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Thursday, September 18, 2014

The Appeal Court Hearing on 9.9.2014



                                                                                                            Without Prejudice

I have decided to take a short break until next month. As such I shall not be writing anything for a while.

Meanwhile,
I wanted to see for myself what exactly goes on in our courts in Sabah. One word to describe the setting – IMPOSING! The 3 Appeal court judges were sitting on high ground with many lawyers sitting in front at a lower level followed by the general public behind a small barricade.

It was solemn until some of the lawyers began to present their cases. I felt that they were there because we don’t have circuses here in Malaysia. They would have performed better in a circus. On many occasions the presiding judge had to ask a question that needed a simple answer, three times before the lawyers responded correctly. There was one lawyer who talked against her client until the presiding judge asked her if she was representing the Appellant or the Respondent.

The judges entered the courthouse at 9.30am and at 10.45am I noticed that the newly appointed lawyer for the Appellant handing a document to the lawyer representing me. I subsequently found out it was a document entitled ‘Appellant’s written submission’.

The cover and the first page had Salcon Engineering Berhad as the Plaintiff and Luqman Michel and 2 others as the Defendants. It ought to have read 'Appellant' and 'Respondent'. Perhaps this was an oversight. But surely the lawyer ought to know he cannot and should not be submitting this document at an Appeal Hearing.

The Presiding judge was noticeably upset with this clowning act of the lawyer and asked him a number of times as to how he sneaked in this document to the 3 judges.

I understand that if it had been the retired Judge Ian Chin he would have asked as to where in the world that particular lawyer had studied law.

The written submission was rejected by the judges.  I shall discuss some of the matters within the next 2 weeks.

For now let us look at a few paragraphs:

Paragraph 55: On or about 16.06.2014, on the weblog the 1st Respondent published or caused to be published an article entitled “Rights to my Blog/Book”. As follows:

Rights to my blog/Book

I would like to sell the rights to this Web-log on Sewerage Scam in Kota Kinabalu, Sabah to whoever is interested in publishing a non-fiction book. The court case that is coming up would also form part of this book. However, I have decided not to publish the impending court case in my blog and will provide all the details of the case to whoever buys the rights to the web-log/book.

I am willing to sell the rights for US50,000.00.  Meanwhile, I intend to write less in my Web-log and spend my time writing the book. The purchaser of my web-log may publish the book as written by me or re-write it as long as the facts are not altered.


I fail to understand how the Appellant failed to see my article entitled ‘SOLD- Rights to my book’ dated 26.6.2014 written just a few days subsequent to the above article but managed to see the last article dated 29.6.2014?

The rights to my books have been exchanged for translation of my two books (including this unfinished book).


Paragraph 56: The 1st Respondent is lobbying for purchasers of his Weblog and/or rights to his book for UDS 50,000.00 although the veracity and truth of the Defendant’s allegations is still pending determination by this honourable. (Judges?)


The same comment as in paragraph 55 will suffice. There is no more lobbying for purchasers. How many lies does the Plaintiff want to tell? There are already too many lies in the Affidavits filed by the Plaintiff.

Anyone who has read all the articles in my Web-log will have no doubt in their mind about the veracity of the articles. 




Paragraph 57: As such the 1st Respondent is not publishing the offending articles on his Weblog for public interest but solely for personal and monetary gains.

The Plaintiffs submit that from the above offending article, it has become crystal clear that the 1st Respondent’s true intention in publishing the offending articles is to make money out of this scheme and Web-log, and not for public interest. The Defendant is blatantly utilizing the Weblog as a money making scheme, and in the process causing serious injury and damage to the Plaintiff’s reputation which is irreparable and cannot be compensated with damages.


My Web-log was never intended for monetary gains and to further prove it I shall publish the book in full on the internet for the benefit of the general public - FREE OF CHARGE. Very soon I shall also write what has been happening in the legal process in my 2 cases which I did not intend to write.I have already spoken to Mr. Pang and he has reluctantly agreed to my proposal. The Plaintiff probably does not know what a blog with intention to make money looks like. A blog with intention to make money has a lot of advertisements from which the Blog owner makes money through advertisements and through clicks. All my weblogs including this one has no advertisement at all. I hope this will put to rest the Plaintiff’s mind being crystal and clear about my true intention. It is best that the Plaintiff sticks to what it is supposed to do instead of delving into mind reading.Perhaps then the Plaintiff may be able to show a profit in its accounts instead of huge losses as they made for year ended 2013.

Ethics is knowing the difference between what

you have a right to do and what is right to do.

Potter Stewart

"Loophole in the Legal System?" - Elaboration



A friend asked me as to why the big fuss about my last article on “Loophole in the legal system?”
The important point is that there is a question mark at the end of the subject. I had qualified myself by saying I am not a lawyer. I am still waiting for a solicitor who may read this article to comment.

Anyway, I had probably not made this article clear. Let me try and clear this as briefly as I can.

The writ of summons is the main matter. The injunction and the affidavit in support of the injunction are secondary and is to prevent me from writing in my weblog only. As of now, I am allowed to continue writing as long as I do not publish any defamatory articles. I will not write any defamatory article unless of course writing the truth is defamatory.

The Defamation Act of UK 2013 which has yet to be adopted in Malaysia says:
Truth
(1)It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2)Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3)If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation.
(4)The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.
Coming back to what we started to talk about; the Plaintiff had filed the writ and subsequently the Affidavit in support of the injunction. Soon after that the Plaintiff had requested the Defendant to hold onto the writ and wait for the amended writ.

Two important points raised both in the Affidavit (which I now had to reply) and the writ which is to be amended are as follows:

1.       The Plaintiff had said: 
     The plaintiff is and was at all material times a public listed company incorporated in Malaysia pursuant to the Companies Act, 1965.  A copy of the Plaintiff’s certificate of incorporation and Memorandum and Articles of Association were annexed.

In my Affidavit in Opposition I stated that the Plaintiff is not a Public Listed company. I annexed an e-mail from Bursa Malaysia confirming that Salcon Engineering Berhad is not a Public Listed Company.

Yap Sui Pon, the person who affirmed for the Plaintiff and who is the project director of the Plaintiff said in the Affidavit in Reply that because the Plaintiff is a ‘Berhad’ it is commonly mistaken to be a public listed company.

The amended writ of summons had amended the public listed company to a wholly owned subsidiary of Salcon Berhad, a public listed company saying that it was a typographical error in the first place.

2.       The Plaintiff had in the original writ and Affidavit said that it was the company that was awarded the sewerage contract by the Sabah State Government.

I replied the Affidavit by saying that I don’t believe that to be true and that the sewerage project was awarded to Rastamas Contractor Sdn Bhd.

In the amended writ of summons the Plaintiff again said that it was a typographical error and the sewerage project was awarded to a Joint Venture Company between the Plaintiff and Rastamas Contractor Sdn Bhd. 

I doubt that the project was awarded to a Joint Venture Company. I believe the project was awarded to Rastamas Contractor Sdn Bhd and then the JV was formed. I had requested for a copy of the contract which has yet to be produced.

But leaving that aside I believe if the law is amended or if there is some specific regulation to prevent such anomaly it would be more equitable.

I rest my case.

Tuesday, September 16, 2014

Loophole in the legal system?



Date of filing   Name of Document
11.3.2014        Writ of summons
14.3.2014        Memorandum of Appearance
20.3.2014        Notice of Application
20.3.2014        Certificate of Urgency
20.3.2014        Affidavit in Support       (by Plaintiff)
7.4.2014          Affidavit in Opposition (by defendant)
10.4.2014       Amended Writ of Summons
10.4.2014  to 25.7.2014 Many other documents filed

25.7.2014      Notice of Application filed by Salcon Engineering Berhad
22.7.2014      Affidavit in Support
Undated        Proposed amended statement of claim                      


I am writing this as a layman with no intention to criticize or libel anyone or the court. It is just a question that has been bugging me which I hope a solicitor will be able to address.

Monday, September 15, 2014

Sunday, September 14, 2014

Proof of Infiltration

   On 25.5.2014, after a few days of rain, I visited the Sewerage Treatment Plant in Donggongon and took the following video. It shows the infiltration in the pipe-line. I know there are many other places where there are infiltration but this particular infiltration can be seen with the naked eyes. Is this not proof of badly laid pipes? And the lawyer engaged by Salcon Engineering Berhad had the audacity to say in his submission dated 9th September 2014:

"The learned judge also failed to appreciate that the allegations of the 1st Respondent were merely suppositions, speculation and conjecture without an iota of evidence and that the 1st Respondent had failed to justify any of the defamatory words/imputations alleged, other than making bare allegations".

How was the Appellant able to select the few articles that they filed in their affidavit without noticing all these justifications?

It is therefore my job as well as yours to salvage Mother Nature from environmental pollution. It is our duty as citizens of Sabah and as citizens of the world to protect mother nature to the best of our ability.

The video below is not as clear as I would have liked it to be but you can see water pouring into the pipe-line from the ceiling of the pipe-line just a few feet away from the mouth of the pipe.

                                                     
video

Donggongon (Penampang) Sewerage Treatment Plant (STP)



The following photos prove what I had written in my weblog.

I visited the Sewerage Treatment Plant (STP) for more than a month and saw that the water flowing out of the last pipe leading into the STP to be about the same each day as shown in the photo below. This was taken during the drought. 
Click on the picture for a better view. 

Saturday, September 13, 2014

Justification

JUSTIFICATION. An act by which a party accused shows and maintains a good and legal reason in court, why he did the thing he is called upon to answer.  When a plea of justification is supported by  evidence, it is a complete bar to the action.
 
In the case of Salcon Engineering Berhad Vs Luqman Michel: