Remand Application Dismissed

Yesterday, I covered my “best-magistrate-buddy” for his remand duty. A remand what? In my own term, a remand order is applied by the police or prosecutor for a lawful detention of a criminal suspect before a charge is framed against him. It is to allow the police to complete their investigation against that particular suspect. Under the Criminal Procedure Code, for offences below 14 years imprisonment, the remand can be made twice. The first application is for a maximum of 4 days and the second a maximum of 3 days. For offences above 14 years imprisonment, both the applications are for a maximum of 7 days.

In Kuala Lumpur, since we have a number of Magistrates and remand application is a daily thingy (criminals do not rest on public holidays if you might have noticed), remand duty is a according to duty roster prepared by the administration clerk.

Sometimes, when circumstances do not permit you to go and do your remand duty, you can ask your colleague to cover your ass and vice verca.

Most of the time, the investigating officer is not around to brief you. You have the remand officer who was briefed by the investigating officer. When I do not have the luxury of the investigating officer to brief me, I will spend a little bit more time reading the whole application. If the investigating officer is beside me, I can easily get the information I need to approve or disapprove a remand application.

The suspects are all in handcuffs and because of that, I feel safe enough to sit at the interpreter’s place to conduct my remand application. You never know when the suspect might just jump at you if they are not cuffed.

So as I was meticulously reading the investigation diary of each suspect, I noticed a familiar face amongst the suspects before me. When his turn came, I first asked if it was a fresh remand application or a continuation remand application. I was informed that it was a fresh remand. Then I asked him, “Pernah kena tahan sebelum ni?” He said yes. I asked, “ Bila kena tahan dan siapa kasi remand?” This was what he said:

“Kena tahan sebelum ni 18.9.2008. Tuanlah yang bagi remand!”

That’s it! I knew his face was familiar. I was shocked and impressed that I could remember his face amongst the hundreds of suspect I had before me.

Anyhow, to cut the matter short, since the investigating officer was not present and the investigation diary did not raise any reason to my mind that the suspect should be detain any longer, I did not allow for the remand application.

It’s strange to know that you were the person responsible for to detain the suspect earlier and you are also the person releasing him at the present moment. There are many reasons why we must always be honest in disposing our duties and responsibilities. You never know when your past might just come back to haunt you.

Blog adjourned!

An Act of Random Kindness.

The bride got back from grocery shopping with a kitten. Yes! You read it right, a kitten. (aih? I sound like the Bride when she writes in her blog pulak!) Apparently, she saw the little “Curveball” (that’s what we call it now) somewhere at The Curve, all curved up into a ball, shivering and starving to death. She picked him (we’ve checked his gender but we might be wrong hehe) and brought him home.

CURVEBALL dengan pose mata sepet sebelah

(bukan senang nak ajar dia buat trick ni)

Curveball is now looking even healthier than when he was first rescued.

As I was squatting whilst waiting for him to finish his food, I realized how much love it needed for someone to randomly pick a kitten, bring it home, shelter it, feed it and to give it some love and strength.

The plan is to let him go around the house when he is strong enough. You should see how he enjoys the kitten food she bought for him. Rasa tenang jiwa tengok si kentut tu makan bersemangat.

Pinggan lagi besar pada dia...

Curveball tengah semangat makan

May God bless her for such noble act. How many have passed by feeling pity for Curveball but not do anything. I know I’d be one of those culprit. But not the Bride. It’s because she is a Planeteer!!! Gooo Captain Planet!

Blog adjourned.

Warm Islamic Wishes

Islam is a religion that places peace amongst its top priority. Even the word Islam is derived from the word peace. If you study Islam as a religion, even on the outset of it, you will realize, without venturing into the deeper substance, that peace is the main thing that is promoted in Islam.

For various occasion, Islam has taught us the proper way to wish others. These warm wishes only promote peace and harmony. In fact, it serves as a prayer that one makes for his fellow friend. The most basic example is when a Muslim meets another Muslim. It is a general knowledge amongst Muslims to say, “Peace be upon you” whenever they meet. It was reported that Sayidina Ali R.A, one of the most knowledgeable companions of the Prophet SAW never manage to greet the Prophet first because the Prophet would greet him first. This shows that even the Prophet, a leader, is humble enough to greet his companion.

One of the two glorious occasions in Islam is the Eid Al-Fitr (the other being Eid Al-Adha). Eid Al-Fitr means the celebration of purity. This is because after fasting for one whole month, Insya Allah (With God’s will) we should be all be purified from our previous sins should our deeds be accepted. We should be like a newborn baby. Back to our Fitrah with no sins.

I was taught to greet anyone Muslim on Eid Al-Fitr the following warm wishes:

“Minal Aidin Wal Faidzin Wal Makbulin, Kullu Am, Wa Antum Bikhair, Insya Allah”

(May you be part of the people who return to purity and part of the people who are granted glory, and part of the people who’s prayers are answered. All in all, may you be well / in good health if Allah permits.)

The person who is greeted should together complete the greeting from the very beginning if possible. It will then be two individuals greeting each other with the same greeting in harmony. I hope you get what I mean.

Look at the meaning of the greetings. It is purely warm wishes promoting peace and harmony. That is the objective of Islam and if Allah permits, this is where we should be heading. It matters not what religion you come from, what colour you belong to, what race you are racing (??), anywhere you come from or plan to go… we should all be living in peace and harmony!

Cheeky fellow... Sempat posing untuk camera lagi tuh!

And so I would like to wish to all my legal and “illegal” readers!! (??) who are celebrating this year:

SelamaT HarI RayA AidiL FitrI

Jangan lupa bayar zakat fitrah!!!

Blog adjourned!

Consequential Effect

I was talking to some senior officers from the Road Transport Department a couple of days ago. We were talking about the rampancy of ticket touts (ulat tiket), the provisions of section 110A of the Road Transport Act 1987, the burden of proving such offence, its elements and many other issues.

I told them that I am of the opinion,(and this is my personal opinion as I have not the opportunity to write this in my legal reasoning yet because there has been no appeal against my decision against ticket touts) that the maximum fine of RM 50,000.00 for touts is a very wide section with very general identification of touts. It includes the “penchachai” or “kuli” of the tout syndicate to the very big boss of the syndicate. In includes the bust company for engaging these touts to market their tickets and also the employee ordered to sell tickets outside the counter.

That is why the maximum fine is very high. If the big chief is caught, he can surely pay off RM10,000 fine easily. But if he is slapped with a RM 40,000 fine and imprisonment for 1 year? He may be able to pay the RM 40,000 with a slight sweat, but I am DAMN sure he would not be impressed with the 1 year jail!

I was also informed that the Ministry is thinking of revoking the licence from Bus Company using tout services. I told them that in order to make a decision, especially if you have a very big authority to do so, it must be done wisely, justly, equitably and fairly. You also have to anticipate the consequences of such decision.

It may look like an appropriate sentence to revoke the licence for companies using tout services. But think about the hundreds of employees of the bus company who have no say in the company’s decision making? Why make them lose their job for some greedy director’s decision? I told them that I didn’t think that it’s fair to punish these helpless employees. Better off fine the company and NOT revoke the licence.

I felt good being advocating these employees’ rights. I pity them. I also hope that my suggestions and opinion will carry some weight. May these senior RTD officers convey this hypothetical consequence to the Ministry when such decision is being made.

All in all, it was a good discussion.

Blog adjourned.

Rambang Yaya!

My sister-in-law @yaya is already on her way to obtain her degree in you kay. It’ll be three years for her to complete it. The title is such because whenever she goes to buy buka puasa food, she would want everything that she sees. My mom calls this “I want it all” attitude as “rambang mata”. I’m innovated such term to suit her circumstances. So in my in-laws house, the “I want it all” attitude is now known as “Rambang Yaya”! Hahaha.
I’m not worried about her. Bijak kepala hotaknya. That’s why before she left, I told her:

“Yaya, just do your usual stuff – succeed successfully!”

To which she smiled and gave me the mata sepet look…

I assumed that the Bride was going to leak that night at KLIA. I was wrong. She managed to hold it back and it looked effortless. But you can sense that deep down inside she had mixed feelings. On one hand she is excited and proud of yaya’s adventure and on the other hand, she just can’t imagine not having her around the house for three years. Both of them are really close to each other.

Timing pun not so good. It’s the last 10 nights of Ramadhan and I have to admit, I have not done much spiritually this year. It’s the most kemarau Ramadhan for me. I didn’t even manage to complete the Quran this year. I seriously have to learn to adjust my time and plan my buka puasa properly. Terawih pun ada yang miss. (Eke hem, admission to such omission is only sunah, and not an admission to major sins!)

With time being desperately constraint during Ramadhan and especially the last 10 nights, I may have loss some opportunity to do the stuff that I usually do when I was single AND have not managed to provide sufficient attention to my couple. This becomes even more apparent when I read the second line of her first paragraph in her most recent post.

Maklumlah, baru first time Ramadhan “berdua”… Kena pulak adik ipar pergi belayau bulan ni jugak…

Tapi Takper!!!

*sambil angkat tangan kanan macam gaya orang angkat sumpah dan type slow-slow pakai tangan kiri*
“Saya akan cuba kurangkan “kesedihan kehilangan sementara adik” isteri saya and next year, Insya Allah I will do better for my Ramadhan!!!”

*sekarang tangan kanan tabik hormat pada langit*

I also would like to wish Yaya all the best and since you’re gonna be there in the you kay for Raya;

“Selamat Hari YAYA!!!”

Blog adjourned!

Link Me!

Ladies and Gentlemen,

It has come to my knowledge that this humble blog of mine have been linked to some other blogs within connection of the internet.

I am pleased!

I am pleased because at least I know that My Bride is not the only one who reads what I post.

(Thank you love!)

I would like to thank you for acknowledging this tahi hidung blog of mine. Tochey Tochey!!

It would only be fair if you could inform me if you have or had or want to link your blog to mine. This is so that I could recipricate that kind gesture of yours and link your blog to this blog. Itu pun kalau sudi lah... The symbiosis relation between bloggers is indeed a healthy and informative relation.

Please, please, leave a comment and I will ask the Bride to teach me how to complete the linking process. (Hehehe, saya ni rabun IT sikit... Blog ni pun dia yang design... Thanks again Love!)

Hope to have your blog links soon!

Blog adjourned!

The Foolish Intellect (Article Version)

I wrote an article and emailed it to some friends and relatives for their comments. Many have given me their output and I have gratefully included it all in the following draft. I plan to send it to The Star and a really good friend of mine, Aunty Azra, have managed to edit the article into a comprehensive letter to The Editor. (Maklumlah, first time nak tulis surat kat surat khabar... hehehe)

Excellent piece Aunty Azra! Couldn't have done it without your articulate wisdom!

Anyhoo, I'm posting my article here. Insya Allah if The Editor accepts my letter, i'll post the edited version later.

Introduction:

I was “inspired” to write this article as I was driving home from KLIA. It was a long drive and I began thinking about how the Devil is tied up during Ramadhan (the fasting month). Then I remembered how disturbed I was after reading The Star Newspaper report on Thursday, September 25th 2008 : Perak Umno: Act on men who admitted having illicit sex. One thought led to another and eventually I completed this article.

This article is based upon two authentic authorities according to my belief. Number one is the Quran, the Muslim’s comprehensive book of guidance and the The Star Newspaper report that I mentioned above. This report ought to be true as I also believe that our local reporters should and ought to have the integrity to report something that is ONLY true. Better to not have any report than to report a blatant lie, right?

I base my article upon two premises namely, the Quranic verse and the newspaper report of 25 September 2008 I will elucidate both premises before reconciling both premises in arriving at my conclusion.

The First Premise:

In the Quran, in surah number 7, the chapter called Al-A’raf or The Heights, from verse number 11-18, I summarize these words of God as follow.

God mentioned that He had created Adam and ordered those within the Divine presence to bow to Adam (as a form of respect). All of them bowed except for Iblis.

(Certain commentaries believed that Iblis was a creature who came form the community of the Angels before this incident and some believed that Iblis was only present together with the Angels but was not an Angel. This issue is irrelevant in this article.)

When God asked Iblis, why he had not bow, Iblis answered that it was because he (Iblis) was made of fire and Adam is only made of clay. Because of his arrogance in the Divine presence, Iblis was ordered out as no creature is allowed to show even the tiniest form of arrogance before God. Iblis however asked for respite till the Day of Judgment and such respite was granted. Thereafter, the Quran related what transpired after Iblis was being told for showing arrogance in verse 16-18:

16. He (Iblis) said: "Because thou hast thrown me out of the way, lo! I will lie in wait for them on thy straight way:

17. "Then will I assault them from before them and behind them, from their right and their left: Nor wilt thou find, in most of them, gratitude (for thy mercies)."

18. ((Allah)) said: "Get out from this, disgraced and expelled. If any of them follow thee,- Hell will I fill with you all.

(Emphasis underlined in bold is author's own).


As you can see in verse 16, Iblis blamed God for throwing him out of the way. Now what I am trying show is this:

-Iblis was ordered to bow to Adam but he didn’t.
-He gave his materialistic reasoning for not doing so whilst not taking into consideration the Divine wisdom and,
-After showing arrogance before God, Iblis had the cheek to blame God for his arrogance.

Some scholars commented at this foolish intellect. In the beginning, it was Iblis who did not want to comply with God’s order because of his materialistic reasoning. Then, he blamed God for ordering him to do something which he would not do.

The Second Premise:

Now I shall discuss the newspaper report which I had cited above. According to the newspaper report, one “self proclaimed Muslim adulterer” have been reported to have made a complaint against the Anti Corruption Agency (ACA) for encouraging him into fornication by providing him with a woman from China. Another individual with some priorities issues have been reported to have said, “What is important is we did not ask for the women. He supplied them to us. If people sedekah (donate), don’t you want to accept the sedekah?”

Now what I am trying to show is this:

- It is a known fact to every Muslim that adultery is a major sin.

-Muslims have been ordered to stay away from adultery. (Refer to Surah Al-Isra’ (The Night Jouney / Children Of Israel): 32 Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils)).

-It is RIDICULOUS to compare a noble act of donation with the supply of prostitutes.

The “self proclaimed Muslim adulterer” is blaming the ACA for supplying him a prostitute when the ACA should have known that he would go for a full service.

The Connection Between The Two Premises:

In premise one: Iblis blamed God for ordering him to do something which he would not do. In premise two: The “self proclaimed adulterer” blamed the ACA for supplying him with a prostitute when the ACA should have known that he would go for a full service.

My conclusion form these two premises is that Iblis and the “self proclaimed Muslim adulterer” share the same foolish intellect.

I reiterate what I have said in the first paragraph, the Devil is tied up during the fasting month. This can only mean that it was not Iblis who had whispered the idea to blame the ACA into the “self proclaimed Muslim adulterer's” ears. He came up with such reasoning on his own accord. Coincidentally, to my mind, the “self proclaimed Muslim adulterer” shares the same altitude as Iblis’ materialistic intellectual.


On A Different Note:

I pause to digress. Based on the newspaper report, I agree with Perak UMNO Youth that the Perak State Religious Department should take necessary steps to investigate both the “self proclaimed Muslim adulterer’s” admitted act of fornication and the individual who believes that there is nothing wrong if he commits a major sin as long as it was “offered” to him, just like a donation. Donation and sin certainly does not go hand in hand!



by:
Two_One

(Former Host for Hijrah Remaja 2 and a core member for the Young Muslim Project (YMP))

Blog adjourned!

The Drained Pen

Completely drained I tell you!

Can you believe how much I have written since I became a Magistrate? Writing as in using my hand to write stuff with a pen and not using my keyboard. I just drained one pen completely! And that is not the only pen that I have been using. (I have numerous pens but the one that finished was the one I used most frequently.)

I am always amazed to see a drained pen. It gives me a sense of satisfaction knowing that I did that! I wrote untill there is not a single drop of ink left in the tube! I did not drop the tip and spoil the pen before it finished! I didn't lose the pen! Hahaha.

Its not always that I get to finish ONE pen. The above scenarios always happened to the pens that I use so kudoos to me!! Hehehe.

Blog adjourned.

The Installment For Freedom

Today, another 5 bus ticket touts (ulat kutu tiket) from Puduraya bus station was charged before me. 2 pleaded not guilty and another 3 pleaded guilty. I granted a mention date for the 2 who claimed trial and after contemplating for a while in my chambers, I granted RM 5000, RM7000 and RM15,000 fine each.

The different thing is that I granted them leave to pay the fine by installments. So I gave a mention date for the period of time which I thought would be necessary for them to pay and not be sent to prison.

I realized that by granting an installment leave, it sort of dilutes the umph of the sentence. It did not sound as drastic as the first sentence that I gave. However, one of the offender was smart enough to ask me for such order. Knowing me, I always like to try and venture the scope of the law before me, I allowed his prayers. Since there were 3 to be sentenced, I allowed installments for all three. Why the discrimination right?

I was of the opinion that if I want to jail these offenders, I might as well fix imprisonment sentence. The reason why I imposed fine sentences was because I did not want them to go to jail. So I am willing to allow them to pay via installments.

In the end, only the chap who asked for installments managed to make the first payment. The other two couldn’t even afford the first installment. So out of three touts, one is partially free (if he manages to pay all of the installments on time) and two are on the way now to join the first tout I sentenced about a week ago.

Blog adjourned!

Lelaki & Perempuan; Man & Woman

I got this in my email. Thought of sharing it with you all...

Whadya Think?

Blog adjourned.

Harga Minyak Turun Lagi Seposen?

It sounds like great news. I am as thrilled as the rest of my fellow Malaysians. I do however have my own reservations. PERSONALLY, I am afraid that this is more of a political decision instead of a business decision. I hope I am wrong.

Decision making is not a simple thing. I know it for a fact because I have to do so every day. When you need to make a decision, you must think it through. This will allow you to see the consequences of such decision. Decision should be delivered with a sense of certainty and finality.

It will look funny if you decide to raise the petrol prices early in the year and giving rebates for renewal of road tax, and then reduce the fuel price and stopping the rebate, and then further reduce the fuel price.

Oh well, blog adjourned!

Saper Suruh Tak Datang?

A friend of mine told me about this yesterday. It was in Utusan Malaysia.

ARKIB : 24/09/2008

'Ulat tiket' dikenakan waran tangkap

KUALA LUMPUR 23 Sept. - Seorang 'ulat tiket' yang sepatutnya didakwa atas tuduhan menawarkan perkhidmatan pengangkutan tanpa kuasa yang sah dikenakan waran tangkap oleh Mahkamah Majistret disini hari ini selepas gagal hadir untuk menghadapi pertuduhan itu.

Majistret Syed Adam Alhabshi memutuskan demikian selepas pegawai pendakwa dari Jabatan Pengangkutan Jalan (JPJ), Azlindayanty Mohd Termizi membuat permohonan tersebut apabila mendapati Mohd. Amerul Shah Abdul Aziz tidak muncul di mahkamah pagi ini.

Beliau turut menetapkan 20 November ini untuk sebutan bagi waran tangkap tersebut.
Mohd. Amerul Shah, 27, yang berasal dari Pengkalan Chepa, Kota Bharu, Kelantan antara ulat-ulat tiket yang ditahan di Hentian Puduraya di sini dalam satu operasi sebelum ini.

Selepas disoal-siasat, dia dibebaskan dengan jaminan polis yang akan berakhir pada 26 September ini.

Dia bagaimanapun gagal hadir ke mahkamah hari ini walau telah dimaklumkan tentang pertuduhan terhadapnya.

Sape suruh tak datang… kan dah kena waran tangkap…

Blog adjourned.

If Only The World Is A Better Place.

When you are up there on the Bench, there are times you just have too many things to write till you don’t have much time for eye contact. I’m saying this with regards to criminal matters as the law states the notes of proceedings must be “handwritten” by the trial judge. My colleagues from the Chambers assured me that the amendment to allow for recording and typing of criminal proceedings is just around the corner but till that happens, I just hope my fingers don’t grow six packs around them.

Back to the eye contact issue, I do get much eye contact of traffic summons cases as it is easy to dispose them and requires less writing. There are boxes prepared and all I need to do is just to fill in the blanks. For example, there is a box where I’d write:

1. The Prosecuting Officer’s name,
2. “H.S.” which means “Hadir Sendiri” (present by himself),
3. “S.S.” which means “Sabit Salah” (convicted)
4. “PBTF – MS – FSAP – BM” which means “Pertuduhan diBacakan, diTerangkan dan diFahami – Mengaku Salah – Faham Sebab dan Akibat Pertuduhan – Bahasa Malaysia” (Charge Read and Understood – Plead Guilty – Understand the Meaning and Consequence of the Charge –Malaysian Language)
5. A small box for the chap’s mitigating factors,
6. Court’s sentence,
7. Put my signature down and say “Thank you and NEXXXT!!!”

Anyhow, I can only imagine how it feels to be in the accused’s shoe. I long to have the ability to know each and everyone’s feelings adjudicated before me. The reason is simple. When I impose a particular sentence, I try to be just and equitable. My dad always reminds me to be adil (just) and have ihsan (equitable). But do they feel that I’m just and equitable?

The mitigating factors can be like she’s a single mother; no secured job; still a student; no source of income; no source of income and have to maintain one’s mother, wife, child, siblings (Yes, you read it right, he has no income and he maintains all of his family members. When asked how does he do it, he just looks down and wonder why he gave such a ridiculous reason.) etc.

When I impose a sentence, I take into my consideration not only the accused’s mitigating factors but how hard it is actually for the enforcement officers to trace these offences.
The dangerous hazard of stopping a car, not knowing if the driver is drunk / sleepy / notices that you are flagging his car and not just run you down like you’re an empty bottle. The time and energy it takes to stand in the middle of the road getting only 5 out of 10 motorcycles with offences, one out of 10 cars with offences. (There are more motorcycles without road tax than a four wheeled vehicle according to my experience on the Bench.) Should the car driver be a hostile fugitive with a gun thinking that you are looking for him, or is your ex-wife or girlfriend you were hiding from, or even your only child rempiting the time of his life, these are the scenarios you might get into if you are really really unlucky!

Having all that at the back of your mind in a matter of 8 minutes while the charge is being read, the guilty plea, the mitigating factors, the recording of the conviction, I have to determine the appropriate sentence.

By God!

I try to be just and equitable for everyone before me. Probably that’s why I start to give safety road rules lectures to the accused just to buy time for me to come up with a suitable sentence.

The question is, do the adjudicated individuals before me feel that I have been just? Or do they feel betrayed, dizalimi, not heard and ultimately feels that there is no justice in the Malaysian Court especially before me!!!

I can sense that some feel very happy. You can see it in their eyes that they appreciate my sense of reasoning. Especially if I caution and discharge them (let them off for free) for driving a car with an expired road tax for 40 minutes before they were caught by the enforcement officers. (Road tax expired on 1.2.2008, kena saman pukul 12.40pagi on 2.2.2008) That’s why there is the judiciary to keep the check and balance of the enforcement officers.

Sometimes, you can just see their eyes cursing you for not reducing the fines after their sad sad story. Most of the time, you can see how displeased they are when I do not buy their reason for me not to disqualify their driving licence for 12 months. It’s not that I can. The law is very strict and particular about it that I myself feel cornered and not able to maneuver to help them. I feel like I want to explain to them ever so clearly that I have no power if they have no special reason. I try to but they just can’t grasp it. It frustrates me up there when they feel oppressed down there. I even told one chap to vote properly and then ask the wakil rakyat to propose for the amendment of the law.

All in all, I know, for a fact, that everytime I get down from my Bench, my conscience is clear, my mind is free, my heart feels contented and I feel satisfied that I have disposed my duties, as a Magistrate, properly. And if I have to take away people’s liberty and send them to jail, I feel that I have to but I feel terrible that he did what he did. I pity that he did the offence. All the “Why” in the world can never change the fact that the offence was committed but I do feel sorry for the poor guy.

If only the world is a better place. Than all the criminal Magistrates will be out of work!

Blog adjourned!

The Stinker!

United just drew 1-1 with Chelsea. That was quite a good game but the result was simply frustrating. Ronaldo didn’t play too well. He was too happy to be on the pitch to play like a United player.

Anyhow, I got this from my brother a couple of years ago and thought it might be a good and funny read. Do enjoy!

(Erm… early warning… it might slightly disgusting though…hehehe)

The Stinker:

I came here to shit and stink,
But all I do is sit and think.

And here I sit, broken hearted,
Couldn’t shit, but only farted.

Some come here to sit and think,
Some come here to shit and stink,
Often I come here to scratch my balls,
And read all the bullshit on the walls.

Here I lie in stinky vapor,
Because some bastard stole the toilet paper,
Shall I lie, or shall I linger,
Or shall I be forced to use my finger!

Yuck!

Blog adjourned!

The Night Of Power!

The Night Of Power!

We are now into the last 10 days of Ramadhan. This is the time for Muslims to really buck up in their religious deeds when night comes. It was reported that the Prophet (PBUH) had clearly indicated that Lailatul Qadr can be found during the last ten nights of Ramadhan.

It is reported on the authority of Jaabir ibn `Abdillaah, that the Messenger of Allah sallallahu `alayhi wa sallam said, "Verily, I saw the night of Al-Qadr and then I was made to forget it, but it is (to be looked for) in the last ten nights, the night is clear and fine, neither hot nor cold as if there were a full moon and on this night, the devils do not go forth until the light of dawn." (Narrated by Ibn Abi Haatim)

What is Lailatul Qadr? Refer to the translation of surah Al-Qadr (THE NIGHT OF POWER) below:

In the Name of Allah, the Most Beneficent, the Most Merciful

1. Verily, We sent it down in the night of al-Qadr(The Nigh Of Power).
2. And what will make you know what the night of al-Qadr is?
3. The night of al-Qadr is better than a thousand months.
4. Therein descend the angels and the Spirit by their Lord's permission with all Decrees.
5. Peace! Until the appearance of dawn.

Ibn `Abbaas, amongst others, explains that the complete Qur'aan was sent down from Al-Lawh Al-Mahfooz (the Preserved Tablet) in the night of Al-Qadr to Bait Al-`Izzah (the House of Glory) in the lowest heaven, from whence it was revealed piecemeal to the Prophet sallallahu `alayhi wa sallam according to events which took place during his life over a period of twenty-three years. Then, Allah says, in order to make clear the greatness of the matter of the night of Al-Qadr, which He has chosen for sending down of the Noble Qur'aan: <<>>

Ibn Jareer narrates, on the authority of Mujaahid that there was a man from Bani Israa'eel who used to spend the night in prayer then in the morning he would fight the enemy in the Way of Allah during the day, until the evening and he did this for a thousand months and so Allah revealed the Soorah: <<>> until the verse: <<>> That is, standing in prayer on that night is better than the actions of that man. Sufyaan ath-Thawree reports, on the authority of Mujaahid (also), that the night of Al-Qadr being better than a thousand months means that the good deeds performed on it, fasting on it and standing in prayer on it are better than a thousand months' good deeds, prayers and fasting. (Narrated by Ibn Jareer).

It is reported on the authority of Abu Hurairah, that Allah's Messenger sallallahu `alayhi wa sallam said: "Whoever stood in prayer on the night of Al-Qadr, in faith and hoping for a reward from Allah, he will have all of his previous sins forgiven." (Narrated by Al-Bukhaari and Muslim).

My dad told me that if we manage to secure Lailatul Qadr just once in our lifetime, it’s like doing religious deeds for 83 years. And Lailatul Qadr comes every year!

So my dear Muslim Brothers and Sisters… I pray that each and everyone of you manage to secure Lailatul Qadr this year and May Allah be pleased with all of you…

Insya Allah. (If Allah wills it)

Blog adjourned…

*The hadeeths above were sent to me via email and I have not checked its authenticity. Even if it is a weak hadeeth, it won’t have the effect of destroying one’s aqidah. If you know that it is authentic or vice verca, please feel free to comment. I placed it up there just to remind myself and all of you how wonderful the Night of Power is…

Risky Business

Ada sesetengah orang tanya sama ada ape yang aku tulis ni boleh ke dikongsi bersama di internet? And recently, a very close friend of mine asked me the same thing. This got me thinking about the consequence of my blog for the gazillion time. After going through my contents, I decided to continue with the current flow.

I am of the opinion that it can be shared on the net. My opinions are, well, my opinions. I have strictly disclaimed that it does not reflect what my position deems it to be. Who knows I might want them published one day when I’m old and fragile. By then, I would certainly not remember what had happened in the beginning years of my career so this blog may be adopted in the book. (hahaha, mula berangan lah tu!)

The documents that I post are public documents. Also, I purposely deleted the name of the parties involved in it. Except for the names of parties in the list of cases that I have cited, those are also public documents since they form part and parcel of our legal system. The decisions written by judges of the High Court and the Appellate Courts forms precedents which are binding upon us, the lower Courts. Therefore, any decisions written by them are presumed to be known and understood by us, the lower Courts.

I asked a very sporting senior of mine about publishing my legal reasoning and he told me:

“Why subject yourself to open criticism by some who are too coward to even put their real name?”

Betul jugak. But then, I admit that I am still new here. Hence my experience is not that much and I believe that these “constructive” criticism would indeed help me carve a better legal reasoning in the future. In other words, “kalau benda tu merepek and patut kena bambu, bambulah… kalau benda tu bagus, bagitaulah camne nak improve lagi…”

Anyhow, we must always be careful with what we write on the net. There are positive and negative consequences. Some may get a job from what they write. Some may not get the job because of what they write. Some may be put in ISA, some may be detained for sedition. Some may be identified as a cocky writer, some may be loved and be stalked upon. It’s a risk. A big risk. But is it a risk worth taking?

Blog adjourned.

I've Been Poisoned??!

At times you wonder, what was it that you ate that could have caused all this pain in your tummy. Sometimes, you could figure it out and sometimes you just can’t. I hate it when the latter happens. It leaves a kind of unsolved mystery feeling in the air. The kind of feeling that you know would go away but it irks you every time you remember about it.

My whole household (except for my mom, dad and maid) is down with food poisoning. Twice have I had my iftar (break fast) all flushed down the toilet. Luckily my sahur (the pre-dawn meal) have been spared from the sound of my flush. I suspect that it was the 24 hour bug in the beginning. But after 24 hours and I was still having tummy cramps, I knew that whatever virus or bacteria that had attacked my tummy has caused my gastric to kick in. This was confirmed by my doctor.

Ohh, the agony!

I had to take medical leave today after not getting any sleep due to tummy cramps, diarrhea, vomiting, hunger pangs, and “touch and go” fever.

Call me a cry baby... I am...

Thank God for one of my bestmagistratebuddy cum chamber neighbor, he helped me clear up the new summons and to mention my cases. I am not the type of person who likes to postpone my cases. You can ask the many lawyers who were so bloody pissed off that I continued with their case before me, when they had fixed another (and I assume more expensive) case in other higher Court.

Sorryla braders and sisters… gua tak sengaja nak ponteng kerja bersebab hari ni…

Blog adjourned.

Be Sure Brain Is In Gear Before Engaging Mouth

When I was the SAR for High Court Commercial Division 6 last year, I had the notice up above placed behind me on my cupboard. Anytime a counsel tried to argue against something totally irrational and merepek like:

“The bank could have gone for those with bigger debts than to chase my client”

“My client wanted to pay but the bank did not grant further time extension”

“My client has paid his debt about 2% out of the total sum. This is enough for bank not to initiate legal proceeding!”

C’mon Man!!!

Counsels should refrain from even suggesting this kind of arguments. Especially in High Court! What do you expect me to write as my LEGAL reasoning for dismissing the bank’s claim?

“The bank ought not to have filed this suit because the bank should have gone after those with bigger debts.”

“The bank should have granted more time before they could sue the defendant.”

(and this is after a few years the defendant defaulted!)

“2% payment is enough not to be sued by a bank for default cases.”

Thankfully, the moment I point my pen to the notice behind me, they would stop and move on to the next issue.

Blog adjourned!

If It Pleases You Mr. "Speaker" Sir!

I remember this one time when I was debating in the Deans Cup Competition. I adopted my friend's technic for shutting the other person from giving his "point of information". It was planned to the precise and it damn right turned out the way I wanted it to.

As I was happily arguing my point, I saw the opponent putting his hand up. I used my right hand to ask him to sit. (I just waved my hand down or shooed him to sit with my hand or... oh, you know what I mean!) He got up again after a while. I did the same thing.
This happened for three times. Then, I said:

"Mr. Speaker Sir, even a DOG understands what this* means!"

*by this, I meant the act of waving my hand to ask him to sit.

OOOH... Yes!!! IN YOUR FACE!!! HAHAHA

However, we managed to almost beat the champion and landed on second place. I think I was one of the top five speakers of the competition. Ahh, can't remember the ranking though...

Blog adjourned.

Dasyat Sangat Ke Hukuman Tu?

More about the "ULAT KUTU". The moment it was on Buletin Utama, I received numerous sms regarding the sentence that I gave.

“Jual tiket pun kena penjara 11 bulan?” (ni paling kelakar)

“Waa, you really have no mercy eh.”

“Was it you who delivered the sentence? Bunyi macam nama kau aje” (dah nama macam aku, siape lagi? hahaha)

“Which section of the Road Transport Act did you use?”

And many others.

I began to reanalyze my sentence (buat kali ke berapa puluh ribu aku pun tak tau). Was it too harsh? Or is it too lenient? I doubt the latter option because no one in the right frame of mind would say that it is lenient. It is a harsh sentence. No, it is actually a deterrent sentence.

There has been no appeal just yet. The Indonesian chap has 14 days to file his appeal. If he does, then I will have to write my legal reasoning for such sentence. Till then, I’ll just explain in a nutshell the reason for such a deterrent sentence.

The main reason why I gave ONLY RM10,000 is because the maximum sentence for that offence is RM50,000. Since he pleaded guilty, this is the “FIRST” time he is being charged and by pleading guilty he has saved the Court’s, witnesses’ and prosecution’s valuable trial time, I considered about RM40,000 discount for him.

(Mahkamah tak kira berapa juta kali you pernah buat kesalahan tu kalau you tak pernah disabit salah. So even though dia dah jual tiket tu dari 10 tahun dulu, since ini “first” time dia kena tangkap and mengaku salah, Mahkamah consider ini “FIRST” time dia buat kesalahan ni.)

In other words, you are only a criminal IF, and only IF you get caught!!!

In default of paying RM10,000, I ordered that he be sentenced to 11 months imprisonment. This is still under my jurisdiction. (See S. 283 Criminal Procedure Code if I am not mistaken.)

Why fine him so much? (The jail sentence is only if he defaults in paying his fine and it should also commensurate the amount of the fine.) Why a deterrent sentence for him? Kesianlah his wife, kid and mother!

The reason is simple. This guy has been reaping profits upon illegal sales of bus tickets. He has been taking Advantage at other people’s Disadvantage. Ini satu penzaliman ke atas orang awam! You go to the ticket counter and the normal price bus ticket is sold out. It could be that he had already bought all of the remaining available tickets. Then, when you think that all hopes are gone for you to balik kampung, “he” comes along and offers you a bus ticket at a MUCH HIGHER PRICE. Like it or not, you would probably buy “his” overprice ticket so that you can balik kampung. Raye beb! Sape tanak balik kampung? Elok-elok nak balik kampung dah kena “pau” tak pasal-pasal macam ni.

Is this not cruel?

On top of that, I thought that this could be a good benchmark since this is the first case this year. It ought to really scare other touts to look for other jobs. This should serve as a deterrent warning to others that the Kuala Lumpur Traffic Magistrate Courts really mean business when it comes to this sort of cases. The accused was also a foreigner (from Acheh) and has legal documentation. He could have looked for other legal jobs instead of this.

(Ramai giler press ada masa jatuh hukum. Terpaksa aku tangguh sebentar untuk check balik semua procedure sebelum jatuh hukum. Hahaha. )

Jadi, atas nama public interest and considering RM 40,000 discount yang aku include, kira ok la tuh hukuman ni…

Blog adjourned!

Ulat Kutu kena RM10K (jika tidak bayar, 11 bulan penjara)

Hey ho hey ho! Have you read the news or heard it on television about the ticket tout who was fined RM 10,000? (In default of paying the fine, to be imprisoned for 11 months.)
You haven’t? Read on then…
******
New Straits Times:
KUALA LUMPUR: Thinking he could make a quick buck out of those who wanted to "balik kampung" this Hari Raya, an Indonesian man sold overpriced express bus tickets illegally.

His plan was, however, foiled when police arrested him on Wednesday at the Puduraya bus station, in the midst of his sales.
At the magistrate's court yesterday, Saiful Mukhtar Sani, of Acheh, Indonesia, the first tout to be arrested this festive season, was fined RM10,000 or 11 months' jail for touting at the Puduraya bus station at 12.30pm on Wednesday.
He pleaded guilty before magistrate Syed Adam Alhabshi. Saiful however failed to pay the fine.
In the past, touts have been arrested and charged with selling black market tickets at marked up prices and sometimes fake tickets to those who were desperate to return home for Hari Raya.

Checks at Puduraya bus terminal yesterday showed that there were practically no touts selling express bus tickets.
Their absence was said to be due to a rumoured raid by the Road Transport Department to nab them.
Without the ticket touts, the bus terminal seemed quieter than normal, with passengers queuing up rather orderly at ticket counters to buy their tickets.
A spokesman of RTD said he was surprised to learn that the touts knew about the pending raid and stayed away from the bus station.


******
Berita Harian Online:

'Ulat tiket' kena penjara 11 bulan
Tertuduh paksa orang awam
KUALA LUMPUR: Seorang warga Indonesia atau 'ulat tiket' tidak dapat pulang ke kampungnya di Aceh untuk menyambut Aidilfitri, selepas dijatuhi hukuman penjara 11 bulan kerana menjual tiket bas ekspres tanpa kuasa sah.
Majistret Syed Adam Alhabshi menjatuhkan hukuman itu terhadap Saiful Mukhtar Sani, 38, di Mahkamah Majistret di sini, semalam, selepas dia mengaku bersalah memujuk orang awam dan menawarkan tiket bas tanpa mempunyai kuasa sah.
Dia didakwa melakukan kesalahan itu di Hentian Puduraya di sini, jam 12.20 tengah hari, kelmarin.

Dia didakwa mengikut Seksyen 110A (1) Akta Pengangkutan Jalan 1987 (Akta 333/87) dan dihukum mengikut seksyen sama membawa hukuman maksimum denda RM50,000 atau maksimum penjara lima tahun atau kedua-duanya, jika sabit kesalahan.
Saiful dijatuhkan hukuman penjara 11 bulan selepas dia gagal membayar denda RM10,000.
"Saya mengaku menyimpan tiket itu dalam poket, tapi bukan nak jual, saya orang susah minta diringankan hukuman, saya ada tanggungan isteri dan anak di Aceh," katanya.

Mengikut fakta kes, Saiful yang mengenakan baju kemeja berwarna merah jambu dan berseluar jeans biru didapati sedang membuat urusan jual beli tiket bas secara haram di Hentian Puduraya.
Dia juga didakwa memujuk dan memaksa orang ramai untuk membeli tiket bas yang dijual di luar kaunter jualan dengan memegang tiket bas di sebelah tangan kanannya.
Pengadu menemui enam keping tiket bas laluan Kuala Lumpur ke Johor Bahru dan Ipoh yang belum dijual serta kad pendaftaran orang asing milik tertuduh.
Pegawai Pendakwa, Cif Inspektor Awang Zamain Awang Jabai dalam hujahnya berkata, tertuduh seharusnya diberikan hukuman yang setimpal sebagai pengajaran kepada dirinya untuk menghormati undang-undang di Malaysia.

Beliau berkata, hukuman juga boleh dijadikan sempadan kepada orang ramai yang ingin mengambil kesempatan berbuat perkara sama pada Ramadan ini, berikutan permintaan tiket bas meningkat setiap kali musim perayaan.

******

Blog adjourned!

Upheld Interlocutory Decision

Ask any Senior Assistant Registrar (SAR) or Magistrate (or any judicial officer for that matter) and they will tell you that it is truly a good feeling having your decision upheld by the higher Courts. Below is another one of my looooong decision that I wrote last year when I was a SAR. I was not required to write any reasoning but I figured it would assist the counsels when they want to appeal (or to assist the Deputy Registrar in explaining to the judge why I made such decision). I have no idea why the High Court Judge was dismissed the application but I would like to THINK that it was because of my reasoning. hehehe.

This was a jurisdictional issue. One party wanted the matter to be heard in KL and the other in Sabah. I gave the following decision:

DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR
DI WILAYAH PERSEKUTUAN, MALAYSIA
(BAHAGIAN DAGANG)

Antara

Credit Card Company …PLAINTIF

Dan

Credit Card Defaulter 1 …DEFENDEN PERTAMA
Credit Card Defaulter 2 …DEFENDEN KEDUA
Credit Card Defaulter 3 …DEFENDEN KETIGA

(Grounds for dismissing the Striking Out Application under 2 R. 1(1) and (2) and /or O. 12 R 7 and/or O.18 R.19(1) (b) or (c) or (d) and /or O. 92 r. 4 of the Rules of High Court 1980 with costs vide Enclosure X)

This is a striking out application made under 2 R. 1(1) and (2) and /or O. 12 R 7 and/or O.18 R.19(1) (b) or (c) or (d) and /or O. 92 r. 4 of the Rules of High Court 1980 vide Enclosure 8. I dismissed the application with costs and now I lay the grounds for my decision.

BRIEF FACTS:

The Plaintiff is a charge card company. The first Defendant (D1) applied for a charge card from the Plaintiff as a principal card holder. The second Defendant (D2) and the third Defendant (D3) also applied for supplementary cards. The application was granted and all the Defendants started to use their cards then after.

The defendants then defaulted in making their payments. A notice of demand was sent to all the defendants on 1.10.2006 followed by a Writ of Summons and Statement of Claim on 26.4.2007.

The Defendants submitted that they paid RM 30,000 in the beginning to pay the debt but the money went missing. Due to this, the Defendants were afraid to pay more in case more payments went missing.

THE ISSUES:
There are two issues in this striking out application which are:
That the High Court of Kuala Lumpur did not have the local jurisdiction to hear this application.
That the High Court of Kuala Lumpur is not the forum of convenience for this matter.

1st Issue: Local Jurisdiction.
Section 23 of the Court of Judicature Act 1964 (CJA) is the law that the Defendants relied upon. I reproduce Section 23 below.

23. Civil jurisdiction - general.
(1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where -
(a) the cause of action arose;
(b) the defendant or one of several defendants resides or has his place of business;
(c) the facts on which the proceedings are based exist or are alleged to have occurred; or
(d) any land the ownership of which is disputed is situated,

within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.
The Defendants’ counsel submitted that:

That the cause of action happened in Kota Kinabalu, Sabah. This is because the failure or neglect by the Defendants to pay the amount claimed by the Plaintiff happened in Kota Kinabalu, Sabah. Furthermore, the Plaintiff sent the Notice of Demand to the Defendant’s address in Kota Kinabalu, Sabah.

All of the Defendants reside in Kota Kinabalu, Sabah. The addresses of all the Defendants in the charge card agreement, the address the notice of demand was sent to, the address on the Writ of Summons are in Kota Kinabalu, Sabah.

The Defendants cited the following authorities to support their contention:

Fung Beng Tiat@ Fang Beng Chee v. Marid Construction Co [1996] 2 AMR 2081 whereby in that case, the Federal Court decided that the legislature did not intend that any court in Malaya will assume jurisdiction of a matter arising in or which should be filed in a Borneo Court.
Cita Marine Sdn Bhd v. Progressive Insurance Bhd. & 3 Ors [2001] 2 AMR 1273 whereby in that case, the Miri High Court decided that where the premium was paid or the policy issued is the place where the cause of action arose. (The Plaintiff contended that this case involves shipping matter and is distinguished from the present case.)

RHB Bank Berhad v. Kawood Sdn Bhd & 2 Ors [2002] 2 AMR 1455 whereby the Sibu High Court decided that the place where the refusal to pay happened is where the place the cause of action arose. (The Plaintiff contended that in that case, the Plaintiff had a main branch in Miri and Kuching, whilst in the present case, the only main branch is in Kuala Lumpur.)

I am of the opinion that the cause of action actually arose in Kuala Lumpur instead of Kota Kinabalu, Sabah. I do agree with the Defendants authorities. However, the authorities did not show that in this particular case, the cause of action actually arose in Kota Kinabalu, Sabah. It merely lay down that the action should be filed where the cause of action arose.

I find that the cause of action arose where the office of the Plaintiff was situated (at that time). The agreement was also concluded in Kuala Lumpur as the Plaintiff is the one who had authority to approve the Defendant’s charge card and not the agent. The word “or” in Section 23 CJA means that the section should be read disjunctively. Furthermore, the Defendant in their affidavit in reply at Enclosure 11 stated that all of the application form was sent to the Plaintiff in Kuala Lumpur for it to be approved. It may be that the Defendants are from Kota Kinabalu, Sabah, however,the Kuala Lumpur High Court also has the jurisdiction to hear this matter.

The Plaintiff cited Sogelease Advance (Malaysia) Sdn Bhd v. Kemajuan Tat Young Sdn Bhd & Ors [1999] 5 CLJ 331 and said that its facts are almost similar to the present case. I do see some similarities. I would think that the most important issue that was discussed in this case is that the cause of action arose when the Plaintiff failed to receive the payments. Even though the Defendants resided in Sarawak, and by virtue of Section 23 (1) (b) the High Court in Sabah and Sarawak would also have jurisdiction to try the action that did not affect the High Court of Malaya to try the action. What it amounted to was that the Plaintiff could have brought the action in either of the High Courts.

I feel that this case succinctly justify my reason for dismissing the application. For the sake of completeness, I shall now show why I disagreed with the second issue as well.

2nd Issue: Forum of Convenience.

The Plaintiff cited Malacca Securities Sdn Bhd v. Loke Yu [1998] 3 CLJ 23 to rebut this issue. I will have to disregard this case as it involves the High Court in Malaya and nothing to do with the High Court of Sabah and Sarawak.

The Defendant submitted that because of forum convenience, this matter should be heard in Kota Kinabalu High Court. The reasons are as follows:

The Defendants are residents in Kota Kinabalu, Sabah.
The Plaintiff is more financially capable to travel to Sabah than the Defendants are to travel to Kuala Lumpur.
The Defendants have defences and counter claim that require the Plaintiff’s agent(s) in Sabah to be witness(es).
The Plaintiff’s witnesses are not necessary because the only the amount is in dispute and not the charge card agreement.

I would have to disagree with the Defendants. Assuming that the Plaintiff applies for a summary judgment, than there would be no need for the Defendant to even travel to Kuala Lumpur as they would only need to furnish affidavits and this could be done in Kota Kinabalu itself.

Should this matter go for full trial, the burden is upon the Plaintiff to prove its claim. It would be easier for the Defendants to come to Kuala Lumpur as there are only three (3) Defendants in this case. This is not so for the Plaintiff as more witnesses are needed to prove their claim.

The Plaintiff submits that hearing the matter in Kuala Lumpur is actually more towards the Defendant’s advantage. In Kuala Lumpur, the Defendants can cross examine all of the Plaintiff’s witnesses relevant to the issue of fraud as raised by the Defendants.

Lastly, and I note that this reason was agreed by both parties, I was also of the opinion that the cost to have this case in Kota Kinabalu, Sabah might be more since the number of witnesses that needs to be transported there would be more. At the end of the day, should the Defendant lose this suit in Kota Kinabalu, they would have to incur more losses than if the matter was heard here in Kuala Lumpur. If the Defendant win this suit, then, all of the cost incurred will be reimbursed by the Plaintiff. Therefore, the issue of financial capability is not a concrete argument.

I conclude this decision with an excerpt from Amanah Finance Malaysia Berhad v. Aura Vista Sdn Bhd. & Ors [2000] 5 CLJ 229 whereby Justice Abdul Wahab Patail commented the following remark:

Much of the argument is based on simple convenience of the defendants, and little effort is made to show why the proceeding is more appropriately conducted in Pulau Pinang. The distinction is this. If the matter involves property or works or large numbers of witnesses located in Pulau Pinang, then clearly the proceeding is more appropriately conducted in Pulau Pinang. But this case involves a loan transaction only. Convenience alone is weak persuasion with regard to the question of appropriateness that the proceeding in this case be conducted in Pulau Pinang.


Decision:
Application is dismissed with costs.

Blog adjourned!

Discrimination

Today I had an interesting gentleman in my Court. He was had a ticket for a motorcycle parking offence. If he had paid it at the traffic police station it would have cost him RM 30. He was not satisfied with the ticket. Apparently, he went to the traffic police station to vent out his frustration. Our officers must’ve had enough of him and he was told to tell his tale in Court. That is just what he did.

When the charge was read to him, he pleaded not guilty. I sensed something amiss here. After all it was a parking offence. Why bother to go for full trial? There must be something interesting here. I asked him, innocently, if he understood the charge. (This is such a good way to let people blurt out their side of the story). He then began his story.

He said that he did park his bike at the wrong place along with many other motorcycles. But it was only his motorcycle that was summoned! He said that he felt discriminated! Maybe it was because he was an Indian he was summoned. (How did the policeman knew he was Indian I have no idea and did not bother to ask) This was, to him, a racial discrimination by the police! He could have paid the RM 30 fine but he wants JUSTICE!! He felt betrayed by the police and he wants to stop the injustice. When he went to the traffic police station and related his ordeal, the policeman just told him to bring himself and his story to Court and tell it to the Magistrate.

Not to mention there were about 4-5 counsels in Court waiting patiently for their cases when this gentleman was ‘submitting’ his story to me.

I allowed him to relate his sad story and told him that I have no power to take any action base on his story. He could be telling the truth or it could all be a blatant lie. The best recourse for him to take was to lodge a police report. In that report, he should state what transpired, why he felt discriminated, how he went to the police and was told to come to Court and when he did, the Magistrate advised him to lodge a police report. He didn’t look that pleased.

“Why didn’t the police at the Traffic Police Station told me to make a police report?”

“I really do not know. You might want to put that question in your report as well.”

To move on with my cases, I asked him if he did parked his bike at the wrong place. He said he did. I fined him RM 50. I hope he doesn’t think that the extra RM 20 was for the legal advise that I gave. Hehehe.

Blog adjourned!

The International Look

There was this one time when I went to the international café at my university. It was my first time there. I wanted to have Roti Naan. As I was ordering what I wanted, the waiter cum chef asked me:

“Are you international student brother?”

HAHAHA. I thought to myself, “I do have international looks!”

“Yes” was my reply to him. I was hoping that he would ask me where from and I could start my “My ancestors are Arab” international tale. However, things don’t always goes as planned. He said:

“Are you from Bangladesh?”

Alamak!

“No! No! My ancestors are from Yemen… Argh, Nevermind… 1 Roti Naan please… Thank you.”

Today, I was walking around in Petaling Street looking at all the cool stuff they had there.

(There is this spy gadget that you can use to hear conversation across the street. He said, “You boleh tengok orang cakap”. I said, “Mana boleh tengok orang cakap, mesti mau dengar orang cakap.” He said, “Tengok pun boleh!” When I looked closely, memang ada scope untuk nak mengintai di sebalik parabola yang Nampak macam satellite! Cool giler!)

As I was walking back towards my car, there was this Singh man who tapped my back. I turned around and he said, “Are you Nepalese?”

Alamak! Ape ni? Takda contoh Eurasian ke?? Tsk Tsk!

But its ok... the Bride thinks otherwise and that's all that matters...

Blog adjourned!

Alasan Penghakimanku...

I told you all that I would publish my legal reasoning when I complete it, so here goes nothing! I did not put the accussed's name but refer to him only as OKT. Please comment if you want to. I need all the criticism available to improve in the future...

ALASAN PENGHAKIMAN

PENDAHULUAN:

Orang Kena Tuduh (OKT) telah mengaku bersalah terhadap kesalahan di bawah S.26(1) dan S.42(1) Akta Pengangkutan Jalan 1987 (APJ). Kedua-dua pertuduhannya berbunyi sedemikan:

Tuduhan Pertama:
“Bahawa kamu pada 19/02/2006 jam lebih kurang 0135 hingga 0150 hours di Jalan Traver / Jalan Bangsar Kuala Lumpur dalam Wilayah Persekutuan sebagai penunggang motosikal no. WNF 1987 jenis Honda EX5 warna hitam dengan cara merbahaya yang mana perbuatan tersebut boleh mendatangkan bahaya pada diri sendiri dan pengguna jalan raya yang lain dan oleh yang demikian itu, kamu telah melakukan satu kesalahan yang boleh dihukum di bawah S. 42 (1) Akta Pengangkutan Jalan 1987”.


Tuduhan Kedua:
“Bahawa kamu pada 19.02.2006 jam lebih kurang 0135 hours hingga 0150 hours di Jalan Traver / Jalan Bangsar Kuala Lumpur dalam Wilayah Persekutuan sebagai penunggang motosikal jenis Honda EX 5 warna hitam no pendaftaran WNF 1987 telah menunggang motosikal tersebut dengan tidak memiliki lesen memandu yang sah yang membenarkan kamu memandu kenderaan tersebut di atas jalan raya dan oleh yang demikian itu kamu telah melakukan satu kesalahan di bawah S. 26(1) Akta Pengangkutan Jalan 1987 dan boleh dihukum di bawah seksyen26 (2) akta yang sama”.

PERJALANAN KES DARIPADA TARIKH PERTAMA OKT DI TUDUH DI MAHKAMAH:

Harus dinyatakan di sini bahawa pengakuan bersalah OKT ini bukanlah ketika OKT mula-mula dibacakan pertuduhan. Kesalahan telah dilakukan pada 19.2.2006 dan OKT telah dituduh di Mahkamah Majistret Trafik Kuala Lumpur pada 24.2.2006. Malangnya, OKT gagal untuk hadir ketika itu dan Waran Tangkap telah dikeluarkan terhadap OKT. Satu tarikh sebutan Waran Tangkap ditetapkan pada 24.3.2006. Pada tarikh tersebut, Waran tangkap masih tidak dapat disempurnakan dan telah dilanjutkan ke 25.4.2006.

Pada 25.4.2006, OKT telah hadir dan selepas pertuduhan dibacakan, diterangkan dan difahami oleh OKT dalam bahasa Malaysia dan Tamil, OKT tidak mengaku bersalah dan mohon bicara untuk kedua-dua pertuduhan. Jaminan telah ditetapkan sebanyak RM 3500 dengan satu penjamin. Satu tarikh sebutan untuk OKT melantik peguam ditetapkan pada 25.5.2006. Pada 25.5.2006, peguambela OKT pohon untuk mendapatkan dokumen daripada pegawai pendakwa dan 7.12.2006 telah ditetapkan untuk bicara.

7.12.2006 tiba dan Mahkamah telah menangguhkan kes ini ke 1.8.2007 untuk menyelesaikan bicara untuk kes tahun 2003.

Pada 1.8.2007 peguambela OKT telah menarik diri dan OKT telah diwakili oleh peguambela baru. Peguambela baru ini telah memohon untuk satu tarikh lain kerana dia baru sahaja dilantik oleh OKT dan ingin mendapatkan arahan daripada OKT. Satu tarikh sebutan telah diberi iaitu pada 6.9.2007.

6.9.2007 menyaksikan peguambela OKT memohon satu tarikh bicara. Pegawai pendakwa menyatakan bahawa terdapat empat saksi dalam kes ini dan 3.3.2008 – 4.3.2008 telah ditetapkan untuk bicara.

OKT dan peguambelanya gagal hadir pada 3.3.2008 dan waran tangkap dan notis kepada penjamin dikeluarkan. 15.4.2008 adalah tarikh berikutnya.

Suatu perkembangan baru dimaklumkan ke Mahkamah pada 15.4.2008. Kedua-dua pertuduhan telah dibacakan, diterangkan dan difahami oleh OKT dalam bahasa Malaysia dan OKT mengaku bersalah pada kedua-dua pertuduhan. Memandangkan OKT berumur 19 tahun ketika kejadian, Majistret sebelum ini telah mentetapkan 10.7.2008 untuk jatuh hukum dan penyediaan laporan sosial OKT. Perlu dinyatakan di sini bahawa peguambela OKT tiada bantahan jika Mahkamah menjatuhkan hukum pada 15.4.2007 tanpa satu laporan sosial.

Setelah enam Majistret mendengarkan kes, saya menjadi Majistret ketujuh yang telah dipertanggungjawabkan untuk menjatuhkan hukuman keatas OKT. Pada 10.7.2008, kedua-dua pertuduhan telah dibacakan semula, diterangkan dan difahami oleh OKT dalam bahasa Malaysia. OKT mengaku bersalah dan faham sebab dan akibat pengakuannya. Mahkamah telah merekod dan menerima pengakuan bersalah OKT. OKT juga mengakui fakta kes dan gambar P1A dan B. Puan Maimunah, Pegawai Kebajikan, telah mentenderkan laporan sosial OKT yang ditanda sebagai “B” dan OKT turut mengakuinya. Mahkamah kemudiannya merekodkan rayuan mitigasi OKT melalui peguambelanya dan juga faktor pemberatan “aggravating factor” dalam kes ini melalui pegawai pendakwa.

BIDANGKUASA MAHKAMAH:

Jika seseorang disabitkan di bawah s.26 (2), denda maksimum yang boleh dikenakan adalah RM 1000 atau hukuman penjara tidak melebihi 3 bulan atau kedua-duanya sekali. Dibawah s.42 pula, hukuman penjara wajib / mandatori tidak melebihi 5 tahun dan denda minimum RM5000 dan tidak boleh melebihi RM15,000 bagi kesalahan pertama hendaklah dikenakan.

HUKUMAN TERHADAP OKT:

Mahkamah telah mempertimbangkan rayuan mitigasi dan laporan sosial OKT dan mendapati bahawa pengakuan bersalah OKT tidak bersyarat. Pengakuan bersalah OKT telah diterima dan OKT disabitkan salah untuk kedua-dua pertuduhan.

Mahkamah mengenakan denda RM 5000 (denda minima) dan penjara 2 bulan jika gagal bayar, penjara wajib 21 hari dari tarikh jatuh hukum dan memandangkan OKT tidak mempunyai lesen memandu, OKT dilarang mengambil lesen memandu selama 2 tahun. Ini adalah untuk tuduhan pertama.

Untuk tuduhan kedua, OKT di denda RM 100 dan 1 hari penjara jika gagal bayar.

Oleh yang demikian, dapat dilihat bahawa hukuman yang Mahkamah kenakan ke atas OKT adalah di dalam bidangkuasa Mahkamah.

PENGGANTUNGAN HUKUMAN:

Peguambela OKT dengan serta merta memohon budibicara Mahkamah untuk menggantungkan semua hukuman kerana OKT ingin merayu ke Mahkamah Tinggi. Untuk mengelakkan rayuan OKT menjadi hanya akademik, Mahkamah bersetuju menggantungkan hukuman ke atas OKT sementara menunggu hasil rayuan OKT dan jaminan telah dikekalkan pada kadar sama.

GELAGAT OKT DALAM MELAKUKAN KESALAHAN:

Menurut fakta kes, pada 19.02.2006, pada jam lebih kurang 0135hours, OKT yang sedang memakai motosikal jenis EX5 warna hitam bernombor pendaftaran WNF 1987, dengan memakai baju (sweater) lengan panjang warna merah dan biru dengan tulisan “GIVI” di belakang, seluar panjang warna hitam dan helmet hitam, dikesan oleh pengadu bersama 2 lagi anggota polis yang sedang bertugas dalam Ops Cegah Lumba Haram berpakaian preman.

OKT dikatakan membuat zig zag kiri ke kanan serta membuat wheely (mengangkat roda hadapan) secara melulu. Perlakuan ini bermula dari Jalan Traver / Jalan Bangsar menghala ke arah Kalam Traver / Jalan Tun Sambantan.

Pengadu bersama rakan-rakan setugasnya mengekori OKT dalam jarak yang dekat dan jelas. Pemerhatian dibuat terus tanpa putus pandangan mata di laluan yang sama sebanyak LIMA PUSINGAN sambil melakukan aksi yang sama.

Apabila OKT berhenti di perhentian bas di Jalan Traver, pengadu memperkenalkan diri sebagai polis, membuat tangkapan dan membawa OKT bersama motosikalnya ke Balai Polis Trafik, Kuala Lumpur.

PERTIMBANGAN LAPORAN SOSIAL:

Laporan sosial OKT secara tuntasnya menyatakan bahawa ini adalah kesalahan pertama OKT dalam rekod Jabatan Kebajikan Masyarakat. OKT dikatakan merupakan anak yang mendengar kata dan berhati lembut, bertanggungjawab dan seorang sahaja yang mengirim wang kepada ibunya.

OKT dikatakan sudah mengambil iktibar di atas apa yang telah berlaku dan berasa kesal kerana terikut-ikut akan kawan-kawannya.

PERTIMBANGAN RAYUAN MITIGASI:

OKT telah mengaku bersalah dan ini telah menjimatkan masa dan kos pendakwaan. Hal ini patut diterima sebagai faktor mitigasi (rujuk Melvani v. PP [1971] 1 MLJ 137 dan Zaidon Shariff v. PP [1996]4 CLJ 441).

Tahanan polis merupakan pengalaman pahit buat OKT dan OKT tidak mahu ulangi kesalahan ini lagi. Tiada kekerasan dalam kes ini dan demi kepentingan awam, OKT yang masih muda ini tidak patut dipenjarakan (rujuk Raja Izzuddin Shah v. PP [1979] 1 MLJ 270).

Semenjak dituduh, OKT tidak ada melakukan sebarang kesalahan hingga ke hari jatuh hukum. Penggunaan S.294 Kanun Tatacara Jenayah (KTJ) masih boleh diaplikasikan di dalam kes ini walaupun penjara wajib adalah mandatori (rujuk Winston Rajah v. PP [1999]1 CLJ 315 dan PP v. Kandasamy [2005] 2 CLJ 201). OKT jika diberi bon berkelakuan baik, akan dapat terus berikhtiar sebagai penanggung ibunya yang sedang berubat (moden dan tradisional) dan adiknya yang masih bersekolah.

OKT juga masih belum selesai melangsaikan hutangnya dengan peminjam wang tanpa lesen (along / ceti haram) untuk mendapatkan wang jaminannya. Tekanan peminjam wang tanpa lesen dan emosi memikirkan kes ini dan nasib ibunya cukup menyeksakan OKT.


PERTIMBANGAN HUKUMAN DETEREN:

Pegawai pendakwa menekankan bahawa OKT telah membuat zig zag, wheely, pusingan sebanyak 5 kali dan hakikat bahawa semua itu dilakukan tanpa satu lesen memandu yang sah mengundangkan satu hukuman yang deteren pada OKT.

PENILAIAN MAHKAMAH:

Terdapat sebab mengapa Mahkamah telah menulis semula kronologi kes dari awal pertuduhan dibacakan. Dapat dilihat bahawa OKT bukannya mengaku bersalah pada saat pertama pertuduhan dibacakan tetapi selepas hampir 2 tahun kes ini di peringkat bicara. Faktor mitigasi dan jumlah diskaun atau pengurangan hukuman OKT dalam kes ini kerana pengakuan bersalahnya tidak sama dengan satu pengakuan bersalah di awal pertuduhan.


Berkenaan perihal OKT mengambil pinjaman daripada peminjam wang tanpa lesen (ceti haram), persepsi umum adalah jika kita meminjam wang daripada ceti haram, selalunya, jika tidak setiap kali, akan mengundang lebih masalah kerana kadar faedah yang dikenakan amat tinggi. Ini akan menindaskan peminjam dalam membayar semula hutangnya. Mahkamah tidak mahu menulis panjang dalam isu ini tetapi cukup untuk menyatakan bahawa alasan ini tidak boleh diterima sebagai satu faktor mitigasi.


Sebabnya amat mudah. Jika Mahkamah menerima alasan ini, ianya akan menghantar satu mesej atau pesanan negatif kepada orang ramai bahawa Mahkamah mempertimbangkan dan menggalakkan perbuatan ini. Ini seolah-olah memberi impak bahawa jika OKT mendapat tekanan daripada ceti haram, Mahkamah akan mengurangkan hukuman. Mahkamah tidak boleh dilihat menilai pinjaman ceti haram sebagai faktor mitigasi.

S. 294 KPJ (mahupun S. 293 (1) (e) KPJ) juga telah dipertimbangkan. Akan tetapi, aksi keberanian tidak bertempat OKT dengan membuat zig zag, wheely, pusingan sebanyak 5 kali dan hakikat bahawa semua itu dilakukan tanpa satu lesen memandu yang sah menghalang Mahkamah untuk menimbangkan S. 294 dan S. 293 (1) (e) KPJ.

Aksi wheely OKT ini bukannya suatu aksi yang dapat dilakukan tanpa sebarang latihan. Latihan bererti melakukan suatu aksi itu berulang kali. Untuk mengulangi sesuatu itu berulang kali, seseorang itu perlu ada keazaman. Mahkamah tidak mengatakan bahawa OKT memang berazam untuk melakukan kesalahan. Cuma aksi-aksi OKT ini dalam keadaan tidak mempunyai lesen menghindarkan Mahkamah untuk memberi satu bon berkelakuan baik mahupun perintah khidmat masyarakat. OKT tidak sepatutnya menunggang motosikal pada awalnya. Latihan dan pusingan sebanyak 5 kali juga menunjukkan bahawa kesalahan ini telah dirancang terlebih dahulu (premeditated action).

Jika hukuman yang tidak deteren diberi, masyarakat akan beranggapan bahawa Mahkamah tidak serius dalam menangani gejala penungganan secara melulu dan merbahaya. Ini akan menggalakkan lebih ramai orang melakukan aksi-aksi yang dilakukan oleh OKT. Ini tidak akan membawa sebarang kebaikan pada keselamatan pengguna jalan raya.

Disamping itu, alasan-alasan mitigasi OKT yang lain telah memberi Mahkamah satu konsiderasi yang baik dalam tidak meninggikan walau satu sen pun daripada hukuman denda minima RM 5000. Malahan, penjara 21 hari juga diberi selepas satu pengurangan drastik berbanding 5 tahun penjara maksima yang diperuntukkan.

KESIMPULAN:

OKT seharusnya bersyukur kerana tidak terdapat sebarang kemalangan yang boleh menyebabkan kematian ataupun kecederaan parah pada OKT ataupun pengguna jalan raya yang lain. Mahkamah berpendapat bahawa penjara 21 hari ini patut digunakan oleh OKT untuk insaf dan membentuk OKT agar tidak mengulangi kesalahan ini lagi.

Amacam? panjang skitlah...

Blog adjourned..

"If You Cheat, I Can Do Better" Mentality

I got this from The Sun UK.

*****

REVENGE is sweet for Net babes!

Shaming a love-rat boyfriend on the internet is all the rage with angry girlfriends.

Busty CostaCarta chose YouTube for her revenge, as we revealed. Kissing a male prostitute, she talks to camera and taunts her cheating boyfriend with the promise she's about to cheat too.

But she’s not the only woman posting videos to wind-up a man.

There’s an American who wants to get caught in the act to make her guy see green and a Grimsby girl who’s advertising for sex to get back at her bloke.

So cheating guys beware – you’re just a few clicks away from public humiliation!

*****

What is happening to the world today? Is there no value in sex anymore? I thought the "I Can Do Better" mentality ought to be used in a "GOOD" way... I guess different people define "GOOD" differently...

Deng!!

Blog adjourned!

Intelligent Argument.

I sentenced one chap to 1 month imprisonment and RM 5000 minimum fine today. He was not represented by any counsel when he pleaded guilty to the offence. I had to make sure that he understood his guilty plea and after trying to coax a solid mitigating submission from him, I passed the above sentence. Applying his civil rights, his sister engaged a counsel and wanted to appeal my decision. His defence counsel came before me and requested for me to hear his submission to stay the execution of my decision.

“Right on”, I said to myself.

The counsel began his submission. Below are his arguments for me to consider in applying my discretion to stay the execution of his client’s sentence:

1. His client should have the right of attorney and since he was not represented when he pleaded guilty, he should be allowed to appeal and the Court should stay his sentence.

(It was HIS decision not to engaged any counsel that has nothing to do with why I should grant a stay of execution.)

2. Since he (the defence counsel) will be filing the notice of appeal, a stay of execution must be granted.

(If you want to appeal, you HAVE to file a notice of appeal. Again, it has nothing to do with why I should grant a stay of execution.)

I was like… “WHAT THE HELL??” Of course I was not stupid enough to say this out loud. You see, a stay of execution is a discretionary power of the Court which gave the sentence. (See S. 311 of the Criminal Procedure Code / CPC).

I asked the defence counsel if what he requested is in the CPC. He said yes. I told him to show it to me because I am ignorant of such section. He flipped the CPC and said, “It’s in there”. (WHAT? is this the way you submit in Court?) I told him to show it to me. He then cited one section which is for an offender who has been sentenced to fine only (S. 284). I asked him to read the first line. He read it. Then I asked if it is applicable to his client. He said no. I asked, “Then why cite such a section?”

I told him to read s.311. He read it. Then I asked him his reasons for me to contemplate my discretion. He repeated the two points above.

I was getting really annoyed. I told him his two points has no merits for me to consider in applying my discretion. He should have understood that when I said his points were meritless, he should think of some new things to say. Instead, he kept on going on and on and on about why his points are valid.

I was very much annoyed with his attitude. I was up there telling him that his points were irrelevant and he was down there with his hands on the table stressing that they are. He even went on to say, “I SEEK your discretion to consider these points!”

WAARGGHHH… I told him that he could have just said that if I did not allow the stay of execution, the appeal will be academic since the accused would have been out of prison by the time the appeal is heard. Besides that, he should also say that the accused would pay some amount as a surety for his presence at the appellate level.

I then told him never to submit before me without any preparation. His impromptu submission could have jeopardized his client’s interest and personal liberty. I then granted his application.

Haish… some preparation would have been much appreciated.

Imam Shafie, a superior Muslim scholar, once said that if he debates with another intellectual, he will definitely win. However, if he debates with a fool, he would definitely lose.

Blog adjourned.