Public Consultation Paper 1/2018: The Implementation of Data Breach Notification

The Public Consultation Paper (PCP) No. 1/2018 entitled The Implementation of Data Breach Notification is intended to solicit feedback from data users and/or relevant parties pertaining to personal data breach management. Personal data breach has become a global threat. Therefore, in light of this, the Personal Data Protection Commissioner (Commissioner) is going to implement Data Breach Notification (DBN), which is currently having practised worldwide.

Objectives: The implementation of DBN is aimed to assist data users in personal data breach management. Basically, it is a mechanism where data users will give notification, informing the authority and the affected/relevant parties where a breach has occurred in an organization. The DBN serves as proactive steps taken by data users to contain the damage caused by a breach incident. Data users should be able to demonstrate their commitment and accountability when addressing the breach. In addition, the DBN enables the enforcement authorities/regulators to conduct investigation thoroughly, transparently and fairly. The DBN is expected to be implemented by end of 2018 by way of imposing conditions to the certificate of registration issued by the Commissioner to the data users. In this regard, the Commissioner welcomes the feedback to this paper and suggestions of other criteria (if any) to be set for the implementation of DBN as stated in the consultation paper.

The deadline for submitting your feedback is on the 21st August 2018 (Tuesday). Feedback can be submitted to pcpdp@pdp.gov.my.

Download: Public Consultation Paper 1/2018: The Implementation of Data Breach Notification

IMLC 2018: Future of Lawyering: Fight or Flight?

I will be speaking at one of the Breakout Sessions of International Malaysia Law Conference held on 14 to 17 August 2018. My session will be on 14 August, 3pm.


Are wood-paneled offices and the colourful display of boundless volumes of law reports a thing of the past. Has the time come to embrace all that is technology by going completely online and living in `the cloud’. Are
we ready for virtual law offices, and building and maintaining lawyer-client relationships completely online? How can we compete with non-lawyers offering legal services, and AI replacing human interaction with legal templates and algorithms that make lawyering seem easy. What is the road ahead for the legal profession?

Speakers
1. Min Chen, Vice President & Chief Technology Officer of Asia Pacific, LexisNexis
2. Gaythri Raman, Managing Director, LexisNexis Southeast Asia
3. Foong Cheng Leong, Messrs Foong Cheng Leong & Co.
4. Wan Zafran Pawancheek, Messrs Wan Marican, Hamzah & Shaik

Moderator
Syahredzan Johan, Messrs RamRais & Partners

Session Sponsor
Lexis Nexis

History of Kuala Lumpur Bar

History of Kuala Lumpur Bar: The Story You Should Know

The Beginnings

The Kuala Lumpur Bar traces its roots to the Selangor Bar Association which was established in 1903.

Prior to 1896, any legal cases regardless whether with large importance or complexity had to be commenced and carried out without legal assistance of any kind. It was left to the management of the litigants themselves.

This was due to a Circular by the Acting Resident of Selangor (Circular 17.5.1892) in which he declared that “the settled policy of the Government of the Protected Native States (i.e. the Federated Malay States) not to admit lawyers to practise in the States”. Thus, litigants had to conduct their own cases in the courts.

Notwithstanding the restriction by the Acting Resident of Selangor, records show that locals had appeared as counsels for litigants. In Raja Bot v Ah Chan (1889)[1], one Raja Bot acted as an attorney for Abdul Kadir of Lukut to recover the sum of $1000 owed to Haji Yahya, the deceased father of Abdul Kadir. The Magistrate held that the Defendant, a mining towkay, had admitted the debt and the debt was not barred by laws of limitation.

However, the restriction had caused considerable problem to investors in the Federated Malay States. The Magistrate Court Judges took very brief notes and their grounds of judgement were also brief and without much discussions of law and facts.

To protect their rights and capital invested in the state of Selangor, the Selangor Planters’ Association made an appeal to the Government to admit a limited number of lawyers of position and standing to practise in the Courts of Selangor. The Association complained of the utter stagnation in the Selangor Court and the enormous accumulation of arrears[2]. In a letter dated 2 December 1896 to the Government Secretary, the Selangor Planters’ Association stated that they had resolved that “Government be urged to throw open the Magistrates courts of the Federated States to legal practitioners of status and position, the large vested interests of capitalists deserving in the opinion of this Association, more adequate protection than that afforded at present”[3].

The establishment of the Judicial Commissioner’s Court in 1896[4] paved the way for lawyers, who were already practising in other states such as Singapore and Penang, to practise in the Federated Malay States (“FMS”). Their right, however, was not extended to the lower Courts thus in 1897, John Parsick Joaquim, C W Hewgill and Vernon Francis Page (also known as V F Page — a lawyer who practised in Bangkok) mounted a challenge to have the right to appear in the criminal Lower Courts[5]. The then-Judicial Commissioner, Lawrence Colville Jackson (L C Jackson)[6] granted John Parsick Joaquim’s application to have the right to appear at the criminal Lower Courts. Soon, the lawyers were also granted the right to appear at the civil Lower Courts.

In 1903, lawyers practising in the state of Selangor formed the “Selangor Bar Association” with C W Hewgill and G Harold Day as their first President and Honorary Secretary[7], respectively.

C W Hewgill was called to the Straits Settlement Bar in Singapore in 1893 before moving to Kuala Lumpur to set up his practice in 1896. He had the honour of being the first advocate in private practice to appear at the Judicial Commissioner’s Court[8]. The Judicial Commissioner’s Court was the final Court of Appeal for the Federated Malay States during that time and was later replaced by the Supreme Court in 1905.

C W Hewgill later established the firm of Hewgill and Day with G Harold Day until it was amalgamated with the firm of Messrs Bannon and Bailey in March 1917[9], [10]. Hewgill died some time in the early 1930s.

The early members of Selangor Bar Association were active in the social and legal arena. Records indicate that the members were actively engaging the then-Government on matters concerning legal practice such as opposing to new rules allowing civil servants to be admitted to the local Bar, suggesting that posts of Senior Magistrates should be confined to “barristers, advocates and solicitors who had carried on their profession for at least five years at the time of appointment” and extending time to file appeal from seven days to 21 days.

On 21 February 1925, a meeting was held by a group of advocates and solicitors practising in Selangor and from the meeting, it was resolved that an association, also called the “Selangor Bar Association” be formed. The Office Bearers were T H T Rogers, B J P Joaquim, A S Bailey, Vivien Mackie and William George Warren Hastings[11]. It is unknown from the records why these advocates and solicitors had formed the “Selangor Bar Association” as it had already been in existence since 1903.

According to the Rules of the Association of the Selangor Bar Association[12], the objects of the Association are to “provide its members in the practice of their profession with such amenities as may from time to time be found desirable, and generally to advance the interest of Advocates and Solicitors practising in the State of Selangor”.


(Credits: Arkib Negara)

The premises of the Association were “room or rooms in the Supreme Court of Kuala Lumpur”. The “entrance fee” for ordinary members was $15 and subscription was fixed $2 per mensem (per month), payable half-yearly in advance. An ordinary general meeting of the Association was held every year in the month of January and only three ordinary members were sufficient to form a quorum.

This new Selangor Bar Association was also exempted by the Selangor British Resident from registration under the Societies Enactment 1913[13].

It is unfortunate that the records of the early years of the early Selangor Bar Association and Selangor Bar Committee are lost. The earliest record held by the Kuala Lumpur Bar is 1956 where the late R R Ramani was the Chairman together with four other committee members namely M N Cumarasami, S M Yong (who later became a Judge) and N A Marjoribanks. The Advocates and Solicitors Ordinance 1947 (“1947 Ordinance”) only allows four committee members in the local State Bar.

The complete rolls of Chairman and Committee members before 1947 were also no longer available. However, based on the newspaper reports and records of the National Archives, the Office Bearers of the Selangor Bar Association of 1925 were T H T Rogers, B J P Joaquim, A S Bailey, Vivien Mackie and W G W Hasting. In 1934, W G W Hastings, K K Benjamin and A K Sen were elected as members whereas S M Yong was appointed as Honorary Secretary. B J P Joaquim, T Rajendra and J T Toswill were elected members of the Committee and P C Au-Young as Honorary Secretary in 1937.

The numbers grew slowly. In 1906, there were only six members (three English Barristers and four English Solicitors) in the Selangor Bar Association[14]. The six members were C Wagner, G Harold Day, H N Ferrers, C W Hewgill, J H T , C H Downes and M R — all with offices at Klyne Street (now Jalan Hang Lekiu), Kuala Lumpur.

In 1969, there were 238 members practising in Selangor (Selangor Bar Annual Report, 25 January 1969).

The rolls of the FMS Court show that Hoosein Hasannly Abdul Cader[15] (also known as H H Abdoolcader) was the first Asian (and also Indian) name appearing on the rolls (admitted in 1915). However, H H Abdul Cader (later Sir) practised mainly in Penang.

(Credits: Arkib Negara)

Raja Musa b Raja Haji Bot was the first Malay to be called to the FMS Bar in 1929 and also the English Bar[16]. He later became the first Malay to sit on the Bench of the Supreme Court of the FMS and had subsequently been appointed Professor of Law at Raffles College. During the Japanese Occupation, he was appointed a Judge of the Supreme Court, Singapore. He passed away in 1943.

The first Chinese lawyer called to the FMS Bar was Yong Shook Lin (admitted 1918), who later found Messrs Shook Lin & Bok together with Tan Teow Bok.

The 1947 Selangor Bar

Upon the advent of the 1947 Ordinance, the Selangor Bar Committee was established.

The 1947 Ordinance requires every annual meeting of the local bars be presided by the most senior member present. The practice has now been abolished by the Legal Profession Act 1976. In 1956, M N Cumarasami (admitted to FMS Bar in 1929) presided the annual meeting of the Selangor Bar as he was the most senior member present[17].

In 1956, the subscription fee for Selangor Bar was $2.50 per month. In 1970, it was $30 per annum. Such subscription fee was not mandatory and members were able to practise without payment of such fee in those days. The Bar Committee was tasked to collect outstanding payments from time to time.

Under the 1947 Ordinance, local State Bars were empowered with disciplinary functions. Committee members will deliberate on complaints against fellow members and if there is a cause for complaint, the local Bar will refer the matter to the Chief Justice who will then establish a Disciplinary Committee. In 1970, there were 23 complaints against members, of which five were referred to the Chief Justice under the appropriate provisions of the 1947 Ordinance. The Committee considered 16 complaints did not merit any reference to the Chief Justice.

The usual complaints relate to the misappropriation of funds by members but some are out of the ordinary such as:

  1. complaint over the use of a logo on letterhead;
  2. complaint by a law firm against a Judge for allegedly interrupting a proceeding where he had rephrased questions and answers as well, calling clients name, eg “clever” and “cunning”;
  3. publication of law firm names and address on telephone directory which was a contravention of the Bar Council’s ruling on re Yellow Pages of the Telephone Directory 1969/1970; and
  4. complaint by a Judge against a member over his conduct in Court.

In 1947, the Selangor Bar Committee changed its name to Selangor and Negri Sembilan Bar Committee and then to Selangor, Negri Sembilan and Kelantan Bar Committee in 1949.

In 1964, the Negri Sembilan Bar Committee was established with Dato’ Balwant Singh as its first chairman. P S Maniam was elected as the honorary secretary and V C George, H W Tan, Atma Singh Gill and Edgar Joseph Jnr were elected as committee members[19].


Petition file of the late Dingle Mackintosh Foot

With the establishment of the Negri Sembilan Bar Committee, the name was changed to Selangor and Kelantan Bar Committee. In 1965, the name was reverted back to its original name after Kelantan Bar Committee was established.

Severance of the Selangor and Federal Territory Bar

Kuala Lumpur was made a Federal Territory on 1 February 1974. When the Legal Profession Act 1976 came into force in 1976, it was provided for under section 68(3) that all lawyers practising within the Federal Territory were deemed to be members of the Selangor State Bar.

Upon the establishment of the Federal Territory of Kuala Lumpur, the Selangor Bar Committee was renamed the Selangor and Federal Territory Bar Committee in 1979.

In the 1986 Annual General Meeting of the Federal Territory and Selangor Bar, it was mooted whether a separate Bar be established for all practising members within the state of Selangor. Members practising in the state of Selangor felt that they will be better served with a committee that comprises more Selangor Bar members and furthermore, most Bar events were held in Kuala Lumpur.

However, this discussion was abandoned and the floor decided that the incoming Committee appoint two protem Committee to study the severance of the Federal Territory and Selangor Bar. The Selangor Bar Protem Committee and Federal Territory Bar Protem Committee were then established and chaired by Jeffrey Fernandez and Dulip Singh, respectively.

Written opinions were provided by Mohd Ismail Shariff and Anthony Rocky Fernandez on whether the then-Legal Profession Act 1976 allows the severance of the Selangor and Federal Territory Bar.

Section 68(3) of the Legal Profession Act 1976 stipulates that all members practising in the Federal Territory shall be deemed to be members of the Selangor State Bar. Thus it was decided that section 68(4) be introduced to allow the establishment of a separate Bar. The original section 68(4) is reproduced below in its original form:

  1. 68(4) Members practising in the Federal Territory shall be at a general meeting called for the purpose by a majority vote of the members present be entitled to establish a separate Bar for the Federal Territory and until such time they shall be deemed to be members of the Selangor State Bar.

The said amendment was then forwarded to the Attorney General and in 1992, section 68(4) was introduced to allow the establishment of the Kuala Lumpur Bar. The words “Kuala Lumpur” were added. Section 68(4) is the only provision in the Legal Profession Act 1976 that specifically mentions a State Bar.

A meeting of members practising in the Federal Territory of Kuala Lumpur was called in 1992. About 2,300 members were practising in Kuala Lumpur at that time.

The Selangor Bar also called a meeting to fill the vacancies left by committee members who ceased to be members of the Selangor Bar.

On 1 July 1992, the Kuala Lumpur Bar Committee was established. R R Sethu was the first Chairman of the Kuala Lumpur Bar Committee and he held this position for the next three terms. Saseedharan Menon was the first Honorary Secretary of the Kuala Lumpur Bar Committee.

Other committee members were Hendon Mohamed, Roy Rajasingham, M Puravalen, Manjeet Singh and Zainudin b Haji Ismail. Lee Swee Seng and Mah Weng Kwai (both later became judges) were the first co-opt committee members of the Kuala Lumpur Bar.

According to the Bar Council’s Legal Directory (as at 20 July 1992), Low Chi Cheng, Tan Sheh Lynn, Seet Hooi Ping and Loke Dore Lee were the first newly admitted members of the Kuala Lumpur Bar. They were admitted to the Malaysian Bar on 10 July 1992 — nine days after the establishment of the Kuala Lumpur Bar.

Chairpersons of the Kuala Lumpur Bar Committee since 1992

1992–1996 R R Sethu

1996–1998 Cecil Abraham

1998–1999 Dennis Appaduray

1999–2001 M Puravalen

2001–2002 Zainudin b Ismail

2002–2004 Ragunath Kesavan

2004–2005 Jerald Gomez

2005–2007 Lim Chee Wee

2007–2009 R Ravindra Kumar

2009–2010 Anand Ponnudurai

2010–2013 Brendan Navin Siva

2013–2015 H R Dipendra

2015–2017 Ravinder Singh Dhalliwal

2017–present Goh Siu Lin

Footnotes

[1] Arkib Negara — ID No: 1957/0016576

[2] Selangor Planters’ Association Annual Report 1895, Selangor Journal Vol III, page 195

[3] Arkib Negara — ID No: 1957/0066577W — http://ofa.arkib.gov.my/ofa/digital/asset/787570

[4] Arkib Negara — ID No: 1957/0063163W — http://ofa.arkib.gov.my/ofa/digital/asset/786395

[5] In the Matter of John Parsick Joaquim, Esq, Advocate (3088/97 (Arkib Negara — ID No: 1957/0070913W)

[6] L C Jackson QC was the first Judicial Commissioner albeit a short one. He died in 1905 after illness struck him. He was described to be organically sound, and was in good health. He had two defects namely he had little range of hearing and had varicose veins on his legs (http://ofa.arkib.gov.my/ofa/digital/asset/154198)

[7] The Straits Times, 2 March 1903, Page 4 — http://eresources.nlb.gov.sg/newspapers/Digitised/Article/straitstimes19030302-1.2.24.aspx

[8] The Straits Times, 7 November 1896, Page 2 — http://eresources.nlb.gov.sg/newspapers/Digitised/Article/straitstimes18961107-1.2.20.aspx

[9] The Straits Times, 12 March 1917, Page 6 —  http://eresources.nlb.gov.sg/newspapers/Digitised/Article/straitstimes19170312-1.2.9.2.aspx

[10] Messrs Bannon and Bailey was founded by Raymond B Bannon and Arnold Savage Bailey in 1913. Savage Bailey later became a Judge in the Johor Supreme Court but tragically died after he fell off from a ship in 1935. The firm was dissolved in April 1963 and this led to the establishment of Messrs Skrine and Co by its former partners, John S H Skrine, S D K Peddie and Peter Mooney in the same year. It is noted that John S H Skrine’s father, Walter Vivian Douglas Skrine (W V D Skrine) was a partner of Messrs Bannon and Bailey.The former Chief Justice of Singapore, Chan Sek Keong chambered in Messrs Bannon and Bailey in 1962.

[11] Also known as W G W Hastings. He established Lovelace & Hastings in 1913. Hastings was a temporary Judge of the Federated Malay States Supreme Court and Federal Councillor. He died in 1952.

[12] Arkib Negara — ID No: 1957/0235137W

[13] Application made via a letter dated 9 March 1925, from Vivian Mackie, a Partner of the now defunct Messrs Freeman & Madge and also the then-Honorary Secretary of the Selangor Bar Association

[14] Arkib Negara —ID No: 1957/058925

[15] Father of the late Federal Court Judge, Tan Sri Eusoffe Abdoolcader

[16] The Straits Times, 19 February 1929, Page 10 http://eresources.nlb.gov.sg/newspapers/Digitised/Article.aspx?articleid=straitstimes19290219-1.2.91

[17] M N Cumarasami was called to the Federated Malay States Bar in 1929 and passed away in 1962. The then-Prime Minister, the late Tunku Abdul Rahman moved a tribute to him in Parliament as he was an old member of the House. (Hansard 20 January 1962, Vol III, No 33).

[18] Selangor Bar Annual Report 1970

[19] The Straits Times, 3 February 1965, Page 5 — http://eresources.nlb.gov.sg/newspapers/Digitised/Article/straitstimes19650203-1.2.37.aspx

Bread & Kaya: Layperson’s guide to the Chatime v Tealive dispute

-By Foong Cheng Leong | Jul 17, 2018
– Trouble started brewing when La Kaffa alleged that Loob had breached RERA
– Case began in the High Court, went to the Court of Appeal, pending a hearing at the Federal Court

MUCH has been said about the dispute between the owners of the Chatime and Tealive bubble tea businesses. The dispute, however, is not as straightforward as the media has reported it to be. This article seeks to guide readers, especially laymen through this technical legal dispute.

Background

La Kaffa International Co Ltd (La Kaffa) is the registered franchise owner of the Chatime bubble tea franchise (Chatime Franchise). Prior to the opening of Tealive, Loob Holding Sdn Bhd (Loob) was appointed as the master franchisee for the Chatime Franchise and had entered into an agreement called Regional Exclusive Representation Agreement (RERA).

Due to the popularity of the Chatime Franchise, it had expanded to 165 outlets in Malaysia in a short period of time.

However, trouble started brewing when La Kaffa alleged that Loob had breached RERA by, among others:

– Loob’s failure to purchase all raw materials from La Kaffa as required by Article 7 RERA;
– Loob failed to allow La Kaffa to inspect and/or audit, among others, Loob’s accounts, books and records; and
– Loob’s failure to pay for raw materials purchased from La Kaffa.

The parties then had the dispute arbitrated by the Singapore International Arbitration Centre (Singapore Arbitral Proceedings). The RERA was also terminated by La Kaffa. Loob argued that the termination was unlawful but accepted the termination in any event.

The matter was arbitrated in Singapore because Article 18 of the RERA stated that the RERA is governed by Singapore laws and any disputes regarding the RERA shall be arbitrated at the Singapore International Arbitration Centre.

After the termination, Loob started its Tealive bubble tea business. Out of 165 Chatime franchisees, 161 Chatime franchisees in Malaysia “converted” into Tealive.

Pending the disposal of Singapore Arbitral Proceedings, La Kaffa and Loob filed applications for interim injunctions under s 11(1) of the Arbitration Act 2005 and/or inherent jurisdiction of the Court in the High Court of Kuala Lumpur.

La Kaffa sought orders for, among others, an interim injunction to restrain Loob, its directors (including their spouses and immediate family members) and employees from, among others, carrying on business which is identical or similar to the Chatime Franchise business.

What is an Interim Injunction?

The important point here to note is the interim injunction.

I will focus on La Kaffa’s interim injunction only as Loob’s interim injunction in its counterclaim was only to restrain La Kaffa from interfering with its business.

The purpose of the interim injunction is to restrain Loob and its related parties from carrying on business which is identical or similar to the Chatime Franchise. This would include running the Tealive bubble tea business.

If the Court grants the interim injunction, it would last until the disposal of the Singapore Arbitral Proceeding. La Kaffa did not ask for a perpetual injunction to restrain Loob from operating the Tealive bubble tea business.

The High Court held that it does not decide on the merits of the dispute which should only be decided by the arbitral tribunal as agreed by the parties. The High Court held that it would only need to decide if the interim injunction would support, assist, aid or facilitate the Singapore Arbitral Proceedings.

And to decide whether the interim injunction would support, assist, aid or facilitate the Singapore Arbitral Proceedings, the Court would need to determine if there is any bona fide and serious question to be tried in respect of the plaintiff’s cause of action against the defendant; and if so:

– whether damages constitute an adequate remedy for the plaintiff; and
– if damages do not constitute an adequate remedy for the plaintiff, whether the “balance of convenience” lies in favour of the granting or refusal of an interim restraining injunction.

In other words, the Court would need to balance the rights of the parties to determine if Tealive should close down pending the completion of the Singapore Arbitral Proceedings.

Should Tealive close down?

La Kaffa says that it should because of our franchise laws and Article 15 of the RERA.

Pursuant to s. 27 of the Franchise Act 1998 (FA 1998), a franchisee shall give a written guarantee to the franchisor that the franchisee including its directors, the spouses and immediate family of the directors, and his employees shall not carry on any other business similar to the franchised business during the franchise term and for two years after the expiration or earlier termination of the franchise agreement.

In brief, La Kaffa argued that s. 27 of the FA 1998 requires Loob and its directors (including their spouses and immediate family members) and employees from, among others, carrying on business which is identical or similar to Chatime Franchise business e.g Tealive.

S. 27 FA provides the following:

Prohibition against similar business

27(1) A franchisee shall give a written guarantee to a franchisor that the franchisee, including its directors, the spouses and immediate family of the directors, and his employees shall not carry on any other business similar to the franchised business operated by the franchisee during the franchise term and for two years after the expiration or earlier termination of the franchise agreement.

(2) The franchisee, including its directors, the spouses and immediate family of the directors, and his employees shall comply with the terms of the written guarantee given under subsection (1).

(3) A person who fails to comply with subsection (1) or (2) commits an offence.

Article 15 of the RERA provides the following:

Article 15. Forbidden to Engage in Competition

I. Forbidden during the term of Agreement. Unless otherwise consented by the Parties in advance and in writing during the term of this Agreement, either Party, including their managers, employees, shareholders, subsidiaries or parent companies shall not in the Territory, directly or indirectly by itself through agents, engage in any commercial activities that are identical or similar to those done in the Franchised Stores.

II. The Parties agree that the commercial or business activities being done in the affiliate stores of the MASTER FRANCHISEE, including their managers, employees, shareholders, subsidiaries, or parent companies at the time of the execution of this Agreement would not be deemed to be identical or similar to those done in the Franchised Stores if the said activities do not form part of the core business or are complimentary to the core business of the affiliated stores.

III. Application scope. The Parties hereby consent that the aforesaid sub-articles (I) and (II) shall be applied to prevent the FRANCHISOR and the MASTER FRANCHISEE from engaging in unfair competition in breach of this Agreement.

IV. Default compensation. In the event any Party (Defaulting Party) violates this Article, the Defaulting Party shall pay the other Party (Non-Defaulting Party) a sum of US$10,000.00 as punitive penalty for each violation. All gains derive from the violation by the Defaulting Party shall also be paid to the Non-Defaulting Party as compensation and the Defaulting Party shall stop the competing activities immediately.

V. Validity of the provisions of this Agreement. This Article 15 shall survive the invalidity, expiration or termination of this Agreement.

In brief, Article 15(1) of the RERA prohibits La Kaffa and Loob from engaging in competing business during the term of the RERA.

What happened in the High Court?

As some of you may know, the case was first fought in the High Court. La Kaffa could not stop Tealive from operating.

The High Court held that it could not close Tealive down because the provision of s. 27 of the FA 1998 was not incorporated into the RERA and Loob and its related parties did not give a written undertaking to cease business for two years. Therefore, the High Court was of the view that there is no bona fide and serious issue to be tried as to whether Loob had breached s. 27 of the FA 1998.

Some may ask why the Court did not order the closure since it is clear that s. 27 of the FA 1998 requires Loob and its related parties to operate an identical or similar business as Chatime for two years.

The High Court was of the view that Tealive do not need to close down because Loob did not promise to close down after the termination of the RERA. The High Court Judicial Commissioner Wong Kian Kheong (as then he was) was of the view that the issue before the Court was whether La Kaffa is entitled to an interim injunction so that it can be used to support, assist, aid or facilitate the Singapore Arbitral Proceedings.

Based on my understanding of the grounds of judgment, the learned Judicial Commissioner was of the view that the action before him was not the forum for him to decide whether there was a breach of s. 27 of the FA.

Further, a breach of s. 27 of the FA amounts to a criminal offence. If it is a criminal offence, criminal action would need to be taken by the Government and it would need to go through a criminal trial to find liability. In a criminal trial, the burden of proof is beyond reasonable doubt as opposed to a balance of balance of probabilities in a civil case.

In addition, the learned Judicial Commissioner held that La Kaffa had been guilty of inequitable conduct. One of the inequitable conducts committed by La Kaffa was that it had sent a notice to “shopping mall owners” which stated, among others, all the agreements between Loob and the shopping mall owners regarding Chatime franchise business “shall be null and void”.

What happened in the Court of Appeal?

The Court of Appeal had a different view and overturned the High Court’s decision.

In granting overturning the High Court’s decision, the Court of Appeal held that:

– A simple construction of Article 15 of the RERA as well as s. 27 of FA 1998 will demonstrate that there is an obligation for Loob not to compete with La Kaffa’s business even after the termination of the RERA;
– In light of Article 15 of the RERA and s. 27 of FA 1998, the High Court ought not to have refused the prohibitory injunction. When parties have agreed not to do certain acts and a statute also provides for such protection, the court is obliged to give effect to ensure the salient terms of the agreement as well as the statute is not breached.

The Court of Appeal found it unjustifiable for the High Court to rely that the Tealive bubble tea business consisting of 161 outlets and the livelihood of 800 employees will be affected. The conduct of Loob on the face of record is not only in breach of legal obligation related to restraint of trade but also breach of franchise law which does not encourage criminal or tortious conduct of business, goodwill.

Therefore, the Court of Appeal held that the failure to grant the prohibitory injunction was flawed which requires appellate intervention.

What happened after that?

Loob thereafter filed an application to the Court of Appeal to stay (suspend) the Court of Appeal’s order for an injunction, among others, pending the disposal of the application for leave to appeal to the Federal Court. However, the Court of Appeal, on a majority decision of 2-1, dismissed the application for stay.

It is unknown why Tealive stores did not close its doors after the stay of execution application was dismissed by the Court of Appeal. My guess is that La Kaffa was not enforcing the interim injunction. If Tealive closes down but Loob succeeds in the Federal Court, La Kaffa would be liable to pay damages for the profit Loob could have made during the closure and other forms of damages. This is because La Kaffa had given an undertaking as to damages for all loss suffered by the Loob as a result of the interim injunction. Such damages could amount to millions of Ringgit.

What now?

Fortunately for Loob, the application for stay of execution was granted by the Federal Court on 16 July 2018. Loob has filed an application for leave to appeal (permission to appeal) to the Federal Court. The Federal Court will only hear limited type of cases and in civil cases, the Federal Court will hear cases involving a question of general principle decided for the first time or a question of importance upon which further argument and a decision of the Federal Court would be to public advantage, among others.

If the Federal Court refuses leave for Loob to appeal to the Federal Court or dismisses the appeal, Tealive will need to close down until the disposal of the Singapore Arbitral Proceedings.



First published on Digital News Asia on 17 July 2018

Download:-
1. High Court Judgement
2. Court of Appeal
2.1 Appeal Proper
2.2 Stay of Execution
2.2.1. Majority Judgement
2.2.2 Minority Judgment

Bread & Kaya: Dear Attorney General Tommy Thomas, we need to speak about our Malaysia cyberlaw and IT laws reforms

By Foong Cheng Leong | Jun 22, 2018

– Act is clearly against the very fundamental principal of “innocent until proven guilty”
– Need law to curb creation of fake news, especially if created to stoke racial or religious sentiments

Repeal of 114A of Evidence Act 1950

WHEN s. 114A was introduced in the Parliament in 2012, a protest was held by netizens to urge the Government to repeal s. 114A. The #stop114A campaign was held and Malaysia had it first Internet Blackout Day to protest this section.

S. 114A provides for three circumstances where an Internet user is deemed to be a publisher of a content unless proven otherwise by him or her. The relevant section, namely s. 114A(1), states that “A person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host , administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved”.

In simple words, if your name, photograph or pseudonym appears on any publication depicting yourself as the aforesaid persons, you are deemed to have published the content. So, for example, if someone creates a blog with your name, you are deemed to have published the articles there unless you prove otherwise. If you have a blog and someone posts a comment, you are deemed to have published it.

Subsection (2) provides a graver consequence. If a posting originates from your account with a network service provider, you are deemed to be the publisher unless the contrary is proved. In simple terms, if a posting originates from your TM Unifi account, you are deemed to be the publisher. In the following scenarios, you are deemed to be the publisher unless you prove the contrary:-

(1) You have a home network with a few house mates sharing one internet account. You are deemed to be the publisher even though one of your house mates posts something offensive online.
(2) You have wireless network at home but you did not secure your network. You are deemed to be the publisher even though someone “piggybacks” your network to post something offensive.
(3) You have a party at home and allows your friends to access your PC or wireless network. You are deemed to be the publisher even though it was a friend who posted something offensive.
(4) Someone use your phone or tablet to post something offensive. You are deemed to be the publisher.

As for subsection (3), you are presumed to have published a content if you have custody or control of any computer which the publication originates from. Here, you are deemed to be the publisher so long your computer was the device that had posted the content. If someone “tweetjacks” you or naughtily updates your Facebook with something offensive, you are deemed to be the publisher unless you prove otherwise.

Clearly, it is against our very fundamental principal of “innocent until proven guilty”.

Position of intermediaries (e.g. platform providers)

Currently, many platform providers are vulnerable to be sued or charged in Court for what their users do. For example, an online forum owner would be liable for publishing defamatory statements made by their users pursuant to s. 114A of the Evidence Act 1950. Online marketplace operators may also be sued because their users sold counterfeit products.

It would be ideal for the Government to induce new laws to protect such platform providers but also the punish errant platform providers. For example, a one-strike or three-strikes rule. Under such proposed one-strike rule, an aggrieved person may file a complaint against the platform provider to remove certain postings. If the platform providers remove such posting within a specific time, the platform provider should be absolved from liability. However, if it fails to do so, it will be liable for the acts of its users.

S. 43H of the Copyright Act 1987 is a good example on how to deal with intermediary’s liable in respect of copyright infringement.

In this regard, the Sedition (Amendment) Act 2015, which is not in operation yet, should be repealed. The said amendment creates, among others, liability on website operators such as online forums, online news portals, and even Facebook page/ group owners. [Read http://foongchengleong.com/2015/04/bread-kaya-how-the-new-sedition-act-affects-netizens/]

Specific laws to govern blocking of websites or other electronic platforms.

All blocking orders should be made public and their detailed reasons to block websites. Currently, there is no public list other than one independently maintained by Sinar Project and reasons given are usually one-liners (e.g. in breach of s. 233 of the Communications and Multimedia Act 1998).

However, there could be specific websites which need not be reviewed due to national security issue, among others. As we all know, blocked websites can still be accessed via other means.

Blocking orders should also be made by the Courts rather than the arbitrary decision of the Minister. The current s. 263 of the Communications and Multimedia Act 1998 is used by the Ministry of Communications and Multimedia to direct internet service providers to block platforms in order to prevent the commission or attempted commission of an offence under any written law of Malaysia. In the past however, we have seen websites being blocked due to political reasons e.g. medium.com and bersih.org.

The Anti-Fake News Act 2018 and Sedition (Amendment) Act 2015 have provisions for websites to be blocked by way of application to the Court. All these blocking order sections and s. 263 of the Communications and Multimedia Act 1998 should be replaced with one single law to govern blocking of electronic platforms.

The law should also allow any person such as users of the platforms to challenge any blocking orders. When the previous Government decided to block medium.com, as far as I know, the site owners did not file any challenge in Court to unblock their website. Many netizens were denied access to informative and educational content from medium.com. There were no specific laws allowing them to challenge the block. They were also unsure if they could meet the threshold to file an action for judicial review.

Specific channels to allow litigants to obtain information about wrongdoers

In the present case, a person who wishes to obtain information about another person, for example another Facebook user who had defamed or harasses him, would need to go through a long and expensive process to obtain such information. Normally these wrongdoers will use platforms provided by foreign companies to attack another user.

It would be ideal if a straight forward process be made to such person to obtain such information. For example, filing a request to the Government for it to request the same from the platform providers.

SS. 211 and 233 of the Communications and Multimedia Act 1998

S. 233 of the Communications and Multimedia Act 1998 (which is similar to s. 211) has been used by the previous administration against dissent. The Bar Council has called for the repeal of Section 233(1)(a) of the Communications and Multimedia Act 1998 as it is a serious encroachment on the freedom of speech and expression guaranteed by Article 10(1)(a) of our Federal Constitution. I concur with the Bar Council on this.

However, I suggest that new laws be introduced to stop contents which can cause hatred and disturbance about certain individuals or organisations. We cannot have people sending fake messages which can cause a riot, for example.

Anti Fake News Act 2018

Many calls have been made to repeal the Anti Fake News Act 2018, which came into operation weeks before the 14th General Election. One person has been sentenced and many have been investigated for spreading fake news. Prime Minister Dr Mahathir Mohamad has confirmed that this Act will be repealed.

Notwithstanding such calls to repeal the law, I am of the view that there should be laws to curb the creation of fake news especially those created to stoke racial or religious sentiments. Note that s. 233 of the Communications and Multimedia Act 1998 requires a communication to target a certain person. Fake news may not necessary be targeting a certain person. It could target a race and a place, for example.

Revamp of the Admissibility of Electronic Evidence

Currently, almost every document printed by a computer is admissible under s. 90A of the Evidence Act 1950. This section should be examined to define clearly on what admissible and not admissible.

The Court’s electronic system should also be upgraded to allow the admissible of all forms of electronic media such as songs, videos and animated files. Currently, lawyers have to burn those evidence in a CD to be filed in Court. This defeats the open justice system where all Court proceedings are accessible to the public.

[Postscript] In addition, the Court’s file search system should also be updated. Currently it allows a user to conduct a file search for 30 minutes (per ticket) via its slow system. It loads page by page and one cannot download all the documents at one go. It should be revamped to allow a user to download the entire file with one single fee.

Laws to protect netizens

New laws should be introduced to criminalise cyberbullying, stalking and harassment. It is noted that this type of acts these days are not made directly against a person.

Government should also study the criminalisation of maintaining cybertroopers. Many organisations in the world including Governments use the services of cybertroopers to attack individuals. They would send threatening, harassing or annoying messages, posting private information of that individual and create fake content about that individual.

Lastly, what we need is meaningful and effectively consultation with the Government. The previous administration had basically shoved us with laws with little consultation. I remember when our #Stop114A team went to meet the then Deputy Minister of Law, V.K Liew, to hand in our petition to repeal s.114A, he said that the Bar Council needs professional advice. I trust that the new Government will make a wise choice in deciding the right people for the right job.


First published on Digital News Asia on 22 June 2018

Bread & Kaya: 2017 Cyberlaw cases Pt3 – sexual offences against children and computer crimes

By Foong Cheng Leong | Mar 30, 2018
– Sending death threats using someone else’s mobile phone is not OK
– 2018 will mark interesting year for cyber related cases including Uber driver suing Uber

THE first statute in Malaysia to use the term “social media” is part of the law designed to protect children against sexual offences and not any computer crimes related or media related law.

At the same time a bank officer got into hot soup for using their superior’s email account and password. Let’s go through these cases now.

Crime

Sexual Offences Against Children Act 2017

The Sexual Offences Against Children Act 2017 was introduced to address the seriousness of sexual offences committed against children in Malaysia. The ultimate object of the proposed Act is to provide for better protection for children against sexual offences and to safeguard the interest and well-being of children and to provide effective deterrence.

One of the laws introduced is the law against child grooming. S. 12 of the Act states that child grooming is an offence punishable with imprisonment of no more than 5 years and liable for whipping. The Act specifically stated that the following amounts to child grooming :-

(a) A communicates with Z, a child via social media by pretending to be a teenager and develops a love relationship with Z with the intention of using Z in the making of child pornography. A never meets Z. A is guilty of an offence under this section .

(b) A communicates with Z, a child via e-mail and befriends Z with the intention that A’s friends C and B could rape Z. A never meets Z. A is guilty of an offence under this section.

This law is also the first statute in Malaysia to use the words “social media”.

Last year, we were anticipating the amendments of the Communications and Multimedia Act 1998. However, the amendments never came. Nevertheless, numerous people were investigated under s. 233 of the Communications and Multimedia Act 1998. Notably, in the case of Mohd Fahmi Redza Bin Mohd Zarin Lawan Pendakwa Raya dan Satu Lagi Kes (Kuala Lumpur Criminal Application No. 44-103-08/2016), the accused was charged under s. 233 of the Communications and Multimedia Act 1998 for publishing an offensive Instagram posting using the username kuasasiswa. The accused filed an application to strike out the charge on the grounds that:-

– s. 233 of the Communications and Multimedia Act 1998 is unconstitutional and/or ultra vires in view of Article 5(1), 8 and 10(1)(a) of the Federal Constitution
– the charge against him acts as and/or has the characteristic of a censorship and therefore in contravention of the objectives of the CMA according to s. 3(3) of the CMA; and
– the charge against the accused is defective as it does not have the details of the parties that were offended by his acts.

The Public Prosecutor applied to have the matter heard before the Federal Court in respect of the issues on the constitutionality of s. 233 of the CMA (in accordance with ss. 30 and 84 of the Courts of Judicature Act 1964. Upon hearing the parties, the High Court referred the matter to the Federal Court for the latter to decide on the following question:-

Whether Section 233(1)(a) of the Multimedia and Communication Act (Act 588) is Inconsistent with Article 5(1), 8 and 10(1)(a) of the Federal Constitution?

However, the Federal Court dismissed the application for non-compliance of the Courts of Judicature Act 1964 (Federal Court Criminal Application No. 06-04-04/2017(W)).

In Nik Adib Bin Nik Mat v Public Prosecutor (Rayuan Jenayah No 42S(A)-39-7/16), the accused was charged under s.233(1)(a) of the Communications and Multimedia Act 1998 for sending indecent and false photos of cabinet leaders titled “Pesta Bogel” on Facebook. He was also charged under s. 5(1)(a) of the Film Censorship Act 2002 for possession of 883 pieces of pornographic videos in his laptop. The Session Court sentenced him to the maximum sentence of 1 year imprisonment for the first offence and another 1 year imprisonment for the second offence.

On appeal, the High Court Judge stated that “cyber offences are serious offences especially the offence at hand, as those offensive materials could be easily disseminated to the public at large within seconds at a touch of a button” and agreed with the Sessions Court Judge that public interest is of paramount importance and should supersede the interest of the accused.

However, the learned High Court Judge was of the view that personal interest of the accused should not be disregarded at all and thus, allowed the appeal against the sentence. The learned High Court Judge took into account the grounds submitted by the accused and held that the misdirection of Session Court on imposing maximum sentence for the first offence warrants the appellate intervention and a special consideration ought to be given so that he can mend his ways and “turn over a new leaf”.

The High Court substituted the original sentence with 1 week imprisonment and a fine of RM3,000 in default 3 months imprisonment for the first charge and for the second charge, a fine of RM10,000 in default 1 ½ years imprisonment.

In Pendakwa Raya v Dato’ Dr Ahmad Ramzi Bin Ahmad Zubir (Rayuan Jenayah No. T-09-15-01/2014), the Respondent was charged with criminal defamation after he had sent text messages containing death threats to various individuals using another person’s (SP5) mobile phone number via an online platform registered in the name of a colleague of the Respondent (SP16). The said online platform allows users to broadcast SMS to numerous mobile numbers via the Internet. The Respondent had changed the sender’s mobile phone to SP5’s mobile number. The Respondent’s convicted by the Sessions Court but his conviction was overturned by the High Court.

On appeal, the Court of Appeal restored the conviction. In the grounds of judgment, the Court of Appeal discussed on the method used to determine whether the SMS was sent by the Respondent. The investigation had showed that the internet protocol address that was used to send the SMS was registered to the Respondent’s internet account. The MAC Address found was the same MAC Address of the Respondent’s router. According to the evidence provided by Cyber Security Malaysia, a MAC Address is a unique number provided by the Internet Service Provider and in order to connect to the Internet, it must be done through a router.

In Pendakwaraya v Charles Sugumar a/l M. Karunnanithi (Mahkamah Majistret Kota Bharu Kes Tangkap No: MKB (A) 83-43-02/2016), the accused was charged under s. s. 424 of the Penal Code for dishonestly concealing money of a scam victim in his bank account knowing that the said money does not belong to him. The victim had befriended a person by the name of Alfred Hammon from UK through Facebook. Alfred Hammon then made the victim transfer money to the accused’s bank account on the pretence that he needed the money to cash his cheque of US$3 million. Alfred Hammon promised that he will return the money together with interest. However, after transferring RM36,300 the victim realised that she was scammed.

The accused claimed that he is not part of the scam. The accused claimed that when he was working as a tour driver, he was requested by his customer to receive money on the customer’s behalf. The accused claimed that he did it to give his customer the best service so that he can attract more customers. He said that he was informed by the customer that the customer’s friend had to transfer money to him so that the customer can continue his tour in Malaysia. The accused said that he did not gain any remuneration or commission from that assistance.

The Magistrate acquitted the accused as the Magistrate found that, among others, the accused’s evidence is consistent and is a credible witness. The Magistrate agree that the accused was made a scapegoat by the customer who took advantage of his goodness and sincerity in giving the best service as a tour driver.

Computer Crimes Act

In Rose Hanida Binti Long lwn Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42K–(115–124)-09/2016), the appellant was charged under the Computer Crimes Act 1997 (unauthorised access to computer material with intent to facilitate the commission of an offence involving fraud or dishonesty or which causes injury) and s. 420 of the Penal Code (for cheating) for making false claims to his employer, a bank, by using his superior’s account and password to without his superior’s knowledge. She was initially sentenced by the Sessions Court with 4 years of imprisonment and fine of RM260,000 in default of 15 months jail. She appealed the sentence but withdrew it later. Notwithstanding that it had been withdrawn, the High Court Judge exercised his revisionary powers and enhanced the sentence to 6 years and fine of RM260,000 in default of 15 months jail due to the seriousness of the offence.

In Kangaie Agilan Jammany lwn PP [2017] 1 LNS 1640, the accused was charged under s. 5(1) of the Computer Crimes Act 1997 for making modification of the contents of Air Asia’s flight booking system without authorisation. The accused had allegedly used the function “move flight function” in those unauthorised transactions to change, among others, the flight details and customers’ emails for the purpose of notification. The said function is a critical function to allow authorised staff to make changes so that no charges are made to customers.

The accused was given an ID ‘6954’ and password to access Air Asia flight booking system but he had limited access to it. Thus, one of the witnesses, SP4, had given his ID and password to the accused after the accused had requested for it on the ground that the latter is unable to access to the system using his own ID. SP4 did not know that the accused had misused his account. The accused had then used the said account to help his family members and friends to get cheaper flight tickets, among others. Air Asia alleged that it had lost about RM229,100.42 due to the accused’s actions.

In the system log, it was found that the accused had changed the flight schedule and also that there were a few customer email notifications which involved the agent code 6954 which had made the flight changes. Further, there was an incident whereby SP4 was asked by the accused to provide his new password after it had been changed.

The Sessions Court found the accused guilty and had applied the statutory presumption under s. 114A of the Evidence Act 1950 after the accused could not rebut the evidence that the agent code 6954 belongs and used by him.

Under 114A of the Evidence Act 1950, a person is deemed to be a publisher of a content if it originates from his or her website, registered networks or data processing device of an internet user unless he or she proves the contrary. In 2014, this new law sparked a massive online protest dubbed the Malaysia Internet Blackout Day or also the Stop114A.

On appeal, the High Court concurred with the Sessions Court Judge. The High Court Judge also held that s. 114A of the Evidence Act 1950 applies retrospectively notwithstanding that the offence was committed prior to the enforcement of s. 114A as the presumption did not alter the original subject matter and even includes the same subject matter that did not prejudice the accused before and after. In other words, without using such presumption, the Prosecution would still have to prove that the Accused was the person who used his ID and password to access the employer’s system had committed an offence to change the flight schedule without authorisation. On the contrary also by applying the presumption of the law, the Prosecution will still have to prove that the accused alone has a specific ID and password to access the system.

Closing

2018 will mark another interesting year for cyber related cases. In late 2017 and early 2018, the following cases have been filed:-

– A Uber driver sued Uber Malaysia Sdn Bhd for non payment of his fees. The interesting question in this case would be whether Uber Malaysia Sdn Bhd is liable to pay such fees or one of Uber’s foreign entities.
– In the Intellectual Property Court of Kuala Lumpur, a brand owner had filed a law suit for trade mark infringement against a web hosting company for hosting a website that sold counterfeit products. The interesting question in this case is whether a webhoster is liable for what their subscribers do.
– In the same Court, a brand owner had also filed a law suit for trade mark infringement against online marketplace operator for using the brand owner’s registered trade mark and allowing their users to sell unauthorised products. The interesting question in this case is whether an online marketplace operator is liable for what their users do on their platform and in particular case, for selling unauthorised products.
– The same Court also granted an application to serve a Writ and Statement of Claim via email and WhatsApp messenger after it could not locate the Defendant at her last known address. Traditionally, when a Defendant cannot be located, Plaintiff would normally ask the Court to allow a notice relating to the lawsuit to be published in the newspaper, among others. We will see more and more substituted service applications to be served electronically.
PKR communications director Fahmi Fadzil filed a civil suit against the Malaysian Communications and Multimedia Commission and Nuemera (M) Sdn Bhd for allegedly failed to protect his personal data which resulted in the leakages of his personal data together with personal information of 46.2 million mobile subscribers. This was one of Malaysians’ biggest data leak.

Finally, the recent introduction this month of the Anti-Fake News Bill 2018 is too important for me to leave till next year to comment!

The word “fake news” is defined as any news, information, data and reports, which is or are wholly or partly false, whether in the form of features, visuals or audio recordings or in any other form capable of suggesting words or ideas.

The law applies to fake news concerning Malaysia or the person affected by the commission of the offence is a Malaysian citizen. Any person who, by any means, knowingly creates, offers, publishes, prints, distributes, circulates or disseminates any fake news or publication containing fake news commits an offence and shall, on conviction, be liable to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding 10 years or to both.

The Court may also order the accused to make an apology. Interestingly, the new law allows civil action to be initiated by a person affected by the fake news publication for an order for the removal of such publication. I will write further on this new law on a separate article. [Postscript: The Anti Fake News Act 2018 is now in force effective from 11 April 2018]


First published on Digital News Asia on 30 March 2018

Bread & Kaya: 2017 Cyberlaw Cases Pt2 – viral content, Uber and appearance of an emoji

By Foong Cheng Leong
Mar 29, 2018

A video clip that was viewed 3 million times deemed to be the truth of an incident
Groupon has its day in court, twice with users not happy with merchants

CARRYING off from where I left off in part one of my review of the interesting Cyberlaw related cases that came to the courts in 2017, I start off with viral content and a case where a video was shared almost 50,000 times. And while Uber Technologies is merging its operations with Grab, it still had its day in court last year with a case in Sabah.

Viral Content

The case of Public Prosecutor v Poovarasan Subramaniam & 2 Others [2017] 1 LNS 1619 determined whether a viral video can be admitted as evidence in a criminal trial.

The 3 accused were charged for murder for a man who had allegedly stolen a mobile phone. In the course of trial during the Prosecution’s case, the Prosecution sought to adduce in evidence a VCD containing a video clip that captured a portion of the incident wherein the victim was assaulted by several men. The video clip went viral on the internet and a prosecution witness had downloaded the same from the blog KITABANTAI into the VCD.

The second accused strenuously objected to the admissibility of the VCD principally because the authenticity of the contents of the VCD is questionable. A trial within a trial (TWT) was held to consider the admissibility of the VCD.

During the TWT, the Prosecution called two bloggers, namely the owners of the blogs KITABANTAI and SIAKAPKELI who had published the video clip, to testify as to the origin of the video clip. KITABANTAI stated that the video came from SIAKAPKELI. SIAKAPKELI later revealed that the video clip came from an online news website called MYNEWSHUB. However, the journalist at MYNEWSHUB does not the exact source of the video clip.

Notwithstanding that the person who originally recorded the video clip live and thereafter uploaded the same in the social media could not be traced and produced in Court as witness, the learned High Court Judge was satisfied that the police investigation team and the Prosecution have used their best endeavours to produce the evidence of the chain of movement of the video clip in cyberspace till it was extracted by the police. The said video clip was admitted as evidence following ss. 90A(1) and (2) and 90C of the Evidence Act 1950. The learned Judge stated that he has no reason to believe that the video clip wasn’t authentic in the circumstances.

This case is in stark contrast with the case of Tan Chow Cheang v Pendakwa Raya (Criminal Appeal No. J-05(LB)-54-01/2016). In this case, the accused was charged with drug trafficking under s. 39B of the Dangerous Drugs Act 1952. During the examination of one of the raiding officer, the defence suddenly produced a CCTV recording in a pen drive showing that the drug was planted. On completion of the raiding officer’s evidence, the High Court granted the accused a discharge not amounting to acquittal upon the prosecution’s application notwithstanding that the defence had submitted that the accused was entitled to be acquitted and discharged as upon the production of the CCTV recording, the sole or main prop in the prosecution case collapsed prematurely.

The Court of Appeal agreed with the High Court. The Court of Appeal was of the view that the production of a certificate under s. 90A(2) of the Evidence Act 1950 is not the conclusive way to prove the pen drive’s admissibility. The Court of Appeal held that “to allow it to be admitted in such circumstances in, our view, would be open to abuse. It is not impossible during this era of modern technology for images to be superimposed or tempered with. Therefore, it is only safe for witnesses to be called either to confirm or to rebut it“.

In another case involving viral video (Datuk Wira SM Faisal Sm Nasimuddin Kamal v. Emilia Hanafi & Ors [2017] 1 LNS 1373), the Plaintiff and his ex-wife (1st Defendant) were in Syariah Court of Kuala Lumpur to resolve their matrimonial dispute/issues. Together with them were the family members of the Plaintiff and the 1st Defendant, among others.

On 20.9.2016, the Syariah Court ordered the children of the Plaintiff and 1st Defendant to spend a night with the Plaintiff at his home. The Judge of the Syariah High Court further ordered that the children must not be forced if they do not want to follow the Plaintiff. After that, the proceedings between Plaintiff and 1st Defendant was adjourned for the day.

A video recording was taken after the proceeding in the Syariah Court had ended. The video allegedly showed the aggressive behaviour and use of force by Plaintiff outside the courtroom towards both his 2nd child and wife. The 1st to 4th Defendants then shared the said video clip. The 3rd Defendant had uploaded the video clip on her Snapchat virtual page with the words “SMF shoved them to the ground when he gave up” whereas the 1st Defendant had also uploaded the video clip on her Instagram account with the caption “A mother’s heartache .” On a side note, this is probably the first written judgment in Malaysia featuring an emoji.

The Plaintiff alleged that the video clip went viral. The video clip spread so widely that:

(a) Up to 3 million people viewed the video clip;

(b) Nearly 50 thousand people shared and/or distributed the video clip;

(c) Nearly 15 thousand people made comments, conclusions and/or inferences against the Plaintiff as result of the video clip.”

The Plaintiff sued the Defendants for publishing the video clip. Notwithstanding that the video clip went viral, the High Court struck out the Plaintiff’s case. The learned High Court Judge held that:-

“The video recording that was published was undisputably a recording of an actual and real incident and therefore, cannot be denied as being the truth.”

“The objectionable words and statements complained of are not prima facie defamatory. In fact, the same do not substantially even make reference to Plaintiff nor do they directly or by implication refer to or implicate Plaintiff.”

In Synergistic Duo Sdn Bhd v. Lai Mei Juan [2017] 9 CLJ 244, the Plaintiff sued the Defendant for publishing two (2) Facebook postings in relation to the bad service by BGT Lakeview Restaurant operated by the Plaintiff. The second posting went viral and were shared more than 9,500 times and was reposted and published in newspapers, websites, blogs and other Facebook pages. The Plaintiff submitted that: (i) because of the postings, many of its customers cancelled their bookings and reservations; and (ii) if the Defendant was not restrained by way of an interim injunction, the Plaintiff would continue to suffer grave irreparable loss and damage to its reputation and goodwill.

In granting the Plaintiff’s application for interim injunction, the learned Judicial Commissioner held that the continued publication of postings on the Defendant’s Facebook would cause the Plaintiff’s to suffer further damage to their reputation and goodwill as the potential re-publication of the postings to potentially unlimited number of internet users would irreparably harm the plaintiff’s reputation: which harm cannot be adequately compensated with damages.

Digital Currencies

Due to the rising popularity of digital currencies in Malaysia, Bank Negara issued an exposure draft by the name of Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) – Digital Currencies (Sector 6). The document outlines the proposed requirements and standards that a digital currency exchanger as defined under the First Schedule of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) must carry out as reporting institutions. This is to ensure effective and robust Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) control measures are in place to safeguard the safety and integrity of the financial system as well as to promote greater transparency in the conduct of digital currencies transactions.

The draft exposure sets out the minimum requirements and standards that digital currency exchangers must observe as reporting institutions to increase the transparency of activities relating to digital currencies and ensure effective and robust AML/CFT control measures are in place to mitigate risks that digital currency exchangers may be used as conduits for illegal activities. Such requirement include conducting risk assessment, risk control and mitigation, risk profiling and customer due diligence, among others.

Digital currency exchangers must also comply with requirements in the document relating to: the identification and verification of customers and beneficial owners, on-going monitoring of customers’ transactions, sanction screening, suspicious transaction reporting and record keeping; transparency obligations; and requirements for the submission of data and statistics to the Bank for the purpose of managing ML/TF risks.

The document is applicable to reporting institutions, regardless that the person is not domiciled in Malaysia, carrying on the following activities listed in Paragraph 25 of the First Schedule to the AMLA:-

activities carried out by any person who provides any or any combination of the following services:

(i) exchanging digital currency for money;

(ii) exchanging money for digital currency; or

(iii) exchanging one digital currency for another digital currency, whether in the course of carrying on a digital currency exchange business or otherwise.

Singapore saw its first cryptocurrency dispute in its Court. The case of B2C2 Ltd v Quoine Pte Ltd [2017] SGHC(I) 11 concerns a cryptocurrency transaction dispute between the Plaintiff (a foreign electronic maker for virtual currency) and Defendant (an online virtual currency exchange platform provider in Singapore) which involves Bitcoin and Ethereum.

The Plaintiff alleged that the Defendant had acted in breach of the contract between them and breach of trust when the platform reversed transactions for the sale and purchase of the cryptocurrencies Bitcoin and Ethereum.

The transactions were unilaterally reversed after the Defendant identified that a technical glitch had occurred to the software used by the platform. Consequently, the Plaintiff had lost the benefit which it could have made if the transaction was not reversed.

The Defendant argued that there was unilateral mistake involved and they are entitled to reverse the transaction. The Plaintiff sought an order for summary judgment.

The Singapore International Court dismissed the summary judgment application by the Plaintiff as there were triable issues raised by Defendant and held that “a thorough investigation of the facts behind the setting of the abnormally high offer price is justified in order to place the court in a proper position fully to assess the state of the Plaintiff’s knowledge”as well as “the law on unilateral mistake where computers are involved in greater detail”.

E-Hailing Services

During the hype of prosecution of drivers of e-hailing vehicle, one Joe Vincent Singgoh sought an order from Court to protect drivers from such prosecution in Sabah. In the case of Joe Vincent Singgoh v Commercial Vehicles Licensing Board Sabah 1 & Ors (Sabah High Court Judicial Review No. BKI-13NCvC-10/10-2016), the Applicant, a person registered with e-hailing service provider Uber Technologies Inc. as a driver, had sought several orders amongst which an order of prohibition against the 1st and 2nd Respondents from relying on the provisions of Section 33 of the Commercial Licensing Vehicles Act 1987 to prosecute or prohibit the Applicant from using the services of Uber Technologies Inc. The Applicant also sought a mandatory injunction was also sought to restrain the prosecution, prohibition of the Applicant to drive or make drives for Uber.

The High Court held that the aggrieved person in this case is not the applicant. The proper person is Uber Technologies Inc. Uber Technologies Inc. has not made any application to the relevant authorities in Sabah for the relevant permits or licences. And in so far as Section 33 is concerned, Uber Technologies Inc. is the ‘person’ responsible to obtain such approvals and not the Applicant. It is not explained or disclosed why this is so.

The Court also held that whatever Uber is promoting is unlawful and illegal. Whether the Government will grant Uber Technologies Inc. the necessary approval or not is a matter for the former to decide as a matter of policy and the Applicants are not entitled to come to court to seek a prohibitive order to pre-empt any legal action that may be taken by the Police of JPJ to enforce the law.

However, the Government will soon be legalising operators of e-hailing service providers and their drivers. The Commercial Vehicle Licensing Board (Amendment) Act 2017 and Land Public Transport (Amendment) Act 2017 were introduced to amend the Commercial Vehicle Licensing Board Act 1987 (“CVLBA”) (applicable to Sabah, Sarawak and the Federal Territory of Labuan) and the Land Public Transport Act 2010 (“LPTA”) (applicable to Peninsular Malaysia) respectively to introduce the licensing of intermediation business. Intermediation business is defined as “business of facilitating arrangements, booking or transactions of e-hailing vehicle (pursuant to the new amendment to CVLBA) and for the provision of land public transport services (pursuant to the new amendment to LPTA). These amendments is clearly intended to regulate e-hailing services such as Uber and Grab.

The Commercial Vehicle Licensing Board (Amendment) Act 2017 and Land Public Transport (Amendment) Act 2017 also introduced a new class of commercial vehicle namely e-hailing vehicle. This would include the cars driving by Grab and Uber drivers.

Once these amendments are enforced, e-hailing providers like Grab and Uber and also their drivers would need to be registered.

E-Commerce

Groupon Malaysia had another challenging year. The Court had to decide in two (2) cases whether Groupon should be liable for the payment made to them for the purchase of products and services on the Groupon website.

In Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor [2016] 1 LNS 555, the Groupon user in this case bought a tour travel package vide its platform from one of Groupon’s merchants and paid RM999 (tour travel package) and RM652 (compulsory airport tax, surcharges and tipping) to Groupon and the merchant respectively. However, the said merchant allegedly cancelled the tour and Groupon made a refund of only RM999 to the user. Dissatisfied, the user demanded the refund of RM652. Upon the rejection by Groupon, the user filed a complaint to the Consumer Tribunal and it held in favour of the user i.e. Groupon is liable for the said amount of RM652.

Groupon contended that there is an exclusion provision in the travel voucher which states that the RM652 charges is to be paid to the merchant, hence, Groupon should not be compelled to pay for monies it had not received in the first place. The Court conceded and held in favour of Groupon, that “it is unmistakable that the airport tax, surcharges and tipping were not included in the tour travel deal. In other words, they were not borne or absorbed by the Applicant”.

In Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor [2016] 1 LNS 1009, similarly, the Groupon user in this case bought a tour travel package vide its platform from one of Groupon’s merchants and paid a RM999 (tour travel package) and RM450 (compulsory airport tax, surcharges and accommodation) respectively to Groupon and the merchant. Therein, the said merchant allegedly cancelled the tour and Groupon made a refund of only RM999 to the user. Dissatisfied, the user demanded the refund of RM450. Upon the rejection by Groupon, the user made a complaint to the Consumer Tribunal and it held in favour of the user i.e Groupon is liable for the third party payment to its merchant.

Groupon contended that there is no contractual relationship between Groupon and the user in the RM450 transaction and hence it shall not be liable to pay. The Court rejected the argument and held in favour of the user that Groupon had acted as an agent for the merchant and made a representation in the travel package voucher, instructing the user to make the RM450 payment to the merchant. Groupon shall be liable for the damages as the contractual relationship was established between Groupon and the user but not between merchant and user.

Defamation

The case of Dato’ Aishaf Falina Bt Ibrahim v Ismail Bin Othman & 2 Ors (Kuala Lumpur Civil Suit No. 22NCVC-352-07/2015) highlighted two interesting points.

The Plaintiff claimed that she was defamed by the retention of the erroneous information in the human resources information system of the 3rd Defendant (her former husband) and its “publication” via the said system. The alleged erroneous information was the information regarding the Plaintiff’s post-divorce marital status with the 1st Defendant, was kept in the 3rd Defendant’s human resources information system for a period of time after she and the 1st Defendant had been divorced. The first question is whether the publication of the erroneous information via the human resources information system amounts to defamation.

The second interesting point is whether the publication on the intranet amounts to publication.

The High Court held that the 2nd and 3rd Defendants are liable in defamation for the retention of erroneous information concerning the Plaintiff’s marital status in the 2nd Defendant’s human resources information system notwithstanding that the error was due to a glitch caused by its source code. The High Court also found that the publication of the erroneous information on the human resources information system via its intranet amounts to publication.

The High Court however dismissed the Plaintiff’s action for tort of misuse of private information as the erroneous information is not private information and there was no misuse of information.

Meanwhile, in Lye Eng Eng & Anor v Ho Kee Jin (Kuala Lumpur High Court Civil Appeal No: WA-12BNCVC-174-11/2016), the High Court, on an appeal from the Sessions Court by the Plaintiff, increased the damages awarded to RM35,000 for defaming the 1st Plaintiff by sending an email containing defamatory statements to 23 persons including those who mattered most to him, namely, his children, his friends and business associates. The Court also held that the Sessions Court Judge had failed to take into consideration of the “gravity of the libel”.

Part 3: In the final part we look at a few cases where individuals ran foul of the Communications and Multimedia Act 1998 and some cases under the Computer Crimes Act.


First published on Digital News Asia on 29 March 2018

Bread & Kaya: 2017 Cyberlaw Cases – WhatsApp Messages and Customs TAP

By Foong Cheng Leong
Mar 26, 2018

Over 50 cyber related cases files in 2017 in Kuala Lumpur High Court

2017 had an interesting array of cyber related issues and laws. Facebook and other electronic platform defamation cases have become a norm. In the Kuala Lumpur High Court itself, there were 50 over cyber related tort cases filed in 2017. Many of them were filed by politicians against other parties including politicians and activists. Some were also filed by companies against individuals who had made disparaging remarks against them.

Interestingly, a defamation case was brought up because of certain defamatory statement via an office intranet.

We also saw how viral contents are treated in Court. Can a Judge rely on a viral video downloaded off the internet as evidence?

Cryptocurrency was one of the biggest news in 2017. Bitcoin shot up to almost US$19,800 (RM77,500) in December 2017. We saw one of the early Bitcoin disputes in one Singapore case. Bank Negara Malaysia issued an exposure draft by the name of Anti-Money Laundering and Counter Financing of Terrorism (AML/CFT) – Digital Currencies (Sector 6). The document outlines the proposed requirements and standards that a digital currency exchanger must carry out as reporting institutions. Notably, Bank Negara said cryptocurrency is not a legal tender in Malaysia.

A driver was reportedly successful in crowdfunding her legal fee of US$15,333 (RM60,000) through Facebook, among others. Sam Ke Ting was charged with dangerous and reckless driving after she had allegedly ploughed into a group of cyclists, killing eight and injuring eight others. The cyclists, aged 13 to 17, were believed to have been blocking the road at around 3am.

These and quite a few others, are notable Malaysian cyberlaw and electronic evidence cases (and some from other countries too) from 2017 that I will summarise over the next three days as part of my yearly tradition of what happened in the preceding year.

WhatApp messages, as much as it brings good to people, it also brought calamity. In Pendakwa Raya v Subbarau @ Kamalanathan (Court of Appeal Criminal Appeal No. N-06B-55-09/2016), the Respondent was charged in the Sessions Court under s. 8(1)(c)(iii) of the Official Secrets Act 1972 (OSA 1972) with having possession in his Samsung mobile phone soft copies of 2014 UPSR examination papers.

It is noted that no 2014 UPSR examination papers were found in the said Samsung mobile phone. However, the mobile phone of one arrested person by the name of Prem Kumar contains the said 2014 UPSR examination papers. The said 2014 UPSR examination papers were sent by the accused’s telephone to Prem Kumar’s WhatsApp account.

Evidence by the Communications and Multimedia Commission showed that the 2014 UPSR examination papers found in Prem Kumar’s mobile phone came from the respondent’s mobile phone. The witness from the Communications and Multimedia Commission explained that the fact that none of the images were found in the respondent’s handphone could be due to the images being deleted and thereafter overridden so that there is nothing left to extract in the handphone. Nonetheless, the Prosecutor argued that evidence clearly shows that the UPSR examination papers came from one source i.e. the respondent’s handphone.

Instead of dealing with the issue of electronic evidence, the Court of Appeal held that only real issue before the Court relates to the question of whether the UPSR examination papers are official secret.

In Pendakwa Raya v Mohd Syafrein Rasid [2015] 1 LNS 943, the accused was charged under Section 130J of the Penal Code for attempting to support the Islamic State and attempted to be a member of the same.

It was revealed in this case that the accused was influenced by what he saw about the war in Syria on Facebook. He even joined a few WhatsApp groups which had members sharing information about the Islamic State and their movement in Syria.

He then decided to travel out from Malaysia to join the Islamic State but was caught at the Immigration counter at the Kuala Lumpur International Airport. He pleaded guilty and was sentenced to two years’ imprisonment.

Admissibility of WhatsApp Chats

What would be the suitable way to admit chat logs from instant messaging applications? Should a party need to get someone from WhatsApp or an IT expert to extract the chat logs from the application? Or do they need to use WhatsApp’s available function to produce the chat logs? Or would print screens of the chatlogs be sufficient?

In Pendakwaraya Lwn Greencity International College Sdn Bhd (Kuala Lumpur Magistrate Department Case Summon No.: 87-309-1/2015), the Court admitted and gave weight to screenshots of WhatsApp messages to prove a mala fide intent by a witness.

However, Mohamad Azhar Abdul Halim v. Naza Motor Trading Sdn Bhd [2017] 1 ILR 292, the Industrial Court disregarded a screenshot of a WhatsApp chat. In this case, the Claimant was dismissed by the Company for misconduct. He had allegedly sent threatening and harassing messages via WhatsApp to a colleague (COW-1) who then left due to the messages. The Claimant brought an action against the Company for wrongful dismissal.

The Company tendered a snapshot image (print screen) of the WhatsApp message. The snapshot did not mention the Claimant’s name, date of WhatsApp message, Claimant’s hand phone number or Claimant’s profile picture nor any other evidence to prove that it was indeed the Claimant who was purportedly having such conversation with COW-1. Meanwhile, COW-1 also admitted that the WhatsApp message that she has is merely screen snapshot/image and not the original WhatsApp messages as she had changed her handphone. Further, she did not screen shot the full conversation between COW-1 and herself.

The Claimant demonstrated to the Court how easy it was to fabricate a WhatsApp conversation that can be done within minutes. The demonstration was witnessed by all parties, including the Company’s learned counsel, who did not cross-examine the Claimant on this matter.The Industrial Court held that the WhatsApp snapshot image does not conclusively prove that it was indeed the Claimant who was purportedly having a conversation with COW-1 because it is undisputed/unchallenged that nowhere in the WhatsApp snapshot image was it mentioned the Claimant’s name, date of WhatsApp message, Claimant’s hand phone number or Claimant’s profile picture nor any other evidence to prove that there in fact was such a conversation. Furthermore, the WhatsApp snapshot image was not proven to be authentic because as demonstrated in Court the WhatsApp message can be fabricated resulting in a fabricated WhatsApp snapshot image of that message. Therefore, there is doubt as to whether the Claimant had a conversation with COW-1 at the material time and had stated the threatening and harassing messages via WhatsApp.

Yahoo Messenger

In 2015, I reported in Rina Simanjuntak v PP (Criminal Appeal No: P-05-256-09/2014), a Yahoo Messenger Chat log saved the life of Rina Simanjuntak who had been sentenced to death by the High Court for drug trafficking. In 2016, Facebook chat messages saved the life of a German by the name of Rudolf Tschernezow who was charged with drug trafficking. The High Court in PP v. Rudolf Tschernezow [2016] 1 LNS 654 held the accused has proven that he is an innocent carrier using those messages. However, the Court of Appeal in PP v Rudolf Tschernezow (Criminal Appeal No J-05(LB)-345-12/2015) overturned the High Court’s decision and sentenced him to death.

In 2017, another lady tried to use her Yahoo Messenger chat logs to save her from the gallows. In B-05(LB)-285-10-2015_(IND)” rel=”noopener” target=”_blank”>Public Prosecutor v Ni Komang Yuningsih (Court of Appeal Criminal Appeal No. B-05(LB)-285-10/2015 (IND)), the Respondent, an Indonesian woman, was charged with drug trafficking under S. 39B(2) of the Dangerous Drugs Act 1952. She was acquitted by the High Court after she proved that she was merely an innocent carrier.

The High Court Judge relied on a print-out of conversation in “Yahoo messenger” and exchange of emails between the Respondent and a Nigerian man by the name of John Amadi who was claimed to be the Respondent’s lover. John Amandi persuaded her to come to Malaysia and had promised to marry her. John Amandi then sent the Respondent to India to meet his brother, Price, to discuss about their wedding. When the Respondent was about to fly to Malaysia, John Amandi’s brother gave her a luggage bag to be given to John Amandi. When she arrived in Kuala Lumpur International Airport, the custom officers found drugs in the luggage bag.

Notwithstanding the discovery, the High Court Judge acquitted the Respondent. The trial judge held that John Amadi and Prince are not fictitious characters but they do exist based on a print-out of Yahoo Messenger chat. The 195 pages printout was held to be impossible to be created by the defence at a very short period of time to strengthen its case and it also has a convincing story line.

Despite the acquittal, the Court of Appeal overturned the acquittal. The Court of Appeal was of the view that the Respondent’s deliberate omission to exercise a reasonable level of diligence in making sure that the bags given by Prince carries no incriminating items is an act of wilful blindness. There were too many inconsistencies with the Respondent’s evidence. She was accordingly sentence to death.

WhatsApp and Agreements

Can a legally binding agreement be forged through a WhatsApp conversation? In Shamsudin Bin Mohd Yusof v Suhaila Binti Sulaiman (Shah Alam Magistrate Court Suit No. BA-A72NCvC-384-03/2017), the Magistrate Court answered in the affirmative and held that an agreement was concluded based on oral and WhatsApp messages between the parties.

Would a WhatsApp message constitute written notice under an agreement? In Tengku Ezuan Ismara Tengku Nun Ahmad & Anor v. Lim Seng Choon David [2017] 1 LNS 1840, the Plaintiff sued the 1st Defendant for the return of his money paid for the purchase of the shares in the 2nd Defendant company pursuant to a Shareholders’ Agreement, among others. The 1st Defendant had sold the shares in the 2nd Defendants to the Plaintiff but failed to transfer the shares after being reminded repeatedly.

The Sessions Court allowed the application for summary judgment against the Defendants. The High Court upheld the Sessions Court’s decision. The Court had to decide whether a WhatsApp communication is considered as a “notice” in the context of clause 7 of the Shareholders’ Agreement. Clause 7 of the Shareholders’ Agreement provides –

Any notice required to be served by the parties hereto or by the Directors or EI [the 2nd Defendant] shall be served either by hand, by registered post or couriered post to the address of each party as stated above or by way of telex or facsimile transmission the numbers of which shall be provided by each of the parties to the other.

A skillful reader would know that Clause 7 above provides for only specific methods of transmitting the notice. Nevertheless, the learned Judicial Commissioner held that the WhatsApp message was sufficient to be a notice under Clause 7. She also held that Clause 7 of the Shareholders’ Agreement does not require the notice to be signed. Even if the requirement of a signature is implied into the said clause, that requirement was fulfilled by the Plaintiff. The 1st Defendant has never denied that he received the Plaintiff’s WhatsApp messages requesting for the transfer of the Shares to be effected. The Plaintiff’s WhatsApp messages is identified by the name “David” and the 1st Defendant is identified through his telephone number. As can be seen from the WhatsApp messages Plaintiff identified the 1st Defendant as “Tengku” to which the 1st Defendant has responded (via WhatsApp message too). Thus if the Plaintiff is required to sign as evidence of the Plaintiff’s identity, such requirement is fulfilled via the identity of the Plaintiff which is embedded in the mobile phone.

Electronic Notice

With the Government moving to digitising their services, many deliveries of correspondence are done through the Internet. Such delivery is not only limited to email, but also through their electronic portals. But what if the recipient did not know that a notice had been delivered through the electronic portal? Assuming that there is a deadline for the recipient to do something, when would the time starts to run? Would it be when the notice is published on the electronic portal or when the user logs into the portal to check it?

In Coach Malaysia Sdn Bhd v Ketua Pengarah Kastam Dan Eksais (Kuala Lumpur Originating Summons No: WA-25-193-07/2017) and Transmarco Concepts Sdn Bhd v Director General Of Customs And Excise (Kuala Lumpur Originating Summons No: WA-24-25-05/2017), the taxpayers applied for an extension of time to apply for leave to commence judicial review proceedings against the Director General of the Customs Department’s decisions which were uploaded to the Defendant’s electronic service by the name of Taxpayer Access Point (TAP System). The taxpayers alleged that they were not aware of the decision until they accessed the Tap System.

The High Court held that under subsection 167(3) of the Goods and Service Tax Act 2014 (GST Act), where a taxpayer has given his consent for a notice to be served on him through the electronic service, then the notice shall be deemed to have been served at the time when the electronic notice is transmitted to his account through the electronic service. As such, the clear effect of reading section 167 of the GST Act with Order 53 r 3(6) of the Rules of Court 2012 means that in respect of service of a decision where the taxpayer has opted for electronic service, the taxpayer is deemed to have knowledge of the notice once the notice had been transmitted to his account through the electronic service.

Part 2: The first statute in Malaysia to use the words “social media” and more.



First published on Digital News Asia on 26 March 2018

Comments on the Malaysian e-Court System Phase 2

The Malay Mail interviewed me on my views of the implementation of the new e-Court System Phase 2 some time last year. Some of the issues highlighted below have now been resolved. I am posting this for record purpose.

In their article entitled “Lawyers required to go digital by 2018“, I said the following:-

Foong Cheng Leong, the Kuala Lumpur Bar’s Information Technology and Publication Committee chairman, noted that e-filing is partly aimed at ending the maintenance of actual physical files and saves time with the skipping of physical file searches.

“Before e-filing, the court had problem organising their files and many files went missing resulting the loss of judicial and litigants’ time. The e-filing system also allows documents to be viewed quickly without the need to look for the file,” he said.

Foong said the second phase of the e-filing system had some improvements such as a better online file search system that now includes searching of court minutes, but he highlighted several issues such as the use of the security token which he felt was “unnecessary”.

“Although it is now available at an affordable rate, the use of the token creates a ripple effect. For example, the lawyer now would need to apply for the token and learn how to use and install it, safe-keep, protect and observe the expiry date of the token,” he said, arguing that there were other ways to ensure security or to ensure the right person is filing a court document.

He said the online file search function where users have to pay RM8 or RM12 depending on the court tiers for a 30-minute viewing period should be changed, suggesting that the time limit should be scrapped and instead replaced with a pay-per-file system.

The file search function also only allows users to view and print files page by page, but should instead be changed to allow users to download the files to view them directly on their computers, he said.

“The current system still has a lot of bugs. It ought to be have been beta tested properly by users, in particular, the lawyers before rolling them out,” he said, citing as example the timer in the file search system suddenly resetting to 0:00 before the time is actually up.

On the closure of the Service Bureau to lawyers, I stated the following:-

Foong similarly said: “However, the service bureau should still remain to assist lawyers to file their documents. Not every lawyer has litigation cases often and some may even do one or two a year. It makes no commercial sense sometimes to pay for the token to do e-filing. Nevertheless, the Court should allow other parties to open service bureaus to cater the needs of fellow lawyers.”

In Malay Mail’s subsequent article entitled “No more 5am queues to file lawsuits“, I was quoted stating the following:-

Foong Cheng Leong, the Kuala Lumpur Bar’s Information Technology and Publication Committee chairman, said issues that law firms in peninsular Malaysia faced in moving to a new online court filing system had caused the long queues.

During that period, the helpdesk for the online system was overflowing with requests for assistance, with many lawyers complaining that it was not picking up their phone calls, he said.

“I think the long queues at the e-filing service bureau is due to the sudden surge of requests to do e-filing. As many lawyers had problem migrating to the new system, they have no choice but to use the e-filing service bureau. This adds to the usual crowd of lawyers who did not subscribe to the e-filing system.

“The Court was unable to cope with the sudden surge of request and resulted in very long lines. The Court had to limit the number of people who could use the service otherwise their staff would be staying in Court past the normal working hours,” he told Malay Mail Online when asked to weigh in on the issue.

Here’s What You Should Know The Next Time Someone Asks For Your MyKad

I was featured in The Malaysian Digest’s article entitled “Here’s What You Should Know The Next Time Someone Asks For Your MyKad” on 22 February 2018.

If Your Identity Is Stolen, It May Be Difficult To Prove Your Innocence

Although the Private Data Protection Act 2010 (PDPA) that protects our data, which is collected for commercial purposes, from being misused by third parties has been enacted, there are limits to how far the law can protect us especially when our data is collected for non-commercial purposes, which is unregulated and open to abuse.

Foong Cheng Leong, founder of law firm Foong Cheng Leong & Co., relayed that when you simply give out your IC number to anyone asking, you are liable to have more of your information to be collected and can be used for social engineering such as creating a complete profile about you.

“With a complete profile, one can use it to obtain certain things like services, access to bank accounts, mobile numbers, financial information, email, buildings and further information etc.

“One can also use that profile to obtain information of another person e.g. a person close to you, for example, your spouse’s personal information,” he said.

And when our personal data and identity gets stolen, it may not be easy to prove and it will depend on the circumstances.

“But one would have to go through a difficult process of being investigated. He may be arrested, remanded, have his computers and mobile devices ceased, privacy invaded etc.” he said.

Although he has not had any cases involving IC number, he has come across cases involving the misuse of identity.

“I had one case where the employee was charged in Court under the Computer Crimes Act 1997 for unauthorised modification of content.

“His office account and internet account were used to delete a database of his employer. Fortunately, we managed to prove that it was not him who did it,” he said.

Foong also said that cases of identity theft are not just a few in the country, as he shared the most well-known case which is the case of Adorna Properties Sdn Bhd v Boonsom Boonyanit.

“The land owner lost her land after it was fraudulently transferred to a third party and subsequently sold to a bona fide purchaser – see https://asklegal.my/p/boonsom-boonyanit-adorna-properties-indefeasible-title-national-land-code-1. Note that the position of this law has changed – see http://www.skrine.com/better-late-than-never,” he shared.

He said that the best way to protect our data is by ensuring that it is always secure and that we control the circulation of our data.

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