Trial continues today. The Respondent wants the Court to determine whether the Order of Court made on 11.7.2008 that the Petitioner provides additional security for costs had been complied with. Also, whether UMNO, not being a voter etc, can come into sponsor the Petitioner with respect the additional security.

On 11.7.2008, the Court made an Order that the Petitioner deposit an additional security of RM70,000.00 into court on or before 22nd July, 2008. In purported payment, the Petitioner had deposited into the registry of the court a cheque for RM70,000.00 in the afternoon (2:19 p.m.) of 22nd July, 2008.

The Respondent by his Counsel Mr. Chan Kok Keong raised the issue that “money” means cash, not payment by cheque which is conditional payment and subject to clearance. The Court heard submissions for 2 ½ hours and ruled:

“In considering whether the Respondent has complied with the Order made by this Court, I refer to the provisions of law relating to the ordering of payment of security of costs under the Election Petition Rules 1954. The reading of these rules show that the deposit of security is not to the Petitioner but to the Court and it is also clear from the provisions of the Rules that the Registrar has control over the security placed for the payment of the charges, expenses as well as costs. The importance of this is that the security that is placed is not solely for the benefit of the Respondent and the Court as the recipient of the security has full say in whether or not it is satisfied with the manner in which that security is placed.”

“The point taken by the Respondent here is not that the Petitioner has failed to pay the money but that he should have paid that money in cash instead of by cheque on the reason that a cheque is but a conditional pay of money. However, I am satisfied on the authorities that have been referred to me, especially the case of Ong Kim Khoon v Daya Filem Bhd that in order to constitute a valid tender of money, there must be an actual production of the money or a dispensation of such production. As I said before, in the context of the Order for additional security which this Court made, the recipient of the additional security is the Court and therefore it is within the power of this Court through the Registry to have accepted the cheque presented on behalf of the Petitioner by his solicitor in dispensation of actual cash.”

“The 2nd point taken by the Respondent is that I should not allow the Petitioner to have accepted the assistance of a third party in providing the additional security where that third party is not a person who is mentioned in s.34 Election Offences Act, ie, a person who has a right to vote, or a person who has a right to be returned or elected or some person alleging himself to have been a candidate.”

“I do not agree with this submission. I see no good reason why on the question of providing additional security the Court should take a restrictive approach. Although the provision of security concerns the Election Petition that is filed, it does not have anything to do with the actual merits of the matters complained of and so there should be no requirement to tie the question of persons who may assist in providing additional security with the qualifications mentioned in s.34. I agree with Dato Shafee that it should not be objectionable if instead of the Petitioner having obtained financial assistance from the organization which has done so in this case, for the Petitioner to have gone to a bank and obtain a loan for payment of additional security. If he had done so, the bank would not be a person qualified under s.34 but they would have been nothing objectionable to the Petitioner having obtained his source of funds from that source.”

“In the result, I would dismiss the oral application made to me by the Respondent. For completeness, I do not think the application was improperly made in form, ie, that it could be made orally.”

“I made no order as to costs as the issue that were taken arose as a result of the manner in which the Petitioner chose to pay the security ordered by the Court, and the points taken were validly taken.”

24/7/2008 @ 11:45 a.m.