The tale of green men

I heard a story today. Once, in the land of the free -- America, in other words (just in case you thought I meant France) -- the negroes were downtrodden and could not rise above the social barriers. On public buses, the negroes had to sit in the back or basically stand for a white to sit -- simply because they were black.

One day, a little black lady was asked to stand -- just because a white passenger wanted to sit in her place. She said, "Wouldn't it be great if all of us were green!"

Well, it so happened that God has a sense of humour, and was heedful of the lady's lament. So God made everybody green. Now, you'd think that the public transportation problems would have been over for the negroes. After all, they were green and the whites were green. So, what was the problem?

The next day, the little old lady went on board the bus when it came to pick her up. Somewhere along the way, the bus driver yelled out, "Dark green stand up! Light green sit down!"

Moral: Even if we try to eliminate differentia, people will still find ways to differentiate.

Journey to Reporters

Miles and miles of granite
Stones, soil and gravel
Cement, tarmac, bitumen
Fly by, under spinning wheels

And we speed upon undulations
That rise to pop our eardrums
All within this glorified tin can
That sports audio, video, and bums (on pillows)

Clouds and clouds of darkening sky
And we pass the trees, houses, and brambles
Stops, shacks and shanty houses
And occasional clusters of a town

It is the same road all the while
Through which shapes and scenes do shift
And we float by further hurtling cans
Into the dimness of the night

In our minds the flash of cameras
And still the humming of reporters
As we trade our happy laughter
As we talk of wives and rest.

dear ronald

dear mr. ronald
you ain't mcdonald
for after your "mister"
is the surname "li".

your indiscretion
brings me depression
as you seek to chase
the one for whom
i would stay chaste.

i know your name
and i know your game.
does it sound mundane?
i know not your face --
but i know your place.

yet think i sometimes-
could i use this for good?
should i imagine him
to be the villain that he could?
perhaps it'd be better
to know whether she would
accept his proposals
like eve to the snake's fine food?

Torrens Title System - Phillipines OCT/TCT

In the Feb 20th 2006 edition of the Philippine Daily Enquirer, the case of Araneta Institute of Agriculture (AIA) is highlighted. The Institute, known today as De La Salle-Araneta University, bought a piece of land in 1947 on the OCT (Original Certificate of Title).

The problem is that after 32 years -- 1979 -- a man came and claimed that the land belonged to him, and that AIA was illegally occupying the land. By 1979, the land had already been well developed. This man, Jose B. Dimson, claimed to hold an authentic OCT as well.

The issue is that the AIA land was subdivided from a 1917 OCT, and there are today many TCT's (Transfer Certificate of Title) derived from the same 1917 OCT. Whose is genuine? Dimson's or AIA's? If Dimson's claim is correct, then all titles derived from the 1917 OCT are fakes.

The might n purport of the judgment (potential corollary damage) is stated in the same article:

One thing is sure: this case involves a huge property and so many people and entities. If AIA loses its appeal, its case will be the third precedent case affirming that OCT 994 of May 3, 1917 is not real. Anyone holding a TCT (Transfer Certificate of Title) from this OCT will, in essence, be considered by the courts to be holding a fake title.

Well, is there anyone else holding such TCTs? Yes, among them: the national government-450 hectares (covered by 1,254 land titles), and within its ambit are roads, national highways, portions of the North Expressway, Edsa, the Bonifacio Monument, public markets and other public areas; private/business owners-1,210 hectares (covered by thousands of land titles), which cover property occupied by the Manila Central University, University of the East, Eternal Garden Memorial, Ever Grand Central, Sony Corporation, Mojica Properties, to name a few.

Indeed, the implications of this case are far too wide and virtually all-embracing that its resolution requires no less than a Supreme Court of the Philippines sitting en banc. This certainly is one question that deserves the determination by the whole, not just a division, of our highest court.

Source: http://news.inq7.net/opinion/index.php?index=2&story_id=66744&col=111

Now, can someone tell me why Malaysian editorials do not press for the same degree of judicial activism?

In search of Bachan Singh v Mahinder Kaur [1956] 1 MLJ 97

Understanding of the judgment of Thomson J in Bachan Singh v Mahinder Kaur [1956] 1 MLJ 97 is crucial in getting to the right conclusion -- not least since we embark now on the trail of Mohamed Moidu bin Mohamed & Anor v Hassan bin Kadir & Ors [2001] 4 MLJ 292.

Thomson J, under the shadow of Haji Abdul Rahman & Anor v Mohamed Hassan (1917) AC 209, was forced to consider the effect of English law of trusts and equitable interests on a contract for the sale of land.

His Lordship however sidestepped the issue and focussed on rights in rem and rights in personam instead.

Where there is a valid binding contract for the sale of land, the purchaser, when he has performed his side of the contract, acquires a right ad rem which is also a right in personam. In other words, he acquires a right to the land as against the vendor personally but not good against the world as a whole and, in due course, that right can become a real right good against the world as a whole on registration in accordance with the Land Code which has the same effect in our law as appearance before the Praetor in the law of Rome, delivery of seisin in the old English feudal law and infeftment by registration in the Register of Sasines in the modern Scots law.

Let's break it down.

1.There must be a valid binding contract.
2.The Purchaser must have performed his contractual obligations.
3.Purchaser then gets:
(I)Prior to registration: Right to land against the Vendor, personally
(II)On registration: Right to land as a real right against the whole world

Thomson J refers to similar concepts:

Scots law - Infeftment

Old English feudal law - delivery of seisin

Roman law - Appearance before the Praetor

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What is "infeftment"?

An explanation of "infeftment" is found in the House of Lords decision of Burnett's Trustee (Respondent) v. Grainger and another (Appellants) [2004] UKHL 8, where Lord Hope of Craighead (para 12) describes "the passing of ownership: the real right" -

12. At the heart of Scots property law, as Professor Burns points out in the opening sentence of the chapter on infeftment in his Handbook on Conveyancing, 5th ed (1938), p 160, lies the maxim traditionibus, non nudis pactis, transferuntur rerum dominia. The adoption of this rule of the Roman law as part of Scots law can be traced at least as far back as Stair, The Institutions of the Law of Scotland (1693 edition), III ii 5. He accepts that some kind of possession is needed to accomplish real rights, so that thereby they may be "more manifest and sure". Erskine, An Institute of the Law of Scotland (Nicholson's edition), II i 18 too acknowledges the need for "greater certainty" and for the delivery of possession, or at least some public act, "by which it may appear that the former proprietor has given up his right." A statutory exception to what is required to transfer property in corporeal moveables applies in the case of sale. The property in goods passes by force of the contract of sale independent of delivery: Sale of Goods Act 1979, sections 17 and 18. But the rule that delivery is required to transfer ownership has always applied, and continues to apply, to all transactions relating to heritable property. Burns, using language appropriate to the feudal system of land tenure with which he was familiar, explains at p 160 how the principle operates:

"To clothe the feuar with a real right in the lands he required, and still requires, more than the charter; he requires delivery. By that is meant delivery, not of the charter (though that also is necessary), but of the lands. Such delivery is infeftment."

Click For Original Page

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Lord Hope of Craighead also gives an illuminating explanation of the difference between the personal right and the real right, at paragraphs 17 and 18.

17. The effect of the provisions of the conveyancing statutes is that until the interest of the purchaser has been recorded or registered the seller remains vested in the real right. His relationship with the purchaser is, of course, controlled by the rights and obligations which were created by their contract. When the disposition is delivered the general rule is that it becomes the sole measure of the contracting parties' rights if there is a dispute about the subject to which right has been acquired by the purchaser: Orr v Mitchell (1893) 20 R (HL) 27, 29 per Lord Watson. The seller will usually have performed all the positive obligations arising from the contract of sale when the disposition is delivered to the purchaser on the date of settlement. But that is not an end of their contractual relationship. The seller remains bound not to derogate from his grant of the subjects as described in the dispositive clause. That is a matter of personal obligation, arising from the contract contained in the missives which he entered into with the purchaser.

18. Baron Hume explains the distinction between the personal right and the real right from the point of view of the purchaser in this way in his Lectures (1786-1822), vol II of the Stair Society edition, pp 2-3:

"Those rights, again, that spring from a connection which is formed with an individual have … a much more limited and uncertain operation. In these, as in all other instances of right, there is to be sure a corresponding obligation somewhere; but it lies in this case with that individual alone who has been applied to or bargained with as the means of getting at the thing. He, to be sure, in return for what he has received, or in fulfilment of the expectation he has raised, is bound to make good his word, and put me in possession of the thing in question. But with respect to all the rest of the world, who have had no sort of concern with this bargain of mine, and are probably ignorant even of any such having been made; I have no manner of claim nor bond upon them to repair my loss, or consider my disappointment."

Source: Ibid.

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Actually, Burnett's case is helpful but, Malaysian law is stuck with the ghost of Lysaght v Edwards [1876] 2 Ch D 499 and Williams v Greatrex (1957) 1 WLR 31.

An example is found in the case of Wong Siew Choong Sdn Bhd v Anvest Corporation Sdn Bhd [2002] 3 AMR 2554, CA. The Malaysian Federal Court referred to the case (which played a pivotal role in the High Court stage) (Click HERE for the decision)

On another aspect, when the defendant sold the said land to the plaintiff, on the defendant accepting unconditionally the terms as embodied in letter (KAY-3) on 14 Oct. 1988, the plaintiff became a trustee for the plaintiff subject to the payment of the balance of purchase price (see Lysaght v Edwards (1876) 2 Ch. D 499 at 506, and Williams v Greatrex (1957) 1 WLR 31 at 36). These two cases were applied by the Federal Court in Temenggong Securities v Registrar of Titles (1972) 2 MLJ 45 FC.

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However, the Courts would ordinarily apply the doctrine of trusteeship in a contract for sale of land. An example is found in the House of Lords dictum in Jerome (Appellant) v. Kelly (Her Majesty's Inspector of Taxes (Respondent) [2004] UKHL 25

Sir George Jessel MR did indeed refer, in Lysaght v Edwards (1876) 2 Ch D 499, 506 (a case about the equitable doctrine of conversion) to what had been settled doctrine since the time of Lord Hardwicke:

"What is that doctrine? It is that the moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase-money, a charge or lien on the estate for the security of that purchase-money, and a right to retain possession of the estate until the purchase-money is paid, in the absence of express contract as to the time of delivering possession".

But he went on to explain that the trusteeship is not an ordinary trusteeship, and that point has been made in many other well-known cases. In Shaw v Foster (1872) LR 5 HL 321, 338, Lord Cairns said:

". . . that the vendor, whom I have called the trustee, was not a mere dormant trustee, he was a trustee having a personal and substantial interest in the property, a right to protect that interest, and an active right to assert that interest if anything should be done in derogation of it".

Similarly in Rayner v Preston (1881) 18 Ch D 1, 6, Cotton LJ said:

"An unpaid vendor is a trustee in a qualified sense only, and is so only because he has made a contract which a Court of Equity will give effect to by transferring the property sold to the purchaser . . ."

31. There is a useful summary in the judgment of Mason J in Chang v Registrar of Titles (1976) 137 CLR 177, 184:

"It has long been established that a vendor of real estate under a valid contract of sale is a trustee of the property sold for the purchaser.

However, there has been controversy as to the time when the trust relationship arises and as to the character of that relationship. Lord Eldon considered that a trust arose on execution of the contract (Paine v Meller; Broome v Monck). Plumer M.R. thought that until it is known whether the agreement will be performed the vendor 'is not even in the situation of a constructive trustee; he is only a trustee sub modo, and providing nothing happens to prevent it. It may turn out that the title is not good, or the purchaser may be unable to pay' (Wall v Bright). Lord Hatherley said that the vendor becomes a trustee for the purchaser when the contract is completed, as by payment of the purchase money (Shaw v Foster). Jessel M.R. held that a trust sub modo arises on execution of the contract but that the constructive trust comes into existence when title is made out by the vendor or is accepted by the purchaser (Lysaght v Edwards). Sir George Jessel's view was accepted by the Court of Appeal in Rayner v Preston.

It is accepted that the availability of the remedy of specific performance is essential to the existence of the constructive trust which arises from a contract of sale".

See also the judgment of Jacob J at pp189-190, concluding that,

"Where there are rights outstanding on both sides, the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the respective parties".

32. It would therefore be wrong to treat an uncompleted contract for the sale of land as equivalent to an immediate, irrevocable declaration of trust (or assignment of beneficial interest) in the land. Neither the seller nor the buyer has unqualified beneficial ownership. Beneficial ownership of the land is in a sense split between the seller and buyer on the provisional assumptions that specific performance is available and that the contract will in due course be completed, if necessary by the Court ordering specific performance. In the meantime, the seller is entitled to enjoyment of the land or its rental income. The provisional assumptions may be falsified by events, such as rescission of the contract (either under a contractual term or on breach). If the contract proceeds to completion the equitable interest can be viewed as passing to the buyer in stages, as title is made and accepted and as the purchase price is paid in full.

Source

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Coming back to the case of Wong Siew Choong Sdn Bhd, the Federal Court itself considered many authorities, which were conflicting in the question of whether a vendor, upon the execution of a contract for the sale of land, becomes in law a bare trustee:

We are, mindful of the fact that the question of when a vendor of land becomes a bare trustee for the purchaser has been a bone of contention within our legal jurisprudence on many an occasion. There had been a welter of authorities from time to time over this issue, and the answer to this pertinent issue had been in a state of flux. “Had” being the operative word, because we believe that the issue was finally put to rest in the case of Borneo Housing Mortgage Finance Bhd v Time Engineering Bhd (1996) 2 MLJ page 12 wherein Edgar Joseph Jr FCJ, after revisiting all legal pertinent pronouncements on this issue stated -

“In our view, the contractual events which result in the vendor becoming a bare trustee of the land, the subject matter of the agreement of sale and purchase, for the purchaser, is on completion, that is to say, upon receipt by the vendor of the full purchase price, timeously paid and when the vendor has given the purchaser a duly executed, valid and registrable transfer of the land in due form in favour of the purchaser, for it is then that the vendor divests himself of his interest in the land.”

Much wind was expelled by both counsels before us that both Borneo Housing Mortgage Finance (supra) and Temenggong Securities Ltd (supra) were decisions of the Federal Court. So too for a host of other decisions, viz-a-viz, Peninsular Land Development Sdn Bhd b K Ahmad (1970) 1 MLJ 149 FC., Ong Chat Pang & Anor v Valiappa Chettir (1971) 1 MLJ 224 FC and Karrupiah Chettir v Subramaniam (1971) 2 MLJ 116 FC where the question of when the vendor of land becomes a bare trustee for the purchaser may not have been consistently answered by the Apex Court.

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What we lack is a consistency in the Federal Court. Having said that, what would I have decided, if I were sitting on the panel of the Bench, to formulate a theory that can encompass all these myriad (and inconsistent) decisions?

That search remains ever relevant and ever on-going...

In the meantime, further reading:

The judgment of Jessel MR in Lysaght v Edwards (1876) 2 Ch D 499

prime number in your IC number?

Most Malaysians have an identification card number that follows the format of xxxxxx-xx-xxxx. Why not attempt to make a game out of it?

The first thing is to treat the number as a kind of equation.

e.g.
791031-14-6161 = 791017-6161 = 784856.

Then onwards we try to factor the prime numbers.

784856 / 2 = 392428. ( Prime number = 2 )
392428 / 2 = 196214. ( Prime number = 2 )
196214 / 2 = 98107. ( Prime number = 2 )
98107 / 17 = 5771. ( Prime number = 17 )
5771 / 29 = 199. (Prime number = 29 )
199 is a prime number. ( Prime number = 199 )

So now you're left with the biggest prime number from the result of your "accidental equation". Try it -- it might be fun.

More reading:


And if you're truly adventurous, try some puzzles involving prime numbers.

MCA Youth Road to the World Cup Futsal Competition

MCA Youth, in conjunction with Sports Planet, is organising a nationwide futsal competition! Grand prize is RM10,000 and the competition kicks off on March 19th, 2006. The competition is open to all Malaysian Chinese youth above 16 years of age. Other big sponsors will be Selangor Pewter, 100 Plus, 104.9fm, 98.8fm, Four Four Two magazine, Football World magazine, and many more. Goodie bags will be given to contestants. The event is high profile and will go around the various states.

The participation fee is RM160 per team of 8 (5 players and 3 reserves). The fee is waived if 5 participants join MCA.

For more information, visit

More information about the Malaysian futsal scene is available here:

All those who are clueless about "futsal" can find the rules here:

unpublished lyrics

(verse)
never underestimate
the damage from a woman's hate
if you do --
woe to you!

never try to brush aside
the contributions of a wife
if you do --
woe to you!

(bridge)
coz i was superhuman, too
and then i acted just like You!

(chorus) <-- haven't thought of it yet. still to come :-(

Injustice to Client?

Just a week ago, I represented a client at the KL sessions (criminal) courts. After a night of preparing cross-examination questions, I was appalled to discover that the client (assigned to me care of Legal Aid Centre) wanted to plead guilty. "Fear of punitive sentencing," he mentioned in Indonesian. And so -- PG it was, in compliance with the client's instructions.

The injustice referred to above was in the process of PG. The charges were read out to him. He was asked by the interpreter if he admitted to the crime. Yes, he said, I admit. He was then informed of the penalties. Then he was asked again -- do you admit? Yes, he said, I admit.

It was at that point that the injustice occurred. The PO (Prosecuting Officer) tendered "Facts" and exhibits. "Facts", which were a one-sided story. Facts, which stated that my client had the drugs in hand when he was caught. Facts, which contradicted my client's statement (as per the interview I conducted at Sungai Buloh prison) that the drugs were in a bag, about ten metres away when he was caught.

My client nodded his head when he was asked if he agreed to the facts and the exhibits. My immediate question: Was my client agreeing because he had told me an untrue version, or was he agreeing because he was pleading guilty? (And thought that agreeing to the facts was part of pleading guilty?)

Methinks an appeal may lie from this case. But the Legal Aid Centre should engage another lawyer to represent this client on appeal.

on Kitzmiller v. Dover

Strangely, when you scour the Net for manuscripts of cross-examinations, and trials, the last thing you expect to find is a significant court battle.

Dubbed the battle of "creationists vs evolutionists", it was about whether God created the world -- and whether the schoolchildren of America would be taught that. In my opinion, the world was either one very cleverly planned set of coincidences, or a very gracefully designed creation. (And you thought that God sneezed, and the world came into being?)

"ID" or "intelligent design", was the buzzword of in the Kitzmiller v Dover case -- which eventually failed to prop up the bad arguments forwarded by the attorney handling the matter.

The judge seriously considered the ID claim that it is not religion but real science, but he found the arguments completely unconvincing.

source: http://www.stnews.org/Commentary-2688.htm

There was probably a real risk of res judicata:

The ID textbook Of Pandas and People was shown to be a minimally reworded creation science text. Following the 1987 Supreme Court ruling, a quick edit of the manuscript draft switched out the words “creationism” and “creation science” with “intelligent design theory,” and “creation scientists” with “intelligent design proponents” but left definitions unchanged. ID, the judge concluded “is creationism re-labeled.” Nor does simply omitting the words “intelligent design” disguise the concept.

Source: ibid

The 1987 Supreme Court case referred to was Edwards v Aguillard - also revolving around "creation science".

Of note, the lawyers for the Plaintiffs were: Eric J. Rothschild, Witold J. Walczak, Stephen G. Harvey, and Richard B. Katskee; and the lawyers for the Defendants were: Patrick T. Gillen, Richard Thompson, and Robert J. Muise.

One wonders who the best litigator in that list is. One can't help but wonder.


Happy reading:

NCSE page for Kitzmiller v Dover

The "Wedge" strategy adopted by the Plaintiffs

And finally...

The Judgment of Kitzmiller v Dover

someone else

someone else may call you "dear",
and yes - he too, "darling";
and he may well realise my fear
and do the dreaded thing.

while i do not wish to know
i ponder all the same:
how far would this replacement go
and would you call his name?

but life is short and i for one
will not restrain your life:
for i myself move ever on
to seek my future wife!

humpty dumpty as he moves

humpty dumpty feels
that he'll ever fall--
he's feeling surreal,
and feeling oh-so-small.
he looks around
and hears not a sound;
the campus grounds
have a small compound.

humpty dumpty thinks
and forgets to blink--
and his wicked past,
how he humped thee
and til at last
he quite dumped thee:

his heart quite broken,
his hard shell cracked:
and the words not spoken
would betray my lack.

but life moves on,
and never stops a while;
and i became strong
and keep moving for miles.