ASHIKIN&PARTNERS NOOR ASHIKIN BINTI SELAMAT

ILHAM ABADI BIN IDRIS

LLB (HONS.) UiTM

LLB (HONS.) UiTM

ADVOCATES & SOLICITORS MUHAMMAD SYAHLAN BIN SHAFIE LLB (HONS.) UiTM

SUITE D, AL 706, BANGUNAN AKADEMIK 2, TEL :603-5287 6722 MOHAMAD HAFIZZUDDIN BIN AZMIN LLB (HONS.) UiTM

FAKULTI UNDANG-UNDANG, FAX : 603-5287 1722

UNIVERSITI TEKNOLOGI MARA, EMAIL : [email protected]
40450 SHAH ALAM, 8 A.M – 5 P.M (MONDAY – FRIDAY)
SELANGOR DARUL EHSAN. (for academic purposes only)

Your Ref : Please advice

Our Ref: NCLM/DWTF/A-004
Date : 09July 2018

Datin Woo ‘Tuffin’ Fafeza PRIVATE AND CONFIDENTIAL

Chief Operations Officer (COO)
Woo Thang Marine Drones (WMD) Bhd X BY HAND
Gallery Towers Suites BY FAX
Jalan Multimedia 7/AH, iCITY
BY MAIL
40000 Shah Alam
Selangor

Dear Datin,

RE: RAPTORS WRAPPED IN SECRECY AND THE SUBSEQUENT MAYHEM

We refer to your letter dated 3 June 2018, which outlined several legal problems faced by you and we
offer our legal opinion based on the following material facts.

2.0 MATERIAL FACTS

2.1 On 4th of May 2017, WMD was hired to be part of a security solution for the United
Kingdom (UK).

2.2 On 4th of July 2017, you, on behalf of WMD, received a visit from the UKʼs Minister of
Defence stating that the UK was interested using WMDʼs expertise, to modify the
existing Gremlin AUVs as a response to this new Soviet capability. WMD got clearance
from the Government of Malaysia (previous government) for this weapons development
project.

2.3 On 30th of April 2018, the AUV’s was completely modified for military (naval) purposes.
It had a sensor, weapons and navigation suite to deal effectively with Russia’sBoerei
submarines. The AIR weapon platforms were operated and launched from WMD vessel,
the M.V. Dinisaur at Finnart Oil Terminal (FOT) at Loch Long.
 2.4 On 4th of May 2018, whilst the Raptor Two was being loaded on board the M.V.
Dinis0ur, the cable grappling hook on her crane malfunctioned and the AUV fell onto a
trespasser, on the dockside.

2.5 On 6th of May 2018, Captain Moe received a letter from solicitors representing the estate
of Walter Heeds McNare, demanding that WMD pay compensation for the causing his
death during the loading incident at the dockside

2.6 On 1st of June 2018, an organisation called the ‘Campaign to Stop Killer Robots (CSKR)
and another, known as the ‘Future of Life Institute’ (FOLI) protested at FOT demanded
three (3) things. Firstly, to put pressure on the UK to abandon the project. Secondly,
seeking a declaration that the project was unlawful on the ground that it was in breach of
common law, equity, human rights and the UKʼs international law obligations. Lastly,
seeking a declaration that the AUV’s which carries a nuclear to power its electrical
systems, was an illegal act under both domestic and international law.

2.7 On 2nd of June 2018, the Unitary Authority of Argyll and Bute (on behalf of the
residents), as well as CSKR and FOLI filed a joint suit for defamation against Captain
Moe for his foul language comments against the residents, administrators and Unitary
Council of Argyll and Bute, CSKR and FOLI on his personal Twitter.

3.0 LEGAL ISSUES

3.1 Whether WMD is liable for the death of Walter Heeds McNare, who was killed on WMD
vessel, M.V. Dinisaur.

To understand the extend of WMD liability in this case, we must first examine what are
the duty owes by WMD and whether there is a breach of duty. There are there (3)
questions that needs to be clarified on this particular situation. Firstly, who has control
over the premise, secondly, how the deceased person enter the premise, and lastly, who
commits the act of negligence.
The M.V. Dinisaur vessel is owned by WMD under the command of its master, Captain
Moyet ‘MoeʼDzaii. The captain of the ship is the sole person responsible for the overall
safety and security of a ship and its operations. Right from the moment he first steps on
the ship, the master of the ship has to be extremely particular about every aspect related
to the ship and its operations.

Furthermore, Commander Nora was supposed to be at the dockside with WMD, to

observed the loading of Raptor One and Raptor Two, onto the M.V. Dinisaur. However,
she did not perform her duty on that day to join a cosplay event at Arrochor.

Secondly, the deceased person was not supposed to be on the ship. Moreover, he was not
supposed to be on the dock during the incident. The issue is, how he sneaked in the boat.
In this situation, clearly he was a trespasser. A property owner has a duty of care towards
its visitor. Where the visitor is an unlawful visitor, which is a trespasser, there still exist a
duty of care, but of a lesser degree. The property owner could skip the liability if proper
security and safety measures or where the trespasser himself voluntarily accepted the
risk.

The crane, which is the cause of the incident, was being operated by the ship's crew
during the incident. It was not officially calibrated. Thus, proper security measures were
not taken during the incident. Therefore, there was a breach in duty in this situation.

Under the Vicarious Liability legal theory an employer can be held liable for the
negligence committed by the employee where an employer authorizes a certain act or an
act is connected with an authorized act that the act is considered to be within the course
of employment.Though WMD is the owner of the ship, WMD cannot be totally liable for
every single negligence committed on the ship since WMD has delegated the overall
control and command over the ship on its master. Furthermore, WMD cannot be liable
for the negligence that occurs when an employee who supposed to be on patrol or
observing the activity did not perform his duty. Though there was a breach of duty by not
taking necessary safety measure, it was the duty of the controller of the ship.

In this matter, we believe that WMD would not be held liable on two (2) grounds. Firstly,
WMD was not in control over the ship as WMD has delegated the control and command
 to the ship master. Secondly, there was a breach of duty on the part of the third party,
Commander Nora McDean, who was tasked to supervised and observed the situation by
not performing her duty on the incident.

Based on the discussion above, we can conclude that WMD is not liable for the death of
Walter Heeds McNare, who was killed on WMD vessel, M.V. Dinisaurand estate of
Walter Heeds McNare would failed in their demand against WMD.

3.2 Whether the contract between WMD and the UK government, for developing the AUS’s
with weapon capability is valid in law

The main provision on void agreement is laid in Section 24 of the Contracts Act 1950.
This section provides that the consideration or object of an agreement is unlawful if it
comes within any of the 5 paragraphs as follows:

a. It is forbidden by a law;
b. It so of such a nature that, if permitted, it would defeat any law;
c. It is fraudulent;
d. It involves or implied injury to the person or property of another; or
e. The court regards it as immoral or opposed to public policy.

The UK is a nuclear weapon state party to the Treaty on the Non-Proliferation of Nuclear
Weapons (NPT), and a member of all of the major WMD non-proliferation treaties.The
UK's engagement with the process has been minimal, with the UK maintaining that it
favours a "step-by-step" approach through existing disarmament structures, including the
NPT. The NPT is a landmark international treaty whose objective is to prevent the spread
of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses
of nuclear energy and to further the goal of achieving nuclear disarmament and general
and complete disarmament.

Since, the UK is on of the signatory of the treaty, producing a nuclear weapon would be
in breach of the treaty agreement. Furthermore, treaty and international convention is a
source of law. Secondly, developing nuclear weapon is an issue of public policy.
 Unfortunately, we have to conclude that, the agreement between WMD and the UK
government on the development of AUV’s with nuclear capabilities, which is already
known by the protestor, in in fact in breach of NPT and public policy. Therefore, the
contract is void by virtue of Section 24(b) of the Contracts Act 1950.

The effect of void contract is laid upon Section 2(g) of the Contracts Act 1950 which
provides that a void agreement is not enforceable by law. Thus, there cannot be any relief
based on contractual rights.

3.3 Whether Captain More can be held liable in the joint suit for defamation by Unitary
Authority of Argyll and Bute (on behalf of the residents), as well as CSKR and FOLI.

In Malaysia, defamation can be both a civil and criminal offence. For civil cases, the
relevant legislation is the Defamation Act 1957. Criminal defamation is covered by
Chapter XXI (Sections 499 to 502) of the Penal Code.

From a legal perspective, there are three (3) general criteria must be proven before
defamation can be established. Firstly, there must be a statement that is defamatory.
Secondly, the statement must refer to or identify the person who is being defamed. Lastly,
the statement must be published to a third party other than the person being defamed.

In general, a statement is defamatory if it would lower the reputation of another person in

the eyes of the public. Certain statements may be clearly defamatory in their natural and
ordinary meaning. However, some cases may not be so straight forward especially when
there are innuendos involved. An innuendo is where ordinary words would have a special
meaning to those with special knowledge.

Secondly, when is a defamatory statement said to “refer to the claimant”. The clearest
case is when the statement refers to the person by name. Sometimes, a name may not be
used but can still refer to a person. For example, the statement “The current CEO of
Company ABC is in the habit of taking bribes” clearly refers to a specific individual that
is identifiable, even though he is not named specifically.
As stated by a distinguish Judge, Lord Atkin, “the only rule is that in order to be
actionable, the defamatory words must be published and concerning the plaintiff. It is
irrelevant if the publication is about two or more people if it is proved to be published of
him”. Therefore, it can be said that a group or class of people cannot be defamed.
Thirdly, for a defamation action to stand, the defamatory statement must have been
“published” or conveyed to at least one other person other than the person being defamed.
In simpler word, if someone told you to your face that you were a liar and a thief, that is
not defamation because no one else heard it. However, if it was said in front of another
person, or a group of people, then there could be a cause for defamation.

In this particular case, Captain Moe, took to Twitter and unleashed a barrage of foul
language against the residents, administrators and Unitary Council of Argyll and Bute.
The statement was as follows;

“The great and good of that district are the ugliest m****r-f****rs in Scotland.
All they want to do is meddle. This project requires skilled people. Those
inbredsare a bunch of sheep s*****rs.”

A statement is defamatory if it lowers lower the reputation of another person in the eyes
of the public. Firstly, the word and language used is defamatory, though not in their
natural and ordinary meaning. A layman would understand that the word used is a foul
language. Though the statement was published on twitter, however, the statement “The
great and good of that district … in Scotland” and “Those inbreds..” cannot be amount to
refer to anybody in particular.

In this matter, we believe that Captain Moe cannot be held liable in the joint suit for
defamation by Unitary Authority of Argyll and Bute (on behalf of the residents), as well
as CSKR and FOLI on two (2) grounds. Firstly, The elements of defamation was not
fulfilled. Secondly, since the statement was general in nature, Unitary Authority of Argyll
and Bute (on behalf of the residents), as well as CSKR and FOLI have no locus standi to
take action against Captain Moe.
 Based on the discussion above, we can conclude that statement made in Captain Moe
personal Twitter account would not affects WMD in legal sense. However, though
Captain Moe cannot be held liable in the defamation suit, it would better in publicity if
WMD could make a public statement to clarify that the statement made by Captain Moe
was in his own individual capacity and does not portrays the collective intention of
WMD.

4.0 SUMMARY

4.1 After perusing all material facts and clarification given, there are three (3) conclusions
that can be made:

a. WMD is not liable for the death of Walter Heeds McNare, a trespasser who was
killed on WMD vessel, M.V. Dinisaur;
b. Contract between WMD and the UK government on the development of AUV’s with
nuclear capabilities is void;
c. It is advised for WMD to make a public statement to clarify that the statement made
by Captain Moe was in his own individual capacity and does not portrays the
collective intention of WMD.

We hope that our opinion has provided you the advice that you needed.We highly advise you to
proceed with solution that we recommended and we look forward to hearing from you in the near
future.

Yours Sincerely,
For and on behalf of Messrs Ashikin& Partners,

ilham
……………………………..
ILHAM ABADI BIN IDRIS
Senior Partners
Marks: 32