Sunday, March 1, 2009

Thou Shalt Not...Steal


Do you know that you can steal your own property? Theft is a common offence and usually understood to involve the taking of someone else's property without permission. The law however does not make a distinction between ownership and possession and theft is defined as dishonestly taking any movable property out of the possession of any person without that person's consent.

In law therefore, if I send my car to the workshop for it to repaired and then simply take it away without paying the repair charges, I am committing theft. The workshop has legal possession of the car at the time even though I have ownership. Therefore to remove it out of the possession of the workshop is theft.

It is not theft if I ask my friend to send the car to the workshop but instead he sells the car. He was in lawful possession of the car but by selling it, he is committing a criminal breach of trust. Similarly, if a person finds a diamond bracelet lying on a public road, by taking it he is not committing theft since it was not in anyone’s possession. If however, he simply keeps it without trying to find its owner or handing the bracelet to the police, he is committing criminal misappropriation of property.

Under the law, simple theft is punishable with imprisonment for up to 3 years. More serious forms of theft such as theft from a building or theft by a servant attract a more severe penalty which is imprisonment for up to 7 years.

Another aggravated form of theft is robbery. Robbery occurs when theft is accompanied by violence or threat of violence. The violence or threat must be in order to commit theft. If a thief pushes a person to the ground in order to take the victim's wallet, then that is robbery. If however he pickpockets the wallet from the victim but later kicked him "for fun", then that is not robbery because the violence was not inflicted to commit the theft. He can however still be charged for theft and causing hurt. Robbery is punishable with a maximum of 30 years' imprisonment and mandatory whipping. If a weapon is used, there is a minimum sentence of 7 years' imprisonment and 12 strokes of whipping. Incidentally a lot of people had gone into trouble for their aggressive tactics in debt collection. Remember that though you are entitled to be paid, you cannot "persuade" the debtor to make payment by force. Otherwise, instead of being paid, you have to pay a lawyer to defend you on a charge of extortion or robbery.

Tuesday, February 24, 2009

Merdeka!

I was at the Stadium on Monday to witness the National Day Silver Jubilee celebrations. I also attended the first National Day celebration at the same place in 1984 (I'm feeling really old now!). Maybe my memory is a little hazy but I sort of remember that the first National day celebration was a much grander affair. His Majesty in his Titah this year recalls the developments in this country not only for the past 25 years but beyond. I think it is therefore appropriate to reflect on the developments in the legal field to see what had been achieved and where we are heading.

To understand the current legal system, we need to go back over 100 years. No surprise, the 1906 agreement with Britain not only brought a new system of administration, the whole legal system was totally overhauled- orang putih Resident using orang putih laws in orang putih courts. Never mind the locals who had been applying a Syaria derived code known as Kanun Brunei at the time. The Courts Enactment 1906 in essence established the legal system as we know it today. The highest court for Brunei at the time was the Courts of Straits Settlement. The highest local court was the Court of the Resident followed by the Magistrate Court First Class, Magistrate Court Second Class and the lowest in the tier the Kathi Court. Thus began the parallel system of civil courts and the religious court which exists until today. The same enactment also imported the laws from the Straits Settlements derived from English common law and no surprise that our legal system is still based on the common law. Most of our written laws are similar to those countries sharing the common law heritage in particular Malaysia and Singapore.

So what has changed in the last 25 years? There has been a marked increase in the number of locals in the Judiciary-0 local High Court Judges in 1984, 3 now. All the Magistrates are now local. But the Chief Justice, the President of the Court of Appeal and the Court of Appeal Judges are still foreigners. We had less than 10 lawyers in the Attorney General's office then, we have over 80 now. The majority of private lawyers are now locals compared with just a tiny minority before. Some things changed but a little. As stated above, we still have a parallel system of courts. The jurisdiction of the Syariah courts, the reincarnation of the old Kadi courts, is still in general restricted to Islamic family law matters. We have His Majesty's commitment to a unified legal and judicial system eventually but the progress is slow. Will there be much progress in the next 25 years? The legal system is notoriously slow to change. I simply hope to see a local Chief Justice and appeal court judges in my lifetime. That would be progress indeed.

Sunday, February 22, 2009

Get Set Go-PaPa Law Second Season

After a really lengthy hiatus, I am ready to begin again for a second season. Think of this blog as American Idol or Akademi Fantasia. Those shows only last for 10 weeks or so and then zilch, nada! Just like those shows, I will (fingers crossed) post at least once a week until the end of the current season.The first post is tomorrow, so stay tuned!