5 Survival Tips for Students Awaiting CLP Results

It is only a couple of days away from the release of the long-awaited Certificate In Legal Practice (CLP) examination that was held in July 2018.

What is the CLP exam?

Every year, many hopefuls take the CLP exam in hopes of becoming a “qualified person” under the Legal Profession Act 1976 (“LPA”), which is a precursor (for foreign law graduates) to becoming a lawyer in Malaysia without having to go overseas to obtain a qualification.

If you are a CLP candidate this year, you are probably worried about your results.

Here are 5 tips to help you keep your sanity.

#1 Keep busy

Whether it is swamping yourself with work, preparing for a marathon or binging a new series on Netflix, everyone knows that time flies when you’re occupied.

Vectors at Vecteezy - https://www.vecteezy.com
Play sudoku. With a pen. Live dangerously.

You know the proverb, ‘an idle mind is the devil’s workshop’?

Don’t let the devil set up shop there. Sue him for trespass.

Also, for goodness sake, don’t contribute to the mass hysteria that is the speculation of a leak of the exam results. Go do something unrelated to CLP.

#2 Get enough sleep

If you have been deliberately depriving yourself of proper rest, then this is relevant to you. Otherwise, if you have sleep problems from the sheer anxiety of waiting for the results, then skip this bit.

There are good reasons for getting a full night’s sleep running up to the big day.

For one, you’re going to need enough energy to deal with the outcome. If you pass, then you will be well-rested enough to drive to LPQB to collect your certificate. If you fail one paper, then you have enough energy to hit the ground running in preparation for the upcoming resit on 1 Nov 2018. If you fail more than one paper, then you will need all the help you can get to move on with life.

Vectors at Vecteezy - https://www.vecteezy.com
Tip: The more time you spend sleeping, the less time you spend worrying.

#3 Breathe

This may seem incredibly intuitive for most people, but many Malaysians are in denial about experiencing depression or anxiety. While some level of anxiety prior to an important event is normal (and beneficial), excessive feelings of anxiety can be debilitating and should not be downplayed.

Even if you don’t have severe levels of anxiety, it helps to use breathing techniques to stay calm during this period. There are many breathing techniques out there. Here are some of them.

My personal favourite is the 4-7-8 technique.

#4 Challenge your own expectations

I know of many people who are focusing on the worst possible scenario i.e. in the event that they do not pass the exam. Some scenarios involve their family members disowning them, or being a greater burden to their family.

Firstly, I want to say that I think that most of these concerns are based in reality. No one should be told that their fears are manufactured or invalid.

Nevertheless, in trying times such as these, it is natural for most people exaggerate the potential impact of a negative outcome. Although there is some use in this, in that it helps us prepare for the worst case scenario, we should challenge our expectations of what will really happen.

Perhaps it will not be as bad as you think.

vector-self
Don’t spend too much time swimming in your own thoughts.

In any case, whatever the outcome, you will be able to get through it, eventually.

Which brings me to my last point.

#5 Know that there is nothing you can do at this stage and that failing the CLP exam does not spell the end of your life. It may bring about unpleasant consequences, but like many things in life, those too will pass.

Of course, the stakes are different for everyone. Some still have the option of taking the Bar Professional Training Course (BPTC), while others may have to seriously consider a career in another profession altogether.

No matter what the outcome is, remember that your self-worth is not tied to a single life event. Even when it came to preparation for the CLP exam, it took a million small acts to get to where you are today. The acceptance of this Wednesday’s outcome is simply one of the acts that you must do. In due time, you will have moved past this.

You’re going to be OK.

Case comment: Of con men and chargees

The author discusses the case of CIMB Bank Berhad v AmBank Berhad & 2 Ors [2017] 5 MLJ 142. It is a Malaysian land law case on deferred indefeasibility, the position of chargees and the meaning of ‘purchaser’ in the National Land Code 1965 (‘NLC’). To appreciate this article, the reader must have a basic understanding of how to interpret section 340 of the NLC.

Many candidates who sat for the Certificate In Legal Practice must have collectively groaned (inaudibly, of course) when they laid their eyes on the Professional Practice paper last month. One of the questions bore some similarity to the case of CIMB v AmBank where the Federal Court made significant statements in its majority judgment and Jeffrey Tan FCJ delivered a dissenting judgment that, I believe, piques the interest of land law enthusiasts.

I thought that CIMB v AmBank was interesting because, unlike most other significant decisions on indefeasibility, this one involved two titans going head-to-head with one another in a decision that concerned many banks and financial institutions.

In this post, I will briefly outline the case facts. Then, I will summarize the decisions of the High Court, Court of Appeal and Federal Court here and offer my thoughts on the case here.

The brief facts

Diagram 2

On 17 March 2006, as security for a loan, a charge was granted over a piece of land owned by Ching Ting Seng and Ching Chong Lup (‘the Chings’) in favour of Southern Bank Berhad (‘SBB’). Soon after, CIMB Group Holdings Bhd acquired SBB, thus CIMB Berhad took over SBB’s assets. On 14 November 2008, Wong Chee Keong (‘Wong’) applied for a loan from AmBank to finance the purchase of said land from the Chings. Wong created a charge over the land in favour of AmBank as security for said loan.

Both Wong and AmBank appointed solicitors who dealt with each other extensively. Eventually, AmBank’s solicitors received the purported document of title, the duly stamped Memorandum of Transfer (‘MoT’), the purported Discharge of Charge executed by CIMB and the duplicate of the charge from Wong’s solicitors. It is undisputed that the purported document of title was not issued by the registering authority and that the purported Discharge of Charge was forged.

Following one failed registration attempt, AmBank’s solicitors tried again. They presented the purported Discharge of Charge, the MoT and the charge in favour of AmBank (‘the AmBank Charge’) for registration. The authorities registered the purported Discharge of Charge, the transfer to Wong, and the AmBank Charge.

Judging from the above, it appears that Wong had masterminded the transfer of title and discharge of charge of land in one fell swoop. Strangely, there may be a positive side to this story.

If the documents were in fact legitimate, the successful registration of title and charge would have been lauded as a testament to the system’s efficiency. However, it was this same efficiency that allowed Wong to hoodwink CIMB of its registered interest.

The decisions of the High Court and the Court of Appeal

The sole issue for determination in both the High Court and the Court of Appeal was whether AmBank was an immediate or subsequent purchaser.

The High Court found AmBank to be an immediate purchaser. The Court of Appeal found AmBank to be a subsequent purchaser and stated that the High Court failed to appreciate the two-stage nature of the transaction:

  1. First, CIMB’s charge was discharged and the transfer occurred from the Chings to Wong, resulting in Wong becoming the immediate purchaser.
  2. Then, AmBank derived their interest in the property from Wong, making AmBank the subsequent purchaser.
12333.PNG
The blue arrow represents the High Court’s line of thinking and the red arrows represent the Court of Appeal’s argument that there was a two-stage transaction.

Now, what is an article on section 340 of the NLC without an excerpt of it?

340. Registration to confer indefeasible title or interest, except in certain circumstances
(1) The title or interest of any person or body for the time being registered as proprietor of any land, or in whose name, any lease, charge or easement is for the time being registered, shall, subject to the following provisions of this section, be indefeasible
(2) The title or interest of any such person or body shall not be indefeasible:
(a) in any case of fraud or misrepresentation to which the person or body, or any agent of the person or body, was a party or privy;
(b) where the registration was obtained by forgery, or by means of an insufficient or void instrument; or
(c) where the title or interest was unlawfully acquired by the person or body in the purported exercise of any power or authority conferred by any written law.
(3) Where the title or interest of any person or body is defeasible by reason of any of the circumstances specified in subsection 2:
(a) it shall be liable to be set aside in the hands of any person or body to whom it may subsequently be transferred; and
(b) any interest subsequently granted there out shall be liable to be set aside in the hands of any person or body in whom it is for the time being vested:
Provided that nothing in this subsection shall effect any title or interest acquired by any purchaser in good faith and for valuable consideration, or by any person or body claiming through or under such a purchaser.

Section 340(1) sets out the general rule that any registered title or interest is indefeasible. The exceptions to this is where one of the situations under section 340(2) applies. Holding AmBank to be an immediate purchaser has the effect of placing it under section 340(2). It is now trite law that section 340(2) cannot be read with the proviso under section 340(3). Following the High Court decision, AmBank was found to be an immediate purchaser and therefore its interest was defeasible.

The corollary to this is that holding AmBank to be a subsequent purchaser will enable the operation of section 340(3) and allows AmBank to rely on the protection under the proviso, which can only be read together with section 340(3).

Federal Court

At this point, you might be thinking that AmBank and its counsel thought to themselves “aiyah, no sweat” after receiving the Court of Appeal ruling. That is, until you learn that CIMB obtained leave to appeal to the Federal Court on the following question of law:

Whether a chargee comes within the meaning of ‘purchaser’ under the proviso to section 340(3) of the National Land Code?

But once again, AmBank’s counsel was victorious and CIMB’s appeal was dismissed by a majority of 4 to 1.

Md Raus Sharif CJ (as he then was) delivered the majority decision and concurred with the Court of Appeal in that AmBank was a subsequent purchaser, thus protected by the proviso. In answering the leave question, the majority judges referred to the definition of the word “purchaser” in section 5 of the NLC. The majority judgment agreed with the Court of Appeal that the transaction was done in two stages.

In his dissenting judgment, Jeffrey Tan FCJ held that both immediate and subsequent purchasers must be purchasers in good faith and for valuable consideration. His Lordship held that, since Wong was not an immediate purchaser in good faith, AmBank could not have been a subsequent purchaser. Thus, AmBank was an immediate purchaser and therefore its interest was defeasible.

Comments

1) On terminology

In the majority judgment, the former Chief Justice stated the following at Paragraph 14:

Thus, if a chargee does not come under the meaning of purchaser, then AmBank was an immediate purchaser and in such a situation AmBank’s interest as chargee was not protected by the principle of deferred indefeasibility. However, if a chargee comes within the meaning of purchaser, then AmBank was a subsequent purchaser, and thus was protected by s 340(3) of the NLC. (emphasis added)

This is confusing.

At face value, it looks like his Lordship suggested the following:

If a chargee WAS NOT a purchaser, then AmBank WAS an immediate purchaser;

If a chargee WAS a purchaser, then AmBank WAS a subsequent purchaser.

What his Lordship actually meant was:

If a chargee WAS NOT a purchaser within the meaning of the proviso, then AmBank was an immediate purchaser;

If a chargee WAS a purchaser within the meaning of the proviso, then AmBank WAS a subsequent purchaser.

I would like to humbly suggest that the use of the term “immediate purchaser” has the potential to bring about some confusion. This is because in section 340 the word “purchaser” only appears in the proviso and nowhere else. Perhaps a better term is “immediate transferee”.

My concerns are not imagined. In Paragraph 71, Jeffrey Tan FCJ stated,

With respect, the issue was not ‘whether a chargee comes within the meaning of s 340(3) of the NLC’ as proposed by the leave question. As rightly said by the Court of Appeal and agreed to by the first respondent before us, the issue was whether the first respondent was an immediate or subsequent purchaser. For if the first respondent, though purchaser, were not a subsequent purchaser, then the first respondent only acquired a defeasible interest. But of course, if the answer to the leave question were that a chargee does not come within the meaning of ‘purchaser’ under the proviso, then this appeal should be decided against the first respondent. (emphasis added)

In the highlighted text, Jeffrey Tan FCJ seems to have suggested that, following the leave question, if the respondent, though purchaser within the meaning of the proviso, were not a subsequent purchaser, then the first respondent only acquired a defeasible interest.

It is submitted that if the respondent is a purchaser within the meaning of the proviso, it must follow that it is a subsequent purchaser. In other words, it is impossible for a chargee to be protected by the proviso *and* be an immediate purchaser.

Aside from the highlighted text, I agree with his Lordship in that the true question was whether AmBank was an immediate purchaser or subsequent purchaser. His Lordship also expressed his disapproval over the framing of the leave question, which was “whether a chargee comes within the meaning of ‘purchaser’ under the proviso to s 340(3) of the National Land Code.” If answered in the negative, then it follows that chargees will never be able to benefit from the proviso. As Jeffrey Tan FCJ put it,

It would have far reaching consequences if financial institutions were excluded as purchasers.

His Lordship cited numerous authorities in support of the fact that a chargee comes within the ambit of “purchaser” within the meaning of the proviso. At one point, he even answered the leave question in the affirmative at Paragraph 90 even though he ultimately found in favour of CIMB.

I would like to propose that even though this case was a ruling on the meaning of “purchaser” within the meaning of the proviso, the most noteworthy comments were related to whether AmBank was protected by the proviso or not (i.e. “immediate purchaser” or “subsequent purchaser”) because it appears to conflict with OCBC Bank (M) Bhd v Pendaftar Hakmilik, Negeri Johor Darul Takzim [1999] 2 MLJ 511 (‘the OCBC case’).

2) Is the OCBC case still relevant?

CIMB’s counsel cited the OCBC case in support of its case. On the facts, Ng Kim Hwa (‘NKH’) alleged that Ng See Chow (‘NSC’) had forged a transfer of a piece of land and subsequently charged the land to OCBC. NKH only discovered the fraud when he was notified of an entry of a Registrar’s Caveat over the land.

Diagram 3

The title to NSC was defeated, but OCBC wanted to remain as chargee. The Court of Appeal held that OCBC could not rely on the proviso within the meaning of section 340(3) because section 340(3) had not been ‘activated’ to begin with. The late NH Chan JCA also stated the following:

A person who has no right or title to the land has no right to charge it because the land is not his, in the first place, for him to grant any interest (like a charge or a lease) in the land to someone else (such as a chargee or a lessee).

In light of CIMB v AmBank, it is clear that the above statement cannot stand. It is now clear that a charge (in favour of AmBank) will subsist even though the person who made the charge was not entitled to the ownership of the property in question (Wong). The majority reasoning may have been a long time coming, considering that the Federal Court at Paragraph 26 of Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1 disapproved of the OCBC decision in obiter.

It was unfortunate that the majority judgment did not comment on the OCBC case. I believe that it would have been beneficial to do so, considering that the OCBC case also related to a two-stage transaction (i.e. of transfer and charge), yet OCBC’s interest was defeated. Since it was not overruled, we may still see counsel distinguishing CIMB v AmBank on the facts and preferring the OCBC case to defeat a registered charge.

Concluding remarks

All in all, I agree with the outcome of this decision. Surely, it is not feasible to deprive innocent chargees of protection in the absence of any principal-agent relationship (see: Abu Bakar Ismail v Ismail Husin [2007] 3 CLJ 97). Thus, the answer to the leave question could have only been ‘no’. Also, I prefer the majority decision’s ruling that there was a two-stage transaction.

It is clear from CIMB v AmBank that the concept of deferred indefeasibility reigns supreme and that there is still much room to expand on the jurisprudence relating to indefeasibility, particularly with regard to charges. I look forward to witnessing the continued maturity of this area of law.

How to land a job as a paralegal in Malaysia – and ace it

The author discusses the tricky business of applying for paralegal work in Malaysia and the lessons she learned from applying for a role that was not advertised.

job-interview-concept-vector
Vector Art by vecteezy.com

One of the most frequent questions I have gotten recently is,

“Actually, what do you do?”

I have been working as a paralegal for the past eight months. Some in the industry may be familiar with the fact that the firm employing me does not normally take in paralegals. So, when someone asked me, “so, did you get here through a relative or a friend?” I was not surprised (my answer was ‘no’).

So how did I do it? Here are a list of things I did and the lessons I learned.

vector-job-seeker-illustration
Vector Art by vecteezy.com

1) Apply, apply, apply

Like most foreign law degree holders, I was not a ‘qualified person’ under section 5 of the Legal Profession Act. This meant that I was not entitled to petition the court for  admission as an advocate and solicitor. While working towards becoming a ‘qualified person’, I needed financial support and craved legal experience. So, I applied for entry-level positions at law firms.

At the job application stage, I sent my CV and personalised cover letters in response to job vacancies displayed on the websites of law firms and platforms such as OfficeParrots, JobStreet and JobsBAC. I also combed through the list of job vacancies publicized by the Malaysian Bar. Not wanting to limit myself, I even emailed law firms that did not showcase any job vacancies suitable for my level of experience and qualification – that was how I got my current job!

My advice: Don’t be afraid of thinking out of the box when applying for jobs. This applies to every stage of the job application process. Be bold and dare to deviate from commonly used phrases and ‘safe’ CV templates. After all, it has been reported that recruiters spend mere seconds reviewing a single application. When I took the initiative of emailing firms that were not actively recruiting, it probably bought me a few more seconds for some screenings.

Be patient and stay enthusiastic about every application. Companies and firms are not obliged to respond to you immediately and many of them may take days, even weeks to reply to you (if they respond at all!). There is no “Last Seen” notification for email, so you will not know if and when your email has been read. However, it is important to remain dedicated in your job search and professional in your correspondence, even if it means restraining yourself from dropping an email to check in on your application when you know you shouldn’t.

2) Actively collaborate with your (potential) employer

Now for the exciting bit – I was invited to an interview for a role that was not advertised. Since the firm did not normally hire paralegals, I could not point any reviews of the position to outline my expectations.

However, I did not walk into the interview completely blind. There were three key points of reference which gave me confidence in my interview ability:

  1. I knew about the firm’s ethos, history and values from my own research;
  2. I also understood my short-term and long-term goals; and
  3. I was familiar with my strengths and weaknesses.

I only learned about the scope of the job during the interview. On the spot, I used the above key points to assess whether the job was a right fit for me and whether I was a right fit for the company. That’s right – it wasn’t just about taking whatever I could get. Although in recent times, employers have lamented that fresh graduates should lower their standards, I strongly believe that individuals should set minimum standards and ensure that their personal interests are protected. It is healthy to set reasonable baseline expectations relating to travel distance, minimum salary, benefits (if any), among other things.

My advice: Be prepared to defend your baseline expectations and ask the relevant questions. Provided that your standards are reasonable, the interviewer may even be impressed with how self-assured you appear. For example, if you told yourself that you would turn down the offer if the pay is below X amount (for good reason), stick to that promise. Be aware of the power that the interviewer wields over the conversation, but do not be pressured into agreeing to terms that are incompatible with your baseline expectations. If you are offered a job on the spot, you are entitled to ask for some time to think about it.

Be honest with what you can offer the firm. Since I planned to work full-time while preparing for the CLP part-time, I made my priorities very clear in all the interviews I attended.

the-perfect-idea-concept-vector
Vector Art by vecteezy.com

3) Be inventive and resourceful

My official job title is ‘Paralegal’. ‘Legal Executive’ is also another commonly-used title for similar work in other firms. Like interns, paralegal work is often fluid and open-ended. Here is a useful and concise summary of the differences between interns, paralegals and secretaries / clerks. However, because my role is relatively new, my job scope is arguably even more fluid and open-ended than usual. I have been emboldened to do things without being asked, such as drafting outlines of litigation strategy. Of course, this had not been possible without fantastic superiors.

My advice: Try out new things! Being inventive is not the sole domain of those with newly-added roles like mine. Don’t banish yourself to the photocopier or coffee machine. Don’t fall into the trap that thinking that law does not allow you to be creative. Constantly think of ways to improve not only your own efficiency, but also your firm’s efficiency.

If you have extra time on your hands, ask for greater responsibility. This can be as simple as offering help, or as challenging as identifying niches to be filled. An example of the latter: if your firm does not circulate legal updates / related news internally, maybe you could volunteer to take up that mantle. Conversely, if you feel like you are doing too much, you might want to set boundaries for yourself (e.g. No Work Rule on weekends) and negotiating with your boss to reduce your workload.

A non-exhaustive list

There are many other tips that you can glean from a quick Google search, like asking someone else to proofread your CV and being on time for an interview. A lot has already been written on the subject, but I wanted to put a personal spin on it. I hope that you enjoyed reading this article as much as I enjoyed writing it.

Equality under the law: A woman’s friend or foe?

balance-154516_640

International Women’s Day (8 March) has dawned on us once again. Regardless of ethnicity, most of us Malaysian women will not think much of the occasion as we collectively ease into the busy period that is post-CNY. At best, International Women’s Day punctuates our busy lives in the form of commercial advertisements, seizing upon the message of the day which is ‘You Deserve Better Rights‘ and turning it into ‘You Deserve Better Things‘. This is a simple but effective marketing strategy.

Jokes aside, anyone with a passing knowledge of the women’s rights movement will appreciate the importance of International Women’s Day. It is a reminder of how far we have come. Despite this, we have not yet achieved gender parity. Sexism/gender discrimination is a universal phenomenon.

In lieu of the occasion, I wanted to pose the following question to readers of this blog: Does ‘equality under the law’ help or harm women? Some of you must be thinking, ‘of course equality under the law helps women, don’t they want equality?’ Not so fast. If everybody had the same interpretation of the term ‘equality’, there would only be disagreements over whether women deserve equality or not. However, even among proponents of equality there may be disagreement over what equality should be. There is a narrower definition called formal equality and a broader definition called substantive equality.

main-qimg-4f5adf70f6d4a549a858f611ad70ead8
Interaction Institute for Social Change | Artist: Angus Maguire

Formal equality (“Equality”)

For ease of understanding, formal equality is depicted in as ‘Equality’ in the above illustration. This model provides that all individuals, regardless of gender, sex, race, class, etc. will be treated alike under the law. For example, individuals are governed by the same laws of contract regardless of their background. As an illustration, imagine being a pisang goreng vendor in Klang. You are a rich man. You enter into an oral agreement with a customer but they refuse to pay up and also dispute the terms of the agreement. The chances of winning a civil suit against this person depends on how the courts construe your agreement in light of the existing legal principles. The same legal principles would apply even if you were a poor woman. Seems fair, right?

Yet, because you are a rich person, you are able to sustain the legal suit for a longer period than you would have if you were poor. Since the agreement was not written, the court must decide on the balance of probabilities whose evidence is more compelling, so if the judge is sexist, you stand a better chance convincing the court as a man than a woman. Although the laws apply equally to all, the outcome differs when certain variables are tweaked, despite the merits of your case.

Substantive equality (“Equity”)

Substantive equality accounts for the wider social context and mainly concerns itself with equality of access/opportunity. The law is then modelled with the disadvantaged in mind. For example, substantive equality may be done where legal aid is automatically given to those earning below a certain level of income or 90-days maternity leave is made mandatory within the judicial service to encourage gender diversity. With those policies/laws in place, an environment is created so as to give even the ‘poor woman’ version of your pisang goreng story a shot at winning your case fair and square.

Some critics of substantive equality say that it generates inequality. They would say that men are disadvantaged because women benefit from statutorily mandated 60 days maternity leave, while men have no similar mandated law. However, it must be remembered that women are the ones recovering from pregnancy and are expected to bear the brunt of motherhood. Women are looked down upon if they shift the burden to their male partners and decide to take some time off for themselves. Another common criticism is that it fosters dependency and a victimhood mentality. This is a fair concern, as the purpose of substantive equality is to enable the disadvantaged to feel in control and in power, even when the reality appears otherwise. (P.S. The author is totally in favour of more paternity leave!)

Conclusion

In my humble opinion, substantive equality is formal equality with fries and coke on the side. In other words, it allows the creation of laws and rules with richer content and safeguards the interests of the community at large. After all, no one is an island and the more opportunities are given to people who need it the most, the healthier and happier society becomes. None of us had a choice in what families to be born in, what gender we would be assigned, nor what ethnicity we would inherit. Half of the world’s population didn’t get a choice to be born and assigned the so-called ‘weaker’ sex. Give us the equal opportunities, education and equip us with confidence. There is a lot of potential to be unleashed in each and every one of us, regardless of gender and sex.