Undue Influence – Inche Noriah v Shaikh Allie Bin Omar

Facts: An Old illiterate Malay woman had executed a deed gift to her nephew.

Judgment: There is a presumption of undue influence

Case:

Undue influence was alleged against a nephew over his elderly aunt. One solicitor had drafted the deed of gift, and another had witnessed it. The solicitor had established that she understood it and entered into it freely, but had not asked enough to establish that it was almost her entire estate, and had not advised her that a better way to achieve the result would be by will.

Held: The gift failed for undue influence. Usually a presumption of undue influence may be rebutted by showing that the transaction was entered into ‘after the nature and effect of the transaction had been fully explained to the donor by some independent qualified person.’

However (Lord Hailsham LC): ‘their Lordships are not prepared to accept the view that independent legal advice is the only way in which the presumption can be rebutted.’ and ‘It is necessary for the donee to prove that the gift was a result of the free exercise of independent will. The most obvious way to prove this is by establishing that the gift was made after the nature and effect of the transaction had been fully explained to the donor by some independent and qualified person so completely to satisfy the court that the donor was acting independently of any influence from the donee and with the full appreciation of what he was doing; and in cases where there can there are no other circumstances this may be the only means by which the donee can rebut the presumption.’

My Comments:

According to sec 16, A person may rescind a transaction when he or she was pressured to enter into te contract by the influence of the other. A person in a position to dominate the will of other person if he enters into a contract with a person whose mental capacity is temporarily affected or age.

The elderly aunt, a woman enfeebled by age, is induced, by her nephew influence over her because of her age, agree to gift all of her property. But he had not brief her enough about the situation. So the elderly aunt employs undue influence.

http://swarb.co.uk/inche-noriah-v-shaik-allie-bin-omar-pc-1929/

Contract of Scholarship • S.4 (a) of the Contract (Amendment) Act 1976 [Act A329]

We learned this law on Constract law.This law is written about scholarship.
You know  person below the age of 18 is minor. Minor is not complete to contract as general rule.
But this law says minor also can sue and be sued because a scholarship agreement shall not be invalidated by reason the scholar is a minor. This amendment was introduced after Gurcharan Singh’s case and nullifies the decision of this case. That's why If even person are minor, he or she can contract.

Now let's see Japan. The issues that people don't try to return their scholarship are increasing more and more in Japan. For example,we can owe money once a month as scholarship.So we have to return them after we graduate from the school.It means since we start working.Then some of scholarship have interest.Their load will be heavy.It is hard for them to return once a month.We don't know whether we can return them for sure.We have to earn money to live and to return scholarship.We know It is not easy for us to do it. It depends on their job or salary.If some of us don't owe money, to send their daily life will be hard because of inadequate. But If some of us owe it, to return money will be a problem in thier life.Nowadays Japan has a lot of this problem.

In this case, we need to return money after we graduate from the school.That's why the case that minor is sued is few.On the other hand, people can contract about scholarship in Malaysia.But  I think both look like almost same.If the minor person is sued in Malaysia, the person's parents or people around the person will pay it.In Japan also, when we make a promise, we need signs which are not family but also the third person like neibors or friends.If the person has some problem, the third person has to support him or her.

That even minor can contact in Malaysia is true.If they have some problem, they need help which people around the person gives.When it comes to money, It is not easy for them.Many of them are students.  

THE MALAYSIAN COURT SYSTEM

The purpose of this is to provide a brief overview of the Malaysian court system.

 Malaysia has a unified judicial system, and all courts take cognizance of both federal and state laws. The legal system is founded on British common law. Most cases come before magistrates and sessions courts. Religious courts decide questions of Islamic law and custom. The Federal Court, the highest court in Malaysia, reviews decisions referred from the High Court of Peninsular Malaysia, the High Court of Sabah and Sarawak, and subordinate courts. The Federal Court consists of the chief justice, the two chief judges from the High Courts, and seven other judges. Administrative detention is permitted in security cases, in which certain other guarantees of due process are reportedly suspended.

 

The judiciary has traditionally functioned with a high degree of independence. Most civil and criminal cases are fair and open. The accused must be brought before a judge within 24 hours of arrest. Defendants have the right to counsel and to bail. Strict rules of evidence apply in court and appeal is available to higher courts. Criminal defendants may also appeal for clemency to the paramount ruler or to the local state ruler. Severe penalties, including the death penalty, are imposed for drug-related offenses.

 

High courts have jurisdiction over all serious criminal cases and most civil cases. The sessions courts hear the cases involving landlord-tenant disputes and car accidents. Magistrates' courts hear criminal cases in which the maximum sentence does not exceed 12 months. The Court of Appeals has jurisdiction over high court and sessions court decisions.

The Superior Courts – Malaysian legal system hierarchy comprises the Malaysian High Court, the Court of Appeal, the Federal Court and the Court of Sarawak and Sabah.

 

High Court – The High Court has general revisionary and supervisory jurisdiction over all Subordinate Courts and hears appeals related to criminal and civil cases from Subordinate Courts. The High Courts have rights to hear cases concerning all the criminal matters.

Court of Appeal - The Court of Appeal hears all the civil and criminal cases against the judgments of High Court.

Federal Court – All civil cases from Court of Appeal comes to the Federal Court only after the Federal Court grants leave. The criminal cases are also heard by the Federal Court from Court of Appeal only the issues which are heard by High Court in its jurisdiction.

Court of Sabah and Sarawak – The Sabah and Sarawak Court only hears appeals on matters of their native customs and laws.

The Subordinate Courts – In Malaysian legal system hierarchy, the Subordinate Courts comprises the Sessions Courts, the Penghulu’s Courts in western part of Malaysia and the Magistrates’ Court.

 

Penghulu’s Court – The Penghulu’s Courts hear civil issues in which the claim is below RM50-00 and where the offenders are of Asian race and speaks and understands the Malay language. In Penghulu’s Court’s criminal cases are heard in which the fine is not more than RM25-00.

Magistrates’ Court – The Magistrates’ Courts hear all the civil issues in which the claim is not more than RM25, 000-00. In criminal issues, the Courts have the power to try all the offences in which the imprisonment term is not more than 10 years.

Session’s Court – The Sessions Courts hear all the issues in which the claim crosses RM25, 000-00 but not more than RM250, 000-00. It also hears criminal cases except matters of death penalty.

Juvenile Court – This court is for the issues related to the minors who are below the age of 18 years.

Syariah Courts – The Syariah Courts have jurisdiction over the issues of Muslims and has an imprisonment term of not exceeding three years.

 

My Comments:

Malaysian court system is influenced by English legal system which is known as common law. The appointment of judge is made by the Yang Dipertuan Agong based on the advice of Prime Minister. Any decision made by the judiciary is not influenced by the legislative and executive. I think the court system in Malaysia is Important in order to gain justice in the country.

http://www.hierarchystructure.com/malaysian-legal-system-hierarchy/

Mens Rea - A Defendant's Mental 

State(Criminal Law)

      Most crimes require what attorneys refer to as "mens rea", which is simply Latin for a "guilty mind". In other words, what a defendant was thinking and what the defendant intended when the crime was committed matters. Mens rea allows the criminal justice system to differentiate between someone who did not mean to commit a crime and someone who intentionally set out to commit a crime.

To give an example, imagine two drivers who end up hitting and killing a pedestrian. Driver 1 never saw the person until it was too late, tried his or her best to brake, but could do nothing to stop the accident and in fact ended up killing the pedestrian. Driver 1 is still liable, but likely only in civil court for monetary damages.

Driver 2, on the other hand, had been out looking for the pedestrian and upon seeing him, steered towards him, hit the gas pedal and slammed into him, killing him instantly. Driver 2 is probably criminally liable because he intended to kill the pedestrian, or at least he intended to cause serious bodily harm. Even though the pedestrian is killed in both scenarios (the outcome is the same), the intent of both drivers was very different and their punishments will be substantially different as a result.

Careless versus Criminal

• Carelessness is generally referred to as "negligence" in legal terminology, and generally results in only civil, not criminal, liability. However, at some point general carelessness turns into something more culpable, and some criminal statutes have heightened negligence standards such as criminal or reckless negligence. For example, it may be simple negligence to leave items out on your sidewalk that cause a neighbor to fall and hurt themselves. It may be more than simple negligence, however, if you left out a chainsaw, some knives and flammable material on your sidewalk, resulting in your neighbor's serious injury.

Intentional versus Unintentional

• Intentional harmful behavior is often criminal, but unintentional harmful behavior comes in two basic forms. The first is "mistake in fact" and the second is "mistake of law".Mistake in fact means that, although your behavior fit the definition of a crime in an objective sense - you sold illegal drugs for instance - you were unaware that what you were selling was in fact an illegal drug. For example, if you gave someone a bag full of white powder in return for some money and honestly thought it was baking soda, then you are mistaken as to a fact that is critical to the crime. As a result, you likely lack the necessary mens rea or mental intent necessary under a drug law, because you never intended to sell an illegal drug, you intended to sell baking soda (note that almost no one will believe you honestly thought baking soda could be sold for that much money)

• Mistake of law however, will almost never save you from criminal liability. Almost everyone is familiar with the phrase that "ignorance of the law is no excuse", and that's exactly how the law sees it. Perhaps in the above example, you did know that what you were selling was cocaine, but you honestly thought that it was legal to do so. It doesn't matter. It may seem slightly unfair that the person who was essentially dumb enough to believe that the white powder was baking soda gets off, but the well intentioned person who honestly thought it was legal to sell cocaine doesn't get off. The justification for having no tolerance for ignorance of the law is that allowing ignorance of the law as a defense would discourage people from learning the law and seriously undermine the effectiveness of the legal system.

Strict Liability No Mens Rea Required

• Finally, there are some criminal laws, called strict liability laws, that don't require any mens rea at all. These laws are justified by claiming that no matter what you intended, the act itself deserves criminal punishment. Many strict liability laws involve minors, such as laws prohibiting "statutory rape" and the sale of alcohol to minors. It doesn't matter that you may have honestly thought that the minor was over 18 in the case of statutory rape, or over 21 in the case of selling alcohol. These laws often seem harsh, but the underlying theory behind it is the protection of the minor over the possible innocence of the defendant.

Committing a Crime with the "Specific Intent"

• Specific intent crimes are crimes where an act has to be accompanied by a particular intent to do something and are often written as "[performed some physical act] with the intent to". An easy to understand example of this is theft.Most theft statutes require that you not only take some object (the physical act), but that you take it with the intent to "permanently deprive" the rightful owner of that object. For example, imagine that you took your friends pair of sunglasses for the day, but you did so with the intent to give them back later that afternoon. You had no right to take those glasses, they belong to your friend, but what you did wasn't theft because you never had the intention of permanently keeping the sunglasses.

Why Motive Matters

• Motive is an indirect way to prove that something was done intentionally or knowingly. For example, a defendant in an assault case may claim that he punched the victim by accident and thus didn't have the necessary intent for an assault (i.e., an intent to cause bodily harm). If the prosecution, however, can demonstrate that the defendant and victim had been arguing shortly before the alleged assault, that motive can serve as circumstantial evidence that a defendant really did mean to punch the victim. Alternatively, defendants can use the prosecution's lack of evidence of a motive as a "reasonable doubt" to avoid criminal liability.

My comment: There is this one case that i read a few months ago, it about a a man who committed criminal offenses which is rape and robbery. He was successfully defended due to his mental state or disorder. He claim that he has 24 different characters and two of his 24 characters are the ones who committed those crimes.His is name is Billy Milligan. This happened in the early 1990. He is the first person to successfully use multiple personality disorder as a defense in court. A biography movie about Billy Milligan is reportedly a work in progress which he will be played by Leonardo DiCaprio. 

(Billy Miligan being guarded by the court officer)

- See more at: http://criminal.findlaw.com/criminal-law-basics/mens-rea-a-defendant-s-mental-state.html#sthash.3BDRq5uy.dpuf

Case :fraud

Kuala Lumpur, Saturday – One of the last 3 sessions at the MLC focused on fraud and the ways to detect and prevent it. Moderated by YA Dato’ Mary Lim Thiam Suan, the panellist includes Christopher Leong, a practitioner, Vorapong Sutanont, Director in the Advisory Services Department at PricewaterhouseCoopers, and Ng Jern-Fei of the Essex Court Chambers in London.

Christopher Leong started the session by asking participants, “How do we define fraud?” Fraud comes in various forms and shapes; therefore it is not unusual to have 10 definitions of fraud. He then went on to explain that fraud can be grouped in 2 broad areas – the public area and the private area.

In the public area, fraud refers to fraudulent acts and activities concerning or involving public institutions and the government. The term ‘corruption’ is more often used to describe all types of dishonest and deceptive acts, including the abuse of power or office. In Malaysia, the government is involved in business. This creates an atmosphere where fraud can easily occur. The government as the policy-maker is able to access all information such as the budget and when to refloat the currency.

Fraud in the private sector usually involves public listed companies. Christopher identifies 4 categories of people that commits fraud involving a company – the customers, suppliers, employers and those in the higher management. Some of the fraud detection and prevention measures that should be placed in the private sector include having a strong work culture and ethic (to create loyalty), strong corporate governance culture and structure, internal controls of processes, internal audit and whistleblower procedures.

Varapong gave his view on fraud from the forensic investigators perspective. In 2009, PricewaterhouseCoopers conducted an economic crime survey where almost 3,000 companies participated in it. Those surveyed included insurance companies, telcos and financial services providers. What the surveyed showed was that almost three quarters felt that work pressure is the most likely reason for a greater risk of fraud. If there is opportunity to commit fraud, people will take advantage of it. Job security is also another reason for people to commit fraud.       

Jern-Fei gave a 10-point checklist for civil fraud practitioners. First, is to consider the right forum to bring a fraud action. Fraud action can be court-based action or arbitral proceedings. He said that there is a common perception that the only viable method is court-based but the advantage of an arbitration procedure is enforcement as arbitration awards can be enforced across jurisdiction. Second, is to look at the proper law before filing the claim. Practitioners need to know that there is no conflict of law when fraud action is filed. Third, is to unmask the perpetrators. This is difficult to do, but one can use the ‘Norwich Pharmacal’ approach to do this. Jern-Fei however cautioned that this approach should be used as a last resort. Fourth, is to look at interim remedies pending the disposal of the fraud action. This includes getting a Mareva injunction or an Anton Piller order. Fifth, is to consider the other disclosure remedies that can be obtained such as electronic disclosures. Sixth, is to consider the burden of proof to be applied. Different standards of proof apply to civil and criminal fraud. Seventh and eighth is to look at the primary and secondary liability. The other checklist is to look at recovery of damages. And last but not least, practitioners must be mindful of the limitation period.

The session ended without any opportunity for a questions and answers segment as some of the participants and members of the audience wanted to attend the much anticipated talk by Dato’ Seri Anwar Ibrahim.

MY COMMENT

Fraud is a serious offence and this crime is increasing in our nation. Fraud can be defines in many ways and can occur in many places like public,working environment and etc.As state above,fraud act should be consider as a serious act and legal action should be taken.

The Age of Majority Act

In Saskatchewan the age of majority is 18.
Under The Age of Majority Act, every person who becomes 18 years of age is considered to be of full legal age (i.e., an adult) with the accompanying rights and responsibilities.
For example, persons who reach the age of majority have the right to make a will, buy and dispose of property, or marry without the consent of their parent or guardian.
They are also considered old enough to be held responsible for their actions. For example, they may be sued or charged with an offence if they violate any law of Canada.
It is important to note that certain legislation may override the provisions of The Age of Majority Act in specific instances. For example, under The Alcohol and Gaming Regulation Act, 1997 an individual is considered a minor until they have reached the age of 19.

My comment
This country is Canada, so this cuntry's the age of majority is same with Malaysia. But there is one different point, that is that Canadian can drink alchol since 19 age. I think good that person can drink alchol since 19 age.http://www.justice.gov.sk.ca/Age-of-Majority-Act 

Contract law update

Feature | 6 December 2013

Mark Lucas' review on the courts' activities during 2013 warns lawyers to the pitfalls inherent in drafting commercial contracts; here are some words to the wise
In Barclays Bank plc v UniCredit Bank AG and another [2012] EWHC 3655 (Comm), the High Court had to ask whether consent to terminate certain finance transactions had been refused in a "commercially reasonable manner". The court imposed an objective standard of reasonableness; would a reasonable commercial man have reached the same decision? It is unusual to question reasonableness of consent in the context of finance transactions. The matter will be appealed in 2014.
In Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (trading as Medirest) [2013] EWCA Civ 200 the Court of Appeal asked whether a discretion to self-award payment deductions on breach was subject to an implied term that such awards would not be exercised in an arbitrary, capricious or irrational manner. The court found no such term. Only an explicit statement of such would have improved the claimant's case.
Guarantors' liability
Two major cases in 2013 considered the liability of guarantees or sureties. In Aviva Insurance Ltd v Hackney Empire Ltd [2012] EWCA Civ 1716, the Court of Appeal found that loans made to a contractor by a principal keen to ensure that the job was completed did not affect the guarantor's obligations

My comment
I think we have to examine about contract law, because contract law was made a long time ago, so there may be some parts that do not fit in today's society. I think a reasonable manner that's important.http://www.solicitorsjournal.com/commercial/contract/contract-law-update