Legal – Page 2 – w w w . x e .s . c x

Quick, throw your CDs away! There’s a roadblock!

I recently contributed an article on LoyarBurok, a prominent Malaysian BLawg, regarding the powers of the police and the enforcement division of the Domestic Trade and Consumer Affairs Ministry’s (now the Ministry of Domestic Trade, Co-operatives And Consumerism. Some of you may have received the following emails below:

To all those CDs lover pls beware!

Please do not keep any pirated or burned CDs, DVDs, or VCDs in your car.

Police and Domestic Trade & Consumer Affairs Ministry’s enforcement division in Malaysia have started the operation to search and fine anyone who keep pirated disc inside their car especially through road block at all main road and expressways.

If any pirated or burned disc found inside your car will be charged RM400 per disc. Example 30 discs found means the fine will be RM12,000.

This is real. Another friend of mine from Seagate, today during lunch time, 5 CD x RM400 = RM2,000

One of the Plexus colleague brother-in-law caught by Police due to pirated CD in the car on the way to town for lunch with his friend in the afternoon. One CD fined RM400.

Please disseminate this to all your friends who are driving in Malaysia

Fehmes lawyer Edmund Bon asked me to address this issue and I subsequently wrote a short article on it. It is published at this page.

For the past few months, an email has been circulating alleging that police and the enforcement division of the Domestic Trade and Consumer Affairs Ministry’s (now the Ministry of Domestic Trade, Co-operatives And Consumerism) have started operations to search and fine anyone who keeps pirated discs inside their cars. The email alleges that these operations were carried out through roadblocks at main roads and expressways, and that persons caught in possession of pirated discs were fined RM400 per disc.

In fact, these stories have been circulating for some time now. A report in the Sun newspaper in April 2009 stated that the police set out roadblocks to nab anyone with pirated discs. However, the same report stated that the Ministry denied having such roadblocks being set up.

Whether or not such roadblocks have been set up, it leaves us with the question: Do the police or the Ministry have the power to search our vehicles for pirated discs?

Section 24 of the Police Act 1967 allows any police officer to stop and search without warrant any vehicle which he has reasonable grounds for suspecting is being used in the commission of any offence against any law in force. The Ministry has also authority to enter and search a vehicle without warrant provided that he has reasonable grounds for believing that delay in obtaining a search warrant would lead to the destruction of evidence.

Under section 41 of the Copyright Act 1987, it is an offence to possess, other than for private and domestic use, any infringing goods. Any person who has in his possession, custody or control three or more infringing copies of a work or recording in the same form is presumed to be in possession of such copies otherwise than for private or domestic use. This basically means that possession of a pirated disc for private and domestic use is allowed provided that the pirated disc do not exceed three or more copies of the same form.

The offence would attract a fine not less than RM2,000 and not more than RM20,000 for each infringing copy or imprisonment for a term not exceeding five years or to both.

Can the police or the Ministry stop and search your vehicle?

In short, for now, if the police or Ministry have reasonable grounds to think that you are distributing pirated goods, (e.g. if you’re suspected to be a pirated VCD/DVD seller), they can stop and search your vehicle. Otherwise, they have no authority to stop and search your vehicle for pirated discs.

This situation may soon change.

The Government recently announced plans to amend the Copyright Act 1987 to make it an offence to keep pirated goods, similar to the offence of possessing stolen goods. Although the Government has not announced the details of the amendment, such news is worrying. This basically means that anyone in possession of pirated goods is committing an offence. Hence, any police, with reasonable grounds that there are pirated goods in a vehicle, may stop and search the vehicle.

What if the driver had purchased genuine songs from the internet and had it copied into a CD? The driver would have to prove and explain that he had genuinely purchased the song.

If I had downloaded software, music or movies into my computer from the Internet, does the police or Ministry has the authority to enter my house and search my computer? Based on the proposed amendment, the police or Ministry has the authority to do so.

Guidelines to allow the authorities to stop and search a vehicle for pirated goods should be clearly spelled out and made available to the public. The public should be given the right to use or copy copyrighted materials for their private use. Certain levies or exemptions should be given to the public if they are in possession of pirated goods unintentionally.

An outright ban of unauthorised possession copyrighted materials will create fear and chaos to the country and society.

On another note, United Kingdom will be amending their copyright laws to make them fit for the internet age. According to UK Prime Minister David Cameron, the law could be relaxed to allow greater use of copyright material without the owner’s permission. (Read more here.

How unfortunate, while UK is moving forward with the Internet age, Malaysian IP laws are going backwards.

Know your rights!

If you haven’t heard, 4 lawyers (or would be lawyers) were arrested by the police recently for distributing copies of the “Red Book”.

See the article by Malaysian Insider below.

Police see red over remand rights book
By Yow Hong Chieh
October 10, 2010

SRI PETALING, Oct 10 — Four legal aid volunteers trying to educate the public on their basic rights when faced with the police were themselves briefly detained today by police for distributing a book on remand rights.

Two lawyers and two chambering students from the Bar Council Legal Aid Centre (LAC) in Kuala Lumpur had been handing out the Bar Council’s “Red Book: Police and Your Basic Rights” to members of the public in Bukit Jalil here when they were arrested.

The four were taken to Sungei Besi district police headquarters at around 3.00pm for disseminating an “anti-police” publication, LAC KL chairman Ravinder Singh told The Malaysian Insider.

They were released some three hours later without charge. No statements were taken from them, and copies of the “Red Book” which had earlier been confiscated by the police were returned to them.

Ravinder said the Legal Aid Centre, an independent body under the Bar Council, was currently consulting its lawyers and would issue a statement soon.

The “Red Book” — launched in 2006 by de facto Law Minister Datuk Seri Nazri Aziz — provides information on what to do when stopped, arrested or questioned by the police.

Legal Aid Centre volunteers handed out copies of the book in Sogo, Bintang Walk, Masjid Jamek and Bukit Jalil today to mark the start of National Law Awareness Week.

My Dad told me that during the The Communist Insurgency War in Malaysia, the police used to search premises for the “Red Book”. Those found with the “Red Book” are quickly whisked away by the police and never to be seen again. Apparently, this “Red Book” is the Little Red Book – a book filled with collection of quotations excerpted from Mao Zedong’s past speeches and publications.

A few people have asked me where they can download the Malaysian Bar’s Red Book. You can download the English version of the Red Book here and Malay version of the book here. You should print a copy and leave it in the car. 😛

Data Protection and the Internet

My article on data protection on the internet was published in The Star newspaper on 5 August 2010. Unfortunately, they changed my title to Personal Data and the Law. It was originally Data Protection and The Internet. My article was only in respect of internet and not the law in general!! Wtf!!!

Anyway, here’s a reproduction of the article which is obtained from here.

Personal data and the law

Putik Lada
By FOONG CHENG LEONG

As the Personal Data Protection Act 2010 will be in force any time soon, data users are advised to be familiar with, and to start adhering to, its principles.

THE Personal Data Protection Act 2010 that is set to be enforced regulates the collection of personal data by parties for commercial transactions and will change the way we do business.

In brief, personal data is defined as any information that relates directly or indirectly to a data subject, who is identified or identifiable from that information or from that and other information in the possession of a data user.

A data user is basically the party using the personal data of an individual, which is referred to as data subject in the Act.

Personal data may take various forms and may be a name combined with other information, passport/identity card number, telephone number, photograph, fingerprint, or DNA.

A name itself cannot be personal data as there may be many individuals with the same name. However, where the information is combined with other information such as an address, this may be sufficient to identify an individual.

Unfortunately, the Act is only limited to personal data in respect of commercial transactions. Social media networking websites such as Facebook and Twitter, and foreign website owners are not subject to the Act.

This limits the type of personal data that are protected, for example, intimate photographs of individuals. As such data is normally not collected through commercial transactions, their distribution may not contravene the Act.

In Hong Kong, such data is covered. In an incident relating to the online circulation of nude photos of certain celebrities, the Privacy Commissioner for Personal Data decreed that such photographs are caught under the Hong Kong Personal Data (Privacy) Ordinance.

The Act sets out seven principles which a data user must adhere to when dealing with personal data. They are General, Notice and Choice, Disclosure, Security, Retention, Data Integrity and Access.

Failure to comply with any of the seven principles amounts to an offence punishable with a fine not exceeding RM300,000 or imprisonment not exceeding two years or both.

Under these principles, the collection and use of personal data must be consented to by the data subject, and steps must be taken to ensure that they are updated, correct and stored securely.

Further, adequate notice must be given to data subjects that their personal data will be used, and the purpose of the same. Data subjects should also be given the choice to opt out from giving certain personal data. Personal data no longer in use has to be destroyed.

Consent is not defined in the Act but a positive consent — written, oral or electronic — would be sufficient. However, positive consent would not apply in a scenario where a data user sends a form requesting consent and the form states that consent is assumed if no response is given. Failure to respond may not be considered as consent under the Act.

As the Act only applies to personal data in respect of commercial transactions, whether blogs would fall under its purview would depend on the circumstance of the case. If a blog is established purely for a recreational purpose, the Act may not apply due to the limitation of the definition of personal data.

A website generally collects personal data in two situations: when a user visits the website, and when a user provides information to the website operator, e.g. through an online form.

Information collected from a visitor to the website would include the IP address of the visitor and also cookies. Cookies are files used by websites to collect information about a user’s online activity. It can recognise a computer when a user logs on and can allow a website to store and remember usernames and passwords. Such information must be properly kept and not revealed to third parties.

As for the latter situation, website operators should inform the visitor that his or her information will be kept and used by them and their related parties. If website operators wish to use the information for other purposes, such as for marketing, they should obtain consent from the data subject.

Also, if personal data will be transferred outside Malaysia, consent should be obtained, otherwise any reference to the owner should be removed as it is an offence under the Act for a data user to transfer personal data outside Malaysia.

Companies need to be careful when sending out marketing materials. Under the Act, data users may be liable to a fine not exceeding RM200,000 or imprisonment not exceeding two years or both if they refuse to cease sending unsolicited marketing materials.

Following the security principle, personal data collected by website operators must be kept properly to ensure that they are not leaked. Proper security measures such as encryption must be in place.

If personal data is meant to be revealed to the public, notice should be given ahead and consent obtained. For example, a web forum should indicate to its users that information will be revealed to the public if requested. However, if the personal data is requested by a competent authority, consent may not be required.

In addition, website operators should also consider inserting a privacy policy statement on their websites in a specific page accessible by a visitor.

The privacy policy should state:

> WHAT will be done with the personal data;

> WHO is collecting the personal data;

> WHAT personal data is being collected;

> whether the personal data will be transferred out of Malaysia: AND

> whether the personal data will be disclosed to third parties.

As the Act will be in force any time soon, data users are advised to start adhering to its principles. Notice and consent of data subjects are the keys to allow a data user to use personal data. As such, data users should revise their data collecting system to be in line with the seven principles.

Unfortunately, at this stage, the extent and applicability of the Act is unknown and it seems to be wide and far reaching and, to a certain extent, excessive. In this regard, a Personal Data Protection Commissioner should be appointed soon to address these uncertainties.

In many jurisdictions with data protection legislation, the respective Commissioners play a vital role in determining the scope and applicability of the Act and will from time to time issue good practice notes or clarifications to the public.

Student’s Guide to Malaysian Legal Profession

Recently, I received an email from one Yii Zhu, a Law / Commerce student from Australia asking me for guidance about the legal profession in Malaysia. Yii Zhu wants to return home to practice but do not know where to start. After advising him, I thought it would be useful to share this with other law students or those who wants to practice law in Malaysia.

My legal life started off as an attachment student in a small firm in Kuala Lumpur. After my attachment, I joined a large firm and stayed on until now. I am currently a Senior Associate in one of the largest law firms in Malaysia.

When a student is qualified to start his chambering, he has 3 choices namely a large, medium or small law firm. There is no exact definition on what amounts to a large, medium or small law firm. But based on my own view, a large firm has around 20 lawyers, medium sized firm has less than 20 lawyers whereas small law firm has 5 or less lawyers.

The allowance a student gets would range from RM800 to RM2500. A large firm generally pays higher allowance. In respect of attachment students, this would depend on the firm. Some do not pay allowance to attachment students as they take the position that they are doing a favour for the student. Some firms do pay but not a lot – probably less than a RM1000 per month.

Generally, large and medium firms (let’s call them larger firm) can expose a student to various types of work. Most of the larger firms have separate departments where a student will be expose to matters relating to corporate, conveyancing, litigation, intellectual property, employment etc. Some larger firms have a rotation system where a student will be rotated to different departments. Also, larger firms pay more. When I was chambering, my allowance was RM1500. My friends in the small firms were getting RM800 – RM1000.

A small firm may not expose a student to many types of work. However, some small firms are boutique firms which specialize in certain types of law. For example, there are some law firms in Kuala Lumpur who specialise in Intellectual Property. They are very reputable and highly recognised in the Intellectual Property industry. They also have the best clients and the best work. With this, joining a smaller firm does not mean a student will learn less things.

Also, in a small firm, a student may be able to handle files on their own (most of the time under a partner’s supervision). A student may also get to shadow the partner.

In larger firms, it will take time for a student to be able to handle files of their own. A student usually starts off with menial work (e.g research, translation). Substantive work will probably come at a later stage. A student in a large firm may find themselves doing less important work than their counterparts in a small firm.

Also, in a smaller firm, a student may be given more opportunity. When I was an attachment student in a small firm, the bosses decided to send me to Japan for an assignment. This may not happen if I had been attached in a large firm.

My awesome free trip to Tokyooooo

When I wanted to look for a place to chamber, I couldn’t decide whether to join a larger firm or go back to the small firm to chamber. I emailed a family friend and asked him where to go.

He advised me to join a larger firm to take advantage of the networking opportunities. Initially I did not understand what he meant by “networking opportunities” but after a few years, I began to understand.

In larger firm, a student will get to know many people. In the legal profession and as a basic business principle, to make money, it is not “what you know”, it is “who you know”. Of course, legal knowledge is very important but if you do not have the necessary connections, the legal knowledge will be not utilized. There will be no food on your table if you do not have the necessary connection to bring in business.

A student’s friends and colleagues may eventually become legal advisers in companies, businessmen, directors and even politicians. They may become your source of referral for businesses in the future.

But this doesn’t mean that a small firm would lose out in business. There are of course many ways to get business. For example, give talks, join associations etc and recently, through social media networking.

If a student finds that chambering in a larger firm / small firm is not his cup of tea, he may always switch.

Once a student finishes chambering, he may or may not be retained in his firm as a legal assistant/associate (different title but same position). A first-year legal assistant/associate’s pay in Kuala Lumpur firms may range from RM2000 to RM4000.

Lastly, if you aim to have lifetime career as a lawyer, you should always aim for partnership (in a larger firm) or alternatively, set up your own firm (as a sole proprietor or a partnership). A partnership in a larger firm may take a longer time as most of the time, there are many people ahead of you. Even if you are made partner, it will take time to be an equity partner (a partner with shares in a firm thus gets a share of the profits). Most of the time, young partners in a larger firm are only salaried partners. It will take time to be an equity partner. However, such situation in a small firm may vary. Some small firms are known not to take new partners.

I hope the above is of assistance. If you have any comments that are helpful, please share.

Filing a Complaint with the MCMC

Posting offending messages on the internet is longer a trivial thing nowadays. Many internet users are now aware of their remedy when facing with offensive messages on the internet.

Bank Employee Charged With Posting Obscene Blog Title

KUALA LUMPUR, July 6 (Bernama) — A former EON Bank Berhad employee pleaded not guilty in the Sessions Court here Monday over the posting of an obscene blog title to embarrass his former boss.

Seah Boon Khim, 26, was accused of posting a vile and indecent material on a blog site http://www.xanga.com/hokongchan67 with intent to annoy Eon Bank Internal Audit Department head Ho Kong Chan at 1.33pm on Aug 13 2007 at 19 A-26-3 Level 6, UOA Centre 19, Jalan Pinang here.

He was charged under Section 233(1)(a) of the Communications and Multimedia Act 1998 which carries fine up to RM50,000 or jail up to one year or both.

In mitigation, Seah, who has since resigned from his job, said he had apologised to Ho and admitted that he did not realised the gravity of his action and he should not have done it.

Malaysian Communications and Multimedia Commission prosecuting officer Raja Iskandar Zulkharnian Raja Abdul Malek appeared for the prosecution.

Judge Zaki Abdul Wahab postponed sentencing until tomorrow.

— BERNAMA

Mr Seah was reportedly fined RM8,000.

Section 211 of the Communications and Multimedia Act 1998:

211. Prohibition on provision of offensive content.

(1) No content applications service provider, or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.

(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.

This section would also apply to offensive comments posted by readers of a blog. We bloggers now have an avenue to complain without incurring substantial legal fees. Watch out internet trolls!

I thought it would be beneficial to set out a sample complaint for the benefit of other bloggers. This may be in a form of a letter.

On [time on date e.g 12:30am GMT +8 on 31 February 2009], one [person e.g. bb_matik] made an [choose one or more: indecent/obscene/false/menacing/offensive] posting on my blog, [your blog address e.g. www.xes.cx], at the URL [URL which contains the said posting e.g. www.xes.cx/123.htm] using the IP address at [IP address e.g 192.168.1.1]. [Optional. Please note that there is 1000 characters limited] For ease of reference, I reproduce the offending posting:

[reproduce offending message here. example can be seen below:

frank is gay but xes is just impersonating to help frank to rid of his gay partner. frank loves xes but xes love women. make no mistake about that.]

The above posting is [choose one or more: indecent/obscene/false/menacing/offensive] and I verily believe that the said posting was made with [choose one or more: intent to annoy/ abuse/threaten/harass] me. The said posting has caused [choose one: annoyance/fear/embarrassment] to me.

Thus, I hope that the MCMC will take action against the person who posted the said posting.

Forum on Blogging & Defamation Laws

I had only one day to prepare for this talk. With the patent examination and conference, time was not on my side. I only managed to work on the slide in the bus back to KL and few hours before the talk.

Just when I thought I had everything in order, I discovered that I forgot to bring my name cards while on my way to the Bar Council. Fortunately, a colleague took the trouble to pass me my name cards.
The speakers for the Forum were Member of Parliament YB Jeff Ooi, lawyer Nizam Bashir and myself. Richard Wee started off with an introduction on defamation law and the current situation in Malaysia.

Thereafter, Nizam gave a presentation on the laws applicable on blogs e.g. defamation law, sedition and Communications and Multimedia Act. I on the other hand spoke about the liability of a blogger for defamation, a guide to handle defamation action and also a guide on how to reduce the risk of being threatened with a defamation suit. Jeff closed the panel’s speeches by talking about his blog and the steps he had taken to minimalize the risk of commentors posting defamatory comments.

The floor was opened after that. We had a good number of people coming to the mike to ask us questions. It was an extremely good crowd. It wasn’t the typical quiet Malaysian crowd. It was a very responsive crowd. We had bloggers, students, lawyers, journalist and even random members of the public asking us questions.

Julian Hopkins was one of the persons who stood up to ask questions
Some people speculated that the Special Branch will be there to check on the things that we will say. They suspected one chap who is a member of the Special Branch sitting among the crowd. But they soon realised that he’s actually a Bar Council employee.

After the forum ended, journalist rushed to Jeff Ooi to interview him. I took the opportunity to take some pictures!

Since I was young, public speaking has never been my liking. On many occasions, I shy away from speaking in public. Giving a talk to a room of 80 to 100 people was a giant leap for me.

I must say that anyone who has the same problem with me should try to overcome this problem especially when you are a young lawyer and you wish to market yourself.

I’ve been given an opportunity to write in The Star. I guess I will be writing about this topic in detail.

Me Give speech

Timothy Tiah had to give a speech to 500 people last week. I bet he was stressed before the session cause I was damn stressed when I had to give a speech to a group of 40 students. pfft.

Last week, I was assigned to give a speech about my life as an Intellectual Property lawyer in front of a bunch of students from local universities. Some senior lawyers presented with me as well. Since I was the most junior of all, I was quite stressed out. My heart went dupdupdupdupdudpdupdup whenever I think about it. I’ve never been a good public speaker and as long as I can remember, I’ve not given a speech before.

But after 2 days of intensive training, I was prepared for it. I prepare myself by going through couple of rehearsals. I made sure everything that I was to say was listed on a piece of paper. I was ready to present my first speech.

So on the faithful day, the room was filled with aspiring young lawyers-to-be students, each of them eager to know about our field of practice. The senior lawyers were the first to give their speech.

While listening to them… a song started playing on my head, it was the Will.i.am ft. Snoop dogg – Donque Song…..

She got a donkeeeeyy.. She got a donkeeeeyy … She got a donkeeeeyy…I got a donnkeeey..i got a donkeeeyyy..the donk the donkkk.. she got some mega asss
and the images of donkey grooving in a club started playing on my mind.

[I later found out that the lyrics of the song is “She got a donque..”. The word “dongue” is a slang for ass. I heard the song from the radio]

Imagine a room with a group of young students aspiring to be lawyers listening to a group of 4 lawyers talking about serious work and 1 of them had a song about donkey on his head.

So when it came to my turn, the donkeys disappeared. I introduced myself accordingly and went on blabbing. The little note that I had was actually quite distracting. I had to pause to look for the right keywords and left an awkward silence. Note to self, memorise every damn bit and less words on my little note.
Anyway, I think my speech went well although I went like a speeding bullet. Nevertheless, it was a good experience. Cant wait to do some more!

The Malaysia Bar EGM @ Dewan Lee San Choon, Wisma MCA. – 18 August 2006

Due to the upcoming Legal Profession (Amendment) Bill 2006 which was drafted without the consultation of the members of the Malaysian Bar Council, Yang Mulia Raja Aziz Addruse and seconded by Datuk Param Cumaraswamy tabled a motion which called for the council to request the authorities to hold the amendments except for 2 and also set up an ad hoc committee to carry out dept studies on the amendments within 6 weeks and thereafter recommend to the relevant authorities.

The amendments by the Legal Profession Act 1976 (Amendment) Bill 2006 was heavily opposed by many lawyers and debates were going on (especially online) for weeks before Saturday’s EGM. For the past weeks, articles and comments were published and distributed among lawyers. Reading the Bill alone is quite confusing as one had to cross refer to the original Act. As such, I based my views on comments and articles posted on the net.

Due to articles and comments, I supported the motion simply because the members of the bar were not consulted over the said amendments and also that (innocent) partners of a partnership are liable for the wrong doings of their partners (note: there are other issues as well). The latter is obviously unfair. It’s like having a wife being chased by loan sharks after her husband defaulted on the loan.

I was told that the members of the Bar were not consulted simply because the process does not require the authorities to do so.
In order for the EGM to proceed, we needed at least a 2500 quorum. The issue of quorum has always been a concern to the members of the bar as without a full quorum, no EGM will be valid. I was told that lawyers all around Malaysia attended the EGM. Even the Penang Bar organised busses to KL!

At 2:20PM, the speaker announced that we have reached our quorum. The crowd exploded in a cheer. I was told that quorum was a record of 3265 lawyers!

The event was organised at Lee San Choon Hall in Wisma MCA with lawyers filling almost every seat. The EGM was chaired by our President. Every person was given an opportunity to speak by heading to one of the mikes around.

Continue reading The Malaysia Bar EGM @ Dewan Lee San Choon, Wisma MCA. – 18 August 2006