Table of Contents

Introduction Methods and Procedures Objectives Analysis results of the questionnaire Obstacles Faced To Overcome the Weaknesses Recommendations Conclusion References Appendixes

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INTRODUCTION

Question 1.1

Lingam is being sued for breach of contract while Samang is facing prosecution for armed robbery. There are differences in both cases where the law to be used. Below are the detail explanations about the differences in the mentioned cases.

In general, Law are classified in two categories which are Public Law and Private or Civil Law. Public Law involves the relations between the public or citizen with the state or government. The areas of law under Public Law are criminal law, constitutional law, administrative law and international law. In the other hand, Private or Civil Law concerned with the rights and liabilities of individual parties or citizens among themselves. The areas of law which covers under Private or Civil Law are The Law of Contract, Law of Torts or Civil Wrongs, Family Law and Law of Property.

In Lingam case, hes being sued for breach of contract which falls under Private or Civil Law in the area of Contract Law. Contract Law is a legally binding agreement between two parties or more in which both parties had a mutual understanding in a subject matter. Breach of Contract means a person who are involved in the legally binding agreement do not fulfil the required clause under the contract. The person who is in breach of contract can be sued by the party not at fault for:

1) Compensation for any loss suffered from the breach of contract. 2) To insist the other party to continue oblige with the contract by asking for remedy of specific performance. 3) Applying an injunction in order to stop the other party to further breaching the contract.

While in Samang case which is facing prosecution for armed robbery, Criminal Law under Public Law is being used. A crime is a form of socially unacceptable conduct and this type of conduct and behaviour is not accepted by the public. Armed robbery is a totally unacceptable conduct and is a crime. A crime is considered to be a wrong against the state as the representative of society. In order to protect the society or public, the state will prosecute the accused for the crime done. However, under the law, an accused person is considered innocent until proven guilty. This will involves submission and providing evidence by the prosecutor. The case evidence will be collected by the police and a report of the investigation will be submitted to the Attorney Generals Chambers. The Attorney Generals Chambers will go through the investigation report and decide either to prosecute the suspect or to drop the case.

Question 1.2

There are several ways in settling the disputes between Anne Tan and Rachel Wong with regards to who is responsible for the retaining wall between their houses. Below are the ways which can be used in settling their disputes:

a)

Negotiations

This is an effective way for parties to settling their disputes. Both parties need to discuss with each other regarding the misunderstandings of facts. Any matters which is not agreeable to be brought up and solves between them until they can reach a consensus or agreement.

b)

Mediation

A third party or mediator is used to assist the parties in disputes to negotiate an agreement. However, a mediator will not actively involve in the negotiations process between the parties in disputes. A mediator only acts as a person who provides assistance to the parties in disputes until they reach consensus.

c)

Conciliation

In conciliation, a conciliator will perform an active role for the parties in disputes in order for them to reach consensus or agreement. A conciliator will provide suggestions and propose the terms of settlements. They also provides opinions on the disputes.

d)

Arbitration

In arbitration, there is a third party involvements in settling the issues. An arbitrator will try to settle the disputes by making a decision which binds both parties. The decision made will not in favour of any party. Usually, an arbitrator used will have a specific knowledge of the

dispute. In the case between Anne Tan and Rachel Wong, an arbitrator used could be a Civil Engineer or somebody with the deep knowledge of the disputes.

e)

Litigation

If all the methods in settling the disputes had been used but no consensus reached between the parties, Litigation can be used in order to settle the disputes. Litigation involves taking the case to court in which will cost money and time. The court will hear the disputes of each sides and presented its decision basis the statement given by both parties and evidence provided, and according to the rules of procedures.

Question 2.1

The Federal Constitution of Malaysia is the Supreme Law of Malaysia and the bases of these documents are the 1957 Constitution of the Federation of Malaya which is the backbone of the countrys legal system. The features of Federal Constitutions of Malaysia are:

a)

It Establishes the Form of Government

Federal Constitution establishes a constitutional monarchy and a federal system of the government. In Malaysia, we have our own states government headed by the Sultan, Yang Di Pertua and Menteri Besar who will run the states government administrations. However, the overall control of matters related to the states government will be under the responsibilities of the Federal Government. A constitutional monarchy shows that we have The King as the head of the country and the Prime Minister as the head of the government.

b)

It Details the Power to Make Laws

Malaysia practices the Westminster system of parliament which is bicameral in nature1. Westminster Syatem is a democratic parliamentary system of government modelled after the British Government (the Parliament of the United Kingdom)2. The Parliament consist of 2 chambers which are The House of Senate, is called Dewan Negara and The House of Representative is called Dewan Rakyat. The parliament has the power to make laws for the country and state parliaments can pass laws for any parts of the state in Malaysia.

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OUM Law module http://en.wikipedia.org/wiki/Westminster_system

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c)

It Divides Power between the States and federal Governments

The States and Federal Government are able to make laws and it is crucial to devide their powers of making laws. The separations of power in making laws are required to avoid overlapping of laws and confusions of authority in making laws. As an example, The Federal Government can create laws on defence, internal security and educations while the State Government can create laws about land, agriculture and Islamic Law.

d)

It Separates Power between Different Bodies

This reflects the limitations of the type of powers. This explains that certain bodies have a certain types of powers. The separation of powers are to ensure that not one body having control of all powers in order to avoid injustice or abuse of power.

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Question 2.2

There are 3 main sources of unwritten laws in Malaysia which are:

a)

English Common Law and Rules of Equity

Common Law refers to law and the corresponding legal system developed through decisions of high court and similar tribunals, rather than through legislative statutes or executive action3. It includes the Rules of Equity which is developed to counter the harshness of the law. It represents the principles of fairness and justice which sometimes referred to natural justice of the law. The English Common Law was received and applied in the Malaysian Legal system. The reason was because of the application of Civil Law Act 1956 (Revised 1972), Section 3 (1) Civil Law Act 1956 states that in Peninsular Malaysia, the court shall apply the Common Law of England and Rules of Equity as applied in England until 7th April 19564. However, there are limitation in applying the English Common Law and Rules of Equity which are:

I. There are no local law governing the matter II. It is suitable to local circumstances III. Judicial decisions of the higher courts

b)

Customs/Adat

This is an another source of law in Malaysia. Marriage, divorce and inheritance are being given legal force by the courts of Malaysia. Several customs relating family matters have been incorporated into the local laws which relating to the Malays, Chinese, Hindu and the native customary laws of Sabah and Sarawak.
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http://en.wikipedia.org/wiki/Common_law OUM Module

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c)

Syariah/Islamic Law

The Syariah or Islamic law only applies to the Muslims and administered separately under the Syariah Legal System. It is under the State Constitutional hence being administered under the state legal system with a separate court system which is called Syariah Court. Nowadays, the Syariah law also deals with the Islamic Banking Law and Islamic Family Law.

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Question 2.3 The jurisdiction of the higher court in Malaysia is original, supervisory and appellate. In original jurisdiction, the high court will have an unlimited civil and criminal power. It also has the rights to hear cases by the lower courts and review the decisions made by the lower courts. No cases can be brought to the High Court unless the offender had gone through the trial session or preliminary hearing in the Magistrates court. The High Court can also hear appeals in civil and criminal matters from the Magistrates and Sessions Courts. Appellate Jurisdiction is the power of a court to review decisions and change the decisions made by the lower courts. Under Supervisory Jurisdiction, the High Court have the power to for the records of proceedings in subordinate courts to be inspected, to remove a case to the High Court and to give directives to the lower courts, in the interest of justice and when desirable. The High Court has the followings divisions:

i. ii. iii. iv.

Commercial Dvision Civil Division Criminal Division Appellate Division

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Question 3.1

In forming an agreement, there are 3 basic elements which are:

1) 2) 3)

Agreement (Offer and Acceptance) Consideration Legality of Subject

Agreement (Offer and Acceptance)

Section 2(a) CA 1950 defines an offer to be when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to the act or abstinence, he is said to make a proposal.5 S2(b) states: When the person to whom the proposal is made signified his assent thereto, the proposal is said to be accepted; a proposal, when accepted, becomes a promise.6 In order for an offer to be valid, there must be an Offeror the person making the offer and an Offeree the person accepting the offer. If there are no offeror and offeree, the agreement is void ab initio (no effect from the beginning). An offer must be communicated in which the proposal is deemed complete when it comes to the knowledge of the person to whom it made. Offer and acceptance does not need to be expressed orally or in writing. Acceptance must be in reliance of an offer. Under Postal Rule, acceptance will take effect at the moment it is posted or telegrammed. An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.7

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Consideration

Consideration is known as the price of a promise and is controversial requirement for contracts under common law and is considered by some to be unnecessary as by some. Consideration is also defined as a price for a promise is bought. Consideration may be executor which means a promise in exchange for a promise or executed which means an act done in exchange for a promise. Under consideration:

a) Rules of Considerations I. II. III. IV. Consideration Need Not be Adequate Consideration May be Past Consideration for Guarantees Natural Love and Affection is Good Consideration

b) Part Payment of a Debt is a Good Consideration c) Consideration Need Not Move from the Promisee d) Promissory Estoppel

Legality of Subject

S11 CA 1950 states: Every person is competent to contract who is of the age of majority according to the law to which he is subject. And who is of sound of mind, and is not disqualified from contracting by any law to which he is subject.8 The age majority in Malaysia is 18 according to Age of Majority Act 1971.

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There are exceptions to the rule in which an infant contract can be valid under certain circumstances which are:

1) Contract for Necessaries 2) Contract of Scholarship 3) Contract of Insurance

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Question 3.2

A contractual terms are provisions forming part of a contract which will give rise to a contractual obligation, breach of which can give rise to litigation. Terms can be classified as:

1) Express Terms 2) Implied Terms

Express Terms There are various terms and conditions being stated in an employment contract. These terms includes bonus, wages, hours or work, overtime, leave benefits and others. These terms are being expressed in the employment contract which indicates the entitlement of an employee received from the employer during the contractual period. Example of normal terms indicates in an employment contract are:

a) Hours of works Working hours of an employee at the workplace

b) Rest days Days when an employee is not required to work c) Wages and the rate of pay and advances d) Leave entitlements such as sick leave, maternity leave and others.

However, under section 7 of the Employment Acts stated that the terms and conditions stated in an employment contract could not be less favourable than the terms and conditions stipulates in the employment act.

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Implied Terms

Employer and employee owe certain duties which resulting to the employment relationship under the common law. The duty of each employer and employee has been implied in the employment contract or contract or service. The duties of an employer towards its employee are being listed below:

1) Duty to Provide Work 2) Duty to Pay Wages 3) Duty to Indemnify the Employee 4) Duty of Care

The duties of an employee towards its employer are as follows:

1) Duty of Loyalty and Good Faith 2) Duty of Work in Employers Interest 3) Duty not to Misconduct Himself

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Question 4.1

Answers for sub question 4.1

a) Dev a footballer raised his fist in anger against the referee in a football match. Answer : Tort of Assault

b) Abun locked his wife n the room against her wishes because he suspects she is having an affair with the neighbour. Answer : False Imprisonment

c) Madam Kala is very unhappy with students who continue to take a shortcut through her land to get to their school. Answer : The Tort of Trespass to Land

d) Lim is angry with his neighbour because the roots of his neighbours large trees have blocked his underground pipes. Answer : Tort of Nuisance

e) Agun a mechanic who was supposed to repair Mikes car sold it to Jim. Answer : Tort of Conspiracy

f)

Sheila falsely accused her boss, Mr Bobo of being a wife beater in front of all their colleagues at work. Answer : The Tort of Defamation

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Question 4.2

a) John, a lawyer Answer : Special Standards Appropriate to Professionals

A lawyer is considered as a professional who represented as an ordinary man with having more than average skills and abilities. The standard test of breach is whether the person matched the abilities of a reasonable person.

b) Aida, who is ten years old Answer : Standard Applied to Children

Children cannot plead infancy as a defence to a tort but children and young people can be judge from the objective standard of the ordinarily prudent and reasonable child of the same age. However, if a child causes harm to another child or person, the school authority or parents may be liable in negligence for failing to supervise the child.

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Question 4.3

1) Non Fit Injuria Non Fit Injuria means no injury is done to a person who consents. This means, when a person willingly places himself in a place where a harm might result, knowing that the place have some degree of harm might result, they cannot sue if the harm does in fact happen.

2) Contributing Negligence Contributing Negligence is a defence both to an action in negligence and also on the action of breach of statutory duty. However, an employee negligence usually being treated leniently compared to the negligence conducted by the employer. Contributory negligence must be proved and specifically pleaded by the defendant. Some jurisdictions leave the contributory negligence question by the jury. Contributory Negligence will not be a defence when:

a) The tort is intentional, wilful, wanton or reckless. b) Generally in strict liability cases.

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Question 5.1

A person may become an agent of another without having been appointed as such are called as Agencies of Necessity (S. 142, C.A.). When a person is entrusted with anothers property and it becomes necessary to act to preserve that property although that particular person has no express authority to do so, is called Commercial Agency of Necessity. Agency of necessity was initially relevant only in respect of the carriage of goods by sea, where the Captain of the ship took action to save the ship or its cargo in emergency situation. From there, the agency of necessity was then being extended to those cases which concerned the carriage of goods by land. Referring to the case of Great Northern Railway Co. V. Swafield, where the plaintiff railway company had transported a horse to a station on behalf of the defendant. Due to nobody was there to collect the horse, the plaintiff decided to sent the horse to a stable. After a number of months, the plaintiff paid the stabling charges and sought to recover the amount paid from the defendant. The plaintiff claim succeeded. There was an agency of necessity because the plaintiff was found to have no choice but to arrange for a proper care of the horse.

Before an Agency of Necessity can arise, there are 3 conditions must be satisfied which are:

1) It is impossible for the agent to get the principals instruction or communication with the principal is impossible. 2) The agent action is necessary, in the circumstances to prevent loss to the principal with respect to the goods committed to his charge, as when an agent sells the perishable goods belonging to his principal to prevent them from rotting. 3) Genuine necessity.

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Question 5.2

Partnership is defined by Section 3(1) of the Act as a business organisation which subsits between persons carrying on a business in common with a view of profit.9 In the other hand, Company is a form of corporation, generally registered under the Companies Act. It does not include a partnership or any other unincorporated group of person.

a) Members

Members in Partnership In partnership, the members should not exceed 20 persons except if they are professional partnerships S14(2)d of Companies Act.

Members in Company In company, the members should consist of: 1) The Directors A director is a person occupying the position of director by whatever name called and must be a natural person and of full age. A public company can have 2 or more directors but should not be less than 2 directors. A private company can have 1 or more directors but should not be less than 1 director. The main types of directors are Managing Director, Executive Directors and NonExecutive Directors. Managing Director role is to design, develop and implement the strategic plan for his company in the most cost effective and time efficient manner.

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Executive Director is responsible with the day to day operations of the company and often has a service contract with the company.

Non-Executive Director is a member of the board of director who does not form part of the executive management team.

b) Formation

Formation of Partnership In forming a partnership, the followings are required to be done:

1) Choice of name 2) Partnership Agreement 3) Liability 4) Stationery 5) Insurance 6) Accounts and Auditors 7) Bankers

Formation of Company

There are 5 steps in forming a company. There are:

1) Choosing the type of company 2) Choosing the company name and registered office. 3) Choosing the company officer 4) Submitting the necessary documentation.

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5) Paying the administrative fee for the registered office.

c) Dissolution

Dissolution of Partnership Dissolution of partnership can be done by: 1) Other than By the Court a) Rescission of Partnership agreement b) Dissolution by Notice c) Dissolution by Expiry of Term d) Dissolution by Death e) Dissolution by Illegality

2) Dissolution Requiring Judicial Intervention a) S37(a) & (b): Permanently of Unsound Mind and Incapacity b) S37(c): Prejudicial Conduct c) S37(d): Breach of Contract d) S37(e): Loss e) S37(f): Justice & Equity

3) Consequences of Dissolution 4) Winding up and Distribution of Assets

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Dissolution of Company The company can only be dissolved if the following conditions apply:

1) The company has not traded for three months. 2) The company has no assets or property or cash at bank 3) The creditors must be circulated requesting their permission for the company to be dissolved under this process. 4) Creditors are given three month to consider the request to dissolve the company and can reject the request. 5) The company cannot have changed its name in this period. 6) The company may not have disposed of any property or assets

d) Liability of Members

Liability of Partnership Members S14 states that the liabilities of the partners are joint and several under these sections. S21 of the Act states that the rights and duties of the partners may be varied either expressly or by a course of dealing or the conduct of the agent. Duties of partners as follows: a) Duty to account b) Duty not to make a personal profit c) Duty not to compete with the firm d) Duties in negligence e) Role of partnership property

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Liability of Company Members The Directors fiduciary duties are to: 1) Exercise his power bona fide for the benefit of the company as a whole 2) Avoid any conflict between the directors interest and the companys interest.

The Directors non-fiduciary duties are: 1) Care and skill above the standard of a reasonable man looking after his own affairs. 2) Duties to employees a general statement of intention that the director should have regard for the interest of employees. 3) Creditors in the case of insolvency.

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Question 6.1

Ahmad works for Union Trucks which shows that Ahmad is an employee of Union truck. Raman in the other hand, works for himself and is classified as an Independent Contractor. An employee is a person in the service of another under any contract hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed10. An Independent Contractor is define as a natural person, business or corporation which provides goods or services to another entity under terms specified in a contract or within verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer. He works as and when required. The followings are the difference between Ahmad and Raman.

Ahmad - Employee Social Security refers to benefits payable to an employee such as SOCSO payment for medical benefits and EPF or pension rights Employees get statutory protection from terminations and dismissal via notice requirement and domestic inquiry requirements, compensation for redundancy and unfair dismissal, pecuniary benefit such as paid leave and maternity leave An employer is required to deduct income tax, make and deduct EPF and SOCSO payments from the

Raman - Independent Contractor

Social Security

Not payable to independent contractor

Employment Protection

Independent Contractors have no such protection as their contract may be terminated at any time.

Taxation

An Independent Contractor is responsible for paying his own taxes.

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http://en.wikipedia.org/wiki/Employment

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Employer's Bankruptcy

Common Law Duties

wages of an employee If an employer becomes bankrupt or in the case of a company, which goes into liquidation, an employee will have priority of payment over other creditors with regard to any arears of pay or wages payable to the employee. Both the employer and employee owe each other certain duties under the common law. For example, the employer owes an employee the duty to pay his wages, to take reasonable care to keep the work premises safe for the employee etc. The employee is also under a duty to the employer to provide personal service, to be loyal and act in good faith and to obey the employer's lawful instruction.

An independent Contractor does not get any special treatment and must wait in line with the other creditors for any money owing to him.

Both parties owe only a limited range of duties such as the duty of care in the case of negligence which is owed generally by one person to another to take care when they go about their work or business not to injure other people.

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Question 6.2

The main goal of a trade union is to protect and advance the interests of its members. A trade union is defined in Section 2 of the Trade Unions Act 1949 as any association or combination of workmen or employers, whose place of work is in West Malaysia, Sabah or Sarawak, within any particular establishment, trade, occupation or industry or within similar trades, occupations or industries.11 The objectives behind the formation of Trade Unions are:

1)

Regulating the relations between employers and workmen for promoting good industrial relations, improving the working conditions or economic or social status of the workmen or increasing productivity.

2) Representing either workmen or employers in trade disputes. 3) Promoting, organising or financing strikes or lockouts.

The steps involved in forming a trade union are:

1) Registration Once a trade union is formed, it must be registered by applying with the Director-General of Trade Unions within 1 month of its formation. The trade union will become a legal body once the union received its registration certificate. It will then have certain rights and liabilities under the law.

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2) Recognition The union must first be recognised by the employer as required under the IRA prior to be able to start the process of collective bargaining on behalf of the member after it has been recognised by the employer as required under the IRA. Section 9 IRA outlines the recognition procedure and requirements. Once the union received recognition of a trade union by an employer, it shows that the employer recognises the trade union concerned is the legitimate representative of the workmen.

3) Collective Bargaining When the representative from the Trade Union meets with the representative of the employer, to negotiate and decide on the workmens term and conditions of employment. Under section 2 IRA defines collective bargaining as negotiating with a view to the conclusion of a collective agreement.12 The procedures for collective bargaining have been outlined under Section 13 IRA. The Trade Union or the employer may start the process by giving a written invitation to the other party. Submission of a proposed collective agreement can be presented along the hand out of the invitation. Matters referring to Managerial Prerogatives are not allowed to be included in the collective bargaining process. The content of Managerial Prerogatives

includes promotions, transfers, employment of any persons, terminations, dismissal and others.

4) Collective Agreements One the term and conditions have been agreed by both parties, they will require to sign an agreement called the collective agreement which the validity are 3 years. Once signed, the collective agreement must be deposited with the Industrial Court which then gives it cognisance, if the court is satisfied with the terms and conditions of the collective agreements.
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An agreement which has been given cognisance by the Industrial Court has the following effects:

a) It is deemed to be an award of the Court and binding on all parties to it. This makes the agreement enforceable by the court. b) It becomes an implied term of the employment contract between the workmen and the employer.

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Question 7.1 (a)

By faking her friends signature, the Digital Signature Act 1997 applies. The act enables the law to promote the processing of transactions especially commercial transactions, electronically through the use of digital signatures. The emergence of the digital signature arose out of the need to ensure secured connection between two transactional parties. Digital Signature Act encounters the issues in the open internet network which is prone to problems such as identity, legal commitment, third party interference and manipulation of information. Under Section 73. False Information Act 562, Digital Signature Act 1997 stated that A person who makes, orally or in writing, signs or furnishes any declaration, return, certificate or other document or information required under this act which is untrue, inaccurate or misleading in any particular commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding ten years or both.13

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http://www.msc.com.my/cyberlaws/act_digital.asp

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Question 7.1 (b)

Zamri can be convicted under The Computer Crimes Act 1997, which stated that it is an offence if an individual does any act which causes wrongful communication. The penalty for this is a fine not exceeding RM 25,000 or imprisonment not exceeding three years or both. The Act is applicable to anyone who is operating a computer in Malaysia and also who had committed an offence in Malaysia.

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Question 7.1 (c)

The Communication and Multimedia Act 1998 stated that reading or disclosing the contents of an electronic communication including email messages is a crime. According to this statement, Aida, who is the Human Resource Manager had committed a crime. However, there are several exceptions under this act and the following statement is related to Aini and Aida case.

Your corporate employer may have company wide rules permitting the company to read the staff e-mail, this does not apply if your company does not have any published rules or policies. The law is uncertain and varies from state to state but most states support the employers right to look at its employees email. 14

This statement do mentioned that the employers has the rights to look into the employees email account but it does not specifically state who or a person on what level of positions in the company has the rights to look into the employee email account. The wording used corporate employer is to general. If Human Resource Manager being categorized as corporate employer, then Aida has the rights to read Aini personal emails.

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Intellectual Property is defined as a legal field that refers to the creations of the mind such as musical, literary and artistic works, inventions, designs including copyrights, trademarks, patents and related rights.15 These inventions or designs must be protected in a form of property as to ensure that the creator will benefit from the hard works, researching, creating and developing it. There are several types of intellectual property which are:

1) Copyright 2) Patent 3) Trademark 4) Industrial Design

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http://en.wikipedia.org/wiki/Intellectual_property

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