Chong + Kheng Hoe

Being a non-executive or "sleeping" director does not excuse you from your fiduciary duty, nor is it an excuse not to comply with court orders - Datuk Beh Kim Ling v NEP Holdings (M) Bhd (2024)

Life is a series of natural and spontaneous changes. Don’t resist them; that only creates sorrow. Let reality be reality. Let things flow naturally forward in whatever way they like — Laozi

N.B. The above quotation was cited from the decision of Abu Bakar Jais JCA in MDSA Resources Sdn Bhd v Adrian Sia Koon Leng [2023] 3 MLJ 341 CA.

SHAM DEFENCE

What's the meaning of a sham defence? It is one that is false, made in bad faith, and unsupported by the facts. Take the following quiz to find out if you can identify a sham defence.

Context: Israel attacks Iranian embassy, an act unheard of even in the World Wars.

Which of the following is a sham defence?
A. Iran threatens to strike back.
B. Israel says they have to defend themselves against Iranian hostility.
C. USA says they will provide Israel with ironclad support to ensure Israel can defend itself.
D. Germany says it has spoken to Iran to reduce regional tensions.

Share your answers below. However, we regret that even if you get the right answer, there will be no prize.

It's holiday season again. Unfortunately for employees, the deadlines do not come to a halt during this time. As for employers, take a chill pill lah... wishing everyone a safe journey balik kampung and Selamat Hari Raya in advance!

And our ad is up! Do share for greater reach please thank you. You can also view the ad at https://jobs.malaysianbar.org.my/v/job-details?jid=71288

Limitation is procedural and not substantive law and therefore follows the law of the seat of arbitration, not the chosen law of the contract (Hindustan Oil Exploration Co Ltd v Hardy Exploration & Production (India) Inc, CA, 2023).

However, this goes against the UK Foreign Limitation Periods Act 1984 which considered all limitation periods to be substantive law. Australia and Canada equally consider limitation periods substantive. Hence, this issue is still live until a definitive ruling is set by statute or the Federal Court.

If limitation period for defaulting chargors run from date of default and not from date of notice to remedy default (Thameez Nisha Hasseem, FC, 2023), on account of there being a need for the law to be certain and the issuance of notice is on the discretion of the chargee, then why shouldn't limitation period for defaulting guarantors similarly be computed on the same basis?

CTOS has no right to formulate a credit score, which is beyond its functions under the Credit Reporting Agencies Act 2010 (Suriati Mohd Yusof v CTOS Data Systems, HC [2024] MLJU 437).

Note: This case is pending appeal.

Check out our latest recruitment video, and yes, we are currently hiring pupils! Email an application video to us at [email protected], copied to [email protected] and [email protected]. See you soon!

CKH Full Corporate Video.mp4

In case you didn't know, written submissions is the process of making life easy for the learned judge, disguised as legal argument.

One of the most important traits about being a lawyer is reading accurately, and interpreting what you read literally (when it makes sense), or purposively (when it does not make sense). How would you read this message?

...leave of the winding up court is required before proceedings for the removal of a liquidator can be commenced (N Chanthiran a/l Nagappan v Kao Che Jen [2023] 5 MLJ 284 FC at [56])

Votes of related party creditors must be treated differently in a scheme of arrangement, and such votes should be discounted or not counted altogether (MDSA Resources, FC) (2023).

An agreement to arbitrate read with s 10 Arbitration Act 2005 amounted to a defence on the merits for purposes of setting aside a JID, without the need to show such meritorious defence - Tindak Murni (2020, FC)

... it is unfair for the Courts to deprive women of the right to equality. Laws that put men in control of their wives by depriving women the right to their sexuality and body... must be abolished... (counsel's subs in Lai Hen Beng (2024, FC). Happy International Women's Day.

Complaints about Malaysian work conditions against a UK parent company should be filed in Malaysia and not UK, as the more appropriate forum. There is no risk Malaysia cannot grant the claimants substantial justice (Limbu v Dyson, EWHC).

Although errors of fact and law by an arbitrator are not reviewable, however if it involves an issue of illegality, it may be against public policy to enforce the award - G v N [2023] HKCFI 3366

Am I the boomer to hold the view that a good lawyer does not need to do marketing? Instead, your work is your marketing pitch.

The FC declined to hold that there are strict rules of pleading in adjudication, YET at the same time found that an adjudicator relying on a clause not cited (despite the contract being put into play) was in excess of jurisdiction. A rose by any other name? (Anas v JKP, FC)

Every senior counsel needs a trusted friend who is willing to tell him when the time comes that he should retire, for the sake of his own legacy and reputation. I sincerely hope I have the good sense to retire when the time comes, or have a good friend who will whisper to me.

Awards are like fragile trinkets you see in the souvenir shops. Nice to see, beautiful to hold, but don't for one moment imagine they can turn into gold. The gold is found in the less sexy stuff of building relationships and doing the actual work.

Lawyers talk a lot, right? Well, not really. But on the other hand, one cannot be too dreadfully silent also. A lawyer's words should be impactful, and a perpetual silence simply has no impact. A pregnant pause, on the other hand, would be a different creature altogether.

RENEWAL
For 2024, CKH parted ways with 2 SLAs and 1 LA. We're expecting another LA's departure in the near future. In the meantime, pupils are coming up through the ranks and new LAs would be joining us as well. Such is the never-ending cycle for the firm.

I used to take resignations quite badly. Somehow, it is as if the person is leaving "me". The resignation indicates that "my firm" is inadequate. It's like, "you're leaving me? The best boss in the world?" (yes, delulu, I know).

I no longer feel the same way. Instead, I count it a privilege that I have been afforded the opportunity to walk alongside this person, even for a short span of his/her life. For the right person, the friendship built extends beyond our journey together. For the wrong person, that journey would have taught both of us some life lessons.

So no hard feelings. We continue to live and let live.

LAWYERING AS YOUR DOJO FOR LIFE
On the one hand, we are officers of the Court sworn to uphold justice, yet on the other hand we must put the best case of our client forward. We are expected to be courteous yet tenacious at all times. We constantly engage in arguments, yet we are never argumentative.

The art of lawyering, therefore, is a balancing act between all these competing interests and positions. In that sense, lawyering is in fact a training for life itself. Because life also is a balancing act. Between family and career, money and leisure, selfless living and selfish intentions.

How do we hold all these together? How do we keep the balls juggling in the air without dropping any major ones? Essentially, we train ourselves to do it. And the better trained we are, the better we get at balancing all these competing interests. In other words, the better a lawyer we become, the better we get at life itself.

Here's to a great day, for today is the first day of the rest of all our lives.

ZOOM HEARINGS
I love Zoom hearings. Saves a ton of time. But Zoom hearings are still Court hearings. There is no reason to give any less respect to the Court just because it is on Zoom. It is a NO-NO to be conducting a Zoom session whilst driving. Like, come on...

Show some respect!

ROYAL PARDON
Does the King have unfettered discretion to pardon?

For non-Islamic offences, the King can pardon pursuant to Art 42(1) of the Constitution. Art 42(4) then says that federal law can provide for such exercise of the King's powers under Art 40(3). Art 40, in fact, says that the King acts on advice. So, it would seem that in the granting of a Royal pardon, the King does not have unfettered discretion.

However, for Islamic offences, Art 40(10) grants power to the King to pardon "(notwithstanding) anything in this Article". The phrase "(notwithstanding) anything in this Article" does not appear for non-Islamic offences. Hence, perhaps the King could exercise unfettered discretion for Islamic offences?

For avoidance of doubt, the former PM Najib was convicted under a non-Islamic offence. Hence, if the former PM were to be pardoned, let not the King's name be sullied.

This is a UK practice direction on the preparation of a trial witness statement. Do have a read.

PRACTICE DIRECTION 57AC – TRIAL WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS PRACTICE DIRECTION 57AC – TRIAL WITNESS STATEMENTS IN THE BUSINESS AND PROPERTY COURTS TitleParagraph No.GeneralPara 1The purpose of a trial witness statementPara 2The content of witness statementsPara 3Confirmation of compliancePara 4SanctionsPara 5Appendix 1. General1.1 This Practice Direction ...

THE PRIMACY OF FACTS
We spend 4 years reading Law. And so we are naturally inclined to think that legal principles are the most important thing in any case.

But sadly that is not true. Because principles are always drawn from the facts of the case. One lesson I learned from an ex boss is that if I can persuade the Judge that the facts are with me, the Judge who is naturally inclined to do justice would do a triple backflip to ensure that the law is with me also.

So never start with the Law. Always start with the facts. Read your documents - every corner of them. Because if the facts are not with you, then even the law may not save your case.

FRIDAY RAMBLINGS
My opposing counsel today asked me, at what age would I want to stop? Frankly, I have no plan to stop. I may cut back on commitments, take fewer cases, give up my partnership role, but for all intents and purposes, I am content to practise until the day I die.

You see, lawyering is my calling and not my job. I cannot imagine doing anything else. Hence, I'm happy to take the stress of lawyering without too much complaints (there'll be some complaints for sure, but not too much).

But if lawyering is a job, it would be the worst job in the world. Imagine having to solve other people's problems continuously, in an environment where you do not have control. The pay is not enough, and the stress is just too much.

So do honestly ask yourself: is this your calling or your job? If it is your job, then earn what you can, but make plans to leave. The stress will kill you otherwise.

But if you can honestly say it is your calling, then welcome to the club. And do raise a glass to me at my funeral. Even then, I may well be your learned friend.

KH

P/S: I reserve the right to change my mind at any time, no reasons given ;-)