Tentang Surat

Pada zaman email, twitter dan Whatsapp ini medium surat bertulis telah semakin dilupakan. Akan tetapi bagi perkara-perkara penting dan rasmi, surat menyurat masih lagi diguna pakai, terutamanya di dunia perundangan.

Sistem surat menyurat ini masih lagi bergerak cergas oleh kerana kepentingannya dari segi perundangan dan ini adalah kerana ianya adalah salah satu cara untuk menyampaikan sesuatu Notis, makluman mahupun dokumen perundangan yang 'foolproof'. Fool proof kerana ianya akan sampai kepada di mana ianya di alamatkan melainkan berlakunya pertukaran alamat oleh si penerima ataupun alamat itu tidak wujud  atau berlakunya kesilapan ejaan dan sebagainya (topik kepentingan memaklumkan pertukaran alamat akan di sentuh oleh post seterusnya).

Akan tetapi sepertimana perkembangan teknologi memudahkan hidup kita, ianya juga membuatkan kita semakin malas. Dalam hal ini, malas untuk membuka surat-surat yang dihantar kepada kita. Terutamanya surat yang mempunyai kepala surat firma guaman. Bukan kesemua kita bersifat sedemikian akan tetapi saya tahu kebanyakan kita berfikiran sedemikian.

Ya, memang tidak dinafikan bahawa sering kali kita menerima salinan penyata kewangan, bil-bil kita melalui peti pos kita yang telah sedia sendat dengan promosi bulanan Tesco, Giant, tawaran perkhidmatan yang bermacam-macam termasuklah perkhidmatan menilik nombor ekor oleh sami Buddha di Thailand yang menjamin pulangan lumayan. 

Walaubagaimanapun, harus kita ingat bahawa segala penyata kewangan, bil-bil yang kita terima itu sebenarnya adalah perlaksanaan tanggungjawab pihak penyedia perkhidmatan kepada kita sepertimana yang tertulis dalam kontrak yang anda tandatangani. Tidak percaya? Buka salinan kontrak anda, tidak kira lah kontrak dengan Bank mahupun kontrak dengan gim yang anda langgani akan tetapi jarang pergi. Akan terdapat satu klausa yang mengatakan segala makluman oleh kedua belah pihak hendaklah dilakukan melalui surat menyurat.

Maka apabila anda buang surat tersebut tanpa membaca isi kandungannya bermakna anda juga telah membuang hak anda untuk tahu apa yang penyedia perkhidmatan (service provider) ingin maklumkan. Boleh jadi anda terlupa membayar langganan bulanan gim anda dan gim tersebut ingin menghantar peringatan kepada anda. Boleh jadi gim anda ingin menutup bisnes dan ingin memulangkan bayaran langganan bulanan anda bagi bulan lepas dan tuntutan kepada gim tersebut harus dibuat dalam masa 14 hari dari tarikh penerimaan surat. Oleh kerana anda telah membuang surat tersebut maka anda pun telah terlepas peluang untuk mendapatkan kembali wang anda, kebetulan anda sedikit kesempitan pada bulan itu tapi oleh kerana anda malas untuk membuka surat anda, anda langsung tidak tahu mengenai hal itu. Tepuk dahi pun tidak berguna. Nasi sudah menjadi risotto.

Maka, buka lah surat surat anda, terutamanya surat dari firma guaman kerana ianya pasti mengenai sesuatu yang penting. Jangan bimbang, kami jamin ianya bukan promosi apa-apa produk.
                                             

Faking It

-Just like in Suits, but badder, meaner and he wants your lunch money.-

Just yesterday we received a call for help from an acquaintance. Apparently she received an SMS saying that an arrest warrant will be issued against her at 4.00 pm on the same day for some debt she don't remember ever having. The SMS is reproduced as follows:

"DEFENDAN: JILL DAUGHTER OF JACK Satu Petisyen Sipiutang akan ditampalkan di Papan Notis Mahkamah Sivil Jln Duta KL dan akan diiklankan di semua surat khabar utama berbahasa Melayu selama untuk 5 hari. Anda akan dikehendaki hadir di mahkamah tersebut dan sekiranya kamu tidak hadir waran tangkap akan dikeluarkan terhadap kamu. Penyerahan waran dan tindakan WSS untuk sitaan dan lelongan hartabenda untuk sitaan dan lelongan hartabenda bagi penerima Penghakiman Ingkar. Harap maklum. En Danial 60358805421/ 60392850099 UNIT A4-Perendosan Waran/Saman"

Fortunately for her, in a moment of clarity she remembers that somewhere in her friend list is an advocate & solicitor and she referred the matter to us (That's right folk, when in doubt, always consult a lawyer).  We then suggested to her to go back to her financial records for any unsettled debt and to ask that certain Mr Danial the following:

i)  Who is the Plaintiff

ii)  The case number

iii) Which court will the matter be heard in

iv) How can she settle the matter out of court if she can.

That certain Mr Danial then evades the first three questions by citing that he will have to find the file first since it was an old file but eagerly answered the last question stressing the need for urgency if one is to avoid an arrest warrant from being made against her. The explanation ends with the below SMS:

" Pembayaran Di Mesin CDM Maybank Tekan Butang ENTER. Pilih BAHASA. Pilih BAYARAN TUNAI. Pilih BAYARAN PINJAMAN KREDIT. Pilih *****S  ******H Masukkan Kod Bayaran 006 Tekan YA Masukkan No Akaun 894000644791 Tekan YA. Masukan No TALIPON 017XXXXXXX Anda. Sahkan Bayaran Anda Masukkan Wang RM XXXX.XX dan Ambil Resit. Photostat dan Fax resit ke 0392810450 (U/P Danial)"

However, upon vigorous digging, she discovered that she had some long withstanding debt with a household appliance and furniture provider whom we shall not name (but keep the colour yellow in mind). The best part is, the furniture that was bought was not even for her family. They were bought under her name for a relative whom she had great trust for (back then) who then conveniently forgot some of the installments leaving this said acquaintance running around panicking like a headless chicken over an impending arrest warrant. (The issue of being social guarantor, letting people or company buy things in your name will be better covered in another post)

Thinking in good faith that perhaps a lawyer should step in, we then made the phone call to that certain Mr Danial. That certain Mr Danial claims to be from UNIT A4-Perendosan Waran/Saman of a legal firm called Anand & Co. When asked about the details of the case, another runaround answer is given. Repeated attempt to call again regarding the case details failed or were cut off in mid conversation. Big Question mark when the firm name was Google-ed, it was not in the Malaysian Bar list of legal firms. When asked about this that certain Mr Danial's response was to hang up the phone.

Okay.

Still acting in good faith, thinking that perhaps the telephone connection there is not that good, the second number given in the first SMS was called and a lady who refused to give her name answered. When asked she gives the firm name as Anand Ehsan & Co and our request for critical info (case number, her firm address etc) was stonewalled by her mantra : "We cannot divulge information to 3rd party". Even our request for her firm's office address in order for us to write in to her firm informing of our representation of our female acquaintance was denied. In return she informed us that the case detail can be obtained from the front desk of KL court by way of giving the NRIC No of our acquaintance which is a load of bullshit since the KL court front desk does not even have a computer to conduct a search from! The boiling point was when apart from her mantra she also said that "You are lawyers, you should know that".

From that point on we lost our cool, and our good faith.

For the uninitiated, yes, sensitive information such as NRIC No, residence address etc cannot be divulged to any 3rd parties but informations like case number, the name of the Plaintiff, the firm name and address of the Plaintiff's solicitor is and should be supplied to the Defendant as a matter of right. Without knowing these important details the Defendants cannot mount a proper case against a Plaintiff's claim.

After almost 15 minutes of listening to bullshit consisting of mantras like "We cannot give you that info", countless I am sorry-s and an appeal to Muslim good brother/sisterhood (what??), we reach the conclusion that Anand Ehsan & Co or whatever they call themselves are not what they claimed to be (praise be to Google!). We informed the unknown lady that a police report will be lodged against this entity known as Anand Ehsan & Co and the unknown lady on the line and that certain Mr Danial for impersonating a lawyer/ law firm to which the unknown lady replied that she also will lodge a police report under some vague pretext upon which we simply said our goodbye and hung up.

Upon clarification with KL Court's front desk not long after, we were told that cases like this happens frequently, around 20 people per week would come to the KL Court front desk asking which court do they have to go to in order to stop an arrest warrant from being made against them. When shown the two SMS-es, KL Court front desk team confirms that it is the modus operandi of the same group. We lodged a police report not long after that.

Apart from refusal to give critical information that should be made available to a Defendant, very odd way of communicating with Defendant (any legal notice will NEVER be communicated via SMS), references to a non-existent provision in BAFIA (Banking and Financial Institution Act) and just plain old nastiness, you can be assured 100% that scenarios such as this is the work of either a well-informed (but fortunately ignorant in the usual court procedures) out to swindle money from the hopelessly gullible or the work of unethical debt collection agency.

I guess while they enjoyed at playing lawyer they didn't expect a real lawyer to come calling back at them.

Either way, posing as a lawyer is a crime under Section 205 Penal Code which is as follows:

"False personation for the purpose of any act or proceeding in a suit

205. Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued, or becomes bail or security,

or does any other act in any suit or criminal prosecution, shall be punished with imprisonment for a term which may extend to three years or with fine or with both."

So folks, whenever anybody proclaims himself to be a lawyer, always do a quick Google of his or her full name or name of firm. If he or she or the firm name is not listed in the Malaysian Bar website then you have not a qualified lawyer but a full blown liar at hand.

Keep it Safe Folks!

 Yes, we know a few more days to go before Syawal ends but we hope it is not too late for us to wish you all Selamat Hari Raya Aidilfitri.

Keep your calorie consumption on the low and enjoy!

Happy Ramadhan

We hope it is not too late for us to wish Happy Fasting/Happy Ramadhan to fellow Muslims all around the world. May your Ramadhan be filled with good deeds and devotion.

We would also like to remind our fellow Muslims to avoid wastage and lavishness in times of Iftar (or as we call it here in Malaysia, berbuka puasa). Remember that each ringgit we waste could have been used in the support of our brothers and sisters in Palestine, in Syria, in Myanmar. In the hours of our fast remember that what we feel is but a fraction of what our brothers and sisters went through on a daily basis so that we may never forget that,

Every land is Palestine and everyday is Intifada!

Full Speed Ahead

Hello All!

It is with great joy we inform you that our firm is now operating at full capacity. Having dealt with all the nitty gritty process of starting a new law firm (believe us, its a lot) we think it is fair to say that now we can finally sit down and do what we do best; providing a simplified legal service for you.

You can reach us at:

ADD : 25A-5, Level 5, Block C2, 

            Dataran Prima, Jalan PJU 1/39,

            47301 Petaling Jaya,

            Selangor Darul Ehsan

TEL:   03-7887 9393 / 017-399 8793

FAX:  03-7887 9292

EMAIL: amirkatrinasyafiq@gmail.com

So come to us with your problem and we will get right down to business.

Full Speed Ahead!

Beware of what you sign

Beware of what you sign.

In this day and age, it is fairly usual for us to have agreements or contracts to be shoved to us for our signature for almost anything, your dry-cleaning, your banking transaction, your gym membership, your insurance policy. Most of the time, the person who did the shoving would assure us that the language is standard and there is nothing for you to worry about and nine out of ten people would sign the document based on this well-intended but false assurance. We are here to tell you, don't. Dont let yourself be another one of the statistics.

Read the document carefully before you sign it because it could be your life you are signing away on a piece of paper, and yes, read everything, even the fine prints.

Now that we have outlined the effect of not reading what you signed, let us say you signed something without reading it first what can you do?

Nothing. The law as it stands does not tolerate negligence on the part of a signatory of a contract to inform himself of the contents of the said contract.

There are very few instances where a signatory who signed a contract without knowing the contents were able to claim that they have mistakenly understood the contract and that the contract is rendered ineffective and baseless.

A plea under this aspect is called a plea of Non Est Factum which is Latin for this is not right/not done. In layman's term, the contents of the contract is not what you thought it to be and that you signed the contract in mistaken belief of its contents

Before you get yourself excited consider this first, the requirements for this plea to apply to a particular situation is set out in the case of Saunders v Anglia Building Society (Gallie v Lee) [1977] AC 1004; [1970] 2 All ER 961, HL as follows:

i) Unless you are illiterate, blind or of diminished capacity to understand the contents of the contract, it is very likely this plea is not applicable to you as the application is very narrow, meaning to say that the court will be very very strict in considering whether or not this plea is applicable or not in your case.

ii) The party which pleaded non est factum must prove to court that he or she in signing the contract or agreement did not act negligently in so signing the said agreement or contract. This means that you have taken all reasonable steps to understand the contents of the contract prior to signing the said agreement or contract

iii) The difference between the contract as it was understood by you and the actual content must be radical or fundamental.

All three preconditions for a plea of non est factum is again repeated in the Malaysian case of  Rabiah bt Ani v Samsi bin Hj Hasim (t/a Syarikat Perniagaan Jaya) & Anor[2011] 7 MLJ 225 it was held that a plaintiff, having signed all the relevant documents, cannot now deny being bound by them by reason of fraud, misrepresentation, undue influence and negligence.

It was also held that on the authorities, a plea of non est factum is unlikely to be available to a person who signed a document without informing himself of its meaning. The burden of establishing a plea of non est factum lies on the person seeking to disown the document.

It was further held that carelessness on the part of the person signing the document, would preclude the person from pleading non est factum, on the principle that no man may take advantage of his own wrong. In the circumstances, the plaintiff having purportedly signed blank forms, cannot avail herself with the plea of non est factum.

The above, stripped of its legalese simply means:

Beware of what you sign. If you have any question ask the party who prepared the contract better still, consult a legal practitioner or even better, consult us at Messrs. Amir Katrina & Syafiq but what ever you do, do not sign a document without reading and understanding the contents.

First Post is the Deepest

As the title indicates this is the first post ever in this newly created blog, yay!

The purpose of this blog as the subheading goes, is about the Law, Life and on things that matter. While we agree that the dry business of the law should be left to lawyers, we also believe that the law should be stripped of its legalese and be made simple to the common man, woman and children. Therefore, it is hoped that this blog would and could serve that purpose.

Oh, by the way, we are open for business!