Bulletin_27

CLJ Bulletin, Issue 2011, Vol 27

15 July 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 5 (Part 5) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 723 Price Control And Anti-Profiteering Act 2011 1 April 2011 [PU(B) 146/2011] - Nil -

ACT 724 National Visual Arts Development Board Act 2011 Not Yet In Force - Nil -

ACT 725 Renewable Energy Act 2011 Not Yet In Force - Nil -

ACT 726 Sustainable Energy Development Authority Act 2011 Not Yet In Force - Nil -

ACT 727 Food Analysts Act 2011 Not Yet In Force - Nil -

Amending Acts

NUMBER
TITLE

DATE COMING INTO FORCE

AMENDING

ACT A1391 Road Transport (Amendment) Act 2011 31 January 2011 [PU(B) 37/2011] ACT 333

ACT A1392 Supplementary Supply (2010) Act 2011 3 June 2011 ACT A1361

ACT A1393 Merchant Shipping (Amendment And Extension) Act 2011 Not Yet Inforce ORD 70/1952

ACT A1394 Merchant Shipping (Oil Pollution) (Amendment) Act 2011 Not Yet Inforce ACT 515

ACT A1395 Arbitration (Amendment) Act 2011 1 July 2011 [PU(B) 342/2011] ACT 646

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 210/2011 Rules Of The High Court (Amendment) 2011 30 June 2011 ACT 91

PU(A) 211/2011 Subordinate Courts (Amendment) Rules 2011 30 June 2011 ACT 55

PU(A) 212/2011 Animals (Import And Export Examination Fees) (Amendment) Rules 2011 30 June 2011 ACT 647

PU(A) 213/2011 Customs (Values) (Crude Petroleum Oil) (No 13) Order 2011 30 June 2011 ACT 235

PU(A) 214/2011 Employees Social Security (Supply) Regulations 2011 30 June 2011 ACT 4

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 343/2011 Notice Of Public Auction Under Paragraph 34(2)(B) 30 June 2011 ACT 438

PU(B) 344/2011 Designation Under Paragraph 5(1)(B) 30 June 2011 ACT 349

PU(B) 345/2011 Appointment Of Deputy Public Prosecutors 5 July 2011 ACT 593

PU(B) 346/2011 Appointment Of Lock-Up To Be A Place Of Confinement 6 July 2011 ACT 537

PU(B) 347/2011 Appointment Of Lock-Ups To Be Places Of Confinement 6 July 2011 ACT 537

Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO / AMENDING ACT NO

DR 42/2010 Arbitration (Amendment) Bill 2010 - ACT 646

DR 43/2010 Sustainable Energy Development Authority Bill 2010 - ACT 726

DR 44/2010 Malaysian Quarantine and Inspection Services Bill 2010 - -

DR 45/2010 Kampong Bharu Development Corporation Bill 2010 - -

DR 14/2011 Petroleum (Income Tax) (Amendment) Bill 2011 - ACT 543

DR 15/2011 Employment (Amendment) Bill 2011 - ACT 265

DR 16/2011 Trade Descriptions Bill 2011 - -

DR 17/2011 National Wages Consultative Council Bill 2011 - -

DR 18/2011 Securities Commission (Amendment) Bill 2011 - ACT 498

2. Articles

a) Legal Network Series Articles

1. The Patent (Amendment) Act, 2005 And Its Effect On The Indian Pharmaceutical Industry ^{[Read
excerpt]}
By Mohar Majumdar*

2. Privacy And The Press: Where Are We Now?* ^{[Read
excerpt]}
By Mr Justice Eady

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2005] 1 LNS 202 [HC] Tengku Mohd Saad @ Tengku Arifaad Tengku Mansur & Ors v. Tay Choo Foo @ Tay Chiew Foo & Ors

EVIDENCE: Hearsay - Statement made in the ordinary course of business - PW2 holding power of attorney from the late Tunku Mansur - Whether statements made by the late Tunku Mansur to PW2 relating to a management buy-out and transfer of 1.2 million shares to first defendant were made in the ordinary course of business - Whether statements falling within exception to Evidence Act 1950, s. 32(1)(b)

TRUSTS AND TRUSTEES: Constructive trust - Plaintiffs' claim against third, fourth and fifth defendants as constructive trustees for 4,000,000 shares held under their names - Whether sufficient material facts pleaded by plaintiffs to sustain claim - Whether doctrines of "Dishonest Assistance" and "Knowing Receipt" raised by third, fourth and fifth defendants applicable - Whether case against defendants proven

TRUSTS AND TRUSTEES: Constructive trust - First defendant denying liability to pay for 1.2 million shares in second defendant - Whether first defendant held shares on trust for the late Tunku Mansur - Whether first defendant had paid RM1.2 million to the late Tunku Mansur or plaintiffs - Whether beneficial ownership of 1.2 million shares was to remain and vest with the late Tunku Mansur until fully paid by first defendant

[2009] 1 LNS 1053 [HC] Hello Marketing (M) Sdn Bhd v. Siemen Malaysia Sdn Bhd

CONTRACT: Construction - Condition precedent - Allegation that requirement to make a good faith effort to settle amicably was a condition precedent - Whether first paragraph of Clause 19 amounted to a condition precedent - Whether clause unenforceable - Whether failure to strictly apply same affected requirement that dispute be referred to arbitration expeditiously

CONTRACT: Estoppel - Estoppel by conduct - Plaintiff initiating suit and resisting all attempts to have matter referred to arbitration - Whether plaintiff estopped from later claiming that it wished to adhere strictly to Clause 19 which required parties to make good faith effort to settle amicably

[2009] 1 LNS 1719 [HC] Lembaga Kumpulan Wang Simpanan Pekerja v. Manfred Smisek & Ors
EMPLOYEE'S PROVIDENT FUND: Arrears of contributions - Failure to pay - Whether defendant still a director of company at material time - Whether plaintiff's claim time barred - Employee's Provident Fund Act 1991, ss. 46(1), 65(1) - Claim to recover trust property (deductions held on trust by employer) not subject to limitation - Limitation Act 1953, s. 22(1) - Whether plaintiff already paid by company's liquidator - Joint and several liability of directors - Effect of plaintiff's certificate under s. 64 Employee's Provident Fund Act 1991 - Whether plaintiff entitled to summary judgment - Whether defendant raised triable issues

[2009] 1 LNS 1720 [HC] Jit Singh Kishen Singh v. Bakshi Singh Kishen Singh & Anor

LAND LAW: Indefeasibility of title and interests - Fraud alleged - Plaintiff alleging he has ¼ share in land sold by 1^st defendant (his late brother) to 2^nd defendant - Whether plaintiff established his right to said ¼ share by way of agreement with his three brothers - Whether plaintiff discharged burden of showing that 2^nd defendant had prior knowledge of such agreement - Whether 2^nd defendant obtained title through fraud and dishonesty - Whether a bona fide purchaser for value without notice - Conclusiveness of register - National Land Code 1965, s. 340, 341

LAND LAW: Sale of land - Purchase price - Payment of - Whether full payment made before/upon registration of transfer - Receipt for payment dated eight months after registration of transfer - Whether date on receipt was date of issue or date of payment

[2009] 1 LNS 1721 [HC] Casmet Sdn Bhd v. Unipac Engineering (M) Sdn Bhd
TORT: Defamation - Libellous letter - Letter by sub-contractor to owner of building intimating difficulty in collecting payment for work done - Request for direct payment from owner of building - Letter copied to architect and engineer - Main contractor claiming letter was libellous - Defence of justification - Whether letter referred to main contractor - Whether words bore defamatory meaning - Whether main contractor justified in withholding payment

CITATION	TITLE	SUBJECT
[2005] 1 LNS 202 [HC]	Tengku Mohd Saad @ Tengku Arifaad Tengku Mansur & Ors v. Tay Choo Foo @ Tay Chiew Foo & Ors	EVIDENCE: Hearsay - Statement made in the ordinary course of business - PW2 holding power of attorney from the late Tunku Mansur - Whether statements made by the late Tunku Mansur to PW2 relating to a management buy-out and transfer of 1.2 million shares to first defendant were made in the ordinary course of business - Whether statements falling within exception to Evidence Act 1950, s. 32(1)(b) TRUSTS AND TRUSTEES: Constructive trust - Plaintiffs' claim against third, fourth and fifth defendants as constructive trustees for 4,000,000 shares held under their names - Whether sufficient material facts pleaded by plaintiffs to sustain claim - Whether doctrines of "Dishonest Assistance" and "Knowing Receipt" raised by third, fourth and fifth defendants applicable - Whether case against defendants proven TRUSTS AND TRUSTEES: Constructive trust - First defendant denying liability to pay for 1.2 million shares in second defendant - Whether first defendant held shares on trust for the late Tunku Mansur - Whether first defendant had paid RM1.2 million to the late Tunku Mansur or plaintiffs - Whether beneficial ownership of 1.2 million shares was to remain and vest with the late Tunku Mansur until fully paid by first defendant
[2009] 1 LNS 1053 [HC]	Hello Marketing (M) Sdn Bhd v. Siemen Malaysia Sdn Bhd	CONTRACT: Construction - Condition precedent - Allegation that requirement to make a good faith effort to settle amicably was a condition precedent - Whether first paragraph of Clause 19 amounted to a condition precedent - Whether clause unenforceable - Whether failure to strictly apply same affected requirement that dispute be referred to arbitration expeditiously CONTRACT: Estoppel - Estoppel by conduct - Plaintiff initiating suit and resisting all attempts to have matter referred to arbitration - Whether plaintiff estopped from later claiming that it wished to adhere strictly to Clause 19 which required parties to make good faith effort to settle amicably
[2009] 1 LNS 1719 [HC]	Lembaga Kumpulan Wang Simpanan Pekerja v. Manfred Smisek & Ors	EMPLOYEE'S PROVIDENT FUND: Arrears of contributions - Failure to pay - Whether defendant still a director of company at material time - Whether plaintiff's claim time barred - Employee's Provident Fund Act 1991, ss. 46(1), 65(1) - Claim to recover trust property (deductions held on trust by employer) not subject to limitation - Limitation Act 1953, s. 22(1) - Whether plaintiff already paid by company's liquidator - Joint and several liability of directors - Effect of plaintiff's certificate under s. 64 Employee's Provident Fund Act 1991 - Whether plaintiff entitled to summary judgment - Whether defendant raised triable issues
[2009] 1 LNS 1720 [HC]	Jit Singh Kishen Singh v. Bakshi Singh Kishen Singh & Anor	LAND LAW: Indefeasibility of title and interests - Fraud alleged - Plaintiff alleging he has ¼ share in land sold by 1^st defendant (his late brother) to 2^nd defendant - Whether plaintiff established his right to said ¼ share by way of agreement with his three brothers - Whether plaintiff discharged burden of showing that 2^nd defendant had prior knowledge of such agreement - Whether 2^nd defendant obtained title through fraud and dishonesty - Whether a bona fide purchaser for value without notice - Conclusiveness of register - National Land Code 1965, s. 340, 341 LAND LAW: Sale of land - Purchase price - Payment of - Whether full payment made before/upon registration of transfer - Receipt for payment dated eight months after registration of transfer - Whether date on receipt was date of issue or date of payment
[2009] 1 LNS 1721 [HC]	Casmet Sdn Bhd v. Unipac Engineering (M) Sdn Bhd	TORT: Defamation - Libellous letter - Letter by sub-contractor to owner of building intimating difficulty in collecting payment for work done - Request for direct payment from owner of building - Letter copied to architect and engineer - Main contractor claiming letter was libellous - Defence of justification - Whether letter referred to main contractor - Whether words bore defamatory meaning - Whether main contractor justified in withholding payment

b. CLJ Volume 5 (Part 5) 2011

COURT

FEDERAL COURT

Blue Valley Plantation Bhd v. Periasamy Kuppannan & Ors
Zaki Tun Azmi CJ, Zulkefli Makinuddin, Mohd Ghazali Yusoff FCJJ
(Civil Procedure - Striking out - Winding up petition) [2011] 5 CLJ 481 [FC]

COURT OF APPEAL

AmBank (M) Bhd v. KT Steel Sdn Bhd & Ors
Zainun Ali, Abdul Wahab Patail, Clement Skinner JJCA
(Bills of Sale; Contract; Hire Purchase - Lease agreement) [2011] 5 CLJ 500 [CA]

Faiz Khairudin v. PP
Suriyadi Halim Omar, Hasan Lah, Sulaiman Daud JJCA
(Criminal Law - Trafficking in 16,944 grams cannabis) [2011] 5 CLJ 509 [CA]

Tan Chin Meng v. PP
Tengku Baharudin Shah, T Selventhiranathan, Abdul Wahab Patail JJCA
(Criminal Procedure - Murder - Defences of gross negligence manslaughter, grave and sudden provocation) [2011] 5 CLJ 524 [CA]

HIGH COURT

Hwang DBS Securities Bhd v. Yee Wooi Tiong; Tang Soon Ong (Third Party)
Chew Soo Ho JC
(Civil Procedure; Limitation; Securities - Remisier - Negligence) [2011] 5 CLJ 541 [HC]

Imoway Corporation (M) Sdn Bhd v. Lim Ai Kiong
Yew Jen Kie J
(Land Law - Caveat - Removal of - Power of attorney) [2011] 5 CLJ 552 [HC]

Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
Aziah Ali J
(Administrative Law; Evidence; Labour Law - Judicial review - Adverse inference) [2011] 5 CLJ 564 [HC]

Syed Jalaluddin Syed Ahamed Malik v. Foo Sun Enterprise & Other Appeals
Hadhariah Syed Ismail JC
(Civil Procedure; Constitutional Law - Adjournment - Change of solicitors) [2011] 5 CLJ 580 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application to quash Industrial Court award holding that 1st respondent dismissed without just cause or excuse - Allegation of pilfering spare parts in violation of company's Standard Operating Procedure - Whether unauthorized possession of company's property by 1st respondent proven - Industrial Court's decision quashed
Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
(Aziah Ali J) [2011] 5 CLJ 564 [HC]

BILLS OF SALE

Definition - Lease agreement - Whether equipment lease agreement a genuine lease agreement or a loan agreement void under s. 4 Bills of Sale Act 1950 - Distinction between a hire purchase transaction and a loan agreement - True nature of transaction/agreement - Facts of case as a whole - Similar unlicensed money-lending transactions to be discouraged
AmBank (M) Bhd v. KT Steel Sdn Bhd & Ors
(Zainun Ali, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 5 CLJ 500 [CA]

CIVIL PROCEDURE

Action - Limitation period - Whether defendant's claim against third party was subject to limitation period by virtue of O. 16 Rules of the High Court 1980 - Whether third party proceedings can be regarded as independent of and separate from proceedings by a plaintiff against a defendant
Hwang DBS Securities Bhd v. Yee Wooi Tiong; Tang Soon Ong (Third Party)
(Chew Soo Ho JC) [2011] 5 CLJ 541 [HC]

Adjournment - Refusal - Appeal against decision of Sessions Court disallowing application for adjournment - Discretion of trial judge to grant adjournment - Whether unfettered - Whether trial judge exercised discretion correctly
Syed Jalaluddin Syed Ahamed Malik v. Foo Sun Enterprise & Other Appeals
(Hadhariah Syed Ismail JC) [2011] 5 CLJ 580 [HC]

Change of solicitors - Whether 'new' solicitor had conduct of the matter without the filing of a notice of change of solicitors - Right to select own solicitor - Whether appellants were given right to be represented by counsel of their own choice
Syed Jalaluddin Syed Ahamed Malik v. Foo Sun Enterprise & Other Appeals
(Hadhariah Syed Ismail JC) [2011] 5 CLJ 580 [HC]

Documents - Documentary evidence - Whether defendant can rely on letter and statutory declaration sworn by third party under s. 115 Evidence Act 1950 - Whether the documents were sufficient to estop third party from disputing liability
Hwang DBS Securities Bhd v. Yee Wooi Tiong; Tang Soon Ong (Third Party)
(Chew Soo Ho JC) [2011] 5 CLJ 541 [HC]

Striking out - Winding up petition - Respondents continued to seek for appellant company to be wound up despite payment claimed deposited in court - Whether petition an abuse of court's process - Eight-year delay in filing striking out application - Whether inordinate delay on appellant's part - Whether striking out application justified - Rules of the High Court 1980, O. 18 r. 19
Blue Valley Plantation Bhd v. Periasamy Kuppannan & Ors
(Zaki Tun Azmi CJ, Zulkefli Makinuddin, Mohd Ghazali Yusoff FCJJ) [2011] 5 CLJ 481 [FC]

Third party proceedings - Indemnity - Whether third party has to contribute or indemnify defendant for losses incurred in trading - Whether defendant could commence an action against third party - Whether action was time barred
Hwang DBS Securities Bhd v. Yee Wooi Tiong; Tang Soon Ong (Third Party)
(Chew Soo Ho JC) [2011] 5 CLJ 541 [HC]

CONSTITUTIONAL LAW

Fundamental liberties - Right to counsel - Refusal to grant adjournment and dismissal of claim - Whether appellants were denied right to be heard - Whether there was denial of legal representation - Whether judge erred in her decision
Syed Jalaluddin Syed Ahamed Malik v. Foo Sun Enterprise & Other Appeals
(Hadhariah Syed Ismail JC) [2011] 5 CLJ 580 [HC]

CONTRACT

Lease - Financing facilities - Equipment lease agreement - Whether a genuine lease agreement or a loan agreement void under s. 4 Bills of Sale Act 1950 - Distinction between a hire purchase transaction and a loan agreement - True nature of transaction/agreement - Facts of case as a whole - Similar unlicensed money-lending transactions to be discouraged
AmBank (M) Bhd v. KT Steel Sdn Bhd & Ors
(Zainun Ali, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 5 CLJ 500 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 16,944 grams cannabis - Appeal against conviction and death sentence - Whether there was discrepancy in weight of drugs - Whether there was evidence of direct trafficking - Whether non-calling of informer as witness fatal to prosecution case - Whether non-production of money used for purchase of drugs prejudicial to appellant
Faiz Khairudin v. PP
(Suriyadi Halim Omar, Hasan Lah, Sulaiman Daud JJCA) [2011] 5 CLJ 509 [CA]

CRIMINAL PROCEDURE

Penal Code - Section 302 - Murder - Appeal against conviction and death sentence - Proof of mens rea - Discrepancy as to time and cause of death - Accuracy of cautioned statement and recording - Defences of gross negligence manslaughter, grave and sudden provocation - Unchallenged testimony of witnesses - Whether proper consideration of evidence by trial judge
Tan Chin Meng v. PP
(Tengku Baharudin Shah, T Selventhiranathan, Abdul Wahab Patail JJCA) [2011] 5 CLJ 524 [CA]

EVIDENCE

Adverse inference - Evidence Act 1950, s. 114(g) - Failure to produce document - Company's Standard Operating Procedure ('SOP') not produced to assist court in deciding whether there had been a breach of SOP - Adverse inference only to be invoked for wrongful withholding or suppression of evidence - Adverse inference not invoked
Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
(Aziah Ali J) [2011] 5 CLJ 564 [HC]

HIRE PURCHASE

Lease agreement - Financing facilities - Whether equipment lease agreement a genuine lease agreement or a loan agreement void under s. 4 Bills of Sale Act 1950 - Distinction between a hire purchase transaction and a loan agreement - True nature of transaction/agreement - Facts of case as a whole - Similar unlicensed money-lending transactions to be discouraged
AmBank (M) Bhd v. KT Steel Sdn Bhd & Ors
(Zainun Ali, Abdul Wahab Patail, Clement Skinner JJCA) [2011] 5 CLJ 500 [CA]

LABOUR LAW

Employment - Termination of service - Certiorari - Application to quash Industrial Court award holding that 1st respondent dismissed without just cause or excuse - Allegation of pilfering spare parts in violation of company's Standard Operating Procedure - Whether unauthorized possession of company's property by 1st respondent proven - Industrial Court's decision quashed
Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
(Aziah Ali J) [2011] 5 CLJ 564 [HC]

Industrial Court - Award - Certiorari - Application to quash Industrial Court award holding that 1st respondent dismissed without just cause or excuse - Allegation of pilfering spare parts in violation of company's Standard Operating Procedure - Whether unauthorized possession of company's property by 1st respondent proven - Industrial Court's decision quashed
Motorola Malaysia Sdn Bhd v. Ng Thien Keong & Anor
(Aziah Ali J) [2011] 5 CLJ 564 [HC]

LAND LAW

Caveat - Removal of - Whether defendant entitled to lodge caveat on land - Whether defendant had caveatable interest on parcels of land - Whether caveat could be removed to allow plaintiff to deal freely with land - Whether plaintiff had locus standi to file application - Whether plaintiff could rely on development agreement and power of attorney to initiate proceeding under s. 177 Land Code (Cap. 81) (Sarawak) - Whether plaintiff entitled to injunctive relief to prevent further caveats from being lodged by defendant's other siblings
Imoway Corporation (M) Sdn Bhd v. Lim Ai Kiong
(Yew Jen Kie J) [2011] 5 CLJ 552 [HC]

Power of attorney - Rights and interest on grant of - Development agreement - Whether power of attorney would have been extinguished following expiry of development agreement - Whether plaintiff had 'registered interest' - Land Code (Cap. 81) (Sarawak), s. 177(1)
Imoway Corporation (M) Sdn Bhd v. Lim Ai Kiong
(Yew Jen Kie J) [2011] 5 CLJ 552 [HC]

LIMITATION

Period of limitation - When time bar begins to run - Indemnity against third party - Whether time began to run from the date of consent judgment - Whether defendant's action against third party within limitation period
Hwang DBS Securities Bhd v. Yee Wooi Tiong; Tang Soon Ong (Third Party)
(Chew Soo Ho JC) [2011] 5 CLJ 541 [HC]

SECURITIES

Remisier - Duties of - Negligence - Whether remisier has a responsibility on trading account under his care - Whether remisier has to pay indemnity to stockbrokers for losses incurred in trading
Hwang DBS Securities Bhd v. Yee Wooi Tiong; Tang Soon Ong (Third Party)
(Chew Soo Ho JC) [2011] 5 CLJ 541 [HC]

CASE OF THE WEEK

RHB BANK BHD v. HIAP LEONG TRADING SDN BHD

CONTRACT: Tenancy agreement - Construction of agreement - Termination of agreement - Arrears of rental - Whether tenancy agreement a monthly or three-year agreement - Amount of rent payable - Fundamental conditions not satisfied - Monthly tenancy - Whether notice of one month sufficient to terminate agreement

LANDLORD AND TENANT: Agreement - Construction - Termination of agreement - Arrears of rental - Whether tenancy agreement a monthly or three-year agreement - Amount of rent payable - Fundamental conditions not satisfied - Monthly tenancy - Whether notice of one month sufficient to terminate agreement

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 723	Price Control And Anti-Profiteering Act 2011	1 April 2011 [PU(B) 146/2011]	- Nil -
ACT 724	National Visual Arts Development Board Act 2011	Not Yet In Force	- Nil -
ACT 725	Renewable Energy Act 2011	Not Yet In Force	- Nil -
ACT 726	Sustainable Energy Development Authority Act 2011	Not Yet In Force	- Nil -
ACT 727	Food Analysts Act 2011	Not Yet In Force	- Nil -