VO L
4
Case review on cannibalism
Cannibalism & Murder
of Richard Parker
By Ernie Melini Mohd Jamarudi
T
his story is based on a decided case law in the year of 1884 known as R v.
Dudley and Stephens. Three seamen namely Thomas Dudley, Edward Stephens
and Brooks and also a boy aged between 17 and 18 years old known as Richard
Parker were stranded in the middle of the sea for many days (possibly more than 20
days) with no food supplies except for two 11b tins of turnips. To avoid from further
starvation, the two seamen, Dudley and Stephens (while Brooks disagreed) decided
to kill the boy and ate him. The two reasons for choosing to kill him were firstly
because he was the weakest among them and secondly was because of their selfinterest in having their own families in the future. Therefore, they should continue
to live. Brooks was excluded in the process of making the decision of killing the boy. Both Dudley and
Stephens enjoyed the boy’s flesh and blood for the next four days after he was killed.
This case is a murder case. Somehow, the circumstances involved in
pursuing the murder have to be considered. Why did Dudley and Stephen
killed that boy? Why did they choose to kill that boy? Why didn’t they
kill one of them instead of that boy? Clearly, it was mentioned in the
case text that the boy was killed because they were hungry and he was
the weakest. Without killing him, they might not survive and it was
necessary for them to kill him since there was no legal system to object
their desire and necessity to do so. However, that was not the decision
that the Court had in conclusion.
“So spake the Fiend and with necessity. The tyrant’s pleas, excused
his devilish deeds” said Lord Coleridge, one of
the Judges in this case. Even though, the case in
nature was not for devilish deeds but the Court in
unanimous decision opined that ‘…such principle
once admitted might be made the legal cloak for
unbridled passion and atrocious crime’1. To maintain the consistency of the law
in criminal decision for murder case, it was held that Dudley and Stephens were
sentenced to death.
1
The Queen v. Dudley and Stephens [1884] Divisional Court
Editor’s
Patrons :
PM Dr. Baharom Bin Ab. Rahman
Dear friends and colleagues,
Advisor :
As usual, we are back after yet another long break! This time, we hope to
bring you more interesting articles for your reading pleasure. Our beloved
coordinator, Miss Siti Marina Amit is making a comeback with a book
review! Other articles will give you some insight on intellectual property and
patent law plus a case review on cannibalism!
Cik Siti Marina Amit
Editorial Board:
Chief Editor:
Jusniza Abdul Jamal
Co Editor:
Ernie Melini Mohd Jamarudi
Contributors:
Cik Siti Marina Amit
Puan Wan Mardiana Wan Musa
Puan Rosmawati Abdul Rahman
Cik Ernie Melini Mohd. Jamarudi
Puan Noorimah Misnan
Puan Syafini Muda
Puan Shahariah Harun
Cik Hawa Ilhayuni Mohd. Ghani
The 4th Volume of Legal Digest also features a contribution from a practicing
lawyer, Miss Hawa, (who is currently a Legal Advisor at a famous law firm
in Dungun) with a very interesting article on baby dumping. Don’t miss
our 2 new columns featuring ‘Law Babies’ and ‘Faculty’s Activities’ with
colourful photos to show off! Find out who the lucky mothers are!
This year the Law Faculty grew bigger with another addition of a new
lecturer. Welcome aboard Hasmidar binti Muslehat (affectionately known
as ‘Ida’) who graduated from UIAM early this year. We hope that Ida will
become an added value to our small faculty!
I would also like to express my gratitude to every member of the Law Faculty
for their contribution and endless support especially my boss, Miss Siti
Marina Amit, for still believing in me. To my co-editor Ernie, thank you
so much for making the Legal Digest shinier than the previous issue. And of
course, Legal Digest would not have been possible without the helping hands
of Mr. Gopala, Pn. Roziani and Abd. Rani from UPENA. Thank you so
much you guys!!!
Last but not least, Happy Hari Raya
Aidil Fitri to all our Muslim friends!
May our lives always filled with
happiness and blessing from Allah
s.w.t.
Happy reading!
LAW BABIES 2012
The year 2012 welcomed 2 new additions to the Law
Faculty Family. Wan Mardiana (Diya) gave birth to a
bouncing baby boy named Ahmad Muadz bin A. Faizal.
He is Diya’s first born. Muadz was delivered through a
caesarean section at Selangor Medical Centre on the
22nd of January, weighing 2.85kg at birth.
On the 19th of March, Syafini delivered her fourth baby
girl, Aisyah binti Mohd. Zabidi, at the Kuala Terengganu
Specialist Hospital (KTS). Like Diya, Fini also had to
endure a caesarean section due to a condition called
placenta praevia. Baby Aisyah just weighed 2.5kg at
birth.
We wish both mothers and babies happiness and health
for the years to come!
PREETY GIRL AISYAH
MUADZ IS SUPER CUTE!!!
Move Over
Harry Potter?
By: Siti Marina Amit
Harry Potter since J.K. Rowling took his place as
The Bestseller of the World. Even though I do not
think that he will catch Harry Potter with this
book, but I certainly am glad that he wrote this
book.
Since this book is meant to be an introductory,
so it introduced us to Theo, the main character,
an only child to a lawyer couple. His uncle is Ike
Boone, who was a lawyer but been disbarred.
His best friend is April and his favourite judge is
Judge Gantry. Mr Mount is his homeroom teacher
(I certainly can relate to Mr Mount since he has
legal background but opted teaching in the end).
His love is law (he even represented his friend
in Animal Court) and his playground is County
Courthouse. He went back and forth on his future:
a famous trial lawyer who never loses a case or
a great judge known for his fairness and wisdom.
Browsing around bookstores nowadays, I cannot
helped but be amazed by the varieties and quality
of young adult literatures on sale. I remembered
the first time I discovered Harry Potter and the
Philosopher’s Stone. I was so thrilled by the sheer
amount of fun it provided. I was taken away into the
world of magical adventure, mystical creatures,
dungeons, potions, wizards and witches. I was so
addicted that I forced my friend to go to MPH
Mid Valley to get me the promotional edition
of the last Harry Potter’s instalment that came
with its own special edition mug and paper bag.
Irritatingly, she asked, “How old are you again?!”
Who was my delivery man? Our very own TY, who
was, then, our Director (when I am hooked, I am
shameless..). So, what’s this got to do with law, I
heard you asked.
Well since then, I came across a few more
marvellous books that were written with children
or young adult in mind. And most recently I found
a kid lawyer by the name of Theodore Boone.
This book entitled Theodore Boone: Kid Lawyer
by none other, Mr John ‘marvellous’ Grisham.
In an interview, Mr Grisham was asked why he
wanted to write a book specifically for 7-13 years
old. Jokingly, he told that he was trying to catch
The main story in this book revolves around the
trial of Peter Duffy who was accused of murdering
his wife. The Prosecutor’s case looked to be
circumstantial and Peter will most probably walk
away guilty free. But accidently, Theo came
across incriminating evidence and a witness that
will turn the whole defence case upside-down.
Then the legal drama ensues........................
To me, even though this book lacks the gripping
suspense legal drama that we associated so well
with Grisham, I, however, like the idea that this
book is attempting to ignite an interest in law
for kids. There are enough legal jargons and
circumstances to kick start a discussion on law. I
could easily envision myself using this book in my
class. There are many aspects in this book that
are up for discussion. For example the criminal
procedures, court room setting, officers of the
court, issues on justice and even if law is not up
your alley, there are aspects of ethic and moral
and even language that can still be discussed.
This book has an open ending, so do not expect
that you will get all the answers to your questions.
There are two more books in Theodore Bonne’s
series so far.
All in all, 3 1/2 stars out of 5!
OOPSSS..!
IT’S NOT YOUR RIGHT
TO CLAIM THAT…
By : Wan Mardiana Wan Musa & Noorimah Misnan
Dr. Smith, an independent chemist
had spent 5 years to find, develop and
perfect the drug for H1N1 treatment
and dreamt of making it big with
the finding. A patent was applied
and granted. He was over the moon
to be offered a handsome royalty
for the use of his patented drug by
Modern Pharmaceuticals, which he
immediately accepted, finally being
able to enjoy the fruits of his labour.
Recently, he found out that a group of
researchers led by Dr. Hilman used his
patented drug composition without
his permission. The research was
funded by Jugah College University.
He was angry and above all devastated
to learn that all his hard work was
exploited by others.
It is not uncommon nowadays for
researchers to be in the same shoes
as Dr. Smith. Yes, the research was
done, successfully registered in the
patent office and should be well
protected. But, how on earth the
sweat of our brows can easily be
‘stolen’ by others? How to assert our
rights to it and claim that the patent
is exclusively ours?
It is true that Malaysia Patents Act
1983 (Act 291) provides protection to
researches by giving exclusive rights
to those registered with the patent
office. Section 36 provides as follows:
(1) Subject and without prejudice
to the other provisions of this
Part, the owner of a patent
shall have the following
exclusive rights in relation to
the patent:
(a) To exploit the patented invention;
(b) To assign or transmit the patent;
(c) To conclude license contracts.
(2) No person shall do any of the
acts referred to in subsection
(1) without the consent of the
owner of the patent.
(3) For the purposes of this Part,
“exploitation” of a patented
invention means any of the
following acts in relation to a
patent:
(a) When the patent has been granted in respect of a product:
(i) Making, importing, offering for sale, selling or using the product;
(ii)Stocking such product for the purpose of offering for sale, selling
or using;
(b) When the patent has been granted in respect of a process:
(i)
Using the process;
(ii) Doing any of the acts referred to in paragraph
(a), in respect of a product
obtained directly by means of
the process.
(4) For the purposes of this section,
if the patent has been granted
in respect of a process for
obtaining a product, the same
product produced by a person
other than the owner of the
patent or his licensee shall,
unless the contrary is proved,
Patents Act 1983 (Act 291), Section 36
Whittermore v Cutter1 Gall. 429, 29 F. Cas. 1120, 1121 (C.C.D. Mass. 1813) (No. 17,600).
3
Byam v. Bullard, 1 Curt. 100, 4 F. Cas. 934 (C.C.D. Mass. 1852) (No. 2,262).
1
2
be taken in any proceedings
to have obtained by that
process.1
However, the exclusive rights given
are not absolute as the Act also
provides limitation to the rights.
Hence, it is not an infringement
for a person or group of people to
perform what are not protected
by the Act. Section 37(1) of the
Act provides as follows:
The rights under the patent shall
extend only to acts done for
industrial or commercial purposes
and in particular not to acts done
only for scientific research.
Thus, carrying out experiments
does
not
amount
to
an
infringement of a patent.
What amounts to scientific
research? It is very important
to define the term to avoid the
rights of the patent owner from
being jeopardized. The term
has been described by various
case laws as early as in the 17th
century. For instance, in the
case of Whittemore v Cutter
(1813), an English case whereby
the circuit judge held that the
legislature will not punish a man
who constructed an infringing
device merely for philosophical
experiments or for the purpose
of ascertaining the sufficiency
of the machine to produce its
described effects.2 In Byam v
Bullard (1852), the court held
that the research must be for the
purpose of amusement to satisfy
idle curiosity or for strictly
philosophical inquiry.3
In the more recent case of Roche Products Inc. v Bolar Pharmaceutical Co., (1984),4 the decision of the court marked
the change in the well-established law which extends the limitation to carry out scientific research in order to
obtain the authority’s approval before a product can be legally put to the market. This allows generic products being
produced prior to the expiry of the patent.
The 1983 Act provides the same in Section 37(1A). It provides:
The rights under the patent shall not extend to acts done to make, use, offer to sell or sell a patented invention
solely for uses reasonably related to the development and submission of information to the relevant authority which
regulates the manufacture, use or sale of drugs.5
The above provision means that not only scientific research can be done using the composition of the patented
product; it can also be used in developing generic products before the expiry of the patented product. Thus, allowing
the generic to enter the market as soon as the patented products expired. It should also be noted that duration of a
patent as provided by Section 35(1) of the Act is 20 years from the filing date of the application.
As for our dear Dr. Smith, there is no use of whining or complaining against Dr. Hilman and his group of researchers.
After all, it’s really not his rights to claim anything!
4
5
Roche Products Inc. v Bolar Pharmaceutical Co., 733 F.2d 858 (Fed.Cir.04/23/1984)
Patents Act 1983 (Act 291), Section 37(1A)
JOKE 3:
What’s wrong with Lawyer jokes?
Lawyers don’t think they’re funny, and nobody else
thinks they’re jokes.
LEGAL
LAUGH
JOKE 4:
Extracted By
ERNIE MELINI MOHD JAMARUDI
JOKE 1:
A couple of friends meet after a long time:
“I divorced my wife.” One says.
“Really? How did you do it?”
“We hired a lawyer who helped divide the assets and
stuff.”
“What about the kids?”
“Well,...we’ve decided that whoever got more money
would also take the kids.”
“That sounds fair. And who got them?
“The lawyer.”
JOKE 2:
Two lawyers, a father and son, talk in the office:
“Dad, I can’t believe I’ve lost that case. I don’t know
what to do!”
“Don’t worry, son. Lawyers never lose. The client is
the one who lost.”
LEGALLY WISE WORDS
Lawyer: “Law office, how can I help you?”
Caller: “Yes, I need an attorney for my grandson.... He
was arrested for stealing a car.”
“Okay, can you give me details?”
“Yes, he was at the bar and after he decided to leave,
he got in the wrong car and left with it. He didn’t
mean to do it. He was just confused.”
“What kind of car did he steal?”
“A charcoal-grey Jeep Liberty.”
“Okay, and what type of car does he have?”
“Oh, he doesn’t own a car…”
JOKE 5:
How do you get a group of lawyers to smile for a
picture?
Just say “Fees!”
Legal Laugh Sources:
http://www.usattorneylegalservices.com/short-lawyerjokes.html
http://www.lawlaughs.com/short/profession.html
Extracted By Ernie Melini Mohd Jamarudi
Compromise is the best and cheapest lawyer.
by Robert Louis Stevenson
That old law about ‘an eye for an eye’ leaves
everybody blind. The time is always right to do
the right thing.
Lawless are they that make their
wills their law.
by William Shakespeare
by Martin Luther King, Jr.
Justice that love gives is a surrender, justice that law gives
is a punishment.
Anybody who thinks talk is
cheap should get some legal
advice.
by Mahatma Gandhi
by Franklin P. Jones
Source: http://www.brainyquote.com/quotes/topics/topic_legal.html
FACULTY ACTIVITIES
2012
“Ukhwah Ramadhan”- 19th July 2012
In conjunction with Ramadhan Al-Mubarak, the Law Faculty took the opportunity to organize a charity
program to assist those who are less fortunate. The program aims to help them to prepare for Ramadhan
and the upcoming Aidilfitri. A total of 15 families in Kampung Bijangga Kuala Dungun comprising of
single mothers, participants of Poor People Development Programme (PPRT), persons with disabilities,
senior citizens and orphans, had been given Ramadhan Aid amounting to RM3450. Each of them received
RM150 and food supplies costing RM80 which included rice, sugar, flour, tea, biscuits, dates and cordial.
The success of Ukhwah Ramadhan was due to the support of the generous UiTM Terengganu staffs. On
behalf of the recipients, we wish to thanks all the donators for their overwhelming contributions.
Taklimat Undang-Undang, 14th June 2012
The Law Talk was held at Dewan Cemara. The objective of the Talk is to increase
knowledge and understanding among the UiTM Terengganu lecturers of the
procedures and regulations relating to the students disciplinary actions. The talk
which started at 9.00 am and ended at 12 noon, was attended by 150 lecturers.
The first speaker, Encik Azahari bin Abdul Aziz, talked about Akta 174 and the
Staff’s Responsibilities while Puan Jusniza Abdul Jamal gave a briefing on how to
handle invigilation of examination and the related problems. The talk aroused
much interest among the audience and many questions had been posed to the
speakers.
IMPOSITION OF CAPITAL PUNISHMENT
FOR BABY DUMPING CASES – An Overview
By : HAWA ILHAYUNI BINTI MOHD GHANI
*Advocate & Solicitor ° Syar’ie Counsel (Terengganu)
Baby dumping is one of the ‘never ending’ issues among our society. Women, Family
and Community Development Ministry once proposed that those who abandoned
their babies resulting in death should be investigated under Section 302 of the Penal
Code for murder. This proposal has been agreed by the Cabinet. More feedback
concerning the issue should be taken into consideration because such a decision
should not be made in haste since the problem cannot be resolved merely by using
legislation.
The general attitude of the public is that the individual who committed such an offence must be prosecuted
and punished. However, in reality only a few were prosecuted and fewer convicted under which most
of them went unpunished. The unsuccessful prosecutions of the offenders are due to inefficiency and
insufficiency of police investigation, lack of proper police documentations and poor testimony on the part
of the witnesses in court as well as poor expert evidence.
The severe penalty would help to reduce the number of baby dumping cases but there was no guarantee
that the death penalty would help curb this problem. For example, the penalty for drug trafficking is heavy
but people continue to be involved in drug trafficking. Apart from that, if this penalty is to be imposed,
greater cautions need to be taken. There should be sufficient investigation and evidence as there will be
greater pressure in the light of the burden of proof. For example, Section 2 of the Child Act defines child
as a person under the age of 18 years. A person is a human being and an unborn child or fetus does not
come within the meaning of a person, thus, is not entitled to any legal rights. This shows that a fetus has
no right of actions until born alive. Therefore, an individual cannot be charged for murder if the baby was
born dead and she decided to dump the body since verification is a must as to whether she dumps a baby
or body.
It would be preferable for preventive measures to be implemented rather than the harsher penalty. Capital
punishment may not be the solution to baby dumping cases as proper education should be given to the
youngsters in order to prevent them from committing such a crime. Sex education as well as access to
help for pregnant mothers outside wedlock would be preferable compared to punishing offenders with
the death sentence. Lack of proper guidance was one of the reasons for the baby dumping problem since
most cases involved youngsters. They are ashamed and afraid that their actions will result in rejection. As
a result of this uncaring environment of the society, instead of seeking for help, they chose to dump their
babies.
Measures such as counseling and family supports are important to prevent the youngsters from abandoning
their babies. In addition, censoring the internet contents, constant monitoring at massage parlors and
control of the open sale of condoms should be considered seriously to check on sexual activities. It may
not be possible to wipe out the menace completely but at least it could be prevented from becoming a
widespread.
*The writer is currently a Legal Advisor at Khairul Sofian Anuar & Co. (Dungun)
LAW
:
T
E
N
R
E
T
N
I
E
H
T
D
N
A
TRADE MARKS
ahariah Harun
afini Muda, Sh
Sy
,
an
hm
Ra
l
smawati Abdu
By: Ro
vs DOMAIN NAMES
The clash between the use of domain names in
cyberspace and trade marks in the terrestrial world is
one of the areas of dispute currently at the forefront
of legal debate in relation to the internet.
A trade mark is ‘a mark used or proposed to be used
in relation to goods or services for the purpose of
indicating or so as to indicate a connection in the
course of trade between the goods or services and
a person having the right either as proprietor or as
registered user to use the mark’.1 Whereas, the
domain names are Internet Protocol (IP) addresses
for computer network connection and identifying the
owner of the address. It is a series of alphanumeric
strings separated by periods, such as www.honda.
com.
The most frequent source of conflict is the use of
trade marks as part of internet domain names. The
issue commonly arises where the company desires an
online presence to promote its products and services
but discovers that another party has been allowed
to register the company desired domain, due to the
ease of registration and structural realities of the
domain name system.
Many cases have arisen when a registered domain
name is the same as or too similar to a particular
trade marks. Another common conflict is cyber
squatting where the registration of the domain name
is for the purpose of getting something in return from
the owner of particular trade mark who wishes to
use that domain names. In this latter instance, it is
not necessarily an attempt to confuse, but rather,
a desire to draw on magnetism that attaches to the
mark.
There are several cases that demonstrated the
conflict between trade mark and domain names.
In Harrods Ltd v UK Network Services Ltd & Ors,2
the plaintiff was the owner of the world famous
departmental store and the owner of the number of
trademarks for the same ‘Harrods’. Defendant had
registered <harrods.com> as domain name and was
sued for infringement under Trademarks Act 1994 and
it was also discovered that defendant had registered
approximately 50 other well known company names
as domain names. The court accepted that passing
off and trademark principles are applicable to
domain names and in addition to granting the usual
trademark.
In Marks & Spencer Plc & Ors v One in a Million &
Ors,3 the plaintiffs sued the defendant for passing
off and trade infringement as the defendants
registered names and marks of well known
commercial enterprises as domain name including
<marksandspencer.com> and <marksandspencer.
co.uk> without their consent with the intention of
selling them to their owners. The court held that the
practice of registering well known marks as domain
names for the purpose of blocking their use by the
owner of those marks except upon payment of money
was both passing off and trademarks infringement.
The injunction was granted and defendants were
ordered to assign the domain names to the plaintiffs.
In Intermatic Inc v Toeppen4
and Panavision
International LP V Toeppen,5 the plaintiffs and the
trade mark owners of the marks ‘Intermatic’ and
‘Panavision’ in the respective cases discovered that
the domain names <intermatic.co> and <panavision.
com> have been registered by the defendant. It
was further discovered that the defendant had
registered other domain names. The defendant was
sued for trademark infringement. In both cases, the
court ordered that the domain names <intermatic.
com> and <panavision.com> be transferred to the
respective plaintiffs. Moreover, the defendant’s act
in registering trade marks as domain names with the
intention to resell the same to trade mark owners
was constituted as a commercial activity.
In the light of the decided cases, the trend in
international law seems to favour the trade mark
holder over the cyber squatter in domain names
dispute. If the domain names are registered with
bad faith, then the court will order the registered
domain names to be assigned to the trade mark
owner.
The World Intellectual Property Organization (WIPO)
has established a Uniform Dispute Resolution Policy
(URDP) that aids in resolving domain names disputes
between trade mark holder and domain names
owner. If a domain name is registered in bad faith,
the trade mark holder may obtain the domain name
through URDP.
Section 3 of Trade Mark Act 1976
Unreported, Lightman J, 9 December 1996
3
(1998) FSR 265
4
947 F Supp (1227(ND III, 1996)
5
945 F Supp 1296 9CDCal 1996)
1
2