINUDDIN and ZAINUN ALI heard the case of VK Lingam - vs - The Bar Council , which concerned disciplinary action the Bar Council sought to take against VK Lingam in regards to the inappropriate holiday with then Chief Justice Eusoffe Chin, apparently evidenced by photographs of the two men and their families on holiday in New Zealand.

It was Chief Justice Eusoffe Chin who had chastised the Court of Appeal for its finding against Lingam and Azmel Maamor for their conduct in the Ayer Molek matter.

Azmel Maamor's judgement in VK Lingam - vs - The Bar Council,where he found in favour of Lingam, ends with the words:" second respondent .....failed to observe the basic rules of natural justice when it deliberated on the complaint of the first respondent against the appellant"!
http://ipsofactoj.com/highcourt/2004/Part2/hct2004(2)-004.htm

Azmel Maamor of the Federal Court , Ayer Molek ,and VK Lingam

The Ayer Molek Case:

April 10, 1995: High Court Judge Datuk Azmel Maamor (now a Federal Court judge) ordered Ayer Molek Rubber Co Bhd to register and transfer 540,000 ordinary shares to Insas Bhd. Datuk V. Kanagalingam (also known as V.K. Lingam) appeared for Insas.

April 18, 1995: Ayer Molek files an appeal against the High Court's order

July 26, 1995: Ayer Molek appealed at the Court of Appeal. The appellate court said "it was using its inherent power to stop further injustices from being perpetrated".

In a stinging judgment delivered on July 31(1995), Justice Datuk N.H. Chan, sitting with Justice Datuk Siti Norma Yaakob and Justice Datuk K.C. Vohrah, began: "This is a case about an injustice that's been perpetrated by a court of law and . . . a case about abuse of the process by the High Court.... Here the plaintiffs through their legal advisers have abused the process of the High Court by instigating the injustice through misuse of the court's procedure by manipulating it in such a way that it becomes manifestly unfair to the defendants. By doing what they did, these unethical lawyers have brought the administration of justice into disrepute."

Said Chan: "While . . . it does not render the proceedings to be in any way invalid, it may . . . give the impression to right thinking people that litigants can choose the judge before whom they wish to appear."
In conclusion, Chan quoted from Shakespeare's Hamlet. "These observations are made so that people will not say: 'Something is rotten in the state of Denmark.'"



Aug 12, 1995: Federal Court overturned the Court of Appeal's judgment and censured the lower court for its comments.

(Sources http://www.malaysianbar.org.my/content/view/4239/2/ and S. Jayasankaran ;Courting Concerns: Recent cases raise questions about legal system ; Far Eastern Economic Review,7 September 1995)


1 SEPTEMBER 2006:
Dato' Mohd Hishamudin Bin Yunus J, handing down judgment in DATO' V. KANAGALINGAM v. DAVID SAMUELS, JOFF WILD, ROBERT MENZIES WALKER & EUROMONEY PUBLICATIONS PLC:
I have dismissed the plaintiff’s claim....My grounds are as follows...there is a common law principle established as early as 1775 that a person cannot bring an action based on his own wrong (ex turpi causa non oritur action)......That the plaintiff is guilty of wrongdoings, namely, abusing and manipulating the process of court so as to cause injustice to the defendants before the High Court in the Ayer Molek case is clear from the judgment of the Court of Appeal in the case, which is the main subject of the article, as reported in Ayer Molek Rubber Co Bhd & Ors v Insas Bhd & Anor [1995] 2 MLJ 734. The judgment of the Court of Appeal is referred to by the plaintiff in his evidence. It is the plaintiff’s own wrongful conduct in the Ayer Molek’s case that led to the publication of the article.(http://www.malaysianbar.org.my/content/view/4301/27/)

Wednesday, August 22, 2007

Fairuz, Sri Ram & Haidar -not necessary for a company to be in possession of cash.. to satisfy .. court that it can pay costs....

Justice Datuk Gopal Sri Ram , Justice Datuk Ahmad Fairuz Sheikh Abdul Halim and Justice Datuk Haidar Mohd Noor heard an application by Tommy Thomas and others against MBf Capital Berhad and MBf Northen Securities Sdn Bhd for security for costs.

MBf Capital Berhad and MBf Northen Securities Sdn Bhd had commenced action in defamation against Tommy Thomas and others seeking RM 60 million in damages.

The court dismissed with costs three appeals pertaining to the application by MBf Capital Berhad and MBf Northen Securities Sdn Bhd to furnish RM1.22 million as security for costs.
It ruled that it was not necessary for a company to be in possession of cash in order to satisfy the court that it was in a position to pay the costs of an action brought by it in the event that it failed in its suit.

(Source:COURT DISMISSES APPEALS IN RM60 MILLION SUIT.
18 June 1998,BERNAMA Malaysian National News Agency)

MBf Securities' dealing licence had been suspended by the Kuala Lumpur Stock Exchange since May 9 1998. The Securities Commission (SC) had given given MBf Securities until July 11 1997 to submit a restructuring plan to regularise its financial position. It had not been able to do so.
(Source:OSK to buy 70 pct of MBf Securities. 8 July 1998,23:51
Reuters News)


Bank Negara took-over MBf Capital's main subsidiary in January 1999.The firm no longer exists,and has been taken-over by AMMB Holdings Bhd.

Proof for the Chief Justice of Malaysia

Chief Justice of Malaysia Tun Ahmad Fairuz has time and time again called for "proof" that judges have been involved in any form of inappropriate conduct. This blog is devoted to providing the CJ with the evidence.
Commentators are asked to limit their posts to documents already in the public domain.
To start the ball rolling, I , Ganesh Sahathevan (see, not hiding) will begin today collating on this blog matters where inappropriate conduct seems bloody obvious-unless one chooses not to look.

Ganesh Sahathevan
Sydney,Australia

The case of James Foong

The Plaintiffs claimed:

3. Pursuant to the said judgment dated 25.10.2002, the Plaintiffs issued a Writ of Seizure and Sale vide Writ of Execution No. AE-37-59-2002 dated 13.11.2002 against the properties of the said Public Bank Berhad.

4. The said Defendant, Public Bank Berhad thereupon issued their own Bankers Cheque No. 147363 dated 15.11.2002 for RM14,362,312.00 in favour of Penolong Kanan Pendaftar, Mahkamah Tinggi, Kuala Lumpur in purported accord and settlement and satisfaction of the said Writ of Execution.



5. The Plaintiffs requested and required the said Public Bank Berhad to pay the cheque directly to the Plaintiffs but the said Public Bank Berhad refused to do so and directly contacted the 1st Defendant (Mr Justice James Foong) who directed the Senior Assistant Registrar to allow and accept payment by the Public Bank Berhad instead into Court.


7. At the said material time there was no stay of execution.


8. Thereafter the said Public Bank Berhad stopped payment and the said Bankers Cheque drawn on themselves was returned by the Accountant General as "tidak laku".

11 (a) The 1st Defendant who is attached to the Civil Division (but the Plaintiffs' said case was in the Commercial Division) thereupon as agent, employee and/or at the request of the officers, solicitors or employees of Public Bank Berhad telephoned the Penolong Kanan Pendaftar, High Court, Kuala Lumpur, namely, Encik Mohammad Nordin bin Abd Rauf, in charge of the matter to accept the said bankers cheque as payment into court.

In deciding against the Plaintiffs , Mr Justice Vincent Ng said:

Yet nevertheless, in this outrageous case, I am driven to say that this action arising out of an entirely faultless act of the judge in carrying out the duties assigned to him as head of the Civil Division of the Kuala Lumpur High Court, is marked by serious errors, both in its inception and execution, and inspired by false perception of the health of the judiciary.


INDAH DESA SAUJANA CORP SDN BHD & ORS V. JAMES FOONG CHENG YUEN & ANORHIGH COURT MALAYA, KUALA LUMPUR[CIVIL SUIT NO: D1-21-54-2005]



http://www.malaysianbar.org.my/content/view/2334/27/