Dear Sir, RE: ADVICE ON ALLEGATIONS MADE AGAINST YOU. We have received your email on17th December 2014 and are now pleased to advise you on the matter. 2.0MATERIAL FACTS 2.1That you had received a document from a man in uniform due to the complaint made against you by the public for causing a nuisance while you are busking at Central Market. 2.2You were instructed to leave KL Sentral by another man in uniform as you were alleged to violate the Legislation of the Railways. 2.3You have made known to us that you received a letter by a group of purity appraising that your music diluting the cultural norms of Malaysia as jazz was American in origin and it assassinating the minds of Malaysian classical music. 2.4You had recorded some of performance in KL Sentral digitally and your recording company had made an arrangement for that music to be released in EP format via iTunes. Subsequently, two musicians claimed that you stole their music as you had plagiarized their tunes for the EP and they are now wanting a share of the profits. 2.5You had received a complaint letter that some viewers of your live performance video in KL Sentral on YouTube had sustained serious personal injury, i.e sprained ankles, bruising and small cuts due to your failure to put the disclaimer not to try the dance at home or in confined space without proper equipment. 2.6That AMRSVT is claiming for loss of profit as they claimed that your performance had attracted the crowd, which made it difficult for other passengers to move around and visit their stalls and shops. 3.0LEGAL ISSUES 3.1Whether there is any permit required to busk? 3.1.1You have mentioned that you had not obtained any permit to perform in Central Market and KL Sentral. In our opinion, a permit is essential to be obtained from the municipal council. In this case, since you perform in the district of Kuala Lumpur, a permit should be obtained from the DBKL. The Early in the year 2013, DBKL has implemented that all street entertainers are required to apply for a permit in order to perform in public. The aim of the permit is to be obtained to regulate the street buskers. Hence, a permit from DBKL is required. 3.1.2Since you had not obtained any permit, no issue on remedy available to you under this issue. 3.2Whether you can be liable for nuisance? 3.2.1You have mentioned that that certain member of the public made a complaint against you for public nuisance. 3.2.2Public nuisance arises when an act materially affects the reasonable comfort and convenience the life of a class of the society. In the case of Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors [1979] 2 MLJ 127, only a person who has suffered special damage can claim for damages for public nuisance. The Plaintiff has to prove that he has suffered damages or injury over and above the ordinary convenience suffered by the public at large. 3.2.3The followings are to determine the existence of special particular damage: (i) the type or extent of damage is more serious, The Plaintiff must suffer more than what is suffered by other persons who are exposed to the same interference. (ii) The damage must be a direct consequence and is substantial. In the case of Pacific Engineering v Haji Ahmad Rice Mill Ltd [1966] 1 LNS 128, the Plaintiff had proved that they suffered personal discomfort and injury to property thereby satisfying the requirement ‘special damage’. An injunction preventing the Defendant from burning rice husks in the compound of their premises was granted. The court held that in action for public nuisance, a Plaintiff may institute proceeding without obtaining prior consent from the Attorney General (AG) if he suffered special damage. 3.2.4If no special damage suffered by any particular individuals, section 8(1) of the Government Proceeding Act 1956 provides that the AG, or two or more persons who have obtained written permission from the AG, may institute a suit in public nuisance for a declaration a injunction or for such other relief as may be appropriate to the circumstances of the case. In Koperasi Pasaraya Malaysia Bd v Uda Holdings Sdn Bhd [2002] MLJU 521, it was held that in action for public nuisance, consent must be first obtained from the AG. 3.2.5 By applying the law to your situation, you have mentioned that the certain member of the public was the AMRSVT who lodged a report against you.They claimed that they suffered loss of profit as your busking had attracted the crowd which made it difficult for other passengers and passerby to move around and visit their stalls and shops. You also mentioned that you managed to get the people to dance for your live performance at KL Sentral. Hence, the allegation of the AMRSVT is in line since your performance fascinated the crowd which caused them to suffer a direct consequence and a substantial damage. Hence, we are of opinion that they might be successful in their action against you. 3.3Whether you can be liable for a violation of railways legislation? 3.3.1According to section 59 (a) of the Railways Act 1991 (RWA), any person who behaves in a disorderly or offensive manner or commits any nuisance on a railway coach or upon any railway premises; or assaults, hinders or obstructs a railway officer in the execution of his duties, shall be guilty of an offence and shall on conviction be liable to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding three months or to both. 3.3.2You had mentioned to us that you have managed to attract the crowd and not only that, the crowd even dance when they watched your performance at KL Sentral. As discussed above, your acts may constitute a nuisance to the public. You mentioned that you had refused to leave the place when you were told to by the officer of the KTMB. Hence, we are afraid that you have violated the regulation of the RWA when you committed the act of nuisance and impeded the instruction of the officer to leave the place when he was in the execution of his duties as a railways officer. Hence, you may be exposed to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding three months or to both. 3.4Whether the group of that person has right to stop you from playing your music in public as they alleged your music diluting the cultural norms of Malaysia? 3.4.1You have mentioned that you had received a letter from Purity to stop you from playing in public. They alleged your playing diluting the cultural norms of Malaysia because the jazz was American in origin. They also alleged that you are poisoning the minds of the youths by playing unstructured music which is contrary to the rigid structure and discipline of Malaysian classical music. 3.4.2We are advising that until to date, there is no provision under the law or legislative body authorized by the government of Malaysia declaring the technical natured to cultural norms for Malaysia. As far as we concerned, your performance was simply to reach the public with the nature of the music. It may depend on the content of the lyrics. The accusation on influencing the minds and cultural norms of Malaysia and Malaysia classical music cannot stand on its own since jazz music has been accepted in Malaysia without restriction. Hence, we are of view that the Purity has no cause of action against you. 3.5Whether you can be liable for plagiarism as alleged by Mdm Anna Leese & Laniza Achmed? 3.5.1 By virtue of section 13 of the Copyright Act 1987 (CA), in order to establish a claim of copyright infringement the plaintiff need to prove: (1) that the Plaintiff own the copyright in his work; (2) that the Plaintiff work is original; (3) that the defendant copied the work; (4) that there is substantial similarity between the Plaintiff’s work and the defendant’s work; and (5) that the part copied by the defendant was a substantial part of the Defendant’s work. 3.5.2 Section 26A of the CA provides once notification of copyright has been recorded in the Register, the onus of disproving that copyright subsists in the work shifts to the alleged infringer. 3.5.3As to requirement (1), Mdm Anna Leese and Laniza Achmed basically acquire the copyright in the song if they have put it into a fixed form, e.g. In writing or in a recording. Registration and other formalities are generally not necessary to acquire the copyright. However, registration of the copyright will come in useful as evidence to show the ownership of the copyright. Hence, if there is notification of copyright has been recorded by them, the onus of disproving that copyright subsists in the work will shift to you. As to the requirement (2), originality simply means that the song must have come from them and that they must have put some effort into it. On to requirement (3) they need to prove to the court that you have access to the music. ‘Substantial similarity’ in requirement (4) means that there should be a high degree of similarity between the two songs which is more likely to be the result of copying rather than mere coincidence. In considering whether there is substantial similarity, features that are commonplace, and unoriginal are usually disregarded. In Requirement (5) as long as the part the music is distinctive enough that it is recognizable as their song, therefore, that amounts to a substantial part the length does not matter as long it is sufficiently similar and the reasonable people would notice the similarities between the music. We are of opinion that if they are claiming that you had stolen their music is difficult to be proved unless they can prove that they are protected under the law of intellectual property. 3.6Whether you can be liable for the injuries of the YouTube viewers? 3.6.1 You have mentioned that a class action lawsuit filed against you by YouTube viewers from New York who watched the video of your live performance on YouTube and followed suit by dancing in their room sustained serious personal injuries. They claimed that you should put a disclaimer of “Do not try this at home or in a confined space without proper equipment”. 3.6.2 In the case of Palmco Holding Bhd v Sakapp Commodities (M) Sdn Bhd & Ors [1988] 2 MLJ 624, in order to succeed in a representative action, the plaintiff must satisfy three requirements. They are: (1) the plaintiff and those represented by it are members of a class and that these members have a common interest; (2) the plaintiff and those it represents have a common grievance; (3) the relief sought is in its nature beneficial to them all. 3.6.3In the present case, the plaintiffs and those represented by it have satisfied all three requirements hence the representative action of the Plaintiff might be successful. However, the viewer may not have privileges to take action against you because the terms and conditions only apply between you and YouTube. YouTube makes no warranties or representations about the accuracy or completeness of this site’s content or the content of any sites linked to this site and assumes no liability or responsibility for any personal injury or conduct of any third party. Therefore, we are in view you will not liable for not inserting the disclaimer in the video. 3.7Whether you are liable for the loss of profit suffered by AMRSVT? 3.7.1 Based on your letter, we have understood that AMRSVT are claiming for loss of profit as they claim that Milo’s busking had attracted them crowd, which made it difficult for other passengers and passerby to move around and visit their stalls and shops in Central Market and KL Sentral. We have understood that AMRSVT is claiming liability from you for loss of profit. Generally, pure economic loss is recoverable under the law. However, the extent of the negligent act should be assessed with caution to determine the liability of the defendant. This means that the company’s claim would depend on (1) whether there is sufficient proximity between the Plaintiff and the Defendant and (2) whether the pure economic loss was reasonably foreseeable as mentioned in the case of Steven Phoa Cheng Loon V Highland Properties Sdn Bhd [2003] 1 MLJ 567. 3.7.2We are of the view that for AMRSVT claims to be successful, the burden of proving such allegations lies on him. Therefore, he must first satisfy the court that there is an appropriate proximity between you and him. An appropriate proximity is determined to see whether it was indeed the act of the defendant that had caused the pure economic loss. As discussed above, you might be liable for nuisance for attracting the crowd to watch your performance. Should AMRSVT prove that there is a negligent act done by you which had caused the pure economic loss to the them. However, if they can prove there is negligence on your part, his claim for damages as a result of his loss of business being affected by your act attracting the crowd however it is too remote and is not foreseeable. It is not foreseeable that such act would have caused loss to their business as the crowd logically would have been their prospect. Thus, this claim may be deemed as too remote. Therefore, it can be said that the claim by AMRSVT might not be successful in his claim unless they can prove otherwise. 4.0CONCLUSION 4.1We shall be pleased to represent you in any legal action filed by the above parties and also to file a defence on your behalf if you wish to take the matters to the court. We hope that our advices are sufficient for your present needs. If you have any further inquiries, please do not hesitate to contact us. Yours sincerely, ……………………………………. (NABILA BINTI MOHD NOORDIN) For and on behalf of Tetuan Haziq Hafidz & Rakan-Rakan.
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Letter of Advice. (2017, Jun 26).
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