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Archive for the ‘Legal Matters’ Category

Tremors in Terengganu Leadership

If you are familiar with the sequence of events in the Terengganu MB crisis a fortnight ago, then by all means watch the video below. Its a humorous summary of the events, to the tune of Journey’s “Don’t Stop Believing” 🙂

If you are not familiar with the events, then please read this whole post first otherwise the video won’t make a lick of sense.

The Drama Begins

The 2008 elections resulted in BN comfortably retaining the Terengganu state by winning 24 out of 32 state seats. Idris Jusoh (State Assemblyman – Jertih) was expected to continue on as Chief Minister but his swearing-in ceremony on March 10th was unexpectedly postponed by the palace.

On March 15th the Terengganu Regency Advisory Council called for a meeting with 23 of the BN State Assemblymen – Idris was not invited. Though the meeting was cancelled at the last minute, the non-invitation of Idris strongly implied that the palace was going to choose someone else as Chief Minister.

Malaysiakini cited sources claiming that the Sultan of Terengganu (our present King) was unhappy with Idris for various reasons:

  • The shooting incident at Batu Burok on September 8th, 2007
  • The cocky attitude shown by Idris during his tenure as Chief Minister – disrespectful towards the Sultan
  • The strong measures used by police on polling day to disperse PAS supporters in Rusila, Marang
  • Grassroots UMNO members being unhappy with Idris

Constitutional Clarification

By March 19th it was safe to assume that Kijal Assemblyman and Kemaman UMNO division chief Ahmad Said was the preferred choice of the Terengganu palace. Idris Jusoh however had the public support of the Prime Minister and the other 22 BN Assemblymen.

The Attorney-General, Tan Sri Abdul Gani Patail, stated:

… that the federal constitution does not grant the sultan as the sitting Yang di-Pertuan Agong the right to nominate anyone for the menteri besar post.

… that the candidate appointed as the menteri besar was not the nominee of the regent or the Regency Advisory Council but a person who was appointed according to the laws of the state.

… that the state constitution stated that the menteri besar appointee must be a person who is a member of the state legislative assembly who commanded majority support in the assembly.

…that the sultan was fully aware of the provision and that he cannot interfere in the appointment of the menteri besar.

This is because under Article 34(1) of the Federal Constitution, the Yang di-Pertuan Agong cannot function as a ruler of a state except as the head of the Islamic religion.

In connection with this, the Yang di-Pertuan Agong does not have his own candidate for the post (menteri besar of Terengganu).

– quoted from an article published in Malaysiakini on March 19th 2008 (link)

I checked what the Attorney-General said and he is right – once a Sultan becomes an Agong he no longer does his ‘Ruler’ duties, so any such duty is then relegated to a Regent/Regent Advisory Council.

34. Disabilities of Yang di-Pertuan Agong, etc.

(1) The Yang di-Pertuan Agong shall not exercise his functions as Ruler of his State except those of Head of the religion of Islam.

Eighth Schedule (Article 71)

The Executive Council

2. (2) (a) the Ruler shall appoint as Menteri Besar to preside over the Executive Council a member of the Legislative Assembly who in his judgment is likely to command the confidence of the majority of the members of the Assembly

– Federal Constitution

It could be argued however that only the official appointment is to be done by the Regent, and the Sultan is free to decide who gets to be Menteri Besar, or at least reject candidates that he does not find suitable. Given the public support of the 22 State Assembly members for Idris, Ahmad Said does look like an unconstitutional choice.

Bellicose Masters and Cohorts

The palace announced their choice of Ahmad Said as Chief Minister on March 22nd. The other BN Assemblymen immediately responded by stating that they would not accept anyone but Idris Jusoh. Some even stated they would vacate their seats to force by-elections if Idris was not appointed – very bold words indeed.

UMNO Secretary-General Tengku Adnan Tengku Mansor also stated that disciplinary action would be taken against Ahmad if he went ahead with the swearing-in. In fact that very night the state leadership decided to sack Ahmad Said if he was sworn-in as Chief Minister.

Ahmad Said was given his letter of appointment on March 23rd.Amusingly enough the other BN Assemblymen were not able to boycott the ceremony because they weren’t even invited, though they did show up at the palace to deliver a letter of protest.

Idris’s public support had now grown to 22 State Assemblymen, 4/8 UMNO divisions, 5 MPs and the PM. Ahmad Said on the other hand stated that he had the support of 7/8 UMNO divisions, though there was no public show of it so he appeared to stand alone.

UMNO supreme council member Rais Yatim stated that if Ahmad Said were to convene a state assembly meeting, the others would table a vote of no-confidence and he would fall like a rotten nangka (jackfruit).

The Prime Minister even said that Ahmad Said’s appointment as Chief Minister was unconstitutional! Small wonder then that Idris made the following sarcastic remark on RTM1, “I have the backing of the prime minister, the deputy prime minister, the state BN representatives and the people of Terengganu but the palace wants him”.

This is why I used the term bellicose – so much public hostility towards Ahmad Said and in so doing, bad PR for UMNO.

Past and Future Apologies

Idris Jusoh held a press conference on March 25th to inform the public that he had tendered a general apology to the Sultan on February 23rd. He stated that he was prepared to apologise to the Sultan if he had done anything wrong. Additionally, he said that Ahmad Said’s appointment was unconstitutional and unlawful.

Flip-flops Anyone?

The Prime Minister met the Sultan on March 26th after which he suddenly reversed his decision to support Idris – he now publicly backed Ahmad Said and stated that ‘his appointment was constitutional’.

With their leader turned around 180 degrees, the BN Assemblymen had to follow suit and flip as well – suddenly none were opposed to Ahmad Said. The swearing-in ceremony was held on March 30th, bringing this long drama to an end with a much publicised reconciliatory hug between Ahmad Said and Idris Jusoh.

No sacking from UMNO.

No attempt to take legal steps to remove Ahmad Said from office.
Despite all the threats and lack of support, Ahmad Said pulled through in the end.

This whole fiasco has only shown that UMNO ‘leaders’ viz. the State Assemblymen are forced to follow the leaders above them, rather than make decisions on their own. Who wants leaders that lack free will? How will Ahmad Said work with these people who took strong measures to block his ascension to the post of Chief Minister? We will just have to wait and see.

Now that you know the story, here is the video again. Enjoy!


Sultan Terengganu next to snub PM? (link)
Terengganu: Stalemate continues on Idris’ appointment (link)
T’ganu MB: Palace appoints Ahmad Said, boycott looms (link)
MB Crisis deepens in Terengganu (link)
Idris apologises to sultan (link)
T’ganu MB: Abdullah backs down? (link)
Ahmad Said finally sworn in as T’gganu MB (link)

Storm brewing in the east (link)
Abdullah says Idris should be menteri besar (link)
22 reps, 5 MPs and 4 divisions back Idris (link)
He says he has support (link)
Dead end for Ahmad Said, so says Rais (link)
Idris to ‘accept any decision’ (link)
Appointment followed state constitution (link)
Ahmad ‘best decision for Terengganu’ (link)

Written by ak57

April 7, 2008 at 4:47 am

Attempts to Confine and Expand

Stick to appointment of judges, says Ahmad Fairuz’s lawyer

KUALA LUMPUR: The inquiry into the Datuk V.K. Lingam video clip should be confined only to the appointment of judges as stated in its full title, the Royal Commission heard.

Kamarul Hisham Kamaruddin, counsel for former Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim, said the objective of setting up this commission was revealed in its title, as follows:

“Commission of Inquiry of the Video Clip Recording of Images of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges Under The Commissions of Inquiry Act 1950.”

As such, he submitted that the terms of reference for the inquiry could have meaning only by reference to the specific objective of the establishment of the commission.

“Conversely, the reading of the terms of reference without the focal point of the purpose of the commission’s establishment leaves the terms open-ended without a sense of boundary,” he submitted in support of an objection by Lingam on questions relating to his New Zealand trip in December 1994.

On Monday, Lingam’s counsel R. Thayalan objected to the line of questioning by the Malaysian Bar, saying Lingam’s holiday to New Zealand with Tun Eusoff Chin, who was Chief Justice then, was not relevant to the inquiry.

Thayalan submitted that the trip did not fall within the commission’s terms of reference and that the commission was set up only to look into matters regarding a video clip on the appointment of judges.

Kamarul Hisham also argued that the answers given by Lingam and Eusoff on their closeness, which had been alleged in the video, had no probative value in the inquiry because it was not relevant to the appointment of judges.

However, commissioner Datuk Mahadev Shankar told him the question of probative value should only be addressed at the end of the inquiry after all evidence had been adduced.

In their written submissions, leading officers DPPs Datuk Nordin Hassan and Datuk Azmi Ariffin submitted that the issue of closeness and any other issues that were not related to the appointment of judges did not come within the terms of reference.

They said the commission was only confined to the inquiry on the video clip with regard to the appointment of judges.

“Looking at the transcript, it is certainly not the purpose of the establishment of this commission to ascertain or determine the truth or otherwise of all matters mentioned in the transcript,” they submitted.

Several examples highlighted by the prosecutors to emphasise this point included the suggestions that Tun Mohamed Dzaiddin Abdullah wanted to hold office as Chief Justice until the age of 68, and that Tan Sri Robert Kuok was very brilliant and (the late) Tan Sri Lim Goh Tong was “already rich.”

– quoted from an article published in The Star on 23rd January 2008 (link)

All this talk about the confines of the RC was caused by the questioning regarding the NZ trip by Eusoff Chin and VK Lingam. But here’s the weird thing – who are the people bringing up this matter?

  • Ahmad Fairuz’s lawyer, Kamarul Hisham Kamaruddin
  • The DPP’s Datuk Nordin Hassan and Datuk Azmi Ariffin
  • VK Lingam’s lawyer, R.Thayalan (on Monday)

The NZ trip implies corruption on Eusoff Chin and VK Lingam’s part, so why is Ahmad Fairuz’s lawyer coming to their defense? Also, why the DPPs? Ahmad Fairuz stands to gain by defending them if he himself is corrupt or benefited from their corruption, but what is the DPP’s vested interest?

From the definition of the RC, i.e. Commission of Inquiry of the Video Clip Recording of Images of a Person Purported to be an Advocate and Solicitor Speaking on the Telephone on Matters Regarding the Appointment of Judges Under The Commissions of Inquiry Act 1950, it seems it has the leeway to investigate anything directly related to the appointment of judges based on the transcript of the video clip. So given that, I do agree that items like ‘case fixing’ is outside their terms of reference.

That part with prosecutors stating that looking into whether Robert Kuok was brilliant or Lim Goh Tong was rich..I would have burst out laughing if I was there, they picked the most non-sensical statements to support their own 🙂

Further reading: Robert Lazar’s objection, published 23rd January 2008 (NST) (The Star)

Counsel: Leave out links to law firm and former king

KUALA LUMPUR: Former Chief Justice Tun Mohamed Dzaiddin Abdullah has objected to references made about his links with a law firm and a former Yang di-Pertuan Agong.

His counsel Khoo Guan Huat said Datuk V.K. Lingam should not use those facts about Dzaiddin and forcibly include it in the inquiry.

“My client finds it objectionable and mischievous for him to take an example that falls outside the spectrum of evidence to exclude evidence that may fall inside the spectrum,” he said.

Khoo added that Lingam’s lawyer R. Thayalan had alluded to Dzaiddin’s relationship with a Yang di-Pertuan Agong and the law firm Skrine.

“If for some reason during the course of this inquiry the behaviour of Tun Dzaiddin is relevant, then he can be examined by the counsel,” Khoo argued.

On Monday, Datuk V.K. Lingam’s counsel R. Thayalan argued that the commission of inquiry could not be open-ended in nature. Otherwise, the commission would be entitled to look into any misbehaviour of all persons whose names were mentioned in the video clip.

In objecting to questions relating to his client’s New Zealand trip in 1994, the lawyer gave several examples that the commission would have to consider in the event that it admitted evidence on the trip.

Among others, he said the question of whether Dzaiddin had misbehaved when he joined Skrine immediately after his retirement had to be considered by the commission.

– quoted from an article published in The Star on January 23rd 2008 (link)

Is mischievous a legal term? Thayalan almost sounds like he’s making a threat along the lines of, if you come after my client’s personal NZ trip with Eusoff Chin, you have to look into the misbehaviour of Tengku Adnan, Ahmad Fairuz, Tun Mahathir, Eusoff Chin and so on. But does the RC have any evidence to encourage them to investigate these people?

  1. VK Lingam was the man in the video clip
  2. Ahmad Fairuz was allegedly the man on the other end of the phone

VK Lingam’s personal involvement with Fairuz and the others needs to be investigated assuming there is other evidence (official decisions? documents?) to indicate that Lingam’s personal relationship with these person(s) offered him some control on their professional behaviour. The personal lives of these other men is not relevant if it can’t be directly tied to Lingam, correct? Honestly if the RC was that open ended it would never end, picking apart the lives of these men and highlighting every act of corruption they can find.

Maybe Dzaiddin’s involvement with a prior Agong and Skrine is linked to corrupt judicial appointment making on his part, I don’t know. But as no mention of this was made by VK Lingam in the video, it is not relevant because it is outside the RC’s power to investigate.

Written by ak57

January 23, 2008 at 11:20 pm

Posted in Legal Matters, Lingam RC

Tagged with

Bar Council can comment but not take part

Bar Council ‘can take part in hearings on video clip’

KUALA LUMPUR: The Bar Council is welcome to take part in the royal commission hearings on the “Lingam” video clip, Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz said.

“We have no problems with it. They can come forward and give us their input.”

However, he said there was no possibility that Bar Council members could become royal commissioners themselves.

“There is no chance of that happening. How can they act fairly and be unbiased if they have already marched against the judiciary? They have already made their stand.

“Secondly, Lingam is a member of the Bar. Just like they don’t trust the police to investigate their own, how can the Bar be part of an investigation into one of their members?

“Justice must not merely be served, but must be seen to be served,” he said.

In the video clip, lawyer Datuk V.K. Lingam is allegedly shown discussing judicial appointments with a senior judge.

The terms of reference for the royal commission of inquiry was up to the government, Nazri said.

“It is not for the Bar Council to decide, but the government.

“We won’t consult them and we will not give up our right to decide.”

Nazri said the terms had not been finalised.

“We (the cabinet) have given our opinions, but the prime minister has not finalised anything yet.”

He also said the government was happy with the present system of appointing judges and would not be changing it, despite calls to set up an independent judicial appointments and promotions commission.

(cut) …

In Putrajaya, sources said the Anti-Corruption Agency was still gathering evidence in relation to the video clip.

Investigations were still continuing and the case had not been wrapped up.

In Kuala Lumpur, a lawyer yesterday filed an application seeking a declaration that the resolutions made during the Bar Council extraordinary general meeting on Thursday relating to the “Lingam” video clip were null and void.

Lian Meng Wah, in his application filed at the High Court yesterday, said the Bar Council was not a member of the Malaysian Bar and does not have the power, authority or right to propose any motion under the Legal Profession Act 1976 to be considered at the EGM.

He further stated that the meeting was legal but the motions were illegal and unconstitutional.

Lian, a member of the Malaysian Bar, claimed the resolutions deemed illegal during the EGM include:

– The Malaysian Bar strongly deplores and condemns any member of the Bar who indulges in any conduct that may adversely affect the independence, integrity and credibility of the judiciary or the administration of justice;

– The Malaysian Bar strongly deplores and condemns the manipulation of the appointments and promotion process of judges by any party which interferes with and adversely affects the independence, integrity and credibility of the judiciary, and

– The Malaysian Bar welcomes the announcement of the prime minister to establish a royal commission of inquiry.

Lian sought an order to set aside the adoption of the Bar Council motion as a resolution of the Malaysian Bar and an injunction to refrain the Bar Council from publishing, implementing, acting upon, prosecuting or canvassing the resolutions of the EGM.

– quoted from an article published in NST on 24th November 2007 (link)

For once I agree with Nazri, to prevent a conflict of interest no Bar council member should be part of the Royal Commission. However, wasn’t Haidar also linked to VK Lingam yet given the OK to head the Panel? Sounds like selective judgement sir.

That part about the government being happy with the current system of appointing judges is also disheartening – now is your chance to get support for the government sir! Make a big show of improving the system, get more votes from the less-informed population who only read the media that you control.

Then again it may still happen, to distract from whatever happens at the HINDRAF gathering tomorrow.

It is worth noting that the ACA is reported to be still investigating matters related to the video clip, though that may just be their interview with VK Lingam and nothing more.

Finally out of all the members of the Bar Council, only one had a beef with the result of the meeting? I am not that familiar with legal parlance, but by filing the report and saying the stated resolutions were illegal, is Lian Meng Wah endorsing :

  • conduct that adversely affects the independence, integrity and credibility of the judiciary
  • the manipulation of the appointments and promotion process of judges

There is nothing to ‘implement, act upon or prosecute’ here, unless you count future condemnation of Bar Council members who practice corruption. What is he talking about? There must be more to this than what was printed.

Perhaps he is just a stickler to the rules (I’ll have to pick up a copy of the Legal Profession Act now sigh) and the Malaysian Bar might not have the right to officially give comment on the process of appointing/promoting judges or on the performance of its members.

Written by ak57

November 25, 2007 at 3:31 am

Informers Unprotected?

Informers’ identities ‘protected until hearings’

IPOH: Informers will have their identities protected until their cases come up in court where everything will be made public, Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz said yesterday.

He said once someone was charged, there would no longer be any secrecy.

“It’s open to the public. Everybody know who the witness and the source is.”

The names of police informers, which Commercial Crime Investigation Department director Datuk Ramli Yusuff alleged were leaked in charges against several CCID officers recently, were in the public domain as the case was brought to court, Nazri said after attending a Hari Raya gathering at the Perak ACA office here.

Nazri said he did not know where the leak came from, but denied that it was the fault of the Anti-Corruption Agency.

“I’m very confident that the ACA knows what they are doing because they have been in this business for a long time. They do not reveal their sources.”

“If there’s any leakage, it must be from some other (party).”

He said the ACA did not have any agenda except to combat corruption and urged the public to continue co-operating with it.

– quoted from an article published in NST on 5th November 2007 (link)

I am assuming that Nazri is talking about police informants – does he mean that if lets say a Mafia member leaks some information to the police, his name will be publicised and he will face reprisal in future? What a horrifying thought!

Now it is hard to comment on what Nazri said, because I am uncertain what laws govern the secrecy of police informer identities. Since the quote involves the ACA, let me quote from the Anti Corruption Act, which does have a section on protection of informers (who inform the ACA on corruption):

53. (1) Subject to subsection (2), where any complaint made by an officer of the Agency states that the complaint is made in consequence of information received by the officer making the complaint, the information referred to in the complaint and the identity of the person from whom such information is received shall be secret between the officer who made the complaint and the person who gave the information, and everything contained in such information, the identity of the person who gave the information and all other circumstances relating to the information, including the place where it was given, shall not be disclosed or be ordered or required to be disclosed in any civil, criminal or other proceedings in any court, tribunal or other authority.

(2) If any book, paper or other document, or any visual or sound recording, or other matter or material which is given in evidence or liable to inspection in any civil, criminal or other proceedings in any court, tribunal or other authority as are referred to in subsection (1) contains an eny entry or other matter in which any person who gave the information is named or described or show, or which might lead to his discovery, the court before which the proceedings are held shall cause all such parts thereof or passages therein to be concealed from view or to be obliterated or otherwise removed so far as is necessary to protect such person from discovery.

So basically ACA informers should have their identities kept secret forever, by law. Something worth remembering.

Written by ak57

November 10, 2007 at 2:22 am

Posted in Legal Matters, Local News

Tagged with

CJ’s Last Day

Ahmad Fairuz retires as CJ

PUTRAJAYA (Nov 01, 2007): Tun Ahmad Fairuz Sheikh Abdul Halim has retired as Chief Justice (CJ) of the Federal Court of Malaysia when his term ended on Wednesday.

Court of Appeal President Datuk Abdul Hamid Mohamed has been appointed the acting CJ, Prime Minister Datuk Seri Abdullah Ahmad Badawi said yesterday“Tun Ahmad Fairuz has retired and we thank him for his outstanding contribution to our judicial system and hope that he will continue to serve the country with his experience,” he said.

“The vacant position, according to regulations, has to be filled, so we will fill the post with the second person in line, that is the Court of Appeal President Datuk Abdul Hamid Mohamed.

– quoted from an article published in The Sun on 1st November 2007 (link)

Hurray! Well, a small hurray at least – now that he is retired I’m curious whether the government will state that there is no need to investigate him.

Written by ak57

November 9, 2007 at 11:20 pm

Posted in Legal Matters, Local News

Tagged with

Fairuz Extension Status Unknown

It’s ‘king’s prerogative’

KUALA LUMPUR: The extension of the chief justice’s tenure is the prerogative of the king, lawyer and Bukit Gelugor MP Karpal Singh said yesterday.

He said a phrase in Article 125(1) of the Federal Constitution stated that a judge shall hold office until he attained the age of 66 and a further six months “as the Yang di-Pertuan Agong may approve” should be read together with Article 40(2).

Karpal said it was the king alone who had the discretion on whether to extend Tun Ahmad Fairuz Sheikh Abdul Halim’s tenure after he turns 66 on Nov 1.

“The king may consult the prime minister, but it is purely consultation and nothing else,” he said.

Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz said on Tuesday that the king had to act on the prime minister’s advice in the extension of the term.

Ahmad Fairuz had applied to the king in July for a six-month extension, but with less than two weeks to go before retirement, he has not received a letter to allow him to remain in office.

– quoted from an article published in NST on 18th October 2007 (link)

I ignored commenting on Nazri’s statement the day before because I wasn’t sure whether he was right or not. However after reading Karpal’s comments I got myself a copy of the Constitution to check the quoted articles. I have reproduced the related points below :

Article 125 (Tenure of office and remuneration of judges of Federal Court)

(1) Subject to the provisions of Clauses (2) to (5), a judge of the Federal Court shall hold office until he attains the age of sixty-six years or such later time, not being later than six months after he attains that age, as the Yang di-Pertuan Agong may approve.

Article 40 (Yang di-Pertuan Agong to act on advice)

(1) In the exercise of his functions under this Constitution or federal law the Yang di-Pertuan Agong shall act in accordance with the advice of the Cabinet or of a Minister acting under the general authority of the Cabinet, except as otherwise provided by this Constitution; but shall be entitled, at his request, to any information concerning the government of the Fderation which is available to the Cabinet.

(1A) In the exercise of his functions under this Constitution or federal law, where the Yang di-Pertuan Agong is to act in accordance with advice, on advice, or after considering advice, the Yang di-Pertuan Agong shall accept and act in accordance with such advice.

(2) The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say :
a) the appointment of a Prime Minister;
b) the withholding of consent to a request for the dissolution of Parliament;
c) the requisition of a meeting of the Conference of Rulers concerned solely with the privileges, position, honours and dignities of Their Royal Highnesses, and any action at such a meeting,

and in any other case mentioned in this Constitution.

Now I’ll admit its not 100% clear, because ‘as the Yang di-Pertuan Agong may approve’ in Article 125(1) implies it may be covered by Article 40(2) as a case where he may act in his discretion. So I can’t really make fun of Nazri for his statements. It is worth considering though that he often misinforms the public and even makes stuff up whereas Karpal Singh is a respected lawyer.

Well come November 2nd we’ll know who sits in the Chief Justice’s office chair.

CJ’s Last Day

Written by ak57

October 20, 2007 at 12:54 pm

CJ Retiring Soon

Fill chief justice’s post fast, says Bar

KUALA LUMPUR: The Bar Council has called on the authorities to fill the top position in the judiciary in view of the retirement of Chief Justice Tun Ahmad Fairuz Sheikh Abdul Halim at the end of the month.

“We urge that the appointment be made immediately upon the said retirement to avoid the post being left vacant for any length of time,” its president Ambiga Sreenevasan said in a statement yesterday.

The Conference of Rulers which endorses appointments and promotion of judicial officers will meet for two days from Oct 31.

Ahmad Fairuz, who has been holding the position since 2003, will turn 66 on Nov 1, the compulsory retirement age for judges.

– quoted from an article published in NST on 9th October 2007 (link)

I wonder if Ahmad Fairuz will be non-prosecutable after he retires? Will the government position be that there is no need to go after a retired old man now that he is no longer in a position of power?

Written by ak57

October 10, 2007 at 1:39 am

Posted in Legal Matters, Local News

Tagged with ,