“TIME-EFFECTIVE GROUNDS OF JUDGMENT” Y.A. DATUK WIRA LOW HOP BING Judge of the Appeals COurt, Malaysia

This is an excerpt of the Excellent speech of the learned Judge.

Judgment writing is an item of high priority in our judicial functions. Naturally, as Judges of the Superior Courts, we feel inspired by our iconic quality in this important task. In this presentation, I shall give an overview of my experience in trying to write time-effective Grounds of Judgment. My views are merely suggested solutions. There are no hard and fast rules. There is always room for intellectual dissent. We shine in sharing objectivity. Subjective sentiment is excluded. My analysis and discussion consist of two component parts. They are: (1) Effective time management; and Reader-friendly grounds of judgment.

 EFFECTIVE TIME MANAGEMENT Without a doubt, time is our most precious resource. In almost all modern contracts, parties and their legal advisers have never failed to expressly agree that “time shall be of the essence of the contract.” There are many special and unique ways of expressing the immense importance of time. These expressions include:
(1) A stitch in time saves nine;
 (2) Procrastination is the thief of time;
 (3) Time and tide waits for no man (woman also included);
 (4) An inch of time cannot be bought with an inch of gold;
(5) When time is wasted, it can never be recycled; and
(6) Yesterday is history, tomorrow is a mystery, today is a gift; that is why we call it “the present”.
[6] In the real world, time past is gone foreover; it is neither replaceable nor reversible. It may be a source of consolation to note that good judgments may survive the savages of time.

How can we make that happen? Time management is therefore singularly significant. The art of time management may be acquired and developed as a way of life. A well-organised individual can do so. There are always essential items in our priority list. Procrastination will prevent us from accomplishing our work. The ability to act timeously is an invaluable personal asset. The most effective time management begins with the best utilization of our efforts. Well arranged time is the hallmark of a well arranged mind.

MATTERS OF TIMELY CONCERN PRIORITY FOR MORE URGENT JUDGMENTS (a) Some judgments call for more urgent attention. They appear regularly on our own radar screen. They then become our “must-do” list of judgments. (b) It is a salutary practice to give priority and put pen to paper without any delay. Once we get started, we have already eased the situation. It has taken priority. The judgment would then be given the due attention it deserves. Further delay is eliminated. The chances are that the judgment would be completed more speedily. (c) The completion of the first draft is certainly a source of great comfort. The process of writing consists of numerous small steps in our overall timeline for the whole judgment. We have our own gentle reminder of the urgency to continue and complete the judgment. That will assist us in going ahead with an on-going task. 

INTELLECTUAL QUALITY In the discharge of our judicial duties, we have to peruse authorities and extract the principle or ratio from them. This is a skill which is generally manifested in our respective experience. Our established intellectual quality will expedite positive comprehension of the tenor of the authorities and accurate application of the ratio. Such quality motivates us to write with comfort and confidence. It is an obvious time-saving device. INSPIRATION Inspiration is an important catalyst in managing time, for the purpose of writing judgments. Generally, we know our own best time to write. It is when we feel we are inspired. We are our own judges in this regard. This is a very special individual lifestyle and habit. Only we can monitor our own best time. It is a process of individual discovery. It is a work programme personal to the planner. We can use our best time to give our competent best.

 COURAGE TO BE SLOW (a) This is a pleasant surprise. We need some courage to be slow, but the delay must be within the bounds of reasonableness. The courage to be reasonably slow does not mean dragging our feet. It must not be a non-starter. (b) When the task of writing a particular judgment involves facts and issues of exceptional complexity, reasonable slowing down may prove justifiable. (c) A Judge who is a good time manager may cautiously respond to certain facts and issues less speedily than a hasty colleague would. Remember “more haste, less speed”. A hastily ill-prepared judgment is a wasted judgment. (d) Quite often, it is necessary for us to put aside the draft for a while. Let our mind rest, so that our judgment is not rash. (e) While this may appear to run counter to time constraints and multiplying matters at hand, a cautious slowing down for of a couple of days may prove useful. Subsequently, we may be able to discover points not previously spotted. We may gain new insights and accumulate new ideas. Most importantly, the completion of the judgment has become a reality. 

READER-FRIENDLY GROUNDS OF JUDGMENT With a view to preparing time-effective grounds of judgment, it may be worthwhile to take stock of the following:

PRACTICE DIRECTION DATED 14 FEBRUARY 2011
(a) Full Grounds
(i) The Rt Hon the Chief Justice Tun Zaki Tun Azmi has vide Practice Direction dated 14 February 2011 thrown some light on the necessity for Court of Appeal Judges to write full grounds. The Practice Direction also explains that Judges are not discouraged from writing full grounds. (ii) Full grounds are usually written upon request by the Federal Court e.g: (iii) When a party applies for leave to appeal; and the Federal Court considers it necessary to peruse the grounds; When leave to appeal has been granted and notice of appeal has been filed; In the event of a dissenting judgment, the “majority” judges and “minority” judge would provide their respective grounds; Where the Court of Appeal reverses a decision of the High Court; or When a Judge enjoys writing for posterity. The contents of full grounds would generally include a fair, clear and accurate statement of the factual background, an application of the relevant rules or ratio and an analysis of the findings. (iv) Full grounds are useful in the analysis of the complexity of the facts and the importance or novelty of the issues raised.

(b) Broad Grounds (i) Broad grounds are given, normally ex tempore, in order to explain to the parties and their lawyers the brief reasons and rationale leading to a particular decision. (ii) Point forms for broad grounds are encouraged. This is to inform the parties or the Federal Court of the issues and principles on which the decision is made. Only the relevant parts of any authority e.g page and paragraph need be mentioned. The broad grounds would become the grounds of judgment and no further or additional grounds need be given: Dato’ Seri Anwar Ibrahim v PP [2010] 9 CLJ 625 FC.

(c) Short Summary of Finding It is also quite common for the Court of Appeal to provide a short summary of the Court’s finding at the conclusion of the hearing of an appeal. This serves to announce to the parties and their lawyers the brief decision of the Court.

(d) Full grounds, broad grounds and a short summary of finding given by the Court of Appeal serve to reflect the judicial thinking of the Court of Appeal Judges.

Although the Practice Direction refers specifically to the Court of Appeal, I am of the view that it may be applied and adopted, mutatis mutandis, by the High Court.

 AVOIDING NON-ESSENTIAL QUOTATIONS
 (a) Where the governing principles of law are trite, a mere citation of the latest decision of the apex court would suffice. Citation of strings of authorities and an elaborate dissertation may not add anything new. On the contrary, it would be time-consuming, and unlikely to be reader-friendly. Quotations from the plethora of authorities would become non- essential, and may safely be dispensed with. Similarly, only the essence of counsel’s submissions need be included. (b) The time-demanding inclusion of non-essential quotations and submissions would not stop there. It has a chain reaction. It leads to the demand on the time of our busy readers. This ripple continues to multiply. The readers may simply plod on and make a perfunctory attempt to read. Alternatively, they may proceed with their own preferences for other more resourceful pursuits.

LANGUAGE: LITERATURE AND LAW
(a) Literature and law are two positive contributors towards superb writing, by means of language. For people who are trained in the law, language is our single most important tool. (b) The importance of language in literature and law is plain and obvious. (c) Language provides the bridge for literature and law. The development of literature and law would grind to a halt if language were never in existence. There is a symbiosis between literature and law. (d) Although literature and law share identical features, they also reveal opposing attributes. Opposites attract, in the same way as unlike poles in magnets. A love for literature opens the gateway to an understanding of the law. (e) Literature extols the virtue of originality. The authority of a literary author gains an elevated status if his/her works had never been previously explored or written. (f) In law, the reverse is true. By reason of the doctrine of stare decisis, originality has taken a back seat. An accurate application of the legal principles taken from judicial precedents, especially of the apex court, would give greater authority and weightage to a subsequent judgment. Relevant and essential excerpts from precedents are reproduced. Recognition is given by way of specific citation of the source(s). (g) In terms of identical features, literature consists of literary works which are expressed in narratives. Law (whether in the form of statutes or judgments) consists of literary works, also in the form of narratives. These narratives are produced and narrated by means of language which in turn is expressed in words and phrases. (h) These narratives provide the pith and substance or the shape and meaning to literature and law. Literature is therefore supplementary and complementary to law. A mastery of the language in literature would certainly multiply the understanding of the law. This can bring about reader-friendly judgments. Our grounds of judgment are essentially the products of the raw materials which we have gathered in our experience, knowledge and skill, acquired from these two (or even more) sources.

 PROCESS OF WRITING (a) ORGANISING THOUGHTS
(i) Organising our thoughts would normally precede the process of writing. This is our mind-map. As a guide, it consists of introduction, factual background, submissions, questions for determination, individual issues for deliberation, governing principles, the judge’s thinking and conclusion. (ii) Where available, deputy or senior assistant registrars, research or special officers would lighten the onerous duties of Judges. (iii) While these officers are relatively senior in service, and generally useful, they are certainly not substitutes for Judges. They have only a fraction of the Judges’ practical experience. Their limitations are apparent. (iv) The ultimate responsibility in producing quality and reader-friendly judgments rests on the Judges’ shoulders. Hence, Judges play more important roles and are not merely editors. Judges are indeed the authors of their own masterpieces in the form of published judgments. (

b) INTRODUCTION (i) The introductory part of a judgment opens the reader’s door to the contents of the judgment, such as: . The subject-matter of the case; (c) .. The parties, using the same identity throughout so as to avoid confusion; ... Procedural jurisdictional and substantive issue(s) if any; and .... A summary of the decision. This is a matter of personal preference; some judges prefer to include it at the end of the judgment. FORMULATING ISSUES (i) This is dictated by the factual background and counsel’s submissions on the law. (ii) While the issues are frequently formulated according to submissions from the Bar, Judges are not necessarily bound to do so. There may be occasions when submissions are out of focus, and therefore not in tandem with the issues under consideration. In such instances, an experienced Judge will have to realign so as to bring it within the focus and on course. (iii) Not all issues raised would require the decision of the Judge. It is an established practice to give a summary of parties’ elaborate contentions, and to avoid unnecessary regurgitations. It would be a safe guide if the core or crucial issues are tackled, especially when they effectively bring about a disposal of the case. (iv) To avoid the criticism that those issues were not dealt with or were dealt with inadequately, it is prudent to add a brief catch-all statement that those issues had been taken into account and found to be either irrelevant or unhelpful. A few words of commendation to counsel would be in good order.

 FACTUAL BACKGROUND (i) A narrative of the factual background puts the entire case in its proper perspective. There is a time-honoured saying that when the facts are clearly and accurately established, the law will take care of itself. (ii) The facts may vary from case to case and hence readily distinguishable. However, the governing principles of law may well be settled or trite. A correct application of the law to the factual background becomes a natural progression. (iii) Irrelevant facts can be distracting to the reader and would adversely affect readability. They can be dispensed with. Readers should not be led to think that a judgment is based on irrelevant facts.

(e) APPLICATION OF PRINCIPLES (i) An accurate discussion and application of the governing legal principles would strike at the core of a sound judgment. A well-considered judgment has its roots in strong foundation and solid grounds. The reader will be able to form an opinion on the quality and substance of a judgment. (ii) Quite often, a judgment may contain “alternative holdings”. While this method may sometimes be necessary, it may unwittingly (iii) water down the weight of a judgment. The expressions such as “even if the facts were otherwise” or “assuming arguendo that we had not concluded thus and so ....” may, in the eyes of the reader, indirectly dilute the tenacity of a judgment. Judicial opinions arrived at by way of “alternative holdings” are likely to be treated as obiter dictum and not ratio decidendi. Novel principles of laws would warrant an in- depth analysis to support the reasoning for the new rule.

(f) CLOSURE OF CASE This leads to the conclusion of a case under consideration. This must be clearly and authoritatively set out. It must not be overshadowed in riddles. The conclusion must follow the preceding analysis and discussion.

(5) OTHER FEATURES Features of reader-friendly grounds of judgment are never closed. In addition to the above discussion, other features include: (i) Exclusion of unnecessary words so that every word is essential, concise and succinct; (ii) Avoidance of lengthy discussions in uncontroversial propositions; (iii) Ability to identify the relevant from the irrelevant; (iv) Capacity for precision and clarity; (v) Accurate and careful proof-reading to ensure correct spelling, grammar etc; (vi) Display of commendable quality of authorship; (vii) Logical process of reasoning and analysis; (viii) Expressing complex concepts in comprehensible language; (ix) Using interesting, elegant, plain and popular words, so that the reader’s reference to a dictionary is kept to the barest minimum; (x) Pruning convoluted sentences; and (xi) Eliminating ambiguities.

 IV. CONCLUSION: POEM ON “JUDGMENTS” Capacity building in order to excel in effective time management is possible. Our passion for quality judgment writing is always there; it is be found in our own garden of experience, knowledge and skill. By way of conclusion, I find it fitting and fascinating to share a “JUDGMENT” poem with you.

It reads: JUDGMENTS Judgments with readable grounds are products of intellectual exercise, Using powerful expressions acknowledged as inherently apt and concise, Decision-making process requires evaluation which is fair and precise; Great writing is readily identifiable as being refined and reader-friendly, Mastery of language and communication skills are applied accurately, Excerpts, where relevant and essential, are reproduced judiciously; Novel principles of law deserve detailed exposition after due deliberation, Time-effective measures are ably adopted with boundless satisfaction, Soundness of rationale and wisdom is to be determined by future generation.

7.9.2011 PER DATUK WIRA LOW HOP BING JUDGE COURT OF APPEAL MALAYSIA

The closing of a Company.

There are , are 3 methods in which close a company can be closed down:-

Strike Off
Members Voluntary Winding Up
Creditors Liquidation

Striking off falls under Section 308 of the Companies Act 1965.

The Companies Commission of Malaysia guidelines and procedures are as follows namely, the company:-

o Must be dormant at the point of application.

o All bank accounts have to be closed.

o Has no assets or liabilities and free from encumbrances including no penalties and compounds under the Companies Act 1967, no outstanding tax or other liabilities with any government department or agency and not involved in any legal proceedings within or outside Malaysia.

o Is not a holding company of another corporate body.

The Advantages of Striking Off are; Costs, SSM striking off fees are lower, RM120 per application, the time period quicker, all the documentation required is the Applicant’s Statement, Members’ Resolution and Latest audited accounts

Striking Out is at the discretion of the SSM.

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TH Properties hungry for more infrastructure jobs