all the world's a stage

The Limits of a Stay of Winding Up

2012-02-04T21:10:00.000+08:00

The Court of Appeal in American International Assurance Bhd v Coordinated Services L Sdn Bhd [2012] 1 MLJ 369 had the opportunity to clarify the limits of a stay of winding up Order. In my earlier post on Unwinding a Winding Up, I had highlighted the differences between a stay and a setting aside of a winding up Order and the great difficulty in arguing that a winding up Order can be set aside.

As a brief summary of the facts of this AIA case, subsequent to the winding up of the Respondent company, a director of the company had obtained and renewed a fire insurance policy with AIA. It was not obtained by the liquidator. When a claim was later made on the policy, AIA discovered that the company had been wound up and repudiated the policy. The company then successfully obtained before the High Court an Order under section 243 of the Companies Act 1965 for a permanent stay of the winding up and, which is relevant for this commentary, a validation of all dealings and agreements from the date of winding up until the date of the stay Order.

The Court of Appeal did not disturb the first limb of the Order allowing the permanent stay. However, for the second limb, the Court of Appeal held that the Court had no jurisdiction, whether under setion 243 or any other provision under the Companies Act 1965, to allow for such validation for the period post-winding up Order until the stay Order.

While the principles on the grant of a stay of a winding up Order are now quite settled, this case does confirm that the effects of a stay of a winding up can only take place upon the date of the stay being granted. There is no retrospective effect which would allow for the unwinding of a winding up so that the stay takes effect as if there was never any winding up. Any of the effects and repercussions of winding up would remain up until the date of the stay. This is unlike a setting aside of a Court Order where the Court Order would be deemed as never having been granted (and where in a lot of circumstances, one could then argue that the Order and any effects of the Order are reversed).

This decision highlights the difficulties under the present law where the Companies Act 1965 does not allow for a rescission or a setting aside of a winding up Order. While applicants may attempt roundabout ways of stretching applications of a section 243 stay or even a section 223 validation of disposition of properties, the present law does not appear to allow for the reversal of the effects of a winding up Order.

Glimpse into Dragon Boating

2012-02-01T12:42:00.000+08:00

This video clip from Dragon Boat Innovate, a Singapore company run by a good friend of mine, offers a glimpse into the passion and sacrifice involved in dragon boating as it brings people together.

Dragon boating is more than a sport. It's a way of life.

Chinese New Year

2012-01-20T23:05:00.000+08:00

It's been an absolutely hectic work week. I am so glad that the Chinese New Year holidays are here. I am very much looking forward to going back to Singapore tomorrow morning.

It will be the usual Tour de Malaysia for me, with me flying down to Singapore. Then, off to Johor Bahru for reunion, and then to Malacca for a few days, back to Singapore and then finally returning to Kuala Lumpur.

Dragon Boating: The Year 2011 in Review

2012-01-17T23:55:00.001+08:00

It's already 2012 but I do want to look back on 2011 on what I achieved in dragon boating, especially with the Year of the Water Dragon just around the corner with the Chinese New Year.

I think I can say that 2011 was the year where I made a real personal breakthrough in dragon boating. I managed to achieve several dreams I have had, I managed to grow as a paddler and a coach, and I managed to share my passion for dragon boating with a whole new group of people.

The year started out with the Skrine team, again facing a rebuilding process. A number of senior paddlers had left and we had an enthusiastic group of new paddlers joining the team. The team grew to a record number, with me having to often take out two boats out during training. The team significantly benefited through us getting a coach down from Singapore to come down for several workshops. While not cheap, it brought a lot more structure to the training and the types of drills we could do. I in turn benefited a lot in my role as pseudo-coach.

I would now have to coach the training sessions for the team and bring in elements such as videoing the paddlers, and then reviewing it with the team members. Incorporating specific drills to work on technique, or synchronisation or endurance.

This then brought us to our first competition for the year, on Sunday 29 May 2011, at the Ministry of Youth and Sports' Water Sports Festival in Putrajaya. This was held in conjunction with the One Million Youth Gathering

We fielded two boats, one being the Men's boat and the other the Women's boat. We were training up new steerers for this season and we needed to get female steerers to allow them to steer for the Women's races in the competitions ahead. So this race was going to be a very good warm-up event. The Men's boat went off-course slightly during the race which put us out of contention. I took over the steering for the Women's race and we advanced from the heats in the morning and made it into the 6-boat finals.

In the finals, the Skrine Dragons secured fifth position, narrowly missing out on fourth place by just 0.3 seconds. The team had great fun at the competition and secured a cash prize for our fifth place finish.

With our first competition comfortably tucked under our belt, we were then off to a major competition at the Penang International Dragon Boat Festival on 11 and 12 June 2011.

It was a trip filled with a lot of eating, a lot of paddling and a lot of fun. It was by far the hardest competition I had ever taken part in. There were top-level international teams at the race, with a few national teams using the event as a warm up for the SEA Games. Quite a sight seeing those teams from Indonesia and Singapore in action.

As I arrived back from the Penang competition (where we got our butts soundly kicked and we ended up last in almost all our races), it was then time for me to hold the first-ever dragon boating introductory workshop for the KL Bar.

It's always been one of my dreams to try to promote dragon boating to the Bar. I imagine law firms and other lawyers getting hooked on dragon boating like I am. So on Saturday 18 June 2011, I held the "How to Paddle a Dragon" workshop. I wouldn't have guessed it then, but that workshop was the start of something very special with the beginnings of the KLBar-barians team. But more on that later.

A write-up on the introductory workshop can be seen here. Managed to train up complete newcomers in the course of one session and from then on, we started holding regular training sessions for the newly-formed KL Bar dragon boat team.

By this time, I had to conduct training sessions on both Saturday and Sunday. On Saturday would be the regular training sessions with the Skrine Dragons while on Sunday, I would be training the KL Bar team.

It was also time for me to embark on my next project. It was yet another dream of mine that I had been having for several years now. For the firm to stage a dragon boat competition and to promote it to our clients. It would help to promote dragon boating to the corporate community, share with our clients the teamwork and camaraderie that can be achieved through dragon boating while also promoting a charitable cause.

It was time for the inaugural Skrine Regatta: Paddling for Charity. I generated a trailer to promote the event to the potential participants:

Come 1 October 2011, it was then time for the staging of the Skrine Regatta. A team of five corporate teams would join arms that day, paddle together, all for charity. In the lead up to the race, training sessions were organised to allow the new teams to master the basics of paddling and to experience first-hand the bonds that are built on and off the boat.

With the help of so many of the organising committee members, the Skrine Regatta was successful beyond my wildest dreams. Every detail was more or less executed according to plan and everyone, from the paddlers to the supporters, enjoyed themselves that day.

This video of all the pictures taken that day which just about captures the excitement of months of preparation, the setting up on the day, the giving of the cheque to our adopted charity, the eye dotting ceremony to breath life into the dragons, the heats, repechage and the Grand Finals.

In the end, we were narrowly beaten in the Grand Finals although the results itself was not so important.

Barely a few weeks after the Skrine Regatta on 1 October 2011, the team had to already focus on the Malaysia International Dragon Boat Festival on 21 - 23 October 2011. By this stage, two of my teams had already been training hard for this competition. The Skrine Dragons as well as the newly-dubbed KLBar-barians dragon boat team.

With the trainings leading to the competition, I guess I went through a period of frustration and a bit of disappointment. With low attendance and with the lack of a full boat practicing out on the water, it did not bode well for preparation for the competition. In part, we had never experienced such a long competition season before. We would normally train hard for 3 - 4 months, finish off with one competition and then go back to our ordinary lives. It was difficult to ask for more of the dedication and sacrifice.

But at the same time, it was a real pleasure to see how new team members had grown and gotten stronger. Newcomers to dragon boating had now become so passionate for the sport. It was humbling for me to play some small part in that process.

The competition weekend proved to be exciting. Three days of intense racing and with me helping out on two teams.

For the KLBar-barians, they met my secret ambitions for them to clinch 1st place for the Beginners race. They executed the race strategy perfectly, they pulled ahead quite quickly at the starts and then just powered to the finish. I steered for that race and I could feel the pulse of the boat as it charged across the water.

Even for the other races, and this being the team's first ever competition, great timings were set for all the events.

Amid all the racing, I also juggled sitting for the IDBF Race Officials Grade 1 certification and I managed to get myself certified. This will allow me to officiate at future international races (which I am already planning to do for this year).

For the Skrine Dragons, we finished off the competition with our best-ever haul at any competition, walking away with two Bronze medals in the Malaysia Inter-Corporate Mixed-12 category and the International Corporate Mixed-22 category. Safe to say, I was one very proud coach of both the teams for all the results and for seeing the hard work paying off.

The year was still not quite over in terms of dragon boating. I had been in contact with the coach of the MMU dragon boat team and organised a little dragon boat trip for paddlers from both the Skrine Dragons and KL Bar to head down to Malacca for a weekend training and race session with the MMU team.

The MMU team was a very strong dragon boat team and I had seen their good results at previous competitions. It was going to be a good trip to help my paddlers take a trip together, experience training in a different environment and then to pace themselves with a strong team.

We headed down the weekend of the 3 - 4 December 2011 where we put up at Kings Hotel in Ayer Keroh as we would be using the MMU boats at the Ayer Keroh lake nearby.

Training was definitely interesting with us having to get used to more 'old-school' type boats as well as the different lake environment. The Ayer Keroh lake was sandwiched between the gold course and the zoo which made for quite beautiful surroundings. We squeezed in a light Saturday afternoon session, having already stuffed ourselves with chicken rice balls for lunch. It was then off to the Portuguese Settlement for dinner and then an early lights out.

The next morning, we then headed back to Ayer Keroh lake for the start of our friendly races. It was an informal event, with MMU loaning us paddlers here and there to make up the numbers. On the spot, we then discussed what races to run. We started off with a 700m race in a triangle route round buoys, then a straight up sprint race between the Men's boat and then the Women's boat, and finally a dragon boat tug of war.

We, being a combination of paddlers from both Skrine and KL Bar, pretty much lost the races but had a lot of fun in doing so. The long distance race was something different for a lot of the paddlers and also showed us how we had not been training for any of the longer distance races. The sprints were a close affair and then the highlight of the day was the agony of the tug of war.

Each pull of the stroke was extremely heavy and even after a few seconds of tugging away, the paddlers were exhausted. The dragon boat tug of war should definitely be brought to Putrajaya as an event as well.

In the end, everyone made a lot of new friends that day. Paddlers sharing a common love for the sport. I am sure it's only the first of many exchanges and trips for all the teams involved that day. A big thanks to MMU for hosting us that weekend and even preparing a whole lunch spread after the race. We can't wait to reciprocate the hospitality.

So that, in a nutshell, captures snapshots of the 2011 dragon boating year. Dragon boating is still going on even in this new year with a lot of plans in the pipeline. Can't wait to see what this new year has in store.

Resolution of the Dire Conflict?

2012-01-07T15:07:00.000+08:00

I had earlier blogged about the dire conflict facing Liquidators arising from the Court of Appeal decision of Dato' See Teow Chuan. The reported Court of Appeal decision can be read at [2010] 6 MLJ 459 and I had pointed out the grave implications arising from the Court of Appeal decision relating to Liquidators, Receivers (and Managers) and auditors.

This Court of Appeal decision had proceeded to the Federal Court and based on this Bursa announcement, the Federal Court had allowed the Liquidators' appeal.

It will be very interesting to read the Federal Court's written grounds of judgment. I expect that the reasoning set out in the High Court decision (See Teow Guan & Ors v Kian Joo Holdings Sdn Bhd & Ors [2010] 1 MLJ 547) would be reinstated.

Putik Lada: A passion that keeps them in practice

2011-11-30T12:20:00.001+08:00

Last week, I contributed an article to the Star's Putik Lada column. It is a bi-weekly column of the Bar's National Young Lawyers Committee featuring articles and viewpoints of young lawyers from across the country.

I wanted to share how important it is to have passion for what you do. Hopefully the message still comes across whether you are in legal practice or just working in general.

A passion that keeps them in practice

Legal practice is never boring. The law is ever-evolving. It forces you to keep learning the latest legal developments as well as to update yourself on the current affairs in the relevant industries.

A FEW months ago, I was moderating a session at the Young Lawyers Convention 2011 on the working conditions of young lawyers.

With me were three Speakers with different levels of seniority at the Bar.

In that session, questions were posed by various lawyers highlighting their perspective on the practice and concerns on issues such as long working hours and low pay.

Midway through that lively discussion, a question was posed to the four of us on what motivated us to still stay on in practice.

The first Speaker spoke of the thrill of litigation and being up on his feet in court.

He described that feeling as almost intoxicating and that continued to spur him on in practice.

Another Speaker shared his perspective on how he enjoyed being able to manage a matter from start to finish and he enjoyed the sense of satisfaction in being able to assist his client on legal matters.

The third Speaker talked of enjoying the intellectual challenge of practising law and the joy of still read- ing and learning the law.

I then spoke on how I could relate to each and every aspect highlighted by the Speakers.

I expanded on my personal experience which I will share in this article.

Firstly, I touched on how I had ended up doing law.

Unlike a number of lawyers I know, I never had a deep yearning to study law when I was in secondary school or college.

Without quite knowing what I should study in university, I settled for doing a law degree since I thought it would give me a good foundation to go into other fields if I wished to.

While doing my law degree, I enjoyed studying the subjects but my desire to become a lawyer only crystalised when I sat for the English Bar.

With the Bar’s practical training, I then knew I wanted to be a litigator as I wanted to put forward arguments in court.

When I returned to Kuala Lumpur, I sought out a pupillage position to do litigation. I ended up starting my legal career at a law firm which was a very good fit for me.

By chance, I ended up practising litigation in an area of law – that of company law – which I had no knowledge of at the beginning.

But it has since become a subject I am very interested in and passionate about.

Legal practice is not easy. Similar to the experiences shared by the other lawyers at that working conditions session, I have gone through periods of late nights and working on weekends which are almost de regiueur in the legal profession.

I have been frustrated with the delay in court proceedings and I have also many times felt aggrieved about low salaries.

However, a lot of that frustration melts away once I set foot in the courtroom.

All the long hours somehow pay off when I am able to put forward my legal arguments in court or when I am on my feet cross-examining a key witness at a trial.

There is an adrenaline rush of submitting in court and that sense of satisfaction of having argued a good case.

Legal practice is never boring. The law is ever-evolving. It forces you to keep learning the latest legal developments as well as to update yourself on the current affairs in the relevant industries.

What I shared with the audience that day was that if they were unable to relate to any of the narratives shared by the speakers and I on why we were still in practice, then it may be a sign that some form of change is needed.

Maybe a change in the law firm they are working in, perhaps a move into setting up their own law practice or even a switch in the area of law they were practising.

Without passion for what you are doing, it is difficult to soldier on in practice since the profession demands so much out of you.

Long hours are a necessity in order to hone our skills and irregular working hours are the norm since we are answerable to the demands of our client.

With a tinge of pessimism or realism (depending on how you look at it), legal practice in Malaysia is also not going to make you incredibly rich and I do not expect to draw an astronomically high pay.

So to last in the profession, I would think we need to enjoy what we are doing.

There is a saying that once you find a job you love, you will never work a day in your life.

This brings back into focus the question posed from the floor that day – Why am I still in practice?

It is because I am still passionate about the work I do.

A Corporate Race Like No Other

2011-08-12T22:02:00.000+08:00

Thankfully, I have had a bit of time to devote some time to one of my passions. Dragon boating.

It has been quite a busy period with the organisation of a dragon boat race specially targeted to corporations. It has been very exciting and ever since I got hooked on dragon boating, it has always been one of my dreams to organise such a corporate dragon boat race. Dragon boating is still not big in Kuala Lumpur, which is a shame since it is a sport that fits in very well with the corporate team-building culture. Hopefully with this event, more corporations will be exposed to how fun dragon boating is.

I put together a 'movie trailer' (with the magic of iMovie) for the dragon boat race:

I am now just hoping that there will be enough entries. The response has been a little bit slow and with the race on 1 October 2011.

After Paddling with a Dragon

2011-07-23T00:38:00.000+08:00

The inaugural dragon boating workshop for the KL Bar lawyers was carried out on 18 June 2011. It has been something I have been thinking about for a long while now - to introduce dragon boating to more people. I am comfortable enough with my basic knowledge of dragon boating to hold an introductory session and the sport of dragon boating just fits in so well within a corporate culture. A group of individuals coming together to work as a team and to build camaraderie.

Elements of my workshop included a slideshow presentation to explain the bigger context of dragon boating. The history and culture, the international sporting scene and the different aspects of dragon boating.

The first thing that needs to be mastered by any paddler is to have basic paddling technique down first. One has to master the dragon boating stroke before thinking about anything else.

I couldn't ask for a more enthusiastic bunch of new paddlers. All of them were very keen on picking up dragon boating and I was very proud of them as I could see them applying everything that they were learning.

There are several obstacles to immediately picking up dragon boating. The first difficulty is obtaining equipment. In KL, the only readily available facility is all the way in Putrajaya where you can rent dragon boats, paddles and equipment, and it is not that well publicised and not that cheap. Next, you need at least some basic coaching and there are no coaches available. You need to be inside the scene, which is still heavily dominated by inter-government sport clubs. You will also need an experienced steersperson to steer at the back of the boat since it is very difficult to just have an absolute beginner pick up steering.

My aim with this workshop and with further workshops and training sessions for the KL Bar is to try to lower all these obstacles and hurdles. I have trained up other colleagues who are now experienced in steering and they very kindly agree to help steer at the KL Bar sessions. I then have to step in to give some basic coaching although I myself still have so much more to learn by observing other coaches and other teams.

But there is this huge sense of accomplishment when I can see for myself the impact of the lessons on a group of new paddlers. They excitedly come up to me during the break to ask me more about competitions, what is it like, whether they can form a team.

Even after just one hour of paddling for the very first time, the boat is already looking in decent form as seen below:

So it looks like I will be able to form a KL Bar dragon boating team and our aim is to compete at the Putrajaya competition in October. We will be able to join in the corporate category hopefully and I can't wait to see the new team's faces when they experience a competition for the very first time.

Bersih

2011-07-11T00:47:00.002+08:00

The 9th of July marked a day where thousands of Malaysians took to the streets. It was under the banner of Bersih, seeking clean and fair elections. The Government and other critics dismissed the rally as an Opposition initiative to undermine the Government. I think what was clear though that for the people who marched and for those in support of the rally, it was an expression of the people's anger towards the Government.

The Inspector General of Police was quoted as saying that only 6,000 showed up for the rally. The numbers are estimated to be closer to 50,000.

In the days leading up to 9th July, there were (ridiculous) stories by the police on how they had found hidden stashes of weapons and the police immediately linked the parangs and Molotov cocktails as being weapons to be used by the protestors. The rally itself on 9th July proved to be peaceful but it was the police that employed heavy counter-measures. In typical fashion, tear gas and water cannons were used and there are also reports and videos of police kicking a few protestors.

The video below captures the event very well. Definitely worth viewing.

Another good video:

Be Safe Everyone

2011-07-08T19:44:00.000+08:00

I am writing this on the eve of what promises to be a massive rally of individuals. This is all triggered by Bersih being a coalition pushing for electoral reform in Malaysia, seeking clean and fair elections. We have then since seen two other groups, being Perkasa and UMNO Youth, also intending to stage their own counter-protests in Kuala Lumpur.

With the (unjustified) crackdown by the Government, we have seen massive road blocks being put in places as far as Shah Alam and Subang, KL city is in lockdown mode and with LRTs and buses being diverted. All this, the Government and police assures us, is for public safety. The mainstream media has shed all attempts of pretending to be neutral and has spoken out heavily and spun stories against the Bersih rally.

All this has done is to infuriate the public. Where there were once fence-sitters or people who weren't aware or in support of the Bersih rally, many of them have now sworn to walk and join the rally. I am now seeing friends who never once participated in such events all preparing to fight off the inevitable water cannons and tear gas tomorrow. They are reading guides on how not to be arrested and on their rights on being arrested or detained. I have friends coming back from overseas to join in the rally and others who are now camping overnight in KL in order to avoid the fort of road blocks being set up right now.

On my end, I am volunteering to be on the Bar Council urgent arrest team. Having no knowledge on criminal law, I joined more than 100 lawyers to attend a training session. I saw corporate conveyancing lawyers or senior civil litigators, all attending and learning the basics of how to interview arrested individuals and to argue at remand hearings.

I have never seen anything like this. I have never gone through anything like this. I just hope that everyone will be safe. That everyone exercises restraint. Be safe.

No Call for me

2011-06-29T22:06:00.002+08:00

For now at least, there is no way for me to get Called to the Singapore Bar. I don't satisfy the requirement of being a citizen or a Permanent Resident and I knew that the Ministry will not usually grant exemption from this requirement. I did sit for the Part A exams knowing about this risk. It was still a good experience having studied for that exam though.

Namewee Wanna Meet the PM

2011-06-28T18:13:00.000+08:00

Saw the following videos from my friend Xes and the videos are definitely worth a watch. Namewee has in the past attracted controversy, with his Negarakuku video and he is no stranger to using expletives.

His videos below document his efforts of trying to obtain government funding for him to film a movie based on 1Malaysia which he wanted to call 'Nasi Lemak 2.0'. Watch and find out the obstacles in his way.

Penang Dragon Boat Competition 2011

2011-06-27T00:14:00.001+08:00

It has been many weeks of dragon boat training for the team. Every year almost feels like a rebuilding process with around half of the team leaving and then having to train a new batch of newcomers. This season saw a very enthusiastic team of new paddlers and with 35 of us, it was our largest group of dragon boaters ever so far.

We were excited with being able to travel outstation for the Penang International Dragon Boat Festival held on 11 and 12 June 2011. The team started our journey up to Penang on Friday 10 June itself in order to put in a practice session in the afternoon at the Teluk Bahang dam. This then allowed us to make a pitstop in Ipoh to savour some delicious Ipoh food.

We took away some of our favourite egg tarts (which were sold out within a minutes of the egg tarts being brought out, luckily we called ahead to book) and then went to the 'Hall of Mirrors' shop to eat Ipoh sar hor fun as well.

We then continued on to Penang where we would be staying at the Naza Talyya hotel. It is just at the edge of Tanjung Bungah beach and quite a decent hotel for the price. It has beach access and the rooms are decent enough.

The first day of races would be on Saturday and there was a change in format this year. While previous installments of the Penang competition were races over 500m, this year had 250m races as well. So Saturday's schedule would be for the 250m races while Sunday was over the 500m distance. We took part in just two races on Saturday to serve as warm-up races for our main 500m events on Sunday.

We had to wake up at 6am on Saturday, in order to eat some breakfast and then get ready for our first race at about 8.30am. We were at the Teluk Bahang dam nice and early and we also had to then set up all our paraphernalia at our tent.

We very quickly found out that the level of the competition was very high this year round. We were just about the only corporate team competing and were going up against the likes of the national teams of Indonesia and Singapore which were warming up for the SEA Games. The drawback of the Penang competition is that it does not have any separate corporate category so everyone is thrown into the mix.

We were last in our races on Saturday, and this trend would continue for our races on Sunday. But I knew the experience at the competition would be invaluable and we were in the end treating this as a mid-season race. We would continue with our training after that.

Saturday still allowed us to squeeze in Penang food. For lunch, a whole bunch of us headed to Swatow lane. The food there isn't as good anymore but I still like their ais kachang dessert.

For dinner, we would be having a team dinner together where we walked across from our Naza hotel to the nearby food court. The place surprisingly had a good selection of food and we stuffed ourselves that night,

On Sunday, it was again a very early start to the day with all of us being up at 6am, grabbing some breakfast and then getting ready for an 8am race. It was going to be a particularly gruelling day of racing for some of the women due to the number of events we signed ourselves up for. Some of them would have to race about 7 races all in all for the Sunday alone.

We did end up last in all our heats and we weren't even close to beating any of the other teams. But the paddlers did not let that temper their spirit. Many of them wanted to now train even harder to emulate some of the other good teams. It was a definite fun experience for everyone and hopefully it will serve to fuel everyone to greater heights at our next competition.

Our next target will be to race at the Malaysia International Dragon Boat Festival here in Putrajaya, on 20-23 October 2011. The paddlers are already itching to get back on to the waters to start training again.

How to Paddle a Dragon

2011-06-17T22:56:00.000+08:00

I will be conducting an introductory dragon boat workshop for KL Bar members this Saturday. I've entitled the workshop 'How to Paddle a Dragon'. I'm quite excited about it. I limited the workshop to only 20 paddlers, so that we can fit comfortable into one dragon boat. All the slots were filled up very quickly in less than a week.

I've always wanted to go out and promote dragon boating, especially at the Bar and within the corporate sector. It's just a fantastic sport, lots of fun, builds so much team work and camaraderie and the perfect team building exercise.

So I'm hoping for a good workshop tomorrow. Will then see what the future holds, whether more intro workshops or whether more regular training sessions can be held.

2 Weeks in London

2011-06-15T21:56:00.000+08:00

I recently returned from a 2 week trip in London where I was there for work on an arbitration hearing. The experience working there was fantastic and I did manage to sneak in some sightseeing as well.

Having stepped off the Heathrow Express, I then come across the familiar sight of Paddington Station. I hopped into a cab and then I was off to Citadines Holborn which will be my home for the next 2 weeks or so.

The weather was a little bit chilly when I arrive in London but still not as cold as when I was last down in the UK. The rest of the time I am in London, the temperature stays between 12 - 20C and with quite a lot of sunlight to brighten up the streets.

With Citadines being a home away from home, my working hours are spent between working at chambers at the International Dispute Resolution Centre (IDRC). The IDRC is a very pleasant 15-minute walk away from chambers and I get to take in the fresh English air with the daily walk to and fro.

Taking in some sights along the way, I pass by Lincoln's Inn on my daily route to and from the IDRC.

A daily occurence as well is seeing the barristers' clerks walking with boxes and boxes of documents, whether walking to the nearby Royal Court of Justice or from the IDRC as well.

A view of Fleet Street, which is where the IDRC is located along. Having worked intensively for just about 2 weeks, seeing the completion of a London arbitration, I am very envious of the life led over there. Advocacy and litigation strategy all operate at a different level than back in Malaysia.

Despite the work, I did have time to walk about London a bit. Gray's Inn was but a 10-minute walk away from our service apartments so I went to visit my Inns of Court.

Covent Garden was also within walking distance and I got to visit some familiar haunts over there, starting with the market place with buskers out in full swing.

After doing some window shopping, I then got to visit my favourite mussels place, Belgo. Eating the bucket of mussels again, it just didn't seem to be as tasty as I remembered it to be. I remember how we would rush to order mussels at the beat-the-clock sessions.

I had time to meet up with my brother as well, and he made the trip down from Cambridge. I particularly enjoyed our time walking through Kensington Gardens, braving the strong winds and heavy pollen in the air, as we cut across from Bayswater to head into the Kensington area. Along the way, we passed the Royal Albert Hall.

It was interesting to also try out the rented bicycles spread out all over London. I saw many Londoners using these rented bikes and I tried it out as well. It costs GBP1 for a day's registration and then there will be fees for use during the day. I only used it for half an hour, so I got to use it for free. There is even an iPhone app for you to track the different bicycle stations, with the number of available bikes, and which will plan your route for you too.

I had time to squeeze in two shows and I am glad I picked two great shows to catch. The first one was Woman in Black, which is a much talked about play. I have never enjoyed plays, always preferring musicals but I had heard a lot of friends talk about it. The theatre was also within walking distance of our apartment.

The show was great! It only features 2 actors and the show remained gripping throughout. There were scares and screams, especially with the theatre filled with school children who would scream at the top of their lungs at some of the scary scenes.

The second show was Wicked, a musical. Again, we had heard a lot of people rave about this show. Without having much knowledge about what the show was about, we went in and then got transported into the magical world of Oz as we slowly followed the life of the Wicked Witch of the East. Highly recommended show to watch!

The trip ended too quickly I felt. There was nothing like crashing back into reality in Malaysia as I headed back into the office to see all the pending work waiting for me. Having left London, I had to then go back into translating an English affidavit into Malay. How wicked *sarcasm*.

Unwinding a Winding-Up?

2011-05-06T21:13:00.003+08:00

This article was originally published in Skrine's Legal Insights and I drew inspiration from Fahri Azzat's article on LoyarBurok which featured the Federal Court decision below.

A commentary on Megah Teknik Sdn Bhd v Miracle Resources Sdn Bhd

The law allows the Court to exercise its discretion to set aside a Court Order under specific circumstances, for instance, where an Order has been granted in the absence of one party, or where there has been a contravention of a substantial provision of law.

In the case of a winding up Order, the authorities strongly suggest that a Court has no jurisdiction to set aside a winding up Order. Instead, an applicant must apply for a stay of such an Order under the Companies Act 1965 (“the Act”). However, it can be argued that the Court still has some limited jurisdiction to set aside a winding up Order where the Order can be shown to be null and void due to illegality or lack of jurisdiction.

All these principles will be analysed in light of the Court of Appeal decision in Megah Teknik Sdn Bhd v Miracle Resources Sdn Bhd [2010] 4 MLJ 651 (“Megah Teknik”). This decision was affirmed by the Federal Court (unreported judgment dated 13 October 2010 in Federal Court Civil Application No. 02(i)-29-2009).

BRIEF FACTS AT THE HIGH COURT

The Court of Appeal decision arose from a decision of the Kuala Lumpur High Court dismissing an application to set aside a winding up Order.

The petitioning company (“the Petitioner”) had presented a winding up Petition against the respondent company (“the Company”). The Company failed to enter an appearance and failed to file an affidavit to oppose the Petition. The Court then made a winding up Order against the Company.

Almost a year later, the Company filed an application to set aside the winding up Order on the ground that the winding up Order was made in default as the Company had no knowledge of the winding up proceedings. The Company claimed that it only became aware of the winding up Order when one of its directors had been blacklisted.

In the unreported grounds of judgment (Miracle Resources Sdn Bhd v Megah Teknik (M) Sdn Bhd [2008] 1 LNS 362), the High Court held that it was bound by the Court of Appeal decision in Vijayalakshmi Devi d/o Nadchatiram v Jegadevan s/o Nadchatiram & Ors [1995] 1 MLJ 830 (“Vijayalakshmi”). This decision held that a winding up Order cannot be discharged or rescinded after it had been made and the only remedy was to apply for a stay of the winding up under section 243 of the Act.

The High Court declined to follow other High Court authorities which allowed for the setting aside of a winding up Order.

THE COURT OF APPEAL

The Court of Appeal adopted the approach of the High Court in upholding the decision of Vijayalakshmi. It was pointed out in Vijayalakshmi, and noted in Megah Teknik, that there are no express provisions in the Act or the Companies (Winding up) Rules 1972 (“the Rules”) which allow for a setting aside or variation of a winding up Order. This is unlike the English Insolvency Rules 1986 which contain such a provision.

In Megah Teknik, the Court of Appeal held that a Court cannot invoke the general provision under the Rules of the High Court 1980 allowing for the setting aside of an Order made in default. This was because the Act set out specific provisions pertaining to winding up, including a stay of a winding up, but the Act was silent on allowing for a setting aside. Hence, the proper remedy in Megah Teknik was to apply for a stay under section 243 of the Act or to appeal against the winding up Order.

However, the Court of Appeal did leave the door open for a possible exercise of inherent jurisdiction to set aside a winding up Order under certain circumstances. The Court of Appeal did not explicitly list out these circumstances but adopted the Federal Court decision of Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd [1998] 1 MLJ 393 (“Badiaddin”). It was held by the Federal Court that there was inherent jurisdiction to set aside an Order where there was a contravention that defied a “substantive statutory prohibition so as to render the defective order null and void on ground of illegality or lack of jurisdiction.”

THE FEDERAL COURT

Leave to appeal to the Federal Court against the Court of Appeal decision was allowed. The question of law was whether a winding up Order could be set aside when obtained in the absence of the Respondent company. However, the Federal Court felt it was not proper to address the question as the Petitioner was not present and was not represented by solicitors. While declining to answer the question of law, the Federal Court nonetheless also held that there was no merit in the appeal and dismissed the appeal. Therefore, the Court of Appeal decision in Megah Teknik was upheld.

COMMENTARY

The upshot of Megah Teknik is that in general, one can only apply to stay a winding up Order. In circumstances like Megah Teknik, where the winding up Order was obtained in default, this decision suggests that there is no recourse to apply for a setting aside.

However, the Court of Appeal recognised that there would still be circumstances where the Court can exercise its inherent jurisdiction to set aside a winding up Order. Such circumstances could be where there was illegality or lack of jurisdiction. For instance, there may have been breaches in complying with the requirements under the Act and the Rules. Those breaches may have resulted in a respondent company not even having notice of the winding up Petition. Such an argument did not arise in Megah Teknik as the procedural requirements were complied with.

There are crucial differences between a stay and a setting aside of a winding up. While a stay of a winding up Order amounts to a total discontinuance of the winding up proceedings, there are several hurdles in applying for such a stay. The interests and views of the creditors, contributories and the liquidators must be taken into account in assessing whether a stay should be granted. On the other hand, for a setting aside, such a test would not be relevant as the focus would be on whether the winding up Order was granted illegally or with lack of jurisdiction. Further, for a stay, the records with the Companies Commission of Malaysia would still reflect the winding up but that it was now stayed. For a setting aside, there would not have been a valid winding up Order in the first place and the records should not reflect any winding up.

For the reasons discussed above, it is submitted that the Court ought to have jurisdiction to set aside a winding up Order. Echoing the words of Mohd. Azmi FCJ in Badiaddin, circumstances may exist where there is a “real need to set aside the defective order to enable to Court to do justice.”

It is a pity that the Federal Court in Megah Teknik missed out on the opportunity to clarify whether a Court can set aside a winding up Order and the specific circumstances in which it would do so.

See also my post on The Limits of a Stay of Winding Up.

Dragon Boat Season has Started

2011-04-14T00:07:00.000+08:00

The dragon boat season for the year 2011 has kicked off already. We've had 3 weekends of training and it feels great to be back in the dragon boating groove. This year, we've had a surge in paddlers and we are now nearing 40 rather than just hitting 20.

It's always difficult seeing good paddlers leave the team and then the rebuilding process starts all over again. Most of the new paddlers are bringing in a lot of enthusiasm and they are very keen in learning the stroke technique.

Just hope that the season goes well. We're trying to raise our game to the next level but there is only so much you can do with once a week training out on the lake.

This is a video from individual time trials we carried out last weekend.

One person had to paddle a boat for 150m to clock a time, with a steerer at the back, and another person just to balance the boat. After you hit 50m of paddling, you are already tired and wondering why isn't the boat moving.

The team will be off to compete at the Penang International Dragon Boat Festival in June and then we hope to peak in time for the Putrajaya race in October.

KL Bar Talk on Shareholder Remedies

2011-03-13T23:17:00.000+08:00

I will be giving a talk to the KL Bar on Tuesday 3pm 19 April 2011 'Shareholder Remedies: How to Slay a Dragon'. The talk is very much inspired by my earlier article with the same title.

Some of the topics I'll be covering over the span of about 2 hours:

The rule in Foss v Harbottle - the two-headed dragon.
The WMDs: Winding-up, Minority Oppression, Derivative Action.
Interim Remedies and the Statutory Injunction.
The Side Arms: Convening Meetings and Director’s Access to Records.
Case studies: The 50-50 Split, the Matriach Company and the Tale of the Lazarus company.
Arbitrating Shareholder Disputes?

Do come and attend if you are interested in learning a bit more.

Another Route to Practice Singapore Law

2011-02-28T00:13:00.000+08:00

Singapore continues with its legal market liberalisation by making it even easier for foreign lawyers to practice Singapore law. Aside from passing the necessary exams to get Called to the Singapore Bar, foreign lawyers can now apply for a Foreign Practitioner Certificate. This news was covered by ALB although the headline is slightly misleading as this route does not allow a lawyer to be admitted to the Singapore Bar, but just to practice in certain permitted areas of Singapore law. These areas would be in corporate law as well as international arbitration. The traditional ring-fenced areas such as Court litigation, conveyancing, or criminal law are still off-limits.

Some brief information is found at the Ministry of Law website.

The Imminent Liberalisation of the Malaysian Legal Sector

2011-01-31T00:10:00.001+08:00

It's been a long wait, and I even blogged about this back in 2007, but it does look like Malaysia will be liberalising its legal sector to allow foreign law firms to be set up here. It is also very likely that the amendments to the law will be pushed through this year.

The exact details are still very sketchy and I have not read any official material from the Bar Council on this yet. It does seem though that foreign firms can adopt two different models if they wish to enter Malaysia. The first would be a form of a joint law venture, where the foreign firm would have to JV up with a law firm. The JLV vehicle will then be allowed to practice in selected areas of the law, and this is mainly confined to high-end corporate, Islamic finance and international arbitration work. It would only make sense that this JLV can advise on both foreign and Malaysian law. The question I have is whether the JLV can only advise and practice Malaysian law through Malaysian-qualified practitioners. This again would only make sense, or at least the JLV would naturally need a sufficient pool of Malaysian-trained lawyers in order to supplement any advice or work on Malaysian law.

In terms of the second model, this would be a standalone foreign firm. This sounds similar to Singapore's Qualified Foreign Law Firm vehicle where a foreign law firm would be allowed to set up on its own without the need for a local Malaysian law firm partner. Again, it would seem that the foreign law firm would need Malaysian-trained lawyers to advise on Malaysian law. The exact practice areas for a standalone foreign firm may be very limited though, and I am pretty sure that Islamic finance would be one of the areas. Bank Negara has been very keen on this. Based on the Singapore experience, will there be a tight control and 'audit' process for determining the qualifying foreign law firms for both the entry of the JLV and the foreign firm? Will there be limited licenses?

It is pretty certain that in the end, the foreign firms will only be limited to specific areas of corporate practice, Islamic finance and international arbitration work. Areas such as Court litigation, criminal work, conveyancing and probate would be ring-fenced away.

Once there is such liberalisation, I can see some of the Singapore law firms formalising their branch offices here in Malaysia. Rajah & Tann already has a presence in KL through Kamilah & Chong and similarly Allen & Gledhill through Rahmat Lim & Partners. It will be interesting to see the impact of the liberalisation on the local law firms. One aspect is that it may lead to more competition for firms to gain and retain legal talent. Salaries may go up as a result of that. The other aspect is that it may push local firms to up their game and to improve on the way they practice.

Drafting of Court Applications

2011-01-30T19:00:00.000+08:00

The drafting of court applications is an essential skill of all litigation lawyers. Whether it is the drafting of an originating process like a Writ of Summons or Originating Summons, or an interlocutory application via a Summons in Chambers, you will be eventually asking for the Orders you have crafted out in your court papers. So you need to be sure that the Orders have a sound basis in law and you need to protect your application from any sort of procedural objections.

A suggested workflow for such drafting can be along the lines of the following steps:

1. A possible starting point is to check with a colleague to get a sample precedent. This is often useful but it is merely the first step.

2. The more definitive source would be to look at the English Atkin's Court Forms for the specific type of application you are drafting. The English civil procedure rules changed significantly post-1999 so if the application is very much based on civil procedure rules rather than a specific area of the law, it is best to have an older version of Atkin's at hand.

3. The Malaysian Court Forms is the local version of Atkin's and though not as extensive, it is also useful to compare with this guide.

4. Where the application is based on a specific statute, it is good to also check the annotated statutes to have a read of the description of that area of the law and the cases that have been decided under that section. CLJ Law provides a useful Noter Up function when you click on specific provisions of any Act.

5. Where your application is grounded on a specific provision of the Rules of the High Court 1980, then you need to have a read of the Malaysian High Court Practice book (dubbed the 'Red Book') which sets out a full description of the law under the various provisions. If you want to be thorough, then have a read of the English Supreme Court Rules (the old ‘White Book’) just to have a feel of what the old English authorities have to say, although these cases will not be directly binding.

6. Have a quick read of some recent appellate or High Court authorities on the specific provision, and in particular, to see what sort of objections may have been raised before. These cases also help to sometimes set out the Orders being prayed for and you can check the wording of your application with what was decided in that case and what was argued in that case.

For example, where you are drafting for various Orders allowing a director to inspect the records of a company under section 167 of the Companies Act 1965. A check through the case law will reveal that there is the decision of Paul Nicholson lwn Faber Medi-Serve Sdn Bhd & Satu Lagi [2002] 5 CLJ 383 which allowed certain Orders for not only the director to carry out an inspection of records, but also for the director to bring on to the company premises 2 photocopying machines to make copies and for 3 staff to operate the machines. So if you wanted such a wide Order, you would mirror the language of the Orders in the Paul Nicholson case and you would be able to rely on that authority at the hearing before the Court.

7. Armed with the above precedents and with the cases in mind, then you can craft your application or affidavit in support.

8. After drafting, take a step back and think of the Order that you are seeking and whether it will be easy to enforce, or whether procedural objections could be taken by the other side. More so, if you are applying for Orders ex parte (e.g. leave to enter Judgment in Default, or registration of a foreign judgment, or garnishee proceedings) and where you first serve the Order and a defendant has a right to set aside the Order. That is where the avalanche of procedural objections may be raised.

It's Out of My Hands

2011-01-23T23:24:00.000+08:00

The Singapore Bar examinations were the easy part of my ongoing attempt at being admitted to the Singapore Bar.

Now comes the harder part where I have to apply for certain exemptions in order to gain admission. The examinations I sat for were only the Part A Bar examinations. Normally, an applicant would also need to complete the Part B examinations which are the more practical law subjects as well as to complete 6 months of a training contract.

However, as I have several years of experience in another jurisdiction (Malaysia), I can apply for exemption from these requirements.

On top of these requirements of passing these examinations and of having the necessary experience, only a Singapore citizen or Permanent Resident can be admitted to the Singapore Bar. I have applied for the exemption from this Permanent Resident requirement and I am hoping for the best. I should know the results in about 2 months or so.

Rise and fall and rise of the heritage law firms

2011-01-22T01:06:00.000+08:00

From Singapore Law Watch (link may expire), the Chief Justice of Singapore Justice Chan Sek Keong wrote the following foreword to commemorate the 150th year anniversary of Rodyk & Davidson. Malaysian law firms can also take away some of his advice: "Embrace change; discard the culture of seniority ranking of partners; seek fresh talent wherever they may come from; and share profits equitably."

LAW firms with a long historical lineage during the period of colonial rule in Singapore are a rarity. Singapore became a British territory in 1824, and English law was introduced into the colony in 1826 through the Second Charter of Justice. From 1826 to 1963, Singapore was the legal capital of the Straits Settlements in terms of the volume and quality of legal work and disputes. Many law firms were born and died.

Many ceased to exist because of the Japanese Occupation in 1942 and were never revived after the British returned. Many others did not survive their founding partners, who did not care to let their names continue as brand names for the sake of their partners.

Those that have survived to this day are our heritage law firms bearing British names. Their names reflect the colonial history of our legal profession. The oldest of such law firms bearing its original name is Rodyk & Davidson, a firm that is deservedly proud of its lineage.

Legal services at the inception of the Straits Settlements were provided by law agents, rather than by lawyers. The two Lists of Law Agents published in Vo1 1 of Kyshe's Reports 1808-1884 and Vol IV 1885-1899 respectively contained the names of all law agents and lawyers of the time.

There was no Asian lawyer among them. The prominent ones were William Napier (1833), Bernard Rodyk (1860), Thomas Braddell (1861), Robert Carr Woods Jr (1863), Edwin Koek (1864), Duncan Clerk Presgrave (1867), Charles William Rodyk (1868), Alexander Leathes Donaldson (1873), Robert Garling Van Someren (1873), John Burkinshaw (1874), Thomas de ML Braddell (1880), Robert Braddell (1883) and Walter John Napier (1889). Neither Allen nor Gledhill appeared in the two lists.

The first Asian to be admitted to the Singapore Bar was Sir Ong Siang Song, in 1893. Other notable Asian lawyers were SJ Chan, Wee Swee Teow, and Reynold Lionel Eber. SJ Chan formed Chan & Swee Teow, which later became Wee Swee Teow & Co in 1912, while SJ Chan teamed up with RL Eber as Chan & Eber, and subsequently the latter formed Eber & Tan.

Our most famous criminal lawyer David Marshall practised under various firms and finally formed David Marshall & Partners. Unfortunately, most of these names are now history.

In 1968, the Directory of Law Firms in Singapore published in Vol 1 No 1 of the Singapore Law Review listed the following firms which could be said to be heritage law firms, namely Allen & Gledhill, Battenberg & Talma, Braddell Brothers, Donaldson & Burkinshaw, Drew & Napier, Wee Swee Teow & Partners, Eber & Tan, Murphy & Dunbar, and Rodyk & Davidson.

When I started practice in Singapore in 1963, only three of the firms named above were headed by Asian lawyers; the rest were still headed by British expatriates. The last expatriate lawyer to leave was apparently LAJ Smith.

Currently, only three of these heritage law firms are among the largest law firms in Singapore, having made the transition successfully after full localisation, with leadership and vision. Many law firms continued to survive on brand name and past goodwill for a short time. Even the best of law firms will suffer the same fate without successive generations of new blood and talent in the new legal environment.

Globalisation of legal services has allowed foreign law firms to claim a natural right to supply to all, without hindrance. Singapore law firms now face international competition domestically, and even greater challenges abroad.

Rodyk's recent history provides a valuable lesson on how to keep our heritage law firms alive and prosperous. It was once the pre-eminent law firm in Singapore, but its star began to fade in the 1980s through lack of leadership and fresh legal talent, amid the dynamic economic changes taking place in Singapore and in the region.

It lost its lustre and became a pale shadow of its former self. Its illustrious past was what it was, past. Fortunately, through a merger with HelenYeo & Partners and acquisitions of new talent, a new generation of able lawyers with foresight and vision emerged with the aim of regaining the firm's former eminence and prestige.

Singapore needs more and larger law firms with the talent, ability and desire to compete both in Singapore and in Asia. In this quest, some of our other heritage law firms can take a leaf out of Rodyk's experience. Embrace change; discard the culture of seniority ranking of partners; seek fresh talent wherever they may come from; and share profits equitably. Rodyk is now doing all of these things - it has found the elixir of professional life and is deservedly celebrating the 150th anniversary of its founding. Rodyk has my congratulations and best wishes.

The writer is the Chief Justice of Singapore. He contributed this piece to 'Rodyk 150 Years', a book commemorating Rodyk & Davidson's 150th anniversary

13 Going on 30

2011-01-20T22:30:00.000+08:00

The end of 2010 saw me ushering in my turning 30. Yup, farewell to the twenties, it was fun, and now looking forward to my thirties.

Birthday celebration was with a number of my friends, and it was held over at the Ascott KL. Quite a lot of food all laid out ready for the party.

And then soon it was time for the party to start. It was a really fun night being able to share it with my friends.

Entertainment for the evening was mainly through the Wii that was set up. It was going to be a loud evening of Wii Sports and Rayman Raving Rabbids.

My birthday cake with 30 candles. Thankfully it didn't set the fire alarm off.

Getting Called to the Singapore Bar (Part 2): Sitting for the Bar Exams

2010-12-23T23:18:00.000+08:00

My article originally posted up on LoyarBurok.

Part 1 of this article set out the process in which a Malaysian lawyer can get admitted to the Singapore Bar. Part 2 recounts the personal experience of a LoyarBurokker who recently sat for the Singapore Bar examinations.

Having applied in April of this year to do the Singapore Part A Bar exam, I was informed at the end of June that I had successfully secured a place. Like many other Malaysians, I had opted to only sit for the exam rather than enrol in the 3-month preparatory course in order to minimise time off work.

In August, we were given a reading list of recommended textbooks and cases to study. At that time, I did not realise the stressful study route ahead of me. The exams starting in November still seemed very far away and any thoughts of studying were placed on the back burner.

THE (ATTEMPT AT) STUDYING BEGINS

With 5 subjects to cover, being Criminal, Evidence, Singapore Legal System & Constitutional, Land and Company, it was quite surprising how little knowledge I had retained on some of these subjects from my university days in the UK. On top of that, these subjects, naturally, featured almost solely Singapore law cases. It seemed like I be pretty much starting from scratch for most of my subjects.

At the start of October (with the exams now just a month away), it was time to knuckle down and I attempted to start with my studying. This however had to still be balanced with normal working hours. So this meant that I had to work until about 6-7pm after which, I had to put aside work aside for the day, in order to bring out my Part A Bar books to study for the rest of the night. Quite stressful and really not the most productive way to study. I could barely sneak in any free time to study and before I knew it, it was already past mid-October.

With stress levels now having jumped up quite a few notches and with a growing sense of panic that this was the most under-prepared I have ever been for any exam, I headed off for study leave and took a break from work. This was just about 1 1/2 weeks before my first paper.

THE (REAL) STUDYING BEGINS

So I headed down to Singapore sometime close to the last week of October. When I first looked at the sheer amount of reading material I had to cover, there was this initial sense of dread about having to study academic law subjects all over again. I thought it would be something so far removed from practice and something I had already left behind. But as I buried myself deeper into my books, it became more and more enjoyable to study the law again. More so, when the Singapore legal system shared so many common features with Malaysia’s and I saw the law from a fresh perspective, having seen the practical application of the law already and now applying those examples when picking my books.

Both Singapore and Malaysia share the same English common law origins, especially with a joint heritage through the legal system set up in the Straits Settlement of Penang, Malacca and Singapore. We both adopted the Indian codification of the Evidence Act and the Penal Code. Many of the key provisions of the Constitution of Malaysia and Singapore, especially relating to fundamental liberties, were also very similar or even identical in wording. Both countries adopted the Australian Torrens system for land and the Companies Act were similarly influenced from English and Australian provisions.

Having never studied the history or theoretical framework of Malaysian law subjects (having picked up Malaysian law only through chambering and practice), it was very interesting to learn about the similar Singapore principles of law, since I could instantly relate the subjects back to Malaysian law.

By way of examples, the Singapore criminal case law we studied would be drawn heavily from both Singapore and Malaysian authorities, applying almost identical provisions in the Penal Code. For constitutional law, and with me having had only a rudimentary knowledge of Malaysian constitutional law prior to this, it was fascinating to see how both Malaysia and Singapore grappled with similar constitutional issues and questions, for instance, those relating to preventive detention laws. Another example would be in the sphere of company law, with Singapore applying very similar laws for shareholder remedies which originated from the same English authorities applied in Malaysia.

THE END OF DAYLIGHT

Every single day, whether a weekday or a weekend, was spent studying from the hours of about 10am until 9pm. I was lucky to have a small study group and we would just camp out in the library, taking a break for lunch nearby, and then immediately heading back to continue our studying. Dinner may be some bread we bought for ourselves and I’d gobble it down with a drink from the drink dispenser machine. It would then be back into the library to continue with the studying.

Books and notes would be heavily tabbed with different coloured Post-Its. Past year exam questions would be leafed through for us to try to get a feel of what the exam questions might be like. Brief discussions would be made in whispered voices as we tried to figure out some of the harder issues raised in those past year questions.

One unintended side effect of hitting the books and taking down all the notes was a dramatic improvement in my handwriting. Having not written lengthy notes for years now, my hand regained its mobility from all the atrophy of keyboard typing. I was going to need my strengthened hand for the exam papers ahead of me.

THE START OF THE EXAMS

With me still scrambling to finish covering the syllabus, the exams were upon us. 5 exam papers, each lasting for 2 hours with an average of 2 questions to answer, and an exam period which was spread out over the course of 2 weeks. It would be an open-book exam so we would be allowed to bring in any material we wanted, save that it could not violate any copyright laws (i.e. no photocopying whole textbooks and bringing them into the exam hall). Almost all the exam questions had a heavy emphasis on hypothetical problem questions. These questions would involve a detailed fact scenario and you then had to write out an opinion of sorts for your hypothetical client to advise on the issues arising and the reliefs available. While the open-book format definitely made things easier since you did not have to commit large chunks of statutory provisions to memory, you still had to know where all your material was and you had to be able to identify the issues raised in the questions.

With all the exam papers starting at 6pm, this meant a lot of cramming could still be done during the day of the exam itself which would also leave me exhausted at the end of each paper. There would be a one-day gap in between papers, which made for some welcome breathing space and allowed us to cram in even more material for the next paper. I was quite nervous before my first paper (being Land law) but once that was out of the way, it was a lot less nerve-wracking.

There was a relatively large contingent of around 20 former and present Malaysian lawyers all sitting for the Singapore Bar exam this year. Before each paper, there would be a group of us having a brief chat before heading into the exam hall so it was like a mini-reunion of sorts. After each paper, we would also share a quick complaint or lament, depending on how difficult each paper, was before we scurried home to rest or study further that evening. There was such relief once all of us finished our final paper. Results would be out around 2 weeks later but we were just so glad to have finished with the exams.

CONCLUSION

The end of the exams left me with mixed feelings. It was stressful studying in the short period of time, and having to face exams again. On the other hand, it was enjoyable leading a student life again, even if it was for only 3 or so weeks. Best of luck to anyone in future who wishes to take the Singapore Bar exams.

Getting Called to the Singapore Bar (Part 1): The Requirements

2010-12-08T18:38:00.000+08:00

This was my article originally posted up on LoyarBurok.

Recent changes to the Singapore Bar admission requirements have made it easier for foreign lawyers to get admitted to practice law in Singapore. Here are the requirements Malaysian lawyers need to meet.

This first-part will set out in some detail the process in which a Malaysian lawyer can get admitted to the Singapore Bar. Due to the various rule changes over the years, with different admission standards applying for different years, it will focus mainly on younger lawyers who obtained their law degrees after 1997.

Part 2 will then shift to a different perspective where we get to learn about the personal experience of a LoyarBurokker who recently sat for the Singapore Bar examinations.

INTRODUCTION

Increasingly, Singapore seems to be the port of choice for many Malaysian lawyers to practice in. There are many factors attracting Malaysians over, including higher pay and the opportunity to gain better exposure to higher level work.

In the past, the most common route to work in Singapore was to find a position as a foreign lawyer. This allowed a lawyer to work at Singapore law firms but without the need to be admitted to the Singapore Bar. Strictly speaking, as a foreign lawyer, you could advise only on foreign law but in practice, you largely carried out the same duties as a Singapore qualified lawyer but without the ability to attend Court or to sign off on documents or opinions. Some of the drawbacks of being a foreign lawyer were that in most cases, you would draw a lower pay than a Singapore qualified lawyer and your promotion prospects may also be affected.

While many Malaysians do still go over to Singapore to work as foreign lawyers, there have now been some recent changes to the admission requirements which make it easier to get admitted to the Singapore Bar.

PREREQUISITES

Even before you consider taking the Singapore Bar examinations, you will need to see if you satisfy certain prerequisites, and if you don’t meet these requirements, then you need to plan and see if you can apply for exemptions.

Broadly, to get called to the Singapore Bar, you need to satisfy 3 requirements:

Satisfy the requirements of being a “qualified person” – more on this below.
Complete the Part B Singapore Bar exams. The Part B is similar in some respects to the Bar Vocational Course or Certificate of Legal Practice, in that it focuses on more procedural law.
Complete a 6-month training contract at a Singapore law firm. This is similar to pupillage.

I will explain more on these 3 requirements below and how the most important threshold to cross is that of being a “qualified person.”

QUALIFIED PERSON

(i) Scheduled Universities

You need to have graduated from a certain list of scheduled universities, as a full-time internal candidate with a certain degree class. You can go through this useful checklist to see if you are a “qualified person” by first checking which university you graduated from.

So for instance, for a UK graduate, you would need to have been a full-time internal candidate with at least a Second Lower degree from a list of only 19 recognised universities. For an Australian graduate, you would need to be in the top 70% of your graduating batch from a list of only 10 recognised universities.

Some examples where you would not satisfy the requirements for being a “qualified person”:

1. You graduated from a twinning programme or a London external law degree; or
2. You had graduated from any of the local Malaysian universities.

However, you would be able to apply for exemptions from any of the requirements which I will elaborate on further below.

(ii) Permanent Resident

Another requirement is that you will need to be a Permanent Resident or a citizen of Singapore. So a factor you must take into account for being admitted to the Singapore Bar would be whether you are planning on moving down to Singapore to then apply for Permanent Resident status.

(iii) 6 Months of Legal Practice

You need 6 months of either “relevant legal training” or “relevant legal practice” to satisfy this final requirement to be a “qualified person.” So, if you were in active practice in any jurisdiction other than Singapore, this would fall under the definition of “relevant legal practice”. Chambering/pupillage may also qualify under the definition of “relevant legal training.”

(iv) Part A Bar Examinations

The final requirement to be met is that you would need to pass the Part A Bar examinations. The examinations cover 5 academic Singapore law subjects: Criminal, Evidence, Land, Singapore Legal System & Constitutional, and Company. You can either opt to sit for only the examinations, held once a year in November, or to attend a 3-month course (starting in August) and then sit for the examinations. This year the exam format was open book (i.e. you could bring in all your study material with you into the examination hall) while last year, it was closed book.

The deadline for applying for the Part A Bar Examinations (both for the course + exam or just the exam) is by the end of April of every year.

More information on the Part A Bar Examinations and its syllabus/fees are on the National University of Singapore website.

QUALIFIED PERSON – EXEMPTIONS

If you do not satisfy any of the above requirements, you can apply for exemptions. A common exemption is from the requirement of being a full-time internal candidate from a scheduled university. So for instance, an exemption to allow for a twinning programme to be recognised, or an exemption as your university does not fall under one of the scheduled universities.

The present exemption process, from what I have heard from friends, seems to be more flexible in allowing twinning programme candidates as well as non-recognised foreign universities graduates. I know that graduates from local Malaysian universities have a very hard time in getting an exemption and I have not heard of any London external degree law graduates having obtained an exemption as well. All these policies are of course subject to change and are discretionary.

In terms of applying for an exemption from the Permanent Resident requirement, it appears that this exemption is not granted any more or is at least very difficult to obtain. You therefore will likely need to obtain Permanent Resident status in Singapore if you are considering getting admitted to the Singapore Bar. I know of senior practitioners having successfully applied for exemption from the Part A requirement as well. For instance, I had a Malaysian lawyer friend with around 10 years of experience and she was exempted from Part A. But they still needed to become a Permanent Resident of Singapore.

Applicants who are intending to sit for the Part A Bar examinations will put in their exemption applications around the same time in April when applying for the Part A. More information on exemptions can be found on the Singapore Ministry of Law website.

PART B BAR EXAMINATIONS & TRAINING CONTRACT

Having now satisfied the prerequisites of being a “qualified person”, you will need to complete the Part B Bar examinations as well as the 6-month training contract.

The Part B Bar examinations are made up of a compulsory 5-month practical law course and exam, which in some respects, is very similar to the English Bar Vocational Course (now renamed to the Bar Professional Training Course) in that it teaches you practical aspects of Singapore law. The subjects covered include subjects such as Civil and Criminal Procedure, Conveyancing Practice, Professional Responsibility, and Family Law. More information on the Part B can be found at the Singapore Board of Legal Education website.

After successfully completing these examinations, you will then need to serve a 6-month training contract, which is akin to pupillage.

EXEMPTION FROM PART B AND TRAINING CONTRACT

You are allowed to apply for complete exemption from the Part B Bar examination as well as the 6-month training contract. To obtain such an exemption, you will need to already be a “qualified person”, and also been practicing in a common law jurisdiction for at least 2 years (and this period could possibly include your 9 months of chambering as well). If you do not fulfil any of the requirements of being a “qualified person”, or you have not achieved the necessary length of practice, you can also try to apply for exemption from such a requirement.

CONCLUSION

In conclusion, if you are a practitioner in Malaysia, of 2 years experience or more, you can likely be exempted from having to take the Part B Bar examinations as well as be exempted from the 6-month training contract. You will however need to still pass the Part A Bar examinations and in order to qualify to sit for the Part A, you will need to fulfil the other requirements of being a “qualified person.”

No Way Back?

2010-11-30T23:15:00.002+08:00

As a brief follow up to my original post on how I ended up in Kuala Lumpur, I am surprised to have now met another Malaysian in pretty much the same boat I am in. It's such a small world how I now have crossed paths with another person in the legal sector who has gone through very similar circumstances as I have. A Malaysian, formerly a Singapore Permanent Resident (PR), who went through many years in the Singapore education system, gave up PR after 'A' Levels, and then tried to return to Singapore to work after graduating from university.

I have seen numerous comments left on this blog from people all over the world who have questions about being a former Singapore PR and on the difficulties on returning to Singapore.

It seems like the policy of not allowing former PRs to return to Singapore to work is still very much in place. The recent example I've now come across is where in my friend's case, immigration upfront did inform my friend of the difficulties of returning to work in Singapore due to his ex-PR status. However, here, my friend was willing to serve National Service (NS) and to even take up PR again if it were offered to him. Immigration then was quite optimistic of his work permit going through. He had just returned from the UK, so he and his family in Singapore were now planning on his return and him settling down in Singapore, as well as preparing for his stint in NS.

But it was not meant to be, and his work permit application was eventually rejected. The government division responsible for eventually approving one's work permit, the Ministry of Manpower, had rejected the application. An appeal was not successful.

This is surprising news for me, since I would have thought that here, he was prepared to serve NS. It could very well be the luck of your draw, or a case by case basis, potentially you need to show a high level of skills to contribute to Singapore, I don't know. I myself know of a former Singapore PR, who was also kept out of Singapore, but after having married a Singapore citizen, he has now regained his PR status (without being called up for NS so far). So it could very well boil down to your specific set of circumstances.

I don't fault Singapore for maintaining such a strict policy. I follow closely the concerns and strong views, some would even call them almost xenophobic views (quite an unfair label really), aired by Singaporeans in relation to foreigners and foreign talent coming in and invading Singapore. The Singapore Government has a delicate balance to strike, between the need to maintain an increasing talent pool (regardless of citizenry) to continue its upward climb, and on the other hand, not sacrificing the interests of its own citizens.

For now though, it's cool to again hear another person use familiar terms like "saboh" and "wah lau eh" in every day conversation. I almost forgot how Singaporean I was before. I don't say that disparagingly, because I really view it as me having had the best of both worlds. My foundation years in Singapore which have shaped me, and then returning to Malaysia which has set me on this path I am on.

Malaysia International Dragon Boat Festival in 2011

2010-11-05T00:27:00.004+08:00

To all dragon boat enthusiasts, do see the message below from the organisers of the Malaysia International Dragon Boat Festival 2011 which will be held on 20 to 23 October 2011. It will again be hosted at Putrajaya and this is a top-notch competition. I can safely say that by far, it is the best dragon boat competition in Malaysia. It'll be exciting to get the team training again for next year's dragon boat season.

TO ALL DRAGON BOAT TEAMS / ENTHUSIASTS,

INVITATION TO PARTICIPATE IN THE MALAYSIA INTERNATIONAL DRAGON BOAT FESTIVAL (MIDBF) & IDBF CANCER SURVIVORS WORLD CUP (IDBFCSWC) on 20 to 23 Oct 2011.

Warmest Greetings From Putrajaya Malaysia

On behalf of W.P Putrajaya Dragon Boat Association and Mega Events, I would like to take this opportunity to invite you and your team/s to once again participate in the MIDBF 2011 or IDBF CSWC 2011 scheduled on 20 to 23 October 2011. This event is in collaboration with Ministry of Federal Territories, Ministry of Youth and Sports Malaysia, Ministry of Tourism Malaysia, Ministry of Information, Communication and Culture, Putrajaya Holding, Marine Police Malaysia and In affiliation with IDBF.

The race venue is at the centrepiece of the city where the 650 hectares man-made Putrajaya Lake is situated ( Precinct 6, Putrajaya Lake ).Many have marvelled at the water quality which is graded class 2B of the Interim National Water Quality Standards and is suitable for body contact, a requirement of all national and international water quality to organise a safe event.

Race include: 200m & 500m , 12 and 22 crews International Open, Mix.

International Corporate (Open, Mix)

International U23 Junior (Open, Mix)

International Senior Challenge (Open, Mix) World Cancer Survivors Challenge (Open, Mix)

For Malaysia Only:

Malaysia Open, Mix

Malaysia U23 Junior, Inter-goverment, Corporate.

We shall be most grateful if you could assist us in circulating this information to your fellow members and other dragon boat associations and clubs and insert this info in your website and publish in your forthcoming newsletters and updates.

For further enquiries and assistance, you may contact me at the emails / contact numbers as shown below :

herman@putrajayadragonboat.com

info@putrajayadragonboat.com

Tel.:+603-6141 6553

Fax: +603- 6141 6554

Mobile : +6018 283 9898

Website : www.putrajayadragonboat.com or www.1malaysiadragonboat.com

Note: our web site under construction, please login and register to race after 15 November 2010 OR fax to us.

Your great assistance and support will be very much appreciated.

Thank you and see you 2011 !!!!!

"BRIDGE THE WORLD"

Constitutional Law Over

2010-11-04T00:29:00.000+08:00

I am now about almost half way through the Singapore Bar exams. Cleared 2 papers out of the 5. There will be a short break this weekend, and then the triple whammy of papers will be on Monday, Wednesday and Friday of next week.

So one thing about this year's Bar Exams are that all the exams are open book. Last year, the poor candidates had to endure a closed-book exam. I can't imagine having had to memorise all those statutes and cases.

Land law was on Monday where the questions didn't really throw up any surprises. If you kinda spotted the areas of law, you should have been able to answer them to get the pass. Today was Singapore Legal System and Constitutional Law. We were again hoping for the exams to be along the lines as we were predicting.

The first section of the exam would be to answer a question on Singapore Legal System, which would focus on the legal history and legal system in Singapore. Almost all of us were expecting some sort of question relating to the manner in which English law has shaped the Singapore system. I even typed out a 'model essay' incorporating all the elements I thought might come out, and then I could then pick and choose and shape my essay to fit the question.

At first glance at the question paper, jackpot, more or less the question we were expecting. So for the next 40 minutes, I was just regurgitating my prepared answer and writing as fast as I could. That's the problem with an open book exam, especially in relation to discussive type questions. You could prepare ready answers to them if you predict the questions correctly.

So that was one question down, and two more to go. Both these questions would be from the Constitutional law section, and we had to choose 2 out of 3 questions. We had already been informed beforehand that these 3 questions would consist of 2 hypothetical problem questions and 1 discussive essay question. Briefly as well, the Constitutional law course was divided into analysing the structure involving Parliament, the Executive, the Judiciary and Singapore's Elected President. The other half was then focused on fundamental liberties enshrined in the Constitution, for instance the right to liberty, freedom of religion or the right to equality.

The gameplan for most of us were that we were going to want to tackle the 2 hypothetical questions, which we were assuming would be based on the fundamental liberties. We reckoned that would be the more practical fact scenario for us to then set out our advice on. This seemed to be the trend as well based on past year papers. I was hoping that there won't be a hypothetical scenario based on some sort of Parliamentary emergency or Executive crisis. That would be really difficult to answer.There would always be a fallback for us if we couldn't answer both hypothetical questions, that is the discussive question, fand rom the past years, these questions seemed to focus on the Elected President structure. Since there was a lot of talk about the elections, it was also possible that the question could be on the reform of the electoral system.

The first hypothetical problem question went according to plan. It was on the right to personal liberty, the right to counsel, as well as preventive detention. Alright, we had the material for all of that.

A quick look at the second hypothetical question then threw me off. It was focused on a fictional crisis where the President has all of his Constitutional powers removed through the sudden passing of an Act, and the President is arrested and placed under detention. I flipped through my notes and my book to see if I could figure out any answers on the spot. I was still entertaining some idea of trying to tackle this question but I kept drawing more and more blanks as I frantically flipped through the Constitution and my book.

No choice, had to go for the last option being the discussive question. Again, instead of it being a 'typical' question we were expecting, this focused very narrowly on the exercise of contempt of court proceedings against offences scandalising the Court. This was no doubt inspired by the ongoing Alan Shadrake proceedings for the 'Once Upon a Jolly Hangman' book where he has now been convicted of contempt of Court. None of us had prepared any sort of material for a discussive type essay on this specific area of the law.

I left this question for last, and at the start of my last 40-minute block to answer this question, I pulled out the thick Constitutional law textbook as seen above. I didn't think I would need to rely on it during the exam but now it was worth its weight in gold. I started flipping to the relevant section, which thankfully I had tabbed. I was then speed reading through several court judgments, highlighting as I went along my way, dog-earing the pages which were relevant. Out of the corner of my eye I could see the other exam candidate kinda peering at me. She must have been thinking, not quite a good time to start reading your book and to highlight passages. I zoomed in to the relevant cases where thankfully, the Singapore decisions set out the law, the historical background, and the justification for the use of contempt of court proceedings. As I kept flipping the pages and then turned to the Malaysian cases (as the book was on Constitutional Law in Singapore and Malaysia), they were useless for a critical analysis on contempt since they hadno similar analysis or viewpoints to add to the answer!

So I shamelessly adopted the position of all the Judges in the Singapore decisions in setting out the justification on the maintainence of the law of contempt of court proceedings. Of course contempt wasn't archaic and outmoded, it was a necessary tool in the small geographic space of Singapore, the Judiciary's integrity needed to be maintained, public confidence in the Judiciary cannot be eroded, it is important for the Rule of Law, and so forth. I just hope I did enough to clear this paper. But no time to dwell on it, it's time to keep plugging away for my remaining 3 papers.

Studying Singapore Law

2010-10-30T23:57:00.000+08:00

It's been back to back days of non-stop studying on my part. I've really been hitting the books for my Singapore Part A Bar Exams. I don't recall ever having to study so hard before. But at the same time, I've never been so unprepared for exams before. It's just too much material in too short a time for me to absorb.

My days are spent studying the whole day in the library. Will go to the canteen for a short lunch, buy some buns as dinner, and then head back and study in the library. At about 7 or so, I walk out of the library to snack on my buns, stretch my legs a bit, and then it's back into the library to study until about 9pm. I come back exhausted, and work has honestly not felt so tiring.

In a strange way, almost all the subjects I am studying now are interesting or shedding new light on different areas of the law. There are a lot of similarities between Singapore and Malaysia law, in particular the codification of the Evidence Act and Penal Code, very similar constitutional provisions, a similar Companies Act, as well as a registered land Torrens system. The studying made me realise how lacking I was in a lot of "basic subjects" since I never studied Malaysian law per se and merely picked up the parts of Malaysian law I needed for my area of practice.

The panic is starting to kick in, but it's slowly morphing into a willful ignorance of how much more I need to cover before my exams. My first paper is on Monday, being land law, and then followed by Constitutional and Singapore legal systems on Wednesday. Hope I can scrape a pass.

Shareholder Remedies: How to Slay a Dragon

2010-10-25T18:21:00.031+08:00

My debut article on LoyarBurok.

The Fire-Breathing Dragon

Source: recycledwax.deviantart.com

Within the corporate sphere, there is an ever-present tension between majority rule where the majority shareholders are allowed to dominate the decision-making process and that of protection of minority shareholders. Where majority rule is abused and wielded in the majority’s self-interest rather than in the interest of the company, then the minority shareholder may be able to seek court intervention for relief.

However, the minority must be prepared to face a foe of ancient origin. It is known as the rule in Foss v Harbottle (a 19th century decision of the English courts), which has been dubbed a “fire-breathing and possibly multiple-headed dragon.”

This dragon has two distinct heads. The first is that of the “proper plaintiff rule” being that the proper claimant to bring an action in respect of a wrong done to the company must prima facie be the company. Since the company is a separate entity from its shareholders, a shareholder may not sue to enforce a company’s rights. The second is the general principle of majority rule being the right of the majority shareholders to decide how the company’s affairs are to be conducted.

This article will touch on the three main weapons in the minority’s arsenal in attempting to slay this dragon.

Statutory Derivative Action

With the enactment of the recent statutory derivative action provisions of the Companies Act (sections 181A – 181E), a minority shareholder is allowed to take on the name of the company in order to bring an action against a wrong done to the company. This derivative action seeks to overcome the situation where the directors (often times under the control of the majority) or the majority shareholders take no action for a wrong done to the company. This may range from directors acting in breach of their duties to the company or where company assets are being wrongly depleted. Both the heads in Foss v Harbottle would have largely prevented (although certain limited exceptions do apply) an aggrieved minority shareholder from pursuing any action in relation to these wrongs.

Any shareholder (or a former shareholder in certain circumstances) or director can apply to the Court for permission in order to control the company in initiating or continuing court proceedings.

The first element that must be satisfied is that the applicant must provide a 30-day notice to the directors of the applicant’s intention to apply to the Court. This rule allows the directors to assess whether it is a proper case for the company to take action. Secondly, the applicant must demonstrate that he is acting in good faith and finally, it must appear prima facie to be in the best interest of the company that the application be allowed.

This statutory derivative action is altruistic in nature, in that this is ultimately an action by the company, under the direction of the applicant, to seek relief for a wrong done to the company and any damages would flow back to the company itself. The applicant would not benefit directly from bringing such an action.

Oppression Remedy

The oppression remedy is embodied in section 181 of the Companies Act, which allows shareholders to seek relief for personal wrongs suffered in their personal capacity as shareholders. While often relied on by the minority, even the majority shareholder can raise the issue of oppression where the majority is unable to exercise its majority will. This is often due to the written agreement among the shareholders (whether in the Articles of Association or a shareholders’ agreement).

The language of the provision covers situations where the company’s affairs are being conducted in an oppressive manner, there is disregard to a shareholder’s interests, or unfair discrimination. Ultimately, at the very heart of the oppression remedy is the question of whether there has been commercial unfairness. The starting point therefore in determining such unfairness is an examination of the agreement between the shareholders, which would be the written contract and any implied understandings and legitimate expectations among the shareholders. If a breach of such an agreement has then led to prejudice, the shareholder may be entitled to seek the appropriate remedies.

The Court will be empowered to grant any remedy to bring the oppression to an end, which oftentimes is an Order that the majority shareholder purchase the minority’s shares at a fair price. This is normally the most reasonable remedy because it allows the minority to realise the value of their interest in the company and puts an end to the unfairness – but does not destroy the company. Nonetheless, the Court has a wide jurisdiction to craft any appropriate remedy it deems fit.

Just and Equitable Winding Up

A shareholder may also apply to the Court to wind up a company where it is “just and equitable” to do so. This area of the law overlaps largely with that of the oppression remedy as the Court will also be guided by the concept of fairness. Notwithstanding the corporate structure, the Court can impose equitable considerations on the relationship among the shareholders. A just and equitable winding up situation often features elements of legitimate expectation or mutual trust and confidence among the shareholders, a breach of which may then justify the winding up of the company.

The jurisdiction under a just and equitable winding up is wider than that of oppression, as it can apply in a fault-neutral situation. For instance, where there was a mutual breakdown in the relationship between the shareholders, neither party is really to blame.

Common grounds relied on in a just and equitable winding up are where there is a loss of the substratum or the sole purpose of the company, where there is an irretrievable breakdown in the trust and confidence among the shareholders, or in a situation of a shareholders’ deadlock.

The only relief that can be granted by the Court is that of a winding up of a company. The shareholder would then only be entitled to any excess proceeds from the liquidation of the company’s assets.

Conclusion

These are merely three of the more important weaponry available to an aggrieved minority shareholder in attempting to seek relief against any abuse by the majority. All three lead to very different results, where a statutory derivative action seeks relief and damages for the company, an oppression remedy is for a wide range of personal relief for the shareholder, and the just and equitable remedy results in the winding up of a company. While not slaying the dragon of Foss v Harbottle, these remedies, in appropriate circumstances, allow a minority to outflank the beast and thereby pierce the majority’s armour.

Jetson EGM: Why Requisition under s.144 and not Convene under s.145?

2010-10-22T19:03:00.000+08:00

Another possible shareholder fight is brewing at Kumpulan Jetson Bhd with a group of shareholders requisitioning for an EGM to be held in order to remove a specific director.

Putting aside the corporate context and whether it is a proxy fight among two rival groups of shareholders, I was quite interested to find out that the shareholders who called for the EGM had done so via a requisition under section 144 of the Companies Act. I had set out earlier the law and options open to a shareholder in order to call for a meeting. Here the two options open to the requisitioning shareholders would have been to rely on section 144 or section 145 (as explained further below). Often such a meeting is to change the Board composition of a company, and in Jetson's case, the purpose of the meeting is to remove a specific director.

Briefly, section 144 allows shareholders (holding not less than 10% of the voting rights) to demand the directors to call for an EGM. If the directors fail to hold such a meeting within the set time limit, then these shareholders are given the right to hold the meeting themselves. As a prelude to a possible corporate dispute, section 144 is disadvantageous in that it removes the element of surprise. Time is first given to the directors to decide, and if the directors fail to act, only then may these shareholders act. A hostile board may then have more time to plan, to pick out any procedural deficiencies as well as to file any court proceedings.

In the Jetson scenario, the shareholders could have easily relied on section 145 of the Companies Act, which allows two or more shareholders (holding not less than 10% of the voting rights) to call for the meeting themselves. This removes that troublesome first hurdle of waiting for the directors to decide. So the shareholders get to seize the initiative under this more advantageous route and it puts any rival group on the backfoot. Under section 145, the shareholders will have to bear their own expense of holding the EGM but I'm sure it's a minor consideration in this case.

Perhaps the section 144 option was chosen in order to provide more time for the director to resign, or for the Board to pressure the director to resign. I am not sure but it will be interesting to see how things pan out.

Survived Perhentian Island Challenge 2010

2010-10-21T11:15:00.002+08:00

Having participated in last year's Perhentian Island Challenge (PIC), I was back to again pit myself up against the island this year.

Straight off, the first thing that is always consistent about the organisation of the PIC is its disorganisation. Information is always given out late, there is lack of publicity or promotion, a skeleton bare website with a lack of a race route. That I have come to expect of PIC. But this year, misinformation was sent out. I had signed up for the Novice category again this year where it was publicised that the route would be 6km. So roughly similar to last year's route length.

However, when we were at the briefing the night before the race, we were then all informed that the route had been extended to 13km. So more than double the published route.

There were some runners in my group of friends who were worried about this increase in the race route. No one had really trained for such a long run.

On the race day itself, all the runners gathered at the kampung on Perhentian Kecil, the same starting point as last year. The field of runners this year looked distinctly smaller than last year. One thing about the PIC is that it attracts all manner of runners to participate. You get some clearly good runners all the way down to some older folk in Crocs who look like they are off for a leisurely stroll. This year's Elite race was significantly more arduous though so the runners there looked real fit. Their race was going to involve a 3km run/sprint on Perhentian Kecil, and then a 1km swim over to Perhentian Besar, where they would run for about another 4km and then do the 1km swim back to the island. Only then would the Elite participants then do the 13km route that we were going to do! Crazy and hats off to the Elite participants.

The Novice category was flagged off at 11am, in the scorching heat, and it makes little sense to flag off a race so late. The Elite were flagged off at 10am which was also going to be already so hot. Almost all major running events are always started first thing in the morning, at anywhere from 5 - 7am, to ensure the participants get as much of the cool air as possible.

The Novice route this year started at the smae point but now we were going to run in the opposite direction. I do like the variations to the route (if informed to us well in advance of the race) and this time we ran into the kampung itself. Most of the starting portion made us bunch up into single file due to the narrow walkway but that's alright, since we had a long 13km run ahead of us.

It was a proper walkway that eventually opened up to the first beach and I could then overtake a number of people as we then began our jungle trail proper. The thing about PIC is that most of the run consists of running through the jungle. As the trail becomes less and less developed, and as you start to have to climb up hills and descend hills, you can't outright run anymore so it's more of you walking or trekking through the jungle. But that doesn't make it any easier as you are still getting a big work-out through the uneven terrain and especially when you climb up hills. My heart rate and breathing were fluctuating so much.

Most of the running involved jungle running, and then it started to head down to the beach where it would open up to beautiful white sands, but then bring us back into the jungle and we would have to climb back up into the island. So each time we broke out into the beach area, I would be inwardly cursing that I'd have to shortly climb up.

A real talking point among the runners last year was the "windmill road" or this barren track of road that we had to climb up very very high to the top of the island (where the windmills were located) with the full afternoon sun beating down on us. This year, the organisers modified this windmill road slightly which allowed us to only start our climb halfway up the road. It was still staggeringly hot though but I was mentally prepared for the climb up. I could see some runners resting at the start of the road as they mentally psyched themselves up to start the trek up. I made it up to the familiar rest-stop on the top of that hill and was then informed that I'd have to navigate 500 steps down the side of the hill.

That walk down was really a highlight as the view up there was breathtaking. I could see the entire crystal blue bay in front of me, and I had 500 steps to enjoy it. Out at sea, I suddenly saw a big ripple across the surface of the water, and it was a big school of fish swimming near the surface as the school moved towards the shore. So beautiful.

As I kept up the walking, I noticed at first another participant walking up the steps in the opposite direction. I thought, strange, thought we were only going to walk down and then continue our run down below. As I saw a second participant walk past, I then asked him whether we were expected to walk back up. He cringed and nodded yes. Another curse was let loose in my head. Ah well, I continued with my trudging, knowing that each step I took to go down, would be another step back up.

Walking back up the steps, under the hot sun, was quite torturous. By this stage, the Elite runners had already caught up with us, and they were just running back up the steps. I just focused on keeping one foot in front of the other.

Having survived the Neverending Steps, I continued (very slowly) on with my journey. I knew the ending point wasn't that far away by now and it was back into the jungle, beating through the hanging vines and making sure I didn't trip over the tree roots. I eventually made it out on to Long Beach, and I knew it was just about 500m more to go to the finishing line. I could finally break out into a run. I peer behind my shoulder and I see a 50+ year old woman, not looking like a fit runner, and she iwasright behind me! I was then forced to pick up my pace and I managed to stay ahead of her at the finishing line.

Finishing time: just over 2 hours and 45 minutes. Definitely the most challenging event I've done. Had to push myself physically and mentally to complete the course.

The 5 of us who took part

I am not sure if I will be back for future installments of the race. It was pretty enjoyable, looking back at it, but I think one big thing the organisers can improve on is to include more obstacles or activities to break up the monotony of just the jungle running/trekking. Past installments of PIC had kayaking challenges, or small elements of swimming, or even challenges by the beach like running backwards with flippers on for a few hundred metres. Having the challenge on the island is so unique so the organisers can really make use of the island features and promote the event on a big scale.

For now, I'm glad I survived the Perhentian Island Challenge 2010!

Singapore Bar Exam Woes

2010-10-12T22:29:00.000+08:00

I have been presently attempting to juggle work while studying for the Singapore Part A Bar exams. It has been a valiant attempt but not a very successful one. I really think I have bitten off more than I can chew this time round. I thought I would be able to cope, by scaling down work in the month of October, while cranking up the studying, all in time for the 5 papers spread across the first two weeks of November. I couldn't be more wrong. Work is ever-present and often out of your control, despite your best attempts. At the same time, there is a lot of material to cover. There are 5 subjects to cover just like in LLB days and then funnelled into 5 two-hour exams.

I have mentally braced myself to already possible fail one paper (I hope not more than that!) which I can then attempt in the re-sit in mid-December. If I can clear that re-sit then I'd have cleared the exams. But if I don't, I'll have to then return for the paper I failed next November (!). I already have trials lined up in November and December however, but I'll have to focus on the task at hand. Seaving through a hodge podge of notes, lecture handouts forwarded to me by friends, as well as volumes of textbooks.

I initially had the option of sitting for a 3-month preparatory course in the lead-up of the exams, but had quickly dismissed that and wanted to go for the self-study route (I didn't think I'd be able to spare that much time away from work) and just sit for the exams straight. I do regret that now.

But will give it my best shot at these exams and will knuckle down and push on. Wish me luck.

Liquidators Now Facing a Dire Conflict

2010-10-11T23:59:00.002+08:00

A commentary on the Court of Appeal's views on conflicts of interest involving liquidators

[edit 7 January 2012: The Federal Court has overturned the Court of Appeal decision.]

The Court of Appeal judgment of Dato’ See Teow Chuan and others v Ooi Woon Chee and others [2010] 1 LNS 594 involved the situation where a Liquidator and his accounting firm may be held to be acting in conflict of interest.

BRIEF FACTS

The Winding Up of Kian Joo Holdings

In 1994, a winding up petition was filed against Kian Joo Holdings Sdn Bhd (“the Company”) by several of its shareholders. The Company’s shareholders are all members of the See family. Subsequently, in 1996, the Company was wound up by the High Court by consent of the parties.

Two liquidators were appointed jointly and severally by the Court, with the current liquidators being Ooi Woon Chee (who, in 2007, replaced Abdul Jabbar bin Abdul Majid) and Ng Kim Tuck (“the Liquidators”). All were partners of KPMG Peat Marwick (“KPMG”). KPMG Corporate Services Sdn Bhd (“KCSSB”) was an entity used by the Liquidators to carry out some of their duties.

The Company’s contributories are broadly divided into 2 groups. The first group, led by Dato’ See Teow Chuan (“Dato’ See”), were the majority contributories representing 52% in value of the shares in the Company (“Majority Contributories”). The second group, led by Dato’ Anthony See Teow Guan, were the minority contributories representing 48% in value of the shares in the Company (“Minority Contributories”).

The Company owns shares representing approximately 34% of the issued and paid up capital in Kian Joo Can Factory Berhad (“KJCFB Shares”), a company whose shares are listed on Bursa Malaysia.

Upon the winding-up of the Company, the Liquidators had called for meetings of the contributories to ascertain their views on the method of distributing the assets of the Company. The two groups of contributories put forward two differing views. The Majority Contributories favoured the sale of the KJCFB Shares, while the Minority Contributories preferred a distribution in specie (a pro-rated distribution among the existing contributories) of the KJCFB Shares. At three separate meetings of contributories, the Majority Contributories voted in favour of the sale of the KJCFB Shares while the Minority Contributories voted against the sale.

The Sale of the KJCFB Shares

The Liquidators eventually decided to sell the KJCFB Shares. The Liquidators held an open public tender and received expressions of interest from several parties including Gold Pomelo Sdn Bhd (“Gold Pomelo”), a private vehicle of Dato’ See, and a third party, Can-One International Sdn Bhd (“Can-One International”). After some increase in the offers, the Liquidators accepted the higher offer by Can-One International and the parties entered into a conditional share sale agreement.

By this time, all the contributories were now against the completion of the sale of the KJCFB Shares to Can-One International. The Minority Contributories objected as they had always taken the position that the KJCFB Shares ought to be distributed in specie. The Majority Contributories on the other hand alleged that the acceptance of the Can-One International offer by the Liquidators was tainted with fraud and corrupt practice, and they filed a civil suit (“the Suit”) against the Liquidators.

The Court Applications

Various Court applications were then filed in the High Court, including two that were of particular significance. The first was the application by the Majority Contributories for leave to proceed with the Suit or alternatively, leave to commence legal action against the Liquidators, KCSSB, KPMG and Can-One International for damages for alleged breach of fiduciary duties and/or alleged fraud (“the Majority Contributories’ Leave Application”).

The second was an application by the Liquidators for directions from the Court, pursuant to section 237(3) of the Companies Act 1965 (“the Act”), as to whether the Liquidators should proceed with the completion of the sale of the KJCFB Shares to Can-One International.

The High Court dismissed the Majority Contributories’ Leave Application and gave directions to the Liquidators to proceed with the sale of shares. These Orders were then appealed to the Court of Appeal.

WHETHER DIRECTIONS FROM THE HIGH COURT WERE APPEALABLE

At the Court of Appeal, the Liquidators raised a preliminary objection as to whether the directions given by the High Court were appealable. The question to be determined was whether such a direction would fall within the meaning of “judgment or order of any High Court” under section 67(1) of the Courts of Judicature Act 1964. The Court of Appeal held in the affirmative and ruled that it was appealable. The Court held that a liquidator’s discretion must take a back seat once the Court gives its direction. A liquidator is therefore bound to act in the way in which the court has so directed because that direction is a judgment or an order emanating from the Court. Therefore, such a direction by the Court would be appealable.

ALLEGATIONS OF CONFLICT OF INTEREST AND BRIBERY

The Court of Appeal then dealt with the issues relating to the Majority Contributories’ Leave Application. In seeking leave to commence an action against a liquidator, it was accepted by both the High Court and Court of Appeal that there must be sufficient prima facie evidence to support such allegations.

To make out such a prima facie case, the Majority Contributories raised two grounds. Firstly, that the Liquidators, KCSSB and KPMG had acted in conflict of interest and therefore were in breach of their duties, and secondly, they alleged that secret meetings had been held in which a solicitation of illegal gratification had taken place. Both these allegations were not accepted by the High Court.

Conflict of Interest

In determining the first ground on conflict of interest, the Court of Appeal found that it could not categorically say that the Liquidators had not acted in breach of their fiduciary duties or that the entire public tender exercise was tainted with conflict of interest or fraud.

In the High Court, the Majority Contributories had raised the allegation of conflict of interest as KPMG were the auditors of both Can-One International and its parent company, Can-One Berhad (collectively the “Can-One Companies”), and it was alleged that the Liquidators, who were partners in KPMG, had failed to disclose this fact. The High Court dismissed such a challenge and held that the Liquidators were personally appointed as liquidators and were at all times acting for the Company. Can-One International on the other hand was an audit client of KPMG and not the Liquidators. Hence, there was no conflict of interest.

However, the Court of Appeal disagreed with this finding. Abdul Malik Ishak JCA (in delivering the Judgment of the Court) held that not only were the Liquidators in possible breach of their fiduciary duties, but that both KCSSB and KPMG were also in possible breach as these two companies were the vehicles and/or entities used by the Liquidators. The Court of Appeal held that KCSSB and KPMG, along with the Liquidators, were trustees and agents of the Company and/or the Majority Contributories in relation to the KJCFB Shares where the Majority Contributories are the beneficial owners of the KJCFB Shares in the liquidation exercise.

The Court of Appeal listed out the particulars of the fiduciary duties breached by the Liquidators, KCSSB and KPMG, some of which are highlighted below:

(i) KPMG received and had continued to receive financial remuneration from the Can-One Companies in respect of auditing and/or accounting services. Based on this fact, the Court held that the Liquidators, as partners of KPMG, received pecuniary benefit from the Can-One Companies. The Court therefore commented that the Liquidators, KCSSB and KPMG had only themselves to blame for being in a position of possible conflict of interest.

(ii) It remained to be answered whether the Liquidators, KCSSB and KPMG had suppressed and concealed their conflict of interest, and whether the entire public tender process and award of the bid to Can-One International was “tainted and infected with the conflict of interest element”.

(iii) It could not be ruled out that the Liquidators, KCSSB and KPMG had acted in conflict of interest for their own benefit and for the benefit of their existing clients, the Can-One Companies.

In considering the financial remuneration received by KPMG from the Can-One Companies, the Court of Appeal held that once there is any pecuniary relationship between the Liquidators and KPMG together with the Can-One Companies, there is an automatic disqualification in law and the Liquidators are disqualified from considering and awarding the bid to Can-One International.

It also found that the Liquidators, KCSSB and KPMG were inextricably linked, intertwined, and involved in the entire liquidation process of the Company. In making such a finding, the following facts were relied on:

(i) The Liquidators’ correspondence, business cards and advertisements of the tender were all under the name of KPMG.

(ii) In the course of their work, the Liquidators delegated various duties to the employees of KPMG and/or KCSSB.

(iii) All payments and advances for the Liquidators’ services were paid to KPMG or KCSSB.

(iv) The Liquidators’ statutory reports were filed by KCSSB.

The Court of Appeal therefore found that the Liquidators were KPMG and/or KCSSB’s “men” and once KPMG and/or KCSSB had put their men in as liquidators of the Company, KPMG and/or KCSSB owed a duty to the contributories as beneficiaries of the assets of the Company.

Although the Court of Appeal had earlier on in its judgment said that there were possible breaches of duties and possible conflicts of interest, it proceeded to nonetheless make findings of facts that the Liquidators had actually acted in conflict of interest in awarding the bid to, what the Court held as, the Liquidators’ client and paymaster, Can-One International.

Secret Meetings and Alleged Bribery

The second allegation raised by the Majority Contributories was that one of the Liquidators had held two secret meetings with a representative of Gold Pomelo. It was alleged that at both the meetings, the Liquidator concerned had asked for a substantial cash consideration and in return he would ensure that the bid would be awarded to Gold Pomelo. The High Court found that such allegations amounted to bare assertions, that they appeared to have been made with the intent of derailing the sale of the KJCFB Shares and therefore disregarded these allegations.

The Court of Appeal reversed such a finding. It held that it was not disputed that two meetings had taken place and the Court found that the two private and secret meetings outside the office in connection with the bid was akin to a judge meeting lawyers or clients outside the context of a court. Therefore, serious questions had been raised which must be investigated and answered.

The Court of Appeal therefore ordered, amongst others, that the directions given to the Liquidators to proceed with the completion of the sale of the KJCFB Shares be set aside, and that leave be granted to the Majority Contributories to proceed with their legal action against the Liquidators.

COMMENTARY

The appeal arose in relation to the Majority Contributories’ Leave Application. The appropriate test should have been whether the Majority Contributories had succeeded in establishing a prima facie case on the allegations of breaches of duties. Nevertheless, the Court of Appeal went a step further by making findings of actual conflicts of interest on the part of the Liquidators, KPMG and KCSSB when these matters should have been determined at the hearing of the legal action to be filed by the Majority Contributories.

This decision also arguably goes against the grain of accepted views and practice in other jurisdictions. The effect of this decision is that a liquidator and even a Receiver and/or Manager (“R&M”) will automatically be held to be in conflict of interest whenever the liquidator/R&M has any dealings with another company in which the liquidator’s/R&M’s accounting firm has provided any auditing or other services to. For instance, a public tender exercise carried out by a liquidator or R&M will now have to exclude all companies in which such an accounting firm (and likely the firms in the same global network) has provided any services to. As the foregoing will be impracticable, and clearly not in the interest of the company which is the subject of liquidation or receivership, the liquidator or R&M would have to cease acting in the transaction once bids are received from any party to whom their accounting firm provides services to unless consent is obtained from all relevant parties.

Further, notwithstanding the general view that a liquidator is appointed in his personal capacity and that it is the liquidator who then owes a duty to the company, the decision of the Court of Appeal suggests that the accounting firm in which the liquidator is a partner would also be treated as a trustee and agent of the company and both could be sued for any breaches of duties.

The Liquidators have applied for leave to appeal to the Federal Court against this decision. It is hoped that leave will be given so that the Federal Court can clarify these important points of law.

Originally published in Skrine's Legal Insights.

Surfin' in Bali

2010-09-30T00:09:00.000+08:00

So almost a month back, I was away in Bali during the Merdeka weekend. Didn't realise it has taken me almost a month to then churn out this blog post. Work has just been quite heavy going the last few weeks.

We checked in to the Holiday Inn Resort Baruna Bali. It's a beautiful resort and package was good via AirAsia. Definitely a lot cheaper than booking it through Holiday Inn directly. I stayed at the Hard Rock Hotel along Kuta the year before, and staying at the Holiday Inn is a whole lot nicer. Makes you feel like you are really staying in a resort while Hard Rock was a bit too glammed up for my taste.

One of the first things we wanted to do in Bali was to attempt surfing this time round. We signed up for a morning's worth of class, which is about 3-4 hours along the Kuta beach. The pictures below were all taken by the surf school and I didn't even really know they were taking the pictures. So the pictures aren't posed, despite some of them looking otherwise.

The basic concept of surfing seemed simple enough, although at first glance, it doesn't really look possible. How do you stand up on a board moving with the rushing waves around you and then continue to stand up and guide the board around?

It took many attempts before I managed to stand up on the board. Just a few seconds standing on the board makes it feel like you are flying. No other feeling quite like it. Almost makes all the attempts at standing, stumbling, and then crashing headfirst into the water worth it. I could see the other beginner surfers and instructors surfing with such ease. I wanted to do that!

Last minute briefing before we headed off into the water to try to surf

Su had no problems with picking up how to surf

One of the few shots of me actually surfing and not crashing into the water

We also ventured out of the main beachy areas of Bali to take a one-day trip to Ubud and to also see the Batur Volcano, which is still an active one.

The day started with the van driving us out to watch the Barung dance. The masks are quite distinctive, especially that of the Barung (the mythical creature symbolising good) and it was definitely interesting to watch. Difficult to understand what was going on though, even with the English pamphlet trying to explain.

The Barung

The Keris Dance

The dance finished with this segment with the men above trying to pierce themselves with their keris. The keris definitely looked real and sharp, and they were clearly pushing the tip against their flesh with a lot of force. It was as if they were in a trance or acting as if being in a trance, until the Barung appeared to rescue them from that trance.

The van trip continued on to head up to Batur. Had time to stop by to take a picture of the tiered rice fields.

And then it was time to enjoy the cool weather up on the mountain, overlooking Batur volcano.

On the way down, we made stops to visit various craftsmen, like painters, silversmiths and jewellers. Felt very much like tourist traps but we did just browse through the shops quickly.

Quite interesting was the coffee plantation we next visited. We were shown the various coffee seeds, and it was the first time I ever came across kopi luwak. It is coffee berries which have been eaten by that specific species of a civet cat, it undergoes a chemical process in the stomach of the civet cat and then when passed out, the seed is collected and roasted and made into coffee! It is the most expensive coffee in the world, something collected from the poo of a civet cat!

I had a chance to drink the kopi luwak. It is really very strong and quite bitter. It has quite a bit of kick and it had a lot of sediments in it. I think drinking it once is quite enough. Not much of a coffee drinker anyway.

The rest of the trip was spent in Ubud itself which wasn't all that interesting to be honest. I guess I just didn't want to buy all the little bits of handicraft all on display.

But it was still a fantastic holiday. Lots of good memories and pictures to take away.

Another High Court Decision on the Statutory Derivative Action

2010-09-24T23:32:00.000+08:00

In the recent reported decision of Ng Hoy Keong v Chua Choon Yang & Ors [2010] 9 MLJ 145, the High Court had allowed leave under section 181A of the Companies Act 1965 (“the Act”) for the Plaintiff to take proceedings on behalf of the Company to defend a legal action filed against the Company.

Briefly, the Plaintiff was a director and 50% shareholder of the Company and was already involved in a shareholder dispute with the other 50% shareholder and the two other directors. Subsequently, another company, Satujaya, had obtained judgment in default against the Company and had then initiated garnishee proceedings against the Company. The Plaintiff gave 9 days notice to the directors before filing the leave application against the two directors and the Company. In the application for leave to take proceedings on behalf of the Company, the Plaintiff obtained an interim stay of the garnishee proceedings and also applied for an abridgement of the 30-day notice requirement of section 181B(2) of the Act.

Some issues to be highlighted of the decision:

1. The Court held that the time frame set out in section 181B(2) of the Act is not mandatory and had allowed the abridgement of time pursuant to section 355(4) of the Act which allows the Court to “…enlarge or abridge any time for doing any act or taking any proceedings allowed or limited by this Act …”

2. The Court applied the High Court decision of Mohd Shuaib Ishak v Celcom (M) Bhd [2008] 5 MLJ 857 (I had touched on the High Court decision in my post here) where only a prima facie case needed to be shown for leave. The Celcom decision has however been overturned on appeal where the Court of Appeal (and I commented on the Court of Appeal decision here) has held that one of the requirements for leave is that the applicant must honestly believe that a good cause of action exists and has a reasonable prospect of success.

3. An interesting aspect of this decision is that the Court allowed an interim stay of the garnishee proceedings between Satujaya and the Company. Prior to an applicant obtaining leave to wield the name of the company, it was thought that the applicant could not seek interim relief on behalf of the company. More so in the present case where Satujaya was not even a party to the leave proceedings.

4. While these findings may be subject to an appeal, this decision does highlight the inherent weaknesses of the section 181A framework and how the Plaintiff tried to overcome them. First, section 181B(2) of the Act makes it mandatory for the applicant to provide a 30-day notice to the directors prior to the filing of the leave application. Unlike other jurisdictions, section 181B does not allow for dispensation of this time period in urgent circumstances. This gives time for recalcitrant directors to possibly frustrate the pending legal proceedings, for instance here, to allow the assets of the Company to be depleted through the garnishee proceedings. Second, even when the leave application is filed and pending the hearing, interim relief may not be available for the Company to take steps to prevent the depletion of assets. The decision does not highlight any arguments that were made in relation to whether the interim stay of other court proceedings could be allowed. Hence where urgent interim relief is being sought, more so if there is justification to proceed on an ex parte basis, then legal proceedings under section 181 or even under a common law derivative action may be the more appropriate route to take.

Working Too Hard - Part 4

2010-09-19T23:38:00.001+08:00

To continue on with my "working too hard" series of posts I am slowly building up:

You know you've been working too hard when on weekday nights and weekends, your parents (living in Singapore) call up your office phone instead of your house phone to speak with you.

Advanced Diving at Redang

2010-09-13T23:50:00.000+08:00

I am back from Redang and I've completed my PADI Advanced Diver course. Although I had to do 5 modules, I kinda ended up doing 6 as the instructor took us out for more types of dives which is good. Advanced is a lot more chilled than the Open Water course, with a lot less studying and you don't really need to pass certain skills. It is a really useful course though to make you aware of more skills.

I cleared the compulsory Underwater Navigation and Deep Diving. The add-ons were then Night diving, Drift, Peak Performance Buoyancy and Wreck Diving. All were a lot of fun, except for maybe Underwater Navigation which was a bit boring but it was cleared very fast. Aside from navigating a straight line, you then learn how to navigate in a square as well as in a triangle.

I find that I really enjoy picking up skills. Makes me a lot more conscious about the way I dive, how to be aware of the surroundings, how to control your breathing and buoyancy, all very interesting. So even if I don't really get to see anything all that interesting in the water, I still get to fine-tune my still-mediocre technique.

For deep diving, we descended down to about 29m. At the 25m mark, visibility started to significantly decrease. Everything started to get so murky and hazy. As we went down further, the temperature started to drop and I could feel the cold. In the end, I found out that the temperature drop was only 3 degrees celcius, but it felt so cold. By the time we stopped at 29m, it really did feel deep. With the water current, hazy environment and with the cold. Colour gets a bit distorted at that depth (with a green torchlight looking bright yellow) and my breathing got heavier too, with air consumption going up by a lot.

Peak performance buoyancy was a tough one. I always understood the basic concept of buoyancy,that by controlling how much you inhale and exhale, you control whether you body ascends or descends at a certain depth. Your lungs acts like a small balloon that allows you to go up and down. I always knew I tried to compensate for buoyancy by sometimes using my leg to kick or even my hands. This is especially when I want to stay stationary to observe something and I don't quite have the buoyancy control. All these weaknesses was then shown up in the peak performance buoyancy section. You had to hover parallel to the ground and stay very stationary and just stare at an object. It is a lot harder than it looks. Something I wasn't even aware of was the technique of just bringing your open feet together and apart, together and apart. It helps in the hovering. I then had to practice a 'donut' by keeping the head at one place but then rotating the body round that spot. There is also a way of using your legs to kick to go backwards. As the dives over the weekends went on, I became a lot more conscious of achieving neutral buoyancy quick and then just enjoying the rest of the dive. The instructor could just almost hug the coral seabed and just maintain a small comfortable gap between his body and the corals, and never touching the corals.

Although I did drift diving in name, the currents when I dived was not just really sufficient to do much of the drift. For wreck diving, we did get to explore the outer area of a wreck. Night diving was an experience to itself. We dropped just past sunset, so there was still a little bit of light. When we descended, it was pitch black and all of us must have our own dive torch lights. All that is illuminated throughout the dive is the beam of light from the torch. Different types of fish and creatures come out at night, which makes it all the more interesting to see. A pity that we stuck around the housereef only and if we had gone out to the different parts of the island, I'm sure I would have seen a lot more. But we had to be eased in to the night dive first. When ascending, I lost all perspective as to how deep or high I was. I just lost all visual markers and had to look at my depth gauge carefully to see how fast I was ascending.

In terms of the sights at Redang, they were alright. The problem is, after our dive trip to Sipadan where we saw such amazing sights, all other dive sites can't seem to match that anymore. It just makes you want to go to more and more exotic dive sights to amp up the rush.

Having done the Advanced course, it does make me want to get a higher qualification as well, with the next level being that of Rescue Diver. The online descriptions I've read don't seem to explain a lot of details about the course requirements though. I think it'll be quite physical, with you having to tow divers and to drag divers out of the water into the boat for instance. It should be lots of fun, especially if a bunch of friends go, but it'll be a wait before I find the time for another trip. Will try to squeeze in another dive trip between that.

2 Holidays Down, 1 More to Go

2010-09-08T01:07:00.001+08:00

So I've managed to squeeze in a weekend getaway to Bali two weekends ago, and then just got back from Phuket over the weekend. Not enough time to upload all the pictures and to blog about it much. Here are just a few pictures from the holidays.

Two pictures from Bali from my first ever surfing experience. Well, at least I managed to stand up and surf a little bit. Definitely something I wanna do again. As these pictures looks quite 'poser',and in my defence, I wasn't even aware of the pictures being taken. The surf school had a photographer perched on the beach and I was too busy concentrating on trying to not fall.

And then I was off for a team retreat in Phuket for 3 days where my team mates put up in a gorgeous villa. The theme of the photos we took that trip seem to try to get really cool jumping shots.

I am off for another beach-ey weekend in Redang, where I'm going to take my Advanced diving course. Should be lots of fun.

Driving Comfortably

2010-09-03T00:01:00.000+08:00

When I first started my pupillage in Malaysia, I also purchased my first car which I still drive until today. I use the term 'purchase' loosely since it was largely due to my parents that I could afford to buy that car. As pupillage came to an end and as I began my practice as a lawyer, I remember mentioning to friends that I would eventually consider changing my car once I became a Senior Associate. It seemed like a reasonable mark to meet. The change in the car would in a way be an indicator as to when I would make it, that kind of thing.

The years have now passed by very quickly, and I've been a Senior Associate for close to a year now. I don't see myself any closer to changing my car though. I definitely am not concerned about any need to drive around a flashy car nor do I crave that sort of thing. For one thing, I am not a car person and I know I wouldn't be able to appreciate or take care of my car that well. I mainly view a car as a means of transportation and my present car serves that purpose very well. I don't see much sense in ploughing money into a new car when my present one is still running well.

But on another level, I always imagined myself that once I was at this stage of my life, I would be comfortable enough to at least have the option to purchase a new car if I really had the need for it. I only use the car as an example, and really, I always imagined that I would be comfortable enough financially by this stage. So, if I had the need to purchase a new computer for example, since my present computer is giving me quite a lot of trouble, then I could pretty much go out and buy a new one. I unfortunately don't see myself at such a level.

I get by and I get paid, and I may be paid roughly what is deemed to be the "market rate" or slightly above market rate, but I am just about comfortable or thereabouts. I try not to compare myself with my peers in other jurisdictions, for example in Singapore, where they work hard and they get remunerated well for it. I try not to think about the disposable income they have and the standard of living they can enjoy.

But, I cannot shake off this feeling of resignation. Of being resigned to the fact that you work hard for years, and then you have be prepared to be just about comfortable financially, maybe, but don't expect to be rich, definitely.

So even as my car's auto window continues to get jammed up, different parts get replaced, while others continue to rattle a bit, I will continue to toil away. I enjoy what I do. and I enjoy my work So, in the meantime, I will try to be comfortable with the thought of driving my present car for a while more. Give or take a few years.

'Tis the Season of Holidays

2010-09-02T00:10:00.000+08:00

I am going to be busy over the next few weeks. Busy holidaying that is.

Spent the last weekend (combined with Merdeka Day) over in Bali. It was a great holiday. Although my second time back in Bali in two years, managed to do a lot of things I didn't get to the last time. For instance, I tried out surfing and also visited Mount Batur, the still-active volcano. I haven't had a chance to download all the pictures off my camera yet but will put up a blog post on it once I get the chance.

This Friday to Sunday will then be spent in Phuket. It will be for the annual team retreat, following on from last year's trip to Bangkok. Should be a real fun trip.

Then the week after that will be 4 days in Redang for me to complete my Advanced diving course. Hope to get to see whale sharks there!

Waste Pouch

2010-08-25T20:37:00.000+08:00

An exchange I had on twitter today:

@friend: man jailed for robbin 12 yr old boy. Facts of case :he grabbed d boy's WASTE pouch (as reported in the Sun). He kept cash in a WASTE pouch?

@me: Maybe the boy had his colon removed or something, so he is literally carrying around a waste pouch. Hehe.

@friend: then the man should have been jailed more than 2 yrs for robbing a boy who's missing his colon! HAHA!

@me: Then the robber is going to be in real deep shit.

Countdown to the Singapore Bar Exams

2010-08-23T23:36:00.000+08:00

I applied for and will be doing the Singapore Part A Bar Examination. I will just be taking the exam and I am not sitting for the several weeks of lectures, since I am not quite able to take study leave.

I've downloaded the reading list and I am officially worried. The subjects covered makes me feel exactly like I'm back in law school. I will have to sit for 5 subjects: Singapore law on Criminal, Legal System & Constitutional, Land, Evidence and Company. It's purely exams, about 3 hours for each subject, spread over the first 2 weeks of November. So I have just about 2 over months to study everything, and I don't even have the books in hand yet.

I'm going to have to really study hard for the exams. Aside from Company law (which I am interested in studying more on), the other subjects have already faded from my university days. I am not even sure if I can write continuously for 3 hours anymore, I hardly use the pen!

Vibram Five Fingers vs Conventional Running Shoes

2010-08-18T23:07:00.002+08:00

After running in my Vibram Five Fingers for a while now, I decided to try and switch back to my conventional running shoes over the weekend just to try a run in my old shoes. These shoes were an old pair of New Balance shoes, with some motion control in order to try to control my over-pronation. Those shoes essentially tried to push up and support my flat feet.

Me in my Vibrams

The first big difference I felt when I slipped my shoes on was the big heel block on the shoe. My feet immediately felt the foreign padding and the way my heels were elevated up. Nonetheless, I went out and completed about 6km in the shoes.

All the time during my run, I tried my best to do a midfoot strike instead of landing on my heels. This is supposed to minimise the shock to your feet and to replicate a more natural barefoot running experience.

During the run, I quickly noticed that my quads started to work a lot more than usual, compared to me running in my Vibrams. That was unusual, while I always knew that my calves worked a lot more when running in the Vibrams (and there is always the common complaint of calves aching), I didn't realise that my quads worked a lot less when running in the Vibrams. So that took a little bit of adjustment to. The next odd thing was that my ankles started to ache too. I would have thought that with the support my New Balance gives me, and how it props my ankles up to a more "normal" position, my ankles shouldn't be aching. But both my ankles were aching throughout my run.

Right after I stopped running and started to warm down, I then had a sharp pain right on the sole of one of my feet. It was right where my arch is and it took a while for me to shake off that pain. It was a painful transition back to my running shoes.

I unfortunately don't have much choice but to try to adjust back to running shoes at least for a while. This is because I intend to take part in this year's Perhentian Island Challenge and I don't dare run through the jungle in my Vibrams. I'll be running in my shoes so gotta get used to them again.

Bursa-Edge Rat Race 2010

2010-08-08T00:11:00.000+08:00

Tuesday 3 August 2010 was the annual Bursa-Edge Rat Race. It is a corporate event involving teams from Malaysian companies (and even some foreign companies, especially the invited teams from foreign stock exchanges). This is the third time the firm was taking part in the race, having taken part in 2007 and 2008 (with a hiatus in 2009), and we signed up quite last minute for the race.

The team along with our two supporters that day

The main race would be a 4.5km run, starting at around 5pm, with the course taking us from Bursa Malaysia through the streets of KL, rounding the Twin Towers, and then heading back. Our team entered the Mixed category with 3 males and 2 females, and we also submitted two representatives in the CEO category which would be a 1.5km sprint.

Go team!

While this would be a fun corporate event, the real aim of the entire event would be for companies to donate funds to help the various charities adopted by Bursa Malaysia and The Edge. A company would have to donate just about RM15,000 per team that they submit in the event. Some of the larger companies, e.g. Bursa themselves and the banks, had sent in multiple teams and the participants looked like pretty serious runners.

The starting area was filled with supporters and cheerleaders, all cheering, clapping and banging on drums. Luckily there were no vuvuzelas there.

While the dress code was that the runners should wear their corporate attire, we would be allowed to wear our running shoes. Me on the other hand, would be off in my Vibram Five Fingers. My footwear kinda drew some stares and comments from the other runners while we were bunching up at the starting line.

The CEO event was flagged off first at 5pm, and the rest of the runners for the main race all huddled at the starting line to wait for our flag-off. We would have to wait for the CEO runners to all head back first before our event started at 5.15pm.

When our race started, I was hoping for cool weather but that was not too be. While there were some clouds that looked like they would threaten to rain, the sun kept shining brightly and it got very hot and uncomfortable during the run. I don't really enjoy a run at this 5km distance. At 10km, I can run at what feels like a more comfortable pace but for the Rat Race, I have to push my pace up quite a bit.

The route hasn't changed at all these last few years, and the organisers could try to mix things up a bit. I can imagine however the difficulty in getting the traffic police and the city officials to agree to close so many roads at peak hour traffic already.

I eased across the finishing line at about 26 minutes. Not a very fast time but I was hoping that our overall position would be good.

Our final results were that we placed 16th out of the 75 Mixed category teams. I think our overall time has been faster than any of our previous times but the competition level has really gone up. You could see some really serious runners out there. While I was running 26 minutes, the other men were running more at the 20 - 23 minute-range, while there were some women who were also running at that speed.

Us after the race

I think we will be back again next year. It's always quite an experience running the race, and a race quite unlike any other in the racing calendar.

Court of Appeal decision on the Statutory Derivative Action

2010-08-04T23:43:00.003+08:00

I had earlier highlighted the High Court decision of Mohd Shuaib Ishak v Celcom (Malaysia) Berhad which was the first Malaysian decision interpreting the provisions of the statutory derivative action under the Companies Act 1965.

This decision has been overturned on appeal in the as-yet unreported decision of Celcom (Malaysia) Berhad v Mohd Shuaib Ishak [2010] 1 LNS 560 ("Celcom"). While I am not altogether surprised with the reversal of the High Court decision, let me analyse some of the principles of law enunciated by the Court of Appeal that will not govern the leave requirement for a statutory derivative action. I had earlier set out my analysis of some of the other Canadian and Singapore authorities on the principles in those jurisdictions, especially since their statutory provisions are very similar to ours. [edit: Based on a Bursa announcement dated 10 August 2010, the leave to appeal to the Federal Court against the Court of Appeal decision has been dismissed. So this is a final decision.]

When looking at judgment of Celcom, the Court of Appeal seems to have taken a stricter approach in deciding whether to allow leave under section 181A compared with the approach advocated by the High Court. This restrictive approach could be justified in this case since the case involved a former member complaining about certain acts of the company.

The Court of Appeal, when analysing the first limb requiring good faith, held the test is two-fold. One is an honest belief on the part of the Respondent, and two, that this application is not brought up for a collateral purpose. It applied the dicta of Palmer J found in Swansson v R.A. Pratt Properties Pty Ltd & Anor [2002] NSWC 583):

"Nevertheless, in my opinion, there are at least two interrelated factors to which the courts will always have regard in determining whether the good faith requirement of s. 237(2)(b) is satisfied. The first is whether the applicant honestly believes that a good cause of action exists and has a reasonable prospect of success. Clearly, whether the applicant honestly holds this belief would not simply be a matter of bald assertion: the applicant may be disbelieved if no reasonable person in the circumstances could hold that belief. The second factor is whether the applicant is seeking to bring the derivative suit for such a collateral purpose as would amount to an abuse of process".

In the Celcom decision, a significant factor the Court took into consideration that there was a prudent business and commercial decision of the directors, made under independent legal advice. The Court would be slow to interfere and substitute its own judgment in such a situation.

It appears from the judgment, that the Court did not fully consider the requirement that the proposed action must prima facie appear to be in the best interest of the company. The Court of Appeal did apply the judgment in Swansson to hold that there was no reasonable prospect of success, and hence it could be said that the other requirement under section 181A was also not satisfied.

Nonetheless, the Courts should be slow to refer in a blanket manner to Australian authorities on statutory derivative actions, since the Australian Corporations Act 2001 (specifically section 237) have quite different provisions from ours. Firstly, Australian law requires an applicant to show that "it is in the best interests of the company that the applicant be granted leave" whereas our act states merely that "it appears prima facie to be in the best interest of the company" for leave to be granted. This seems to mean that our Act requires a lower threshold than that in Australia. Secondly, Australian law requires an applicant to show a serious question to be tried and such a requirement is absent in the provisions in Malaysia, Singapore and Canada (where all 3 have similar wordings in their provisions).

It is useful to to now have an appellate authority to refer to, when seeking to apply for leave under section 181A of the Companies Act 1965. On the facts of Celcom, I think it is the correct decision for leave to be denied. However, it remains to be seen whether this interpretation of section 181A will shut the door on any legitimate applications for leave to initiate a statutory derivative action.

Of Sunscreen, BlackBerries and Successful Lawyers

2010-07-25T23:44:00.000+08:00

I highly recommend all lawyers, whether young or old, to read this very insightful speech by Brendan Navin Siva. This is taken from the LoyarBurok site.

Ladies & gentlemen,

15 minutes is hardly enough time to speak on any topic let alone to give a talk to pupils on how to be an excellent, ethical and successful lawyer and the challenges ahead in the profession.

By giving this talk, I am by no means proclaiming myself to be an excellent or successful lawyer. And by no means are you to blindly accept everything I say to you today as being correct or similarly applicable to you. “Be careful whose advice you buy, but be patient with those who supply it.” These are words from The Sunscreen Song.

Who does not know The Sunscreen Song? It is a song made up of someone’s rambling advice about random things in life.

Wear sunscreen.

If I could offer you only one tip for the future, sunscreen would be it. The long-term benefits of sunscreen have been proved by scientists, whereas the rest of my advice has no basis more reliable than my own meandering experience. I will dispense this advice now.

I will dispense this advice now.

Look at yourself and work out what YOU want to do in life. Have a plan. Do not meander through life not knowing what you want. Wanting to be rich or wanting to make money is not a plan. It is the end result of a good plan but it is not itself a plan.

Work hard. Many people would have told you the same thing the last 9 months but it is true. There is just so much that you need to learn in the next 3 years – how to draft, how to speak, how to handle clients, how to handle judges, how to think, how to solve problems and, over and above all this, to acquire the knowledge of law in many areas of law. Put your head down for the first 3 years and set yourself a good foundation for your future whether or not you continue to be a lawyer thereafter.

Present yourself well. Dress sharp. Invest in good clothes. Always be well groomed. What you think looks cool or suave to your friends may not be the right image that the real world expects of a lawyer.

Deal with stress. Do not try to run away from it. Stress is a part of the life of any successful professional – whether you are a lawyer, doctor, engineer or accountant. Understand that stress is relative – whatever you find stressful today, I can assure you will not be stressful for you in 3 years time. And what is stressful for you in 3 years time will not cause you much stress when you are a senior lawyer of 10 years or more. But there will always be stress at all levels. It is part of the job. Find your own way to deal with stress. But never use stress as an excuse to give up pursuing something. Never use stress as an excuse for failing to do something. And never blame stress for producing sub-standard work.

Learn how to deal with people. You will be dealing with people a lot in your career. There are many different types of people. Some are nice. Some are not so nice. More often than not, you will not deal with nice people. The people you deal with will be demanding, irritating, annoying, deceitful and demanding in many different ways and forms. The key to success is learning how to deal with them all.

Never ever be beholden to any client. Never put yourself in a situation to be totally dependent on any client financially. Always be in a position where, if your client asks you to do something that you know is not lawful or ethical, you can stand up and politely excuse yourself and walk out of the room without compromising your integrity and morality.

Speak and write English well. There is no way out of this one. English is the language of commerce and it is the language of the common law. Our courts will not abandon English any time soon. Our clients – local and international – will judge you as a lawyer on how well you speak and how well you draft – in English.

Take steps to improve your English, regardless of whether you think your English is good or bad. In particular, you must acquire the ability to say or write something in a concise and comprehensive manner. To do this, read English newspapers online (most of them are still free), read magazines (Newsweek, Economist, The Far Eastern Economic Review), watch CNN or BBC at least an hour a day. See and learn how they package and present large amounts of content into a concise and compelling 5 minute newsreel or one page article.

Embrace technology. Blackberries are not evil. They are not your enemy. They save time. They save a lot of time. When you are waiting in court, when you are waiting for a meeting to start, when you are stuck in a traffic jam, when you are waiting for friends for dinner, when you are watching TV and the advertisements come on – emails can be checked and responded to – this is time that you do not otherwise have to spend in the office answering emails. Embrace Change. A lawyer is nowadays only one part of a transaction. If the clients are all on blackberries, you do not have the luxury of saying “It is 6pm. I am out of the office and I cannot answer your queries.”

Set aside 1 week in the first half of the year and one week in the second half of the year for a holiday. Book these dates well in advance so your boss cannot say he did not know about it. Better yet, book tickets to fly somewhere so your boss cannot expect you to reschedule your plans (without feeling guilty). Downtime is very important. The more senior you get, the more difficult it will be to take scheduled time off.

Travel. See the world. See what is out there. It gives you perspective and it opens your eyes to things you never would normally think about. It matures you.

Find a network of friends who are similar as you in thinking, in ambition and in character. There is nothing unhealthy about a group of lawyers socialising together on the weekend or after work. There is nothing wrong with a group of lawyers talking about law all the time. You will grow together and you will become better lawyers together.

Lastly, do not blindly accept everything you are told by someone more senior and supposedly better than you. We are not better than you. We have just been here a little bit longer than you. Challenge the logic of what we say. If it does not make sense to you, don't accept it.

Still Dreaming of Inception: Spoilers

2010-07-23T23:57:00.073+08:00

So I caught Inception over the weekend, the new Christopher Nolan movie that has opened and has pretty much everyone talking about it. [edit 10/8/2010: I have now caught Inception for the second time and I've had to revise and add to some of my observations.]

I caught it last Sunday and until today, I am still thinking about some of the issues arising from the movie. Warning, the rest of this post is going to contain lots of spoilers so don't continue reading until you've watched the movie.

I loved the movie. Taking it at face value, it's a very smart heist movie and with the concept of a dream within a dream within a dream, typing it out is already mind-boggling.

What I've been doing is google searching to try to find out the answers to some of my questions. I am very sure I'm going to watch the movie again, likely on DVD, but I'm trying to piece together the clues first.

What I like about the movie is that the movie sets out the 'rules' of the concept, and then the characters and the plot tries to follow those rules. The rules aren't explained in-your-face but you get to understand the rules as the movie goes on.

A great starting point to read quite a number of explanations is at Cinema Blend. It helps clear up some important points. Let's jump in to some of my unanswered questions of Inception.

1. Was Cobb still dreaming at the end?

This is the major question being asked online. The director of course intentionally had right at the end the spinning top and then it almost began to wobble (or did I just imagine that?) and then the screen fades to black.

There is an interesting point at Cinema Blend where it highlights the wedding ring of Cobb (Di Caprio's character) to answer whether the whole ending section was a dream or reality.

"In the opening moments you get a glimpse of Leo's hand. Specifically, he's wearing his wedding ring. Now, if you follow the rest of the movie keeping an eye out for this you will notice that he only has the ring on when he's in the dream world. At the end of the movie he isn't wearing the ring." If the ring only appears when he's in a dream and he's not wearing at the end of the film, that could be confirmation that in fact, the top does stop spinning after the credits and Cobb is at last in the real world."

[During my second viewing, I paid very close attention to the wedding ring and I am now certain that this was an intentional indicator by Nolan to hint as to when Cobb is dreaming and when he is not. During the accepted dream sequences e.g. when Ariadne is first shown how to manipulate dreams, you can clearly see his wedding ring. When Cobb had first exited the failed extraction of Saito and when he is in the apartment, there is no wedding ring.

When Cobb is meeting up with Eam and fleeing the pursuers, Cobb is also not wearing his wedding ring. When he went back into the first level of Yusuf's dream for the inception mission, there is a fleeting glimpse where you see Cobb wearing the wedding ring again.

Some people may then point out, well, we do see the wedding ring on Cobb's hand when he first wakes up from his dream with Mal after they successfully exit Limbo. Is he dreaming then? I think that can be explained as Cobb having still been married to the then-still living Mal. They had just went on their dream exploration. After Mal had jumped, I would imagine Cobb stopped wearing his wedding ring in reality.

Then the big question is, was Cobb wearing his wedding ring near the ending of the movie, when he sees his children? This is hidden from us, deliberately I think, as we never get to catch sight of Cobb's left hand throughout that sequence when he is in the house. So we do not know.]

Personally, I would like to think that Cobb was in reality. However, the unanswered question is why were Cobb's children still about the same age as he remembers them to be. At least a few months or even years would have passed since Mal's death and when Cobb had to flee. So his children should look a lot older, and yet, they were still dressed in the same clothes as he remembers in his dream. Maybe Nolan intentionally left the children in the same clothes to generate such a discussion.

I read in some other online discussion board about how if you read the credits, you will see that there are two sets of children named as Cobb's children. So maybe his children really did grow up.

Another website has a philosophical take on the ending:

At the beginning of the film, after the first job Cobb’s team tries to pull on Saito, we see Cobb sitting in his hotel room alone, spinning the top and watching it intently, gun in hand. This is a guy who is ready to blow his brains out if the top keeps spinning, in order to “wake himself up.” That’s how obsessed and paranoid he’s become.

Throughout the film, Cobb continues to obsess about spinning the top and verifying reality – however, at the end of movie, he spins the top and walks away from it before he can verify if it stops spinning or not. His kids come running in and Cobb could care less about about the top or “true reality” or extraction/inception anymore. He just wants to be with his children, in whatever place he can be with them. That emotional connection and desire is “reality” enough for him.

In the end, Cobb walking away from the top is a statement in itself that also completes the arc of his character. In a way, the movie is its own maze designed to plant a simple little idea in the viewer’s mind: “reality” is a relative concept.

2. Did Cobb and Ariadne enter Limbo, or was it a 4th level dream?

This is a big issue being discussed over on this online board. After Fisher died, did Cobb and Ariadne enter Limbo (being that subsconscious wasteland), or did they merely enter a 4th level of a dream?

First, I'll lay out the 'rules' I've pieced together for the dream levels and Limbo in the lead up to this question. Do feel free to correct me if you think I am wrong. We know that due to the special sedative Yusuf had concocted to allow for the 3-level dream, whenever you die in any of the levels, you go to Limbo. This has been explained in the movie.

We also know that there is another way of finding Limbo, which is how Cobb and Mal entered Limbo the first time. You go deep enough into the dreams, by going through several levels, and you will find Limbo.

I think we can also accept that Limbo is a shared realm or dimension of sorts. It is not an individual dream but a shared area. Once in Limbo, you can manipulate and shape Limbo as you wish. This view is supported since both Cobb and Mal were in Limbo at the same time and lived together for 50 years, and both had shaped that realm.

So now we are at the Level 3 Snow Fort and Fisher has been shot by Mal. This is where some people start to diverge and ask whether Fisher is dead or not. I would have thought he died after being shot by Mal, and I remember a character saying that Fisher had died. So if Fisher has died, he has gone to Limbo. The alternative theory, which I don't subscribe to, is that Fisher has merely gone unconscious and he is then hooked up to the dream machine, but we never see all of this. I can now safely say that Fisher is never hooked up to the dream machine, and that he is clearly hooked up to the defribilator during the movie. We see Cobb and Ariadne hooking themselves up, and they lie down a distance away from Fisher. Also, there is one single shot when Eams comes back from setting the charges and he sees Fisher's body, and there is just a shot of Fisher and you do not see him hooked up to the dream machine.

So Fisher has gone into Limbo and now Cobb and Ariadne have to go retrieve Fisher. Just like how Cobb and Mal did the first time, Cobb and Ariadne now have to do deeper, by going further than Level 3 to get into Limbo. This is what Cobb and Ariadne do, they hook up the dream machine and the 2 of them go into Limbo. It may be that you need to penetrate a 4th level of a dream in order to reach Limbo. For the inception mission, no one had even thought a 3-level dream was possible (except for Cobb) so Cobb has the experience to know how deep you need to go to reach Limbo.

They then rescue Fisher from Mal.

I now pause here, and describe briefly how I understand a person exits from Limbo. We know that Cobb and Mal exited Limbo by killing themselves on the train tracks. So that is the ~~only~~ one of the ways to exit Limbo, by dying. The key is that you have to realise that you are in Limbo (a fake reality) and then die. This is what Mal attempted in the real life when she jumped off the building. She thought she was trying to exit Limbo.

I now have to substantially revise this part of the Kick sequence and the Kick question below. I call this my simultaneous Kick theory which helps to address some of the supposed plot holes but now throws open a new issue.

Let us examine how the Inception team was planning on exiting each of the dream levels. There are references during the movie about how the timing must be simultaneous in order for the team to ride the Kick all the way back up. Right after Fisher is shot, Eams and Cobb want to set the explosives at Level 3 Snow Fort in order to time the Kick. Ariadne stops them though and convinces Cobb to try to recover Fisher. Why were explosives necessary for the team to exit? This must be because, due to the heavy sedative created by Yusuf, simultaneous Kicks must be used. So while an ordinary Kick (for instance, in the Saito extraction mission) will be enough to 'pull' a dreamer, in the Inception mission, because of the heavy sedative, you not only need a Kick-pull from a higher level, you also needed a simultaneous Kick-push on the same level a dreamer is on.

This in a way then explains why when Cobb and Ariadne went to Limbo, and while in the elevator just before confronting Mal, both Cobb and Ariadne talk about generating a Kick in Limbo. It wouldn't have made sense to talk about any Kick on the Limbo level if the only way to exit Limbo is by dying.

We then come to Fisher when he exits Limbo. He is thrown off the building and he is experiencing a Kick from the falling sensation. He is shown to be conscious while falling so he does not die. At the same time, Eams is using the defib, which we now must accept is generating a Kick at Level 3 Snow Fort as well. I don't quite like this idea of the defib causing a Kick though because that must mean, the defib acts as a Kick and at the same time, revived Fisher (who was dead). This is the new possible plothole. The defib causing a Kick doesn't quite fall into the 'rules' of the falling sensation Kick but it may be stretched because Yusuf does explain that a jolt is enough to generate a Kick. We then also have to accept that a Kick can be felt even if you are 'dead' in one of the dream levels.

The simultaneous Kick theory is further supported by Ariadne's exit from Limbo. I paid attention to the timing of the various Kicks. Cobb, in Limbo, shouted to Ariadne to jump or that it was time to ride the Kick. At this time, Eams had just blown the explosives which caused the necessary falling sensation, which was to be timed with the crashing elevator and the van hitting the water. Ariadne then jumps, and she is conscious with her eyes open, generating the falling sensation for a Kick-push to ride with the Kick-pull from Level 3 Snow Fort.

The clincher as well as then Arthur's situation. Some people asked, how did Arthur not get sent from Level 2 Elevator back to Level 1 Van when the van first crashed through the railing to generate the Kick. All the various characters talked about missing the first Kick when the van crashed through the railings. The reason must be then that there was lacking the simultaneous Kick. Arthur would have needed a Kick-push at Level 2 Elevator to coincide with Kick-pull from Level 1 Van. This is then borne out throuh Ariadne riding the Kick all the way from Limbo. The timing was her falling from the Limbo building (generating a Kick-push), coinciding with the explosion and falling in Level 3 Snow Fort (which would have acted as both a Kick-pull and a Kick-push), coinciding with the crashing elevator in Level 2 Elevator (again acting as both a Kick-pull and Kick-push), which coincided with Level 1 Van crashing on water (Kick-pull).

So Fisher and Ariadne die in Limbo by jumping off the building, which will bring them back to Level 3. Fisher was thrown off the building and Ariadne knew how Limbo worked through her talk with Cobb on how Cobb exited Limbo.

I don't think the jumping off the building was a Kick though. A Kick works by pulling a person from an upper level dream back to the lower level. So for instance, a Kick by way of the exploding elevator crashing on Level 2, will pull the dreamers from Level 3 Snow Fort back to Level 2 Elevator. I have an issue with the Kick that I'll also set out below.

It is only after Fisher has died in Limbo and exited Limbo back to Level 3 Snow Fort, is Eams able to defib and revive Fisher and Fisher then walks into the vault. Ariadne would have known that Eams was trying to use the defib already since there was lightning in Limbo, so Fisher merely needed to exit Limbo by dying and then re-enter his revived body. Without the defib, and if Fisher were to exit Limbo, he wouldn't be able to enter a dead body so Fisher would just be still stuck in Limbo.

This then calls into question why was there a need to set the explosions at Level 3 Snow Fort, and where Eams was risking life and limb to set those explosives. That explosion was meant to act as a Kick, but such a Kick would have merely been to pull a dreamer from a higher level. Here, the dreamers had already gone to Limbo and you have to die in Limbo to get back to Level 3. I can't quite figure that part out, unless of course Fisher, Cobb and Ariadne were at a Level 4 of a dream. But that doesn't tie in with Fisher having died and the fact that we don't see him being hooked up in the dream machine. Also, you can't use the defib with Fisher still hooked up to the dream machine, won't the wires get fried?

Also, if Fisher had died and gone to Limbo before Fisher and Ariadne went to get him, with the time acceleration, shouldn't have Fisher aged a bit by the time they come in to rescue him? But maybe the time gap was not that great.

3. So why has Saito aged in Limbo so much by the time Cobb meets him?

In the movie timeline, I remember Saito dying just about some time when Fisher walks into the vault or thereabouts (in fact, Saito dies a lot earlier than this. Fisher hasn't even been revived from Limbo and Saito has passed away already). Saito died on the Level 3 Snow Fort because he had succumbed to his wounds on Level 1, therefore he went to Limbo.

However, Cobb at this time was still stuck in Limbo and he was stabbed by Mal. A few possibilities then. Cobb died on Level 3 from the explosion, or Level 2 when the elevator crashed or even at Level 1 when he drowned in the van. And in any of those situations, he would have ended back in Limbo and could have been 'reset' that way. Or in a mind bending version, it could have been all three. Died at Level 3, reset, back in Limbo, but then time is passing slower at Level 2, so he then dies again when the elevator finally crashes, reset, back in Limbo, then at Level 1, his body finally drowns, and reset, and he wakes up at the shores of Limbo.

By this time, several decades of Limbo time could have passed and that is why Saito has aged so much.

Interesting scene is where Saito's guards flip Cobb's jacket and you see the gun tucked at his back. I am sure there must be some where in the movie where we see Cobb place that gun. I think Cobb placed the gun in the back of his pants during that scene in the warehouse where they first bring Cobb in Level 1 Van. It could have either been before the questioning of Fisher, when Cobb bursts out in anger about the lack of knowledge of Fisher's extraction defences. Or it when the team drove out in the van from the warehouse.

4. How did Cobb and Saito exit Limbo?

I've been thinking about this one. The easy part is that we know the 'rule' is that you exit Limbo by dying. The difficulty of course is knowing that you are in Limbo in the first place (as you think it is reality) and then killing yourself. That's the difficulty Mal faced in the first place when she was in Limbo.

With the scene of old Saito holding Cobb's gun, and both of them gaining awareness that they were in Limbo, we presume that one shot another and shot himself, or along those lines.

When they then exit to Limbo, at first I would have thought they then exited a level (just like Ariadne and Fisher did) to the Level 3 Snow Fort. But they would have long died in the explosion at least (or died in the exploding elevator or drowned in the van). I think by the time Cobb and Saito kill themselves in Limbo, the other Dreamers would have long exited the layered dream as the sedative would have worn off. There was no longer a Level 3 Snow Fort, Level 2 Elevator and Level 1 Riverbank, as a Dream collapses once the Dreamer exits the dream, and when Cobb and Saito exited Limbo, they just woke up on the plane.

5. The Kick

I understand how the Kick is supposed to work. A lower level dream generates a Kick and pulls you back to that level. You let people know the Kick is coming by letting the Dreamer for that level hear music through the headphones. This is for an ordinary dream, so the Kick in the Saito extraction mission made Cobb wake up. But in an ordinary dream, a dreamer can be woken up by shaking him enough or just jolting him as well. We know though that Yusuf's sedative messes with those ordinary rules, for instance, if you die, you don't wake up but you go to Limbo. So, I think (for the reasons set out above), an ordinary Kick is not enough. A simultaneous Kick is necessary. That is the only way to explain why Cobb and Eams wanted to set the explosives (and brought the explosives) in order for the team to get out of Level 3 Snow Fort.

So, when the van in Level 1 created the first Kick when it crashed through the railings, why didn't Arthur on Level 2, who was awake while the others were asleep, get pulled back to Level 1? The simultaneous Kick theory then explains why Arthur did not wake up and why the timing of all the Kicks were so important. A Kick-pull from a level above was not enough.

This hasn't been explained properly through the 'rules' I think. There was a slightly confusing part of the movie where the characters talked about missing the first Kick at the van level and that they had nonetheless built in a safeguard of a second Kick when the van hits the water. I am sure Arthur was awake at this point in time and before the whole zero gravity sequence. The van in Level 1 would have hit the railings and started its fall, creating the Kick which should have pulled Arthur back. Only when the van went into freefall in Level 1, did the zero gravity start at Level 2. I think the simultaneous Kick theory has enough evidence during the movie to explain all of that.

~~Is there some way to resist a Kick? This wasn't set out in the movie though and should have been explained in the 'rules' if this was so.~~

6. Characters for the dream and why Mal keeps appearing

From what I can gather, there are different types of characters in the creation of a dream for the purposes of an extraction or inception. You will get an Architect who designs the levels in the real world, whether thinking in his or her head, or doing up actual models like Ariadne did for the 3-level dream. We see scenes during the movie where Ariadne is hooked up with solely Yusuf, then Arthur, then Eams, where she must be teaching them the designs for their respective dream levels for the Inception mission. The Architect doesn't necessarily need to go into the dream, like how Cobb was originally going to leave Ariadne out of the inception team but Ariadne insisted she still go since she knew about Mal.

I think the Dreamer and the Architect can be the same. Anyone can be a Dreamer I think, you just need to fall asleep under the influence of the dream machine. However, an Architect must be able to plan out the entire level, especially important once you plan multi-level dreams. Cobb used to be an Architect but no longer wants to be due to the risk of his subconscious projection of Mal then knowing the entire layout of the dream. That same danger applies if Cobb were to be the Dreamer in any extraction/inception mission, the Architect would have taught Cobb the entire layout of the dream, so Cobb can't be the Dreamer in such missions.

When Cobb dreams, his dreams consist of his memories of Mal and he has tried to lock up Mal deep down below in the basement level of his dreams.

So, the Dreamer is the actual person dreaming up the designed level. The Dreamer is hosting the dream, creating the building, the staircases, the snow and outside elements can affect the Dreamer's dream (e.g. Yusuf needing to pee so Level 1 was raining in Yusuf's dream), and the Dreamer can influence and control the environment of the dream.

Then there is the all-important Subject or Mark. This is the person who is unwittingly brought into the Dream hosted by the Dreamer. The Dreamer dreams up the physical boundaries, time and place of the Dream setting, and the Subject then fills up the dream with subconscious projections, filling in the details and making it seem like reality.

The Dreamer can manipulate the dream design, like Ariadne did in her first attempt, but as the dream gets more and more physically impossible, the Subject's subconscious rejects the Dream. So in the example where Cobb and Ariadne are going out for their first test run of Ariadne's powers, Ariadne is the Dreamer and Cobb is the Subject. She has control over the environment, causing the massive inversion of the city while Cobb's subconscious projections filled the city and started to attack Ariadne. These subconscious projections, being the people, seek out the Dreamer, who the projections can sense is the source of the falsity, and the projections try to destroy the Dreamer.

Aside from the Architect, Dreamer and the Subject, there are the other Riders. They hitch on to the dream often times to perform an Extraction. This is the role normally played by Cobb.

Why does Mal keep appearing then? She is a projection of Cobb but Cobb was never the Subject in the Saito heist and the Fisher inception and yet Mal appeared. I think the explanation is that Cobb is so tortured with guilt that part of his subconscious leaks into any dream he is riding on. Ariadne did warn somewhere in the movie about how some subconscious elements can leak into the dream.

When looking at Fisher, he was the Subject in all 3 levels of the dream. In Level 1 Rainy City, his militarised projections hunted down the team. In Level 2 Hotel, the team had to trick Fisher and in turn evade Fisher's projections by pulling a Mr Charles. Then in Level 3 Snow Fort, the team had to again evade the militarised snow patrol.

Well that is my take on some of the more confusing concepts relating to the movie, and I am still left with some unanswered questions. Feel free to comment on any of the above thoughts, I am not sure how correct I am in all those issues.

Working Too Hard - Part 3

2010-07-15T22:22:00.000+08:00

To add to Part 1 and Part 2 of 'Working Too Hard', you know you've been working too hard when you are walking back to your apartment door and then you automatically pull out your swipe card which you use to gain access through your office door.

Hong Kong

2010-07-14T22:10:00.000+08:00

I was in Hong Kong two weekends ago for about 5 days. I was there to attend an overseas workshop and extended my stay for a bit to do a bit of sight seeing as well. It was only my 3rd time back in Hong Kong and I would be in the Central area for most of my time there.

As I arrived on 1 July, it was a public holiday and at the same time, there was the annual demonstration along the streets. At first I thought it was just a demonstration against the lack of democracy under China-rule, but as I saw the procession on the streets, all manner of groups were demonstrating. All done in a very peaceful manner under the watchful eye of the police, and where the police had cleared the traffic, and set up lines to allow the directing of traffic. All very calm and organised.

The whole time while watching the procession, I couldn't help but think how different it is back in Malaysia. Any such demonstration, especially where more 'opposition' based, would immediately bring out the presence of the Federal Reserve Unit, riot gear and water cannons.

I was putting up at Lanson Place Hotel near Causeway Bay so I had a bit of time on the first day to go walking around the area where I ended up at Times Square where I met a larger-than-life Buzz Lightyear.

I always like visiting Hong Kong. It's got a buzz about it and the only thing you have to get used is how tight and confined a lot of places seem. A lot more compact than Singapore. This trip round though, I really felt the impact of not being able to speak Cantonese. It's so difficult to survive without being able to speak Cantonese and not being able to read all the Chinese characters on menus or shops.

The workshop I attended was really the highlight of my trip and I really benefited from it and met a lot of interesting people. Just hope that there is another similar workshop/conference soon in the Asian region. Aside from the workshop, some of the highlights from my trip are set out below.

Discovered this dessert chain on my last trip and I straight away hunted for it when I arrived. Thankfully there is a branch right at the Causeway Bay MTR station so I was indulging in the mango drink for most days. Hui Lau Shan is the best!

On my day of sightseeing, I had time to head up to Victoria Peak, or the Peak. I remember that I headed up the Peak when I was first in Hong Kong, back when I was around 14 but I can't remember any of the sights. I headed up the tram and then it was time to enjoy the slightly cooler surroundings up at the Peak.

The views were quite breathtaking I must say. Very heavily commercialised though up at the Peak, where there are lots of shops selling all sorts of trinkets, over-priced food and drinks, and even electronics. There's even a Madam Tussauds where a familiar character can be seen outside.

After heading up and down the Peak, it was time to take the next must-do touristy thing by taking the Star Ferry from Central over to Tsim Sha Tsui. I always thought it was going to be an open-air ride, and I had all these images from various Hong Kong movies in my head. But it's all enclosed with the air-con blowing so not all that great.

And finally, near the hotel was a frozen yoghurt outlet called Yogo. This was another place I stopped by very often. Really good tasting yoghurt and I skipped most of the toppings. Seemed to have people inside the shop all hours of the day.

I'm sure I'll be back in Hong Kong again in the near future. So I've kept the Octopus card with me still.

The KL StanChart 10km Run

2010-06-30T23:00:00.000+08:00

On Sunday, I completed my 10km run at the KL StanChart Marathon. I hadn't been able to really train for the run, hence the downshift from the usual half-marathon distance to the 10km run. It had been a while since I took part in a 10km event back in 2008.

I couldn't seem to get to sleep on the Saturday night and by the time I dozed off, my alarm had rung at too early a time of 4.40am. Groan. Managed to drag ourselves, being the 3 of us 10km runners, to make it to near Lake Gardens where I parked my car by the side of the road.

This was going to be my very first event where I was going to run in my Vibram Five Fingers, and I wasn't sure how my legs would hold up. I had never run a 10km distance in my VFFs so that morning was going to be something new.

Unlike the usual race chip I was used to, the tracking device was now this strip of plastic. Pretty cool. Not quite designed for VFFs though, so I had to make do with strapping it within my velcro strap. I later saw a barefoot runner, and he had just strapped it round his ankle.

Flag off was at 7am and all the runners had packed the stands over at Dataran Merdeka. This year was going to see a new route and it was a lot nicer and flatter than last year's route. I did find the start of the route very narrow, with a lot of runners all bunched up together for the first 2km or so. I was targeting a run under 1 hour, since I hadn't run below that mark before. I started off a bit slow but by the 5km mark, it seemed like I would be on target so I just kept pushing on. My legs and feet were still holding up in my VFFs, although a slight ache was developing on my knee.

I eventually crossed the line just over the 57 minute mark. Quite proud of myself and it was an enjoyable run. From a mental aspect, it was a lot more enjoyable than the gruelling half marathon distance. After 5km, you can tell yourself that you are already half way to the 10km finishing line. In a half marathon, I'd have to tell myself that I was barely a quarter way through. The 10km just seemed to pass so quickly.

It was then time to chill and relax, and take some photos at the finishing area.

The medal this year looked quite cool, with the StanChart logo. Helps to differentiate the finisher's medal of the KL run and the Singapore one.

The organisation of this year's event went a lot more smoothly than last year.

There was however one very sad news though. After the run, I found out that a runner in the 10km race had collapsed and then passed away. A full account can be read here. Essentially, it appeard that medical help took quite a while to reach the runner. I can attest to that since during my whole run, I couldn't see any first aid or medical staff around. Even at the finishing area, when I was walking around, I heard the announcer having to make a public announcement to ask for medical personnel to come to the stage as someone had collapsed. Shouldn't the organisers already have emergency staff at the finishing area who could immediately tend to the situation? It's really sad what happened to the runner.

The situation reminded me of the runner who had died under mysterious circumstances at last year's adidas King of the Road event. All the details can be found at this website.

The Night Before the Race

2010-06-26T21:51:00.000+08:00

I will be taking part in the Standard Chartered KL race tomorrow, in the 10km event. It's been a while since I ran a 10km race. Wait, in fact, it's been a while since I ran any race. Period. The 10km distance should be quite enjoyable, and not as torturous as the half marathon, since I haven't been training that hard.

Tomorrow's race however will be the first time that I will be running a race in my Vibram Five Fingers. I've only been managing around the 8km distance in my VFFs so this will be a new threshold for me to cross. My calves have stopped aching already on my infrequent runs. The soles of my feet get very sore however by around the 8km mark. They just haven't been toughened up enough, which must be because I haven't been running consistently enough. Bring on the blisters tomorrow.

The 1 Malaysia International Dragon Boat Festival

2010-06-20T23:28:00.001+08:00

18 to 20 June saw the culmination of 3 months of weekly trainings at the Putrajaya lake. It was time for the team to compete at the 1Malaysia International Dragon Boat Festival (renamed from last year's Putrajaya International Dragon Boat Festival which we also took part in).

Whereas last year we had a pretty core group of the same paddlers from an earlier competition in Singapore, this year, more than half of the team were made up of newcomers. Where the newcomers lacked in experience, they more than made up in enthusiasm though, with a lot of them picking up the technique very quickly and they attended most of the training sessions.

The competition was again held at the really beautiful Putrajaya Water Sports Complex, and it sure beats all of the other venues I've seen. It's also very audience--friendly with the grandstand very close to the finishing portion of any race.

Friday's first race was going to be a very early start at 9am, and where we had to meet at our tent at 7.30am. Unlike last year where the tents were set up outside the complex and on some gravel, the organisers moved all the participant tents into the grounds itself very close to the water. Really helped to develop an 'athlete's village' feel and where the teams could see the races taking place and also hear the announcer calling for teams to register.

By around 8.40am, having warmed up and stretched, the announcer called for our team for the Finals of the Malaysia Corporate Mixed 22. There were only 6 teams competing and hence it was a straight Finals.

At this stage, some of our remaining paddlers are running in, more than an hour late from our scheduled meet up time, and we scramble to get our team together. This will be the start of my main grouse of the weekend, where everytime there were latecomers in the team which then disrupted the warmups.

We then start to board the boat and are about to paddle out to the starting pontoon. Some of us have participated in a number of competitions already, and everything seems familiar. But I can only imagine how some of the first timers must be feeling, with adrenaline levels already rising.

There's always time for a quick photo before the race

We have seen the other teams boarding and we see some of the old strong teams back at the competition while there are some newcomers, who all look a lot more muscular and fit than us. We're just going to have to stick to our game plan. Unlike previous years, I am no longer steering and instead I will be paddling this time.

Heading out

We get ourselves lined up quite quickly and then it's just a matter of waiting for the aligner to ensure all the boats are lined up nice and straight. Our boat glances left and right, and our drummer reminds us to just look straight ahead. I will be responsible for calling out our "Power 5" sequence and I'll have to keep a look out for the other boats. We breath in and out. The announcer tells all the boats to standby, as he is about to give the starting commands. This then causes quite a bit of movement as all the boats now start going into their "Paddles Up" position even without the starting commands being given yet. We then then also feel the pressure and we hastily lift our paddles up. The announcer then starts the start sequence. "Are you ready??" "Your attentionnn..." "GO!"

We plunge our paddles in an almighty catch and then pull with all our might, and we kick off the start of the race. I am in the second row so I can't see how the rest of our crew is doing but everything seems to be working well for the first 50 metres or so. I see 1 or 2 boats starting to surge ahead of us, but they were the expected strong boats. I keep an eye out to my left as I see that we have gone ahead of another boat, but that boat is soon starting to gain on us. I call our the "Power 5" and the drummer immediately responds and gives us a countdown to surge ahead. We kick it in for that 5 strokes and again, out of the corner of my eye, I can see that we did put a bit of distance between us and the other boats.

Some of the other boats are trailing quite behind so I can't view them. But there is still a boat on the left gaining and gaining on us, almost as if reeling us in. "Power 5" sequence kicks again, and we push past the halfway mark. we are now in 3rd place, with the boats in 1st and 2nd place getting further and further away from us. The race is coming to an end, our muscles are still straining and we maintain our constant pace. The boat on the left is still gaining though, and we throw our final "Power 5" to push to the finishing line. The other boat is also very close and as we celebrate at the finishing line, we aren't 100% sure whether we won 3rd place or not. It seemed quite close.

We disembark and even as we pat each other's backs, we still aren't so sure whether we won the bronze medal position. I run over to the race official's office to look for confirmation.

We got 3rd place! Narrowly clinched it by 2 seconds, but still bronze medal for us! With the euphoria dying down, it was time to take a rest where most of us headed home to catch a quick nap before the afternoon races. We would have to meet up again at 2.30pm. We then split ourselves up into two boats, for the Malaysia Corporate Mixed 12 races.

The afternoon heats went well, but with slower comparitve times to last year. This time round, one of our boats narrowly missed out in making the finals. We had a bit of time to then rest in Pullman, as we had booked 2 rooms for general use and for us to shower. A really beautiful hotel but I wonder who normally stays there in the middle of Putrajaya and not really close to any major attraction.

Friday night was spent having the seafood BBQ buffet spread over at The Village of Pullman. It really isn't very good, I wouldn't recommend it. They say seafood, but the staff there didn't bring it out a lot of seafood. When we asked them where were the mussels, scallops, squid, their answer was that it was still defrosting. Awful.

Saturday and Sunday were the start of the International races, and there were so many international teams down to add to the crowd. There were teams from Singapore, Australia, Hong Kong, and the Phillippines. Our first race on Saturday was for the International Ladies 12 event, where it was time for our female paddlers to show their stuff.

In this race, we fought a close fight for 4th and 5th placing. The Australian women to our left just kept gaining and gaining. We were in the lead, but all our surges just couldn't shake them off. The ladies did not give up though and I was steering for this event, and I could see them continuing to keep sync and pushing every muscle they had. In the end, we had to settle for 5th in the 7 boat race.

The Saturday afternoon saw us repeat our Corporate Mixed 12 races, but now in the International event. Both the heats would have strong teams and I could see fatigue hitting us, with both boats posting significantly slower times than the day before.

There was the highlight of Saturday where we got to attend the prize giving ceremony to be awarded our hard-earned bronze medal from the day before. We could possibly have been the team who stood the longest on the 3rd place podium as we frantically took pictures of ourselves.

Our third and final day on Sunday saw us competing in the International Corporate Mixed 22 finals. This did not turn out well with us heading off-course.

That brought our 3-day competition to a close, with all of us still walking away with a huge sense of achievement from our performance on our first day. As a team building activity and to foster closer ties, I think the last few months have been an amazing experience for all of us. There is always this special dragon boat bond among dragonboaters and former dragonboaters from the firm, with us all being able to relate to shared experiences, tribulations and achievements. It has been a sacrifice, the number of trainings we've put ourselves through and I'm sure everyone will be glad to have their Saturdays back. At the same time, there will be this slight void with the absence of dragon boating.

But even amidst all the fun and trainings, I know there are still certain fundamentals that the team will need to improve on. It's something a real proper coach needs to help the team with if we want to continue to improve. Synchronisation, uniform technique, steering, fitness, all elements we can improve on. This year was kinda hodge podge in the training process, with me taking on quite a bit of the coaching on the basic elements and then off and on having other trainers give their input.

Let's see if the next year will bring us to new heights. Until then, I'm going to need to catch up on sleep and rest my aching muscles.

At least we'll look good?

2010-06-16T00:20:00.000+08:00

We've added to our dragon boat race attire this year. Aside from a race jersey, we've also invested in our own set of PFD (personal flotation device) as well as a second team jersey.

We will be racing at the 1Malaysia International Dragon Boat Festival this weekend, from Friday to Sunday. So we will be having a very early start on Friday itself with a 9am race. We will have to meet at the Putrajaya Water Sports Complex at 7.30am, to do our warm-ups and to get ready. Thankfully the firm has given us the entire Friday off.

The Friday races are confined to the Malaysian events only. Guess those are the races where we have the best chance of getting a decent result.

Saturday and Sunday will then be busy with the International races, where we will be up against really strong teams, with strong teams from Singapore racing against us.

Team Jersey

Race Jersey

It's going to be one exciting weekend, regardless of the results. We've been for quite a number of weeks for this competition. Let's hope the team performs up to the potential that I know they are capable of.

Crime at Kiara Park TTDI

2010-06-03T22:55:00.000+08:00

The car break in that I blogged about, well that occurred at Kiara Park at TTDI. I then read in The Star today about this syndicate apparently operating there where they secretly break in to the cars parked there, and then swap the credit cards of the people who have gone off jogging. This allows the thieves more time to rack up bills on the credit cards before they get cancelled.

Part of the article reads:

KUALA LUMPUR: A tailor was shocked to find someone had entered her car and switched her credit cards with cards which belonged to another person.

The woman, who only identified herself as Ms Tong, 31, from Subang Jaya, said that she had left her car at Taman Tun Dr Ismail Mon’t Kiara park on Sunday before going for a jog.

She came back later to find her car unlocked. However, she was relieved that her purse which she kept under the driver’s seat was still intact. Thinking that no theft had occurred, she left. Later she received a call from her bank requesting her to verify some transactions that she had made.

She was shocked when told that she had purportedly spent RM24,000, and upon checking her purse, she found that her credit cards had been replaced with those belonging to another person.

I really am so angry. Why is it that Malaysia has such a high crime rate? Why is it that I have friends who have houses broken into in broad daylight? Snatch thefts operate with impunity and burglars can break into the house and murder the occupants in there? It's as if this is a lawless country. It really is no wonder that a legitimate concern of people wanting to leave the country, is that they want to work and live some where safer.

Car Broken In

2010-05-30T22:31:00.000+08:00

My car got broken into this week. It was quite depressing.

My car was parked outside and I had locked my belongings into the boot. When I returned, I noticed that my boot was ajar a bit. I thought to myself that I was very sure my boot was locked and at first, thought whether I was stupid to not close my boot properly and someone could have taken my stuff.

I opened my boot and my bag was still there. I started to rummage for my phone and it was gone. My relatively new Blackberry, gone. I started to panic a bit and checked the other compartments of my bag and it wasn't there. I check for my wallet and it was there, and I quickly flipped it open. My cards are still there but all the cash had been taken away. Realisation started to sink in and I started to accept that my boot had been forced open. My watch had also been taken away and I could see the damage done to the lock on my boot, where it looked like some sort of sharp object had forced it open.

I got into my car and drove furiously back to my office, the first thought on my mind was that I needed to get to a phone to quickly call up my service provider suspend my phone. The over-powering feeling of anger washed over me. I was first of all so angry at myself for having not parked somewhere else, or maybe trying to secure the car more, or to have done something different. The car had already been parked in a very open area and I am very sure that whoever had broken into my boot, had been seen by other people passing by but they must have thought it was just his car. I was then so angry at the thief. He stole not only my relatively new phone but also my watch which was a graduation gift. I am only thankful that he did not take my whole wallet, with all my credit cards and IC. That would have been a nightmare to replace and cancel all those cards.

Everytime I walk back to my car now, I half-expect the car to be broken into or for the car to not even be there. I just wouldn't be surprised anymore. Not in this country.

KBS Dragon Boat Competition

2010-05-27T23:50:00.000+08:00

Last Saturday was the team’s first dragon boat competition for this season. It was for the competition organised by the Kementerian Belia dan Sukan (KBS), or Ministry of Youth and Sports, for various water sports including dragon boating. The team had been hard at training for the last few weeks so it was going to be a good experience for the team to get a taste of what competition conditions would be like. We more or less had to rebuild most of the team, with a lot of experienced paddlers leaving or not returning for this year’s season, so more than half of the team were newcomers.

The dragon boat event at the KBS competition was only a small race, with only an Open category for the small 12-person boat. What that meant was that while we had a mix of male and female paddlers, all the other teams would be fielding all-male boats since there were no restrictions. The race was held at the Putrajaya Water Sports Complex, a beautiful facility and a place where we had raced often already. The team assembled there bright and early at 8.30am, in order to do warm-ups and stretches.

There were multiple road blocks in Putrajaya that morning, due to some attempt to break some walking record for the Guiness Book of Records. It just caused a lot of unnecessary trouble I thought. Most of us got to the complex very late but we had time for our warm-ups. We would be fielding two boats, and the first heat was at around 10.10am and the other at 11.10am.

I am always impressed by the surroundings near the Putrajaya Water Sports Complex. The beautiful waters, the nice facilities, the wide open space. It's a pity it is all tucked away in Putrajaya, which is so far away and not many people get to experience the sights.

Our first boat did quite well in the heat. We weren't expecting much at all for this competition but we did manage to beat one team. The second boat then got ready to head down into the water. For many of the team members, this was their first time ever even spectating a dragon boat competition, much less paddling in one. It was going to be important to get the first competition nerves out of the way.

Paddles up!

Off they go

The other teams in that race

Our second boat didn't fare too well, but all of us took away a lot of important lessons from that competition. The one aspect which is improving each year is that the team takes the trainings and the tips all a lot more seriously. I see a lot of people making the effort to improve their technique, to work on their fitness and to never give up. It looks like it is going to shape up to be a very fun season for us.

We unfortunately won't be taking part in an outstation competition during this period, as we won't be making our usual trek up to Penang. But we are gearing ourselves up to compete at the Putrajaya dragon boat festival, now dubbed the 1Malaysia International Dragon Boat Festival.

Young Legal Eagles' Great Expectations

2010-05-24T00:13:00.002+08:00

I was forwarded an article from the Singapore Business Times with the above title and it really struck a chord with me. I think the first part of the article really rang true. The writer is a partner at the Singapore law firm ATMD Bird & Bird LLP. Rather than having a younger lawyer write the article, which may then be dismissed by more senior lawyers as another whine and gripe from a Gen Y lawyer, at least the article was written from the perspective of a managing partner.

I've set out the first part of the article below:

When I started working as a lawyer in Singapore in the 1980s, there was a lovely senior English gentleman lawyer whose office was in the building next to ours in Fullerton Place. I would quite often see him strolling to his office, newspaper under his arm, well after 9 am.

I knew other senior lawyers who strolled out of their offices into their chauffeured cars at about 4.30 pm to get in 9 holes of golf at the club before it got too dark.

I thought with approval that these relaxed hours were the prerogatives that senior lawyers had earned and deserved, and they were career role models who made becoming a partner something to strive for. I had the impression that good lawyers who remained with one firm throughout their professional lives were fortunate, and that too was something to aspire to.

But times changed, and by the 1990s, it was evident that partners in law firms could not rely only on their seniority to retain their position in their firms. Partners must continually demonstrate their value to the firm - seniority and longevity alone were not enough.

Very long work hours became a matter of course. Partners stayed in the office as late as, if not later, than their lawyers. In addition to being technically good at the law, stamina and toughness were valued.

By the early 2000s, when I was managing partner of our firm, we began to notice that quite a number of our younger lawyers were leaving legal practice.

It was not that they were working inordinately long hours - we had a reputation, and still do, for being a 'family-friendly' law firm that values work-life balance.

At first we thought that perhaps the younger generation of lawyers were 'soft'.

It eventually dawned on us that the younger generation of lawyers were making lifestyle choices that had nothing to do with being soft.

They simply had options - they had financial resources (usually from their parents), that meant that they did not have to earn a living as professional lawyers if they did not want to.

We became aware that partners were not necessarily good career role models any longer - partners continued to work too hard, and did not enjoy the lifestyle choices of the younger generation.

Outstanding younger lawyers who were on track for partnership baulked at the prospect of becoming partners, a status that was previously so sought after.

We eventually realised we were not looking at individual quirks, but at a trend. The younger generation was a different breed, and the old assumptions as to what attracts, motivates and retains lawyers did not necessarily apply to them.

You can read the rest of the article here.

Memories of the UK

2010-05-23T21:15:00.002+08:00

I spent just about a week back in the UK, after being away for close to 6 years. Walking around and experiencing life back there brought back so many memories of my time spent in the UK during my LLB and Bar year.

I've set out below the hodgepodge of random memories that came back to me during my time in the UK, since I managed to relive these memories. I've also included random pictures taken from my UK trip.

Walking into Greggs to pick up my favourite combination of some chicken pasties, a chocolate donut and a bottle of Oasis drink.

Making shopping trips to the Chinese supermarket.

Buying boxes (yes a whole box, not just packets) of Indomee. These Indomee were from Indonesia and not the not-as-tasty variety we get back here.

Having dim sum at Royal China at Bayswater, and tucking into the egg tarts.

Taking the train from Bristol Temple Meads station, and then waiting at Paddingtons station to get back. Flipping open the rail pass to get discounted tickets.

While sitting in my brother's university common room, remembered the many lunches spent at the UWE common room ordering whatever specials they had for that day.

Walking into a Wetherspoons pub, and ordering a veggie burger or other burgers at the bar.

Buying and putting on the different layers of clothing. A zipped sweater, a jacket, a scarf, beanie, windbreaker.

Feeling the cold freezing air on my face even as the sun is shining bright in the sky.

While walking around the city, everyone seems to blend in and blur together, all in the same dark colour palette.

Walking out of the house, in the chilly night, having thrown on a thick jacket over whatever t-shirt I had been wearing at that time, in order to trot over to the nearby kebab stall to take away a tasty but sinful doner kebab lathered with chilli or garlic mayo sauce.

Walking into the supermarket, and when buying milk, I don't choose by looking at the different brands or packaging. Instead, you look for only 3 colours: blue, green or red. The favourite was green, blue was full cream while red just tasted too watered down.

While checking out at the supermarket, I hear the familiar phrase "Would you like cash back?"

Despite the cold and the wind outside, as long as there is a stretch of sunshine, I will see people walking around in t-shirts and shorts, or summer dresses, while I am still wrapped up in my layers since the temperature is still hovering below 10 degrees.

I miss it already. I would love to go back there again.

London coming

2010-04-30T01:46:00.000+08:00

I have finished packing and I am all set to head off for a holiday of sorts. I am flying to Singapore tomorrow morning to meet up with my family.

After that, we are off the next day to spend a week in London! Really looking forward to it. Will be there for my brother's graduation (second time graduation since he has now completed his PhD). Hope the weather is nice and I am looking forward to this break.

I will still have my Blackberry with me though. I have learnt my expensive lesson to not leave the data-roaming on. Will rely on my Wifi. Check back in to this blog again soon.

Part A Singapore Bar Exam

2010-04-28T23:22:00.000+08:00

Today, I've submitted my application forms to the National University of Singapore to sit for the Part A Bar exam. Well, more like I posted the forms to my parents in Singapore and they helped me submit it to the university.

The Part A Bar exam is the first step for foreign law graduates to gain admission to the Bar in Singapore. You can sit for a 3-month course at NUS and then sit for the exam after that, or just sign up for the exam itself. I've done the latter since I won't be able to take that much time off work to sit for the course.

To qualify to sit for the Part A exam, you need to satisfy certain requirements, primarily the fact that you need to have graduated from one of the scheduled universities (whether from the UK, Australia or the US) and with a minimum grade on your degree. The other requirement is that you need to be a Singapore citizen or Permanent Resident.

If you don't satisfy these requirements, you'll need to apply for an exemption from the Ministry of Law and that is what I'll next be doing, as I am not a Singapore citizen or PR, but thankfully I satisfy the other requirements. I am not sure how successful I will be in getting the exemption but I am taking this one step at the time, and putting in one application after the other.

The Part A exam will be in November and if I pass, there is normally a Part B component. This involves a practical law course as well as a compulsory pupillage (now called training contract) period. However, since I've been in practice in another jurisdiction for more than 2 years, I can also apply to be exempted from the Part B component. So that is going to involve another exemption application to be put in to the Ministry of Law.

Only if I get that exemption, will I then qualify to be called to the Singapore Bar, which is what I finally hope to achieve. I'm not thinking so far ahead as to whether I want to seek employment in Singapore. I am taking things one step at a time first, as at any moment, I am expecting to hit a stumbling block some where.

Dragon Boat Season 2010

2010-04-22T23:24:00.000+08:00

The dragon boat season is in full swing for the team. We have had about 5 training practices over at Putrajaya now, and instead of the Putrajaya Lake club where we used to train, all the dragon boats are now located at the Maritime Centre. Really modern facilities over there, and with a large open lake to paddle on, though you have to share it with the water skiers and some motorboats.

The team this year has a lot of new faces, and with quite a number of strong paddlers having left the team/firm. It's a rebuilding process this year, and we possibly have one of the smallest teams since we started paddling. The enthusiasm and dedication of the newcomers more than make up for all of that though. It's great to see the new paddlers making so much effort to attend practices, hone their paddling technique, think and digest on all the drills we go through.

Each year I experience a bit of inertia in getting the team started again, especially after a long lull in dragon boating. But now that we are in the full swing of things, the Saturday practices are really a highlight of the week. We wake up just past dawn, and then we make our long journey to reach the Putrajaya Maritime Centre before 9am in order for practices to start sharp at 9am (with penalties for those who are late).

The team is already buzzing thinking about our first dragon boat competition for the year, which will be on the weekend of 15 May 2010. For most of the paddlers, this will be their first time ever seeing a dragon boat competition, much less actually competing in one. It will be the KBS Water Sports Festival at Putrajaya, where the events will be in the smaller 10-paddler boats. We will be taking part to try to gain valuable competition experience in order to work our way towards our main goal, the 1Malaysia International Dragon Boat Festival, also at Putrajaya. That will be on the weekend of 18 - 20 June 2010.

Dragon boating is still a fresh experience year in year out, with new team members, new challenges and an increasing sense of satisfaction. It is especially telling when there were former team members who left the firm and what was common in their farewell message, was that a highlight of their time at the firm was being part of the dragonboating team.

Here's hoping for a successful 2010 season. I am sure it's going to be a lot of fun.

The Lady Gaga Conspiracy?

2010-04-13T22:13:00.002+08:00

Have any of you caught Lady Gaga's newest video, Telephone? I just find it a bit strange and in general, her image and videos are very out-of-the-ordinary.

Of course the video feels a bit disjointed in a lot of areas, and you can't quite follow the plot completely. Aside from the obvious Quentin Tarantino references, I wanted to find out more about the video so I started to do a google search about the meaning behind 'Telephone'.

That's when I jump into the page of Vigilent Citizen. Reads like a big conspiracy theory but you can't escape some of the symbols he has pointed out. Never realised the possible Illuminati references with Lady Gage always emphasising only one of her eyes. You can click around that blog as well and see more in-depth articles on some of the other symbols littered in the other videos of Lady Gaga. Take with a pinch of salt.

Bolo Santosi: Singaporean accent in a video game?

2010-04-12T19:57:00.001+08:00

Saw this featured on mrbrown and it's hilarious.

It is the voice of the character, Bolo Santosi of the game Just Cause 2. I think the Singaporean accent is spot on and definitely cringe-worthy. The video game character then spawned a Facebook fan page and some netizens even managed to track down the person who did the voice acting.

Forcing Suffrage to End Suffering

2010-04-06T23:00:00.004+08:00

One of the important ways in which the members of a company can express their views and concerns about the management of the company is at the general meetings of a company. Ordinarily however, the power to convene an extraordinary general meeting ("EGM") vests in the directors of the company (for instance, Article 44 of Table A of the Fourth Schedule of the Companies Act 1965 (“Table A”) allows any director to convene an EGM). The members themselves do not have a common law right to compel the directors to convene an EGM.

Sections 144, 145 and 150 of the Companies Act 1965 (“the Act”) provide different mechanisms for the members to convene an EGM. In a majority of cases, such an EGM is convened to allow the members to vote on the removal and replacement of the directors. As a riposte, whether by an opposing shareholder faction or the directors themselves, legal challenges may then be made based on whether the procedural requirements have been adhered to.

This article therefore analyses the three different modes and their requirements for convening an EGM as provided for under sections 144, 145 and 150 of the Act.

SECTION 144 – SHAREHOLDERS REQUISITION DIRECTORS TO CONVENE AN EGM

Section 144 of the Act allows members, holding not less than 10% of the voting rights, to requisition the directors to convene an EGM of the company. Section 144(1) of the Act makes it clear that this statutory right of the members is preserved notwithstanding anything in the Articles of the company. The reason for the 10% shareholding threshold under section 144 of the Act, which is also present in section 145 of the Act, is necessary to prevent frivolous convening of meetings which would disrupt the administration of the company.

(i) “Members”

It is likely that notwithstanding the term “members” under section 144 of the Act, even a single member, holding not less than 10% of the voting rights, can rely on the provision. The High Court in Granasia Corporation Bhd & Ors v Choong Wye Lin & Ors and another case [2008] 4 CLJ 893 held that a single member could requisition under section 144 of the Act and the Court referred to the Australian decision in South Norseman Gold Mines No Liability v MacDonald [1937] SASR 53.

(ii) Requisition Requirements

Section 144(2) of the Act lists the requirements of the requisition notice in that it must state the objects of the meeting, it must be signed by the requisitionists and deposited at the registered office of the company. It is sufficient if the requisition is sent by post to the registered office of the company (Hup Seng Co Ltd v Chin Yin [1962] MLJ 371).

Upon the deposit of the requisition notice, the directors have 21 days from that date to issue a notice to convene the EGM (section 144(3) of the Act). Further, the EGM must be held within 2 months from the date of the deposit of the requisition notice (section 144(1) of the Act).

It is likely that a meeting requisitioned by the members cannot deal with a resolution not included in the objects for which the meeting was requisitioned (Scottish authority of Ball v Metal Industries 1957 SC 315). However, there is the alternative view that any business can be transacted at such a requisitioned meeting if sufficient notice of the necessary resolutions is given (Holmes v Life Fund of Australia Ltd [1971] 1 NSWLR 860).

(iii) Directors Fail to Convene EGM

In the event the directors fail to convene the EGM within the 21-day period from the date of requisition, then section 144(3) of the Act gives the requisitioning members a remedy of self-help in that the requisitionists themselves can convene the EGM.

Nonetheless, if the directors were to issue the notice to convene the EGM after the 21-day period and the EGM were to be held after the 2-month period from the date of requisition (without objection from the requisitionists), such an EGM would not be void. Such was the case in the High Court decision of Dato’ Hamzah Abdul Majid & Anor v Wembley Industries Holdings Bhd [1998] 4 CLJ Supp 471 where the directors who had been removed at such an EGM had tried to seek a declaration that the EGM was void for breach of section 144 of the Act. It was held that the duty on the directors to convene an EGM under section 144 of the Act was owed to the requisitionists. If the meeting was held on a late date, and the requisitionists had not sought to convene one on an earlier date, it would be because it still suited the requisitionists’ purposes. Nonetheless, holding a late EGM would still expose the directors to the general penalty provisions under section 369 of the Act.

(iv) Members Convene the EGM

In exercising their right to convene an EGM under section 144(3) of the Act, the requisitionists also face a deadline in that the EGM must be held within a period of 3 months from the date of the requisition (Court of Appeal decision of HL Nominees (Tempatan) Sdn Bhd v SJA Bhd & Anor and Another Appeal [2005] 1 CLJ 23).

The rationale for this time limit is to maintain good order in a company. The requisitionists having been conferred the power to convene the EGM, must not delay in holding the meeting (Dato’ Hamzah Abdul Majid & Anor v Wembley Industries Holdings Bhd [1998] 4 CLJ Supp 471).

As long as requisitionists holding one-half of the total voting rights of the original requisitionists convene the EGM, it is valid (section 144(3) of the Act). Therefore, the withdrawal of some of the requisitionists does not affect the right of the others to call the EGM (Canopee Investments Pte Ltd v Landmarks Holdings Bhd [1989] 2 MLJ 469).

(v) Expenses

An advantage of requisitioning a meeting under section 144 is that if the requisitionists convene the EGM, then all reasonable expenses they incur shall be paid to them by the company (section 144(4) of the Act).

SECTION 145 – MEMBERS CONVENING MEETING THEMSELVES

Section 145 of the Act allows two or more members, holding not less than 10% of the issued share capital (or if the company has no share capital, not less than 5% in number of members) to directly convene a meeting of the company.

Instead of relying on the section 144 mechanism which necessitates waiting for the directors to decide to call an EGM, section 145 of the Act gives the advantage of allowing the members to call for such a meeting themselves and this route can be a lot faster. However, section 145 of the Act does not give the members a right to be repaid any expenses incurred by them in holding such a meeting.

(i) “Two or more members”

While it is likely that a single member can rely on section 144 of the Act, section 145 makes it clear that two or more members are required in order to convene a meeting under this provision.

(ii) Statutory Right?

Section 145 of the Act does not contain the wording “notwithstanding anything in its articles” which is present in section 144 of the Act. A question arises as to whether there can be a contracting out of section 145 of the Act i.e. whether the Articles can exclude members relying on section 145 of the Act.

The Court of Appeal in Indian Corridor Sdn Bhd & Anor v Golden Plus Holdings Bhd [2008] 3 MLJ 653 (“Indian Corridor”) had to deal with a question related to such an issue. The facts involved the two appellant-shareholders convening an EGM pursuant to section 145 of the Act and the respondent-company challenging the convening of the EGM. Article 55 in the respondent’s Articles provided that the directors may convene an EGM and that EGMs “shall also be convened on such requisition, or, in default, may be convened by such requisitionist, as provided by Section 144 of the Act.” One of the main issues in the appeal was whether Article 55 had the effect of contracting out of section 145 of the Act.

The Court of Appeal held that on a construction of Article 55, there had been no contracting out of section 145 of the Act. The wording of Article 55 did not state that the shareholders shall not resort to their right under section 145 of the Act.

Nonetheless, the decision leaves open the question if the Articles of a company expressly exclude members from seeking recourse to section 145 e.g. the inclusion of a phrase along the lines of “EGMs may be convened by such requisitionist only by way of section 144 of the Act and section 145 of the Act is expressly excluded.”

The Court of Appeal in Indian Corridor distinguished the equivalent Australian provision (section 242(1) of the Australian Companies Code) as that section has the wordings “so far as the articles do not make other provision” which the Australian courts have held allow for the contracting out of the statutory provision (LC O’Neil Enterprise Pty Ltd v Toxis Treatments Ltd [1986] 10 ACLR 337). The Court of Appeal found that while the Australian provision permits a contracting out of its provisions, section 145 of the Act has no equivalent. This question may therefore still be open to interpretation by the courts.

(iii) Notice Period

Section 145(2) of the Act makes clear that in relation to a meeting of a company, the minimum notice in writing must be not less than 14 days or such longer period as provided in the Articles. In the specific case of the convening of an annual general meeting of a public company, section 145(2A) of the Act requires that notice in writing of not less than 21 days or such longer period as provided in the Articles.

(iv) Service of Notice

Section 145(4) of the Act also requires that if the Articles do not make provision for service of the notice on every member having a right to attend and vote at the meeting, then the notice must be served in accordance with Table A.

Unlike under section 144 of the Act, where the primary obligation is on the directors to issue the notices to call for the EGM, the members relying on section 145 of the Act must carry out the issuance of the notices themselves. In planning the calling of a meeting under section 145, the members can rely on section 160 of the Act to inspect or to obtain a copy of the register of members of the company to obtain the names and addresses of all the members.

SECTION 150 – COURT ORDERED EGM

There may be situations where it is difficult or almost impossible to hold a meeting of the company, even if there is reliance on sections 144 or 145 of the Act. For example, an opposing shareholder may refuse to attend the meeting and the quorum requirement under the Articles cannot be met. The Court is empowered under section 150 of the Act to order a meeting of a company to be called where it is impracticable to call or to conduct a meeting in the manner prescribed by the Articles or the Act.

(i) Applicant

The Court may make an order to convene a meeting on its own motion or on the application of a director or any member who is entitled to vote or the personal representative of such a member.

(ii) “Impracticable”

The onus is on the applicant to show that it is impracticable to call for a meeting of the company in any manner whatsoever or to conduct the meting in the manner prescribed by the Articles or the Act. The word ‘impracticable’ is not synonymous with impossible (Re El Sombrero Ltd [1958] Ch 900 at 904).

The Court can also exercise its power under section 150 if the meeting cannot be conducted properly, even though it may be called. In both the High Court cases of Low Son Siang v Lee Kim Yong [1999] 1 CLJ 529 and Phuar Kong Seng v Lim Hua [2005] 2 MLJ 338, there were only two shareholders and the quorum requirement for a meeting was two. There had been a failure on the part of one of the shareholders to attend the EGM and the Court allowed the application under section 150 of the Act to call for an EGM and directed that the quorum at the meeting be one member.

(iii) Requirement to Attempt to Requisition Meeting under Section 144 or Section 145 first?

Before applying to the Court under section 150 of the Act, members who wish to convene a meeting of the company may have to try to resort to section 144 or section 145 of the Act first. In the High Court case of Kemunting Tin Dredging (M) Bhd & Ors v Baharuddin Ma’arof & Ors [1985] 1 CLJ 442, the Court dismissed the application under section 150 and held that it was not impracticable for the members to call a general meeting. It was held that the members still had two avenues open to them, either in reliance of the procedures under section 144 or section 145 of the Act.

CONCLUSION

The statutory right for members to call for meetings allows members to express their views and to influence corporate governance. Where the members wish to replace the directors, they then need not rely on those same directors to call for the necessary meeting. The right to call for meetings is therefore a safeguard to corporate democracy in allowing members the opportunity to vote on company matters.

Car Accident Nightmare

2010-03-28T21:26:00.000+08:00

The last week has been especially taxing because of my car being involved in an accident. It wasn't my fault and it has just been so frustrating having to go through so much hassle, and even more requirements when the accident was not your fault.

This nightmare of an experience started late on last Friday night, close to midnight when I was driving home from the office. The roads were very wet as it had just poured for hours. I was on the left most lane round a bend, having just exited from a corner, and I was not even moving at a high speed. The rear mirrors showed traffic was clear and I was driving.

The next thing I knew, I felt this heavy impact on the right rear side of my car. I felt my car being hit at an angle and then being pushed to the side of the road. This other car had just hit into my car, and was then pushing my car to the side, with my tyres and rims grinding against the side walkway on the road. This other car continued to scrape past my entire right side. I pressed hard on my brakes and I could feel both the cars skidding on the wet road. We eventually somehow skidded to a stop.

Thankfully, no one was injured and no other cars hit into us. I remember being very dazed as I got out of my car. Two young ladies were in the car, and they looked like they were in shock. The driver walked out, looking like she was about to cry. The passenger was just staring at the damage to both the cars.

One thing about road accidents is the incredible speed that other drivers will stop and get out. They aren't concerned a concerned passer-by but they are runners of some sort, who want to try to get a tow truck to help tow your cars away. In my case, we of course attract this 'concerned runner' with walkie talki in hand and I waive this 'concerned passer-by' away.

We then drive our cars a short distance and then pull our car to the side. I can't believe my car has just been hit like that. The burning thought in my mind was that it was almost midnight, I was going to have to sort through this mess, and that I had to be up by 7am the next day. We exchanged our personal details and our cars could still be driven, so we drove to the traffic police station on Jalan Tun HS Lee, just near to Petaling Street.

This is one thing I've never understood. For the whole area of Kuala Lumpur, if you get into a car accident and you need to make a police report, there is only ONE police station you can go to make such a report. That is all the way in the city, at that traffic police station. If you head to any police station that is actually close to the scene of the accident, the police personnel there will just tell you that you have to head into that main traffic police station.

When we reached the police station along Jalan Tun HS Lee, it was thankfully quite empty and with hardly any people there lodging a report. I've been to this police station before and I know the drill. Fill up the white form, wait for your number to be called and then go over to the computer terminal to fill up your details as well as the description of the accident.

Once I had done that, I am told the name of the sergeant and his office number and where I then had to walk to the building. There is a slight queue while waiting outside the office. The driver who knocked into me also joined me in the queue and after a short wait, both of us get to meet the sergeant. I was then still quite angry at the driver, especially when the more I thought about it, it was all her fault for hitting into me and having dragged me into that situation.

Anyway, both of us had to draw out our sketch plan of the accident and the driver did not dispute my version of events, as her sketch plan showed the same thing. It was quite clear to the sergeat that she was at fault and he would issuing her a summons for causing the road accident. The driver turned out to be a law student at one of the local universities and she had the cheek to also admit that she had just been stopped at a road block for speeding, prior to the accident. It was quite clear that she must have been speeding round the bend when she lost control of her car and rammed into my car.

I could then get my car and bring it over to another station where the police photographed the damage on my car and I could then finally head home. By then, it was past 2am and I stumbled into bed back at home.

The next few days is where things became a real headache. Sorting out all the necessary documentation I needed to make my insurance claim. I knew that I needed to get a copy of my police report so I headed back to the same police station on Monday morning. I don't understand why I could not get a print out of my police report there and then when I lodged the report. It's just a simple clicking of the 'print' function isn't it?

Anyway, I get back to the police station, and there is only 1 counter open for every one to apply to obtain a copy of their police report. It was like a market place over there! I take a number and there are already more than 40 over people ahead of me. I give up and I put it down to a backlog of people over the weekend. I tell myself I will come back the next day.

The next thing is trying to sort things out with my insurance company, Uni Asia. I call up their hotline asking for what I should do, what sort of documents do I require, in order to make a third party claim under my policy since I wasn't at fault. I get all sorts of conflicting information and their website doesn't make things very clear. I am in the end told to go to my nearest panel workshop where I am promised that they will take care of everything.

I am then given a huge runaround when trying to find my nearest panel workshop. I check with my insurance hotline and the people there can't give me a straight answer. They suggest all sorts of faraway workshops. On the hotline, I am told that someone will call me back and someone does. This person then recommends a workshop tucked away somewhere remote and I suspect, they are just again more runners referring business to workshops. The people calling me back don't sound like Uni Asia staff.

I in fact, try to drive to one of these workshops found in Segambut somewhere, but I give up halfway. The jam is too awful and even with my GPS on, I am afraid of getting lost or not being able to get a taxi from the workshop.

I then have to do my own homework, by checking on the list of the panel workshops on Uni Asia's website and then cross checking it with Google Maps to see which is the nearest workshop. I finally find one, not too far away, and I call them up. By this time, I had already obtained my police report. I had gone back on Tuesday and had to sit through the long wait to get my police report. There are heck of a lot more people waiting around the police station, waiting for their police report, than there are people there lodging their report. Like I mentioned, there is only 1 counter calling out numbers and then printing out the reports. I see no logic in not being able to print out the police report there and then when you lodge it? Why add this other unnecessary hurdle?

Armed with my police report and other supporting documents, I then head to the panel workshop and I am so relieved to finally being able to deposit my car at the workshop on Tuesday evening. I can finally start the process of getting my car repaired. I am then informed by the workshop, that I need to head to Uni Asia's office itself to lodge a claim form to declare the accident and damage and then bring that claim form back to me. I was never told of this step in my Uni Asia guide book or over the phone during the multiple times I called them up! So it is another day wasted and there is no point in leaving my car at the workshop.

On Wednesday, I head to Uni Asia, where thankfully, there is a branch office at TTDI. There is no queue so I fill up the necessary claim forms, speak to the claims manager, and I can then finally start the repair process. As my car is more than 5 years old, and as per insurance guidelines apparently, I can't get original parts for my car. If I want original parts, I then have to bear 20% of the costs. All this for an accident which wasn't my fault. I accept that non-original parts won't be used and I bring all the forms back to the workshop and I can now finally deposit my car at the workshop.

Of course, no physical work can get started until the insurer's adjuster gets to inspect the car and with my workshop doing the necessary JPJ search to find out the insurer's of the driver that hit me. Physicaly repair works on my car is expected to only start on Friday in the best case scenario. I accept my fate and leave my car keys with the workshop, who has done a great job in explaining things to me. I can't say the same for my insurance company though.

So I am now left carless for a week, as the car is expected to be ready only on this coming Wednesday or Thursday. The irony of this entire process is how much trouble and hassle a drive has to go through when the accident was NOT your fault. If you did cause an accident, you can just lose your no-claim bonus and you don't have to jump through so many hoops. The outstanding matter is that I now have to go pay a visit to that police station again in about a week's time to go collect a copy of the photographs taken of my car, the sketch plan as well as the decision by the police. That means another queuing up and more time wasted.

This has really been a nightmare of an experience, the sheer amount of time wasted in going through all this.

richard wee & yip - bridging gaps

2010-03-25T23:38:00.000+08:00

Blog plug: Do check out Richard Wee's law firm blog of RWY, short for Richard Wee & Yip. Features a lot of up-to-date articles on legal issues.

Exhausted

2010-03-24T22:22:00.000+08:00

It has just been an exhausting week. To be exact, it has been a run of exhausting week and months. I just feel really tired and worn out.

It shows on this blog as well where I hardly find the time to update my entries. I keep putting it down to just a peak period but the pace seems relentless. Wish I had more time to just stop to smell the roses, so to speak. I'll have to try to make some changes or the frustration will just boil over.

Killing a Roach

2010-03-17T23:16:00.002+08:00

My friend found a cockroach in the shower so doused it completely with a lot of soap until it finally drowned.

That's what I call a clean kill.

Biggest Loser Finale - Quite a Flop

2010-03-10T21:42:00.000+08:00

I have several rants about the Biggest Loser Asia finale from last night. I have been avidly following the series from the start and just like the Amazing Race Asia edition, you feel an affinity to the participants since they are all from neighbouring countries. But I thought the finale was a real letdown. A Malaysian production I presume?

First of all, I could have sworn that the 2-hour finale was to start at 9pm, what with the heavy promotion and advertisement. Instead, at 9pm, there was a repeat of last week's episode and only at 10.15pm did the live finale start and would then run past midnight. Was there some technical error? Was it supposed to start at 10.15pm and if so, why schedule it to end so late? Was the telecast even live?

Throughout the telecast of the finale, the show reeked of amateurish production and scripting. Awful camera angles, cameras abruptly cutting from shot to shot, being unable to zoom in to the contestant, and with mics that sometimes didn't work. Major grouse is when the viewer expects to see the contestant, whether zoomed in to face or panning the skinnier body, but the camera will be zooming in to wide angle shot of the studio audience. I don't want to see the audience!

The show called back the eliminated participants but didn't give all of them a chance to speak and they were in and out so quickly. This is despite the host saying that she would be asking all of them about their experience in the show. The host then made a good deer-caught-in-headlamps impression when Garry did his unscripted renewal of vows in front of the audience. Again, you could see the studio cameras struggling and scrambling to find a good angle. The producers had to settle with the camera placed directly on top of Garry's head so we had a great view of his scalp when he was bending down and speaking to his wife.

An awful lot of time was then spent calling to the stage participants (who were shortlisted but just did not make it to the top 16) that we didn't have any knowledge of, and springing as a surprise that the do-it-yourself Biggest Loser would win a prize. The audience has no connection with these strangers, they having never been on the show, so why feature them at all? Wouldn't it have been better to have the eliminated contestants then fight it out to lose weight? And why ask some of these unknown contestants to sing on stage?

We then trudge along late into the hour to finally come to our Top 4. Martha looks the same as when she left. Aaron too is looking about the same. Carlo seems to have lost a bit more weight but he was already relatively thin when he left. David is astonishingly skinny. Unhealthily so. He looks so tired and he doesn't speak much.

For the weigh in, we then continued with the show's trend of ever changing rules. The final weigh in will be some weird, almost arbitrary, index of percentage body weight loss added with percentage fat loss. Huh? Did they pluck that out from thin air? The whole series started with straight out body weight loss, which wasn't really fair to the smaller participants but they kept to those rules for a while. Later on, the show shifted to a percentage weight loss. Did the participants even know about this? We the viewers weren't kept in the loop of the rules. The website didn't inform us of the general rules of the conpetition. Maybe the producers spent too much time plugging and glamming up the subscription biggestloserlcub website.

Having seen the present sizes of the top 4 finalists, it is not much surprise that David wins the competition by a mile. He lost more than 50% of his own body weight, losing more than 80kg in the process. I have to say though, David looked unhealthily gaunt. He looked tired and barely able to stand up. None of his usual fist-pumping and energy, he looked like he was going to keel over and you could see he was hobbling over to the weighing scale. I wouldn't quite say that he should be the face of weight-loss for Fitness First! Increible achievement though of losing so much weight, but I wonder at what cost?

The whole series has been a lot of fun to watch and I am looking forward to the second season. I just hope though that the Biggest Loser franchise-holders in America watch this Asian edition finale and start upping the production quality. Even the head honchos at Fitness First should tell the producers to buck up a bit.

Another article on Vibram Five Fingers

2010-03-06T08:23:00.000+08:00

Last week, The Star followed up on their earlier article on barefoot running and focused specifically on the Vibram Five Fingers (VFF).

Pic courtesy of The Star

It is an interesting article and there is a wealth of information out there on VFF and barefoot running.

I wouldn't say that I am some hardcore advocate for barefoot running or minimalist footwear. I am far from that. I still don't quite run barefoot. My only foray into barefoot running was when I got blisters the first time from using my VFF and then had no choice but to take them off and run barefoot back. That was for about 2km and my soles were quite blistered after that from running on the ground. It was a fun and different experience though. It does not hurt like how you think you would, planting your bare soles on to the ground and running all the way. But for now, I will be sticking with my VFF.

It is still good running in them. I really look forward to slipping them on and I easily can slip in and out of them. No issues with getting my toes into the toe compartments. I notice my soles and part of my feet having gotten a bit harder (but not in a badly callused way) and so I don't feel any chaffing with my VFF since I'm not wearing any socks.

I haven't tried running that long distances in them yet. Still sticking to about a 5km limit. The most I've done so far is to run in two separate 5-km sessions in a day, one in the morning and one in the evening. I am glad to report that I do not have any more knee pains! I don't know what it is, and there is a lot of science and anecdotal evidence out there but I know for me, it works! Even with my badly overpronated feet. The knee pain may return once I start going longer and longer distances, but I will report back on that.

I feel less ankle soreness but it still is there, especially when I did that two 5-km runs. The next day, my ankles were quite sore. For some runs, my calves feel tight as well but give me muscle aches (which should hopefully mean my calves are going to get stronger) over knee pain any day.

One significant difference I did notice was when I ran downhill. I never noticed how much pounding I normally put my feet through when I ran downhill in shoes. The first time I ran downhill in my VFF, I could feel my feet being banged into the ground. I automatically adjusted my running and leg position to cushion my downhill run. I now run very softly downhill and it definitely feels better.

Singapore Law Firms Hike Salaries

2010-03-06T00:21:00.000+08:00

Came across this Singapore Business Times article on the salary increase across the board for the larger law firms in Singapore. The article reads:

Singapore's largest law firms have upped the monthly salaries of their lawyers significantly, as they brace themselves for the onslaught of competition from the foreign law firms, amid the liberalisation of the legal industry here.

BT understands that Allen & Gledhill (A&G), Drew & Napier and WongPartnership have all raised monthly pay by 20-25 per cent, within the last week or so - such that their starting salaries are now in the region of $5,200.

This takes them closer to the pay scale of the foreign firms, which BT understands typically pay between $8,000 and $10,000 for first-year associates.

What this also means is that the fight for talent has just become that much tougher for the medium and smaller-sized firms.

'The liberalisation of the market means our local talent pool is now available to all - firms from all over the world,' WongPartnership managing partner Dilhan Pillay explained to BT. 'So, our firm has had to respond to such market changes.

'What we've done is reorientate our pay structure. Traditionally, a significant portion of our annual pay was in the form of a year-end bonus. What we've done now is to spread a large part of that bonus over the 12 months of the year and pay a smaller bonus at the end of the year.'

'This is similar to what the foreign firms do - which is to frontload and then pay out a smaller bonus at the end of the year,' Mr Pillay said. 'The market has come to expect that level of pay - along with the good training and work exposure that the top firms offer.'

While some say this is not a pay hike per se, it definitely has the effect of boosting monthly salaries significantly - 25 per cent, in WongPartnership's case - making the legal sector, already one of the best pay masters here, an even tougher act to follow.

BT understands that the larger local law firms in Singapore typically pay top performers between six and nine months' bonuses. Foreign firms tend to either not pay year-end bonuses or pay a small bonus.

A&G and Drew explained similar changes at their firms.

A&G managing partner Lucien Wong said: 'We are revising the decades-old practice of large law firms paying to their associates bonuses at year-end which are pegged to a number of months of their monthly base salaries.

'This revision will take the form of an addition of a monthly variable component to the base monthly salaries of our associates. With the introduction of a monthly variable component, it is expected that the year-end bonuses of our associates will be moderated.'

Drew & Napier CEO Davinder Singh told BT: 'We have revised our remuneration structure for lawyers. Under the revised scheme, part of the bonus for the year will be frontloaded as a variable component into the monthly salary, which will result in higher monthly pay for lawyers. So while the base will remain the same, there will be an additional monthly variable component.'

Such a change in pay structure at the larger firms has increased the pressure on the smaller and medium-sized firms - whose monthly pay packages now lag the leaders by possibly between $1,000 and $2,000.

A prominent lawyer here told BT of his concern about the impact of the recent pay changes on the industry. 'It would have been ideal if the opening of the legal market (to foreign firms) could take place after supply had increased. Where demand exceeds supply, this will increase wage costs and lead to a spiralling of legal costs and, if fee inelasticity exists, the costs will be passed on to clients.

'If not passed on to clients, some law firms may be priced out of the market.' He added: 'The impact for firms which aim to compete by paying much more is that they will have to remain lean, be less generous in hiring and quicker to axe, and staff will be made to work harder. Employers will be more demanding of these higher-paid lawyers.'

BT understands that some of the medium-sized firms are already thinking of increasing salaries to stay competitive.

Some, like TSMP Law Corporation, increased monthly salaries several years ago - while still keeping the sizeable year-end bonuses.

'We increased our starting pay for newly called lawyers to $5,000 about two to three years ago, when the big firms were paying $4,600. We wanted to send a message that we would pay for top quality talent, and that we wanted the best,' TSMP joint managing director Stefanie Yuen Thio told BT.

'Whether we will be changing our pay is something we will have to continue to monitor. While we don't want our associates' monthly pay to be too different from what other firms are paying, philosophically, we have a different mentality on bonuses.

'One of our fundamental management principles is that we must be able to pay outperformers very well, without worrying that it will rock the boat as far as the other lawyers in that batch are concerned. We will therefore want to retain the ability to reward our top performers with an exceptional pay package, and hopefully incentivise others to up their game.'

Some points jump out right away. A starting pay of S$5,200 at the Big 4 law firms in Singapore is great, and even higher is the starting pay of S$8,000-10,000 at the foreign firms in Singapore.

The ending quote about rewarding the outperformers struck a chord. I don't think this is really practiced much in Malaysia, with possibly a few firms adopting such a style.