Shane Cheng
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Justice delayed and most certainly denied - 2006/03/20 16:04
Sometimes being a lawyer (more so a young one like myself) can be rather frustrating and sometimes i respect the long standing brothers and sisters of the Bar who (admirably) remain in the profession.
We (litigators especially) are constantly faced with numerous difficulties and barriers in our blossoming practice and this is not helped by certain members of the bench who treat us with disgust and at times, with disrespect. Why? Some of the magistrates seem so young but are so brash and ignorant sometimes. But i shall save that for another posting.
Coming to my point, i had the misfortune of representing a client who was suing another company, which was instituted in the KL High Court (Civil Division), which perhaps a chronology of the said events would enlighten the predicament i was in. I shall not mention which court it was in but perhaps some members would know which one i am referring to.
17.9.2003 - my client's Summary Judgment was dismissed before the Senior Asst Registrar. The Appeal to Judge in Chambers was scheduled on 9.12.2003.
9.12.2003 - There was no judge at the particular court and was transferred to another court, before Judge J , who was outstation. Postponed to 10.2.2004.
10.2.2004 - Judge J was not available on the said date and was postponed to 21.4.2004
21.4.2004 - Called before Judge J who gave directions for written submissions (1st submissions). Next date scheduled on 3.6.2004
3.6.2004 - Was informed the Judge J was not available for this matter and matter was adjourned to 9.7.2004 before Judge T.
9.7.2004 - Called up before Judge T who now directed written submissions (to suit him) and fixed 3.9.2004 as the next date. 2nd version of submissions were duly prepared
3.9.2004 - Out of the blue this matter was retransferred to the original court, before Judge Z, but my beloved opponent failed to file their submissions in time and matter was adjourned to 6.1.2005 for the hearing proper
6.1.2005 - Judge Z of that court was no longer in the said court and was further adjourned to 21.2.2004 before another court, presided by Judge M.
21.2.2005 - Judge M heard the matter but required submissions to his requirement and a 3rd version of written submissions were prepared and matter fixed for hearing (again) on 11.11.2005.
27.9.2005 - There was a letter from the court which brought the hearing date forward to 27.9.2005 whereby Judge M revoked his directions and retransferred this matter back to the original court (again) and was adjourned to 14.10.2005.
14.10.2005 - Matter was not listed at the original court apparently due to some misunderstanding between the courts.
24.11.2005 - The Defendant's counsel discharged themselves (which was heard before the Senior Asst Registrar) and the original hearing date (fixed by Judge M) was maintained (that is on 11.11.2005) before Judge R
11.11.2005 - When matter was called up before Judge R, my beloved opponent did not wait for me and went ahead to take another hearing date 8.12.2005, much to my dismay.
8.12.2005, matter was postponed to 7.3.2006 pending receipt of sealed discharge order from the defendant's solicitors.
7.3.2006 - the defendant solicitors on 6.3.2006 informed me that the defendant was wound up on January 2006.
Sorry for the details but i felt it necessary to lay out the same for the benefit of those who were interested.
In gist, fourteen (14) hearing/mention dates encompassing the period of September 2003 to March 2006, and three different written submissions prepared, and 5 judges (Judge J, T, Z, M and now R) later, my client has no other recourse against the defendant. And bear in mind they were the" losing "party in a summary judgment and hence cannot even file a proof of debt with the CCM!
Where is the sense in all this?
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Richard Wee Thiam Seng
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Junior Forumer
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Re:Justice delayed and most certainly denied - 2006/03/20 21:07
Dear Shane,
I had many files which went through almost similar fate like that file of yours.
The Court system in Malaysia is, in my view, very 'personality' base. The course of justice, the destiny of the matter and the eventual outcome of the case depends on the character of the Judge. I suppose, the American Realists theory we studied in English Legal System (those who obtained their LL.B from UK) is well suited in Malaysia.
Every Judge has his/her own way of doing things. I do not attend High Court civil cases as often as I use to, and I find myself having to call upon friends and asking, "Eh! This Judge ABC, how is (s)he ah?" Then my next course of action will depend on what my buddy tells me.
"Oh! That Judge ah.. (s)he is very very fussy lah.. you better be 150% prepared.. or else, you sure die, one!!" That reply will mean a long night in office, preparing the matter. Then, what happen the next day, makes the whole process a waste of time.
"Judge transferred!!! You dont know ah??", that is what i hear from the Interpretor. So, I drag my feet and with my tired eyes, go have tea at the near by cafe at court (by the way, I really miss the Uncle Don Nasi Lemak at Wisma Denmark).
Sigh!! What a wonderful world!!
richard wee
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Shane Cheng
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Fresh Forumer
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Re:Justice delayed and most certainly denied - 2006/03/22 17:31
Dear Richard,
Thanks for your reply but there is this nagging feeling that just because this is the norm, it shouldn't be allowed as it is rotting at the very core of the judiciary.
Point to note, the Magistrate of 10A KL and the Sessions Judge of Court 1 Kuala Lumpur seems "treat" lawyers in a curiously "special" manner.
What gives?
Guess we have to bite the bullet and toil on anyway.
Sigh.
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Stephen Tan Ban Cheng
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Gold Forumer
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Re:Justice delayed and most certainly denied - 2006/03/22 19:20
Dear Shane Cheng & Richard Wee
We can only do what we can. At the end of the day, we not only face the Magistrates, Sessions and High Court, Court of Appeal and Federal Court Judges but even our learned friends.
In my short practice so far, I have had several encounters when opposing counsel simply deny the facts when it is so glaring, to the extent that I form the view that they become part of the problem because of their knowledge of the law.
Statements such as "My client did not tell me" and "I cannot ask my client that because it is not my job" lead me to believe that counsel do not have the facts of the case when they proceed to act. When they so act, they muddy the waters of the facts.
So how do they then apply the law when they do not even have the facts?
In any case, I always take comfort in Psalm 1 and invoke justice of the divine variety. I have seen it work, sometimes to the detriment of opposing counsel for aiding and abetting a blatant wrong!
Cheers. God bless.
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