LexTalk World Talk Show with Mr. Khong zhi Jian. Khong graduated from the University of Waikato, NZ in 2012 with a conjoint Bachelors of Laws (honours) and also a Bachelors of Social Science, majoring in Political Science. It was also in the same year of 2012 that he was called to the Bar in the New Zealand High Court as a Barrister & Solicitor. Upon returning to Malaysia, he sat for the Certificate of Legal Practice examinations and passed in 2013. His chambering commenced in Messrs Chew, Das & Jayaraja, where he was exposed to a very broad & diverse range of litigation matters. After his admission in the High Court of Malaya as an Advocate & Solicitor in 2014, Khong joined the ranks of Messrs Yip & Co. as an associate, where he was fortunate to be accorded much leeway to manage matters on his own in superior courts, including in the High Court and the Court of Appeal. In mid-2017, Khong joined Messrs Jason Ng & Partners and was assigned the role of managing and leading the litigation department. Khong has continued to taking the lead in all aspects of litigation in Tan & Khong Chambers.
Throughout Khong’s years of experience, he has gain versatility in both civil & criminal matters, amongst which includes dealing with various forms of legal disputes, including matters revolving construction law, company law, family law, general contractual & tortious disputes, and also competing interest in land claims, to name a few, having led hearings & trials for all levels of courts and also other tribunals. Apart from that, he is also conversant in the preparation of various agreements & instruments to facilitate a myriad of legal transactions.
Host: The pandemic saw some courts begin moving towards more remote proceedings and availability. Is this sustainable, and a possible way to increase access to justice, in your opinion?
Khong: I will be speaking from the perspective of a practitioner from peninsula Malaysia.
Now on remote proceedings, the advent of remote proceedings took the Malaysian civil litigation sector like a storm, and suddenly lawyers who weren’t into technology, were forced to adapt one way or another. Most criminal matters however still proceeded physically, since there is an expectation of open accountability where justice has to be done and seen to be done.
On sustainability, as technology improves into the future, it will become increasingly expedient for court proceedings to be conducted remotely. The problems with the present way remote hearings are conducted is largely due to technological limitations. Firstly on issues of latency which has a lot to do with the quality of broadband services, as well as the capacity of devices used. Although most internet users now possess 5g internet, all it takes to disrupt proceedings is for one participant to have a bad connection. The second concern is the limitations to reading a participant’s body language and to interpret non-verbal cues with precision, since it is excruciatingly difficult to achieve eye contact through the lenses of a webcam. Other body gestures also often cannot be seen on screen, such as hand gestures and certain positioning of the body. These are observations which trial lawyers often employ in the midst of a witness examination. When we are deprived of these things, the quality of cross-examination diminishes, although for now, we still get by with oral answers and an occasional facial flinch from witnesses.
But I do hope, that with the increasing use of technology, we would all soon have zero latency connection, and maybe, participants in a conference would in the near future appear in 3 dimensional or in holographic form, just like in Star Wars. That would all be attributive towards the sustainability of remote hearings.
As to access to justice, I have no doubt that remote hearings would increase access to justice, where less travel and higher reliant on remote hearings would mean lesser cost payable by a client and more time for lawyers as well. In fact, I even have a client right now whom I have never met who is residing overseas, and I am only able to represent his interest effectively due to remote technology. He is hopeful that a trial would also be done remotely, so that he does not have to travel down to Malaysia to attend trial as a witness.
Host: How would you rate the current legal system drive towards encouraging access to justice? Is there tangible movement in closing the justice gap?
Khong: I think the Malaysian Government has implemented various initiatives which has definitely made access to justice more accessible than it was in the past, say 20-30 years back. The fear to the layperson has always been that, if there is a legal problem, where to go when we either can’t afford the legal fees of a lawyer, or the value of the subject matter in dispute isn’t quite proportionate to even the minimal fees payable. In Malaysia, there are a few avenues.
The first is a small claims procedure for disputed claims not exceeding RM5,000-00. The matter would be heard in the magistrates court, and individual litigants cannot be legally represented. The filling fees and any cost awarded are also nominal. Since laypersons are supposed to represent themselves, and the small claims court is also not as strict on procedural compliance.
We also have the consumer claims tribunals for any claims not exceeding RM50,000-00, as well as a strata management and housing tribunal, which deals with disputes involving real estate. All these tribunals also do not ordinarily allow legal representation, and is meant to help laypersons resolve their disputes in an inexpensive way. There are also other forms of tribunals outside of the framework of the ordinary civil court structure.
The problem with these regimes, is that their decisions are still susceptible to either an appeal or a review to the High Court, and when that triggers, legal representation would still be allowed and it can still become very costly to litigate, although its initial hearing at first instance appears to be a cost-effective approach towards affordable access to justice.
If there is however an area which is sorely lacking in accessibility to justice, that would be the criminal justice system. I used to do dock brief many years back. It was one of the available legal aid programs which pupils had to join. Through dock brief, I would loiter in the various criminal magistrate courts in Kuala Lumpur, representing random accused persons to either perform a mitigation after their guilty plea, or to apply for bail. What was rather disconcerting is that most accused persons were brought in unrepresented with insufficient support to acquire legal representation, and most pleaded guilty because of that. The high rate of guilty plea is also likely due to the inability to afford legal representation, in addition to suspected persuasion from certain arresting authorities to do so. Although there are some initiatives, such as said dock brief program and also legal aid provided by the National Legal Aid Foundation, it is my respectful view that these initiatives do not provide adequate coverage, and to a degree, pleading guilty is often a choice of convenience rather than of guilt, because of the lack of realistic resources to mount a competent defence in trial.
There is much more that I could address on the accessibility to justice in Malaysia, but to address this matter in a nutshell, I personally feel that much has to be done to bridge the gap and create a justice system which is more readily accessible to all. Amongst others, that has to be done by accounting for the social economic condition of the general population.
Host: Time is money in any profession and all the more so in the legal industry. How do you ensure to make the best of you time as a lawyer?
Khong: Honestly, I wouldn’t confidently boast that I had actually made the most of the time that I actually could. I believe if I really did, I would be a lot more successful then what I have achieved today.
I see my other partner Daryl always hard at work, and he’s often out and about meeting clients and trying to draw in work for the firm. So I think, he would had been the better candidate to answer this question.
But if we’re to say, how did I best spent my time for the good first few years of practice, I’d say I spent the large part of my early years pushing to master legal practice in every way I could. Back then, every new type of application or proceeding that I have yet to taste always fascinated me. I’ll also be very excited when I was entrusted to examine witnesses during trial, or to even conduct a hearing. I’m proud to say that I have had the opportunity to gain quite a well-rounded exposure in various aspects of practice.
On hindsight, I would have focused more time on the social aspect of practice and towards building a clientele early on, as the reality in legal practice is there is no law to practice and legal prowess to demonstrate, unless one also has clients. So, it would appear that mastering the law and building a clientele are complimentary to one another. In any event, I guess it is never too late, and I am now spending more time improving this other aspect of practice.
As to day-to-day routine and maximizing my time in the best way possible, I always have a schedule of things which I want to accomplish each day, and I have all my pending and incoming work organized in Google Calendars, which is also shared with everyone else in the firm. That way, work can be properly distributed in a manageable way, whilst also accounting and accommodating to everyone’s own work schedule in the office. That way, time is maximized not just for myself, but also for all my other colleagues.
Host: What were some of the main challenges you faced along your journey in starting a legal firm?
Khong: Starting up Tan & Khong Chambers was a new and fresh experience. It was the first time that I started a business. So, there were a lot things that I had to learn, not only to continue improving to become a more competent lawyer every day, but now also as a business owner and employer.
I think the first challenge that I faced was realizing that I no longer had an employer above me. So, I had to adapt from transitioning from an employee to an employer. Back then as an employee, the motivation in practice was to prepare good drafts, do a good case and make sure, the boss was happy with my work.
It took a little more for me to come to terms that I no longer had a boss to impress, and that slowly transitioned to becoming more service orientated, since clients are the lifeline of the firm. That meant that doing a good job in court alone wasn’t enough, as running and managing a case well, or even winning a case, may not necessary mean that clients would be happy, if the client’s objectives are not met, or if there wasn’t enough interaction to ensure the client felt that they were properly accommodated. In fact, I once had a client who was not happy, although I was winning all the way. One day, the client said that he previously engaged a very senior lawyer to act for him, and it cost a bombshell. Yet although he lost even with senior counsel by his side, client claimed that he felt as though he had won. Until now, I wonder what that really meant.
The most challenging aspect of practice in being a partner and also as an employer is ultimately dealing with people, which is not an area was not my best area of comfort. I came to learn that everyone has a different personality of sorts, and not everyone would necessarily share the same worldview and perception we have. I for one, am usually very logical and analytical, but I noticed that many others do not necessarily share that same mentality, even for fellow lawyers alike. Some people for instance, tend to perceive things from an emotional spectrum, rather than what may be deemed ‘logical’ and ‘practical’. Hence why, perceptions even over simple matters can vastly differ. I believe the only way all these different personalities could come together is if everyone were prepared to put aside their differences and explore common ground which they all have. The ability to compromise without also compromising on wellbeing is thus a personal development that I would always seek to improve. Coincidently, it is also one of the skills in dispute resolution that a competent lawyer must possess and further enhance over time, since the reality of practice is more so about solving problems for people, than fighting out a case.
Host: How do you stay competitive in the legal market?
Khong: This is probably a challenge that most legal practitioners face, when they first start-up on their own. The first worry that comes to mind is, would we actually survive out there? Where would our clients come from? There is usually a funny tingling feeling, when there is no longer an employer above you.
When I was about to start-up firm, I asked around to see what other more senior practitioners had to say about this, and I was advised variously. Some said I had to go out and socialize, drink, play golf, and hopefully someone will give me something. And another lawyer claimed there was no need to do all those things. Just do a good job in all your work, and more work will find its way to you.
Now come about 2-3 years after starting firm, I think it is a combination of all that, and it also depends on the character and personality of the practitioner in deciding which method works better. I personally have not deliberately gone out to socialize with the intent of gaining clients, but my partner Daryl is a natural PR, so I guess his likable character invited inquiries and files to come in naturally.
For me, I am more of a hands-on person in legal practice, and I enjoy practising the law for what it is worth. And I think that has paid off, where to a certain degree, most clients can somewhat see or assess over a long haul whether their lawyer is dedicated and devoted in their matter.
Legal practice is also essentially service-based, so no 2 lawyers are alike. Therefore, staying competitive and relevant in the legal market is not necessarily just about how much fees are charged, but more so the quality of legal services provided. For me, I do so by making it a point to ensure that clients know what they are really getting into, when they desire to take a certain form of legal action. They will be advised on the pros and cons, and the various possibilities and outcomes that may eventually result. I also try to make it point as best as I can, to explain to clients where they are at, at a given stage of legal proceedings, what happens next, and the purposes of why certain papers are filed and the effect it brings about. I also further make it a point to follow up with clients a few months down the road after a matter is completed, to explore and see whether there are any new developments on the matter and whether I may be of any further assistance. I believe that is all equally important to show that even after everything is over, we still care.
Apart from looking at the continuing improvement towards quality of services, I have also recently started exploring avenues to uplift the name of my firm to be better recognizable to the public. That includes by enlisting into public directories, and by also giving talks and seminars.
But from my own unique experience, as a litigator, the best strategy to maintain competitive in the legal market probably sums up into 2 main things, which is providing quality legal services to meet a client’s needs, and to continue maintaining & growing a good reputation in the legal market. Both these elements combined is a formula for continuing success, staying relevant, and maintaining a competitive stance in the market.
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