Question(6101)

In a case,Ko Ko gave false evidence as he was instigated by U Mg Mg to give false evidence in a

case. Does U Mg Mg commit giving false evidence? Are U Mg Mg and Ko Ko liable to the same
punishment as giving false evidence ? Give your answer with relevant provision and cases.

Answer

I would like to answer that,Yes, U Mg Mg and Ko Ko liable to the same punishment as giving
false evidence if Ko Ko has attempted to commit.

I would like to present that, U Mg Mg and Ko Ko liable to the same punishment as giving false
evidence.

According to Section 107 of the Penal Code,In every crime firstly; intention to commit it,
secondly, preparation to commit it, thirdly attempt commits it. If the attempt fails the crime is not
complete but how punished the person attempting the act. An attempt to commit a crime must be
distinguished from an intention to commit it, and from preparation made for its commission.
Intention is the direction of conduct towards the objects upon considering the motive, which
suggest the choice.2 But the law does not take choice of an intention without an act. Mere
intention to commit an offence, not followed by any act, cannot constitute an offence. The will is
not to be taken for the deed, unless there be some external act which shows that progress has
been made in the direction of it, or towards maturing and affecting it.

Preparation consists in devising or arranging the means or measures necessary for the
commission of an offence. The provisions of the section do not extent to make punishable as
attempts, acts done in the mere stage of preparation. For example, A intends to feel poison to B,
finding poison to do so is only preparation. It is not actionable. But a person will be punishable
according to criminal law, if he commits the following offences;

(1) High Treason.

(2) Committing depredation on territories of power at peace with the state.
(3) Making preparation to commit dacoity.

Attempt is the direct movement towards the commission after the preparation is made. An
"attempt" is an intentional preparatory action, which so fails through circumstances independent
of the person who seeks its accomplishment. When a man does an intentional act with a view to
attain a certain end and fails in his object through some circumstances independent of his own
will, then that man has attempted to effect the object at which he aimed. "Attempt" is laid down
in Section 511 of Penal Code as follows; Whoever attempts to commit an offence punishable by
this Code with imprisonment or to cause such an offence to be committed, and in such attempt
does any act towards the commission of the offence, shall, where no express provision is made
by this Code for the punishment of such attempt, be punished with imprisonment of any
description provided for the offence for a term of imprisonment which may extend to one-half of
the longest term provided for the offence for the offence, or with such fine as is provided for that
offence, or with both.

Illustrations
(a) A makes an attempt to steal some jewels by breaking open a box, and finds after so opening
the box, that there is no jewel in it. He has done an act towards the commission of theft, and
therefore is guilty under this Section.
(b) A makes an attempt to pick the pocket of Z by thrusting his hand into Z's pocket. A fails in
the attempt in consequence of Z's having nothing in his pocket. A is guilty this Section.
Under section 109, whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code for the punishment
of such abetment, be punished with the punishment provided for the offence.
Under section 110, whoever abets the commission of an offence shall, if the person abetted does
the act with a different intention or knowledge from that of the abettor, be punished with the
punishment provided for the offence which would have been committed if the act had been done
with no other.

According to Section 109 of the Penal Code, Whoever abets any offence shall, if the act abetted
is committed in consequence of the abetment, and no express provision is made by this Code of
the punishment of such abetment, be punished with the punishment provided for the offence.
Explanation- An act or offence is said to be committed in sequence of abetment, when it is
committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid
which constitutes the abetment.

Conclusion

I would like to answer that,Yes, I would like to answer that,Yes, U Mg Mg and Ko Ko liable to
the same punishment as giving false evidence if Ko Ko has attempted to commit.But attempt is
the commission after the preparation is made.
Question(6102)

After Aung Aung Htun and Aye Aye Myint married with the consent of their parents, they
separated on that day . There was no consummation between them. Can Aung Aung Htun sue the
restitution of conjugal right to Aye Aye Myint under Myanmar customary law?Give your legal
advice for Aung Aung Htun.

Answer

I would like to answer that,Yes, Aung Aung Htun sue the restitution of conjugal right to Aye
Aye Myint under Myanmar customary law.

I would like to present that, After Aung Aung Htun and Aye Aye Myint married with the consent
of their parents, they separated on that day . There was no consummation between them.
According to, Section 36 of the Kin Wun Mingyi U Gaung’s Digest Vol 2) gives three kinds of
marriage.
(1) Marriage affected by the parents of both parties.
(2) Marriage contracted through a go-between and
(3) Marriage by mutual consent.

U May Oung's, a selection of Leading Cases on Buddhist Law had written on repute and conduct
as follows.

"Did the man or woman or both ever admit their status?

Did they live together?

Did they two behave towards each other and towards other in a way usual to married couples?
Did they go together place of worship?
How was the man treated by the relatives of the woman, or the woman by those of the man?

What is the character and position of woman and her parents?

Is there anything to show that the relationship between the parties was regarded as illicit by their
friends and relatives?
If one of the parties has died, what was the other's conduct at the funeral?

These and other indication, though not necessarily all of them must be considered in deciding
whether the full status of husband and wife has been established between the parties.

Moreover Prior to the celebrated reported rulings of Daw Khin Mya (a) Mar Mar Vs U Nyunt
Hling, (1972),19 consummation consummation was one of the essential of legal marriage
prescribed in Myanmar Customary Law.

Conclusion
I would like to answer that,I advice, Aung Aung Htun sue the restitution of conjugal right to Aye
Aye Myint under Myanmar customary law.

Question(6103)

Peter and John entered into a contract under which Peter promised to diliver 100 bags of
rice,with kyats 5000 each,to John in two installments of 50 each.Though he delivered the first
batch of rice bags,he failed to supply the second . Does John have to pay for the rice bags?
Explain with relevant provision.(chapter-5)

Answer

I would like to answer that, No, John don’t have to pay for the rice bags. Moreover he demand to
compensation for any loss.

I would like to present that, Peter and John entered into a contract under which Peter promised to
diliver 100 bags of rice,with kyats 5000 each,to John in two installments of 50 each.Though he
delivered the first batch of rice bags,he failed to supply the second .

According to, Section 73 of Contract Act that:- When a contract has been broken, the party who
suffers by such breach is entitled to receive, from the party who has broken the contract,
compensation for any loss or damage caused to him thereby, which naturally arose in the usual
course of things from such breach, or which the parties knew, when they made the contract, to be
likely to result from the breach of it. Such compensation is not to be given for any remote and
indirect loss or damage sustained by reason of the breach.
Illustrations

(a) A contracts to sell and deliver 50 maunds of saltpetre to B, at a certain price to be paid on
delivery. A breaks his promise. B is entitled to receive from A, by way of compensation, the
sum, if any, by which the contract price falls short of the price for which B might have obtained
50 maunds of saltpetre of like quality at the time when the saltpetre ought to have been delivered.

(b) A hires B's ship to go to Chalna, and there take on board, on the first of January, a cargo
which A is to provide and to bring it to Chittagong, the freight to be paid when earned. B's ship
does not go to Chalna, but A has opportunities of procuring suitable conveyance for the cargo
upon terms as advantageous as those on which he had chartered the ship. A avails himself of
those opportunities, but is put to trouble and expense in doing so. A is entitled to receive
compensation from B in respect of such trouble and expense. (c) A contracts to buy of B, at a
stated price, 50 maunds of rice, no time being fixed for delivery. A afterwards informs B that he
will not accept the rice if tendered to him. B is entitled to receive from A, by way
of compensation, the amount, if any, by which the contract price exceeds that which B can obtain
for the rice at the time when A informs B that he will not accept it.

(d) A contracts to buy B's ship for 60,000 Taka, but breaks his promise. A must pay to B, by way
of compensation, the excess, if any, of the contract price over the price which B can obtain for
the ship at the time of the breach of the promise. (e) A, the owner of a boat, contracts with B to
take a cargo of jute to Mymensingh, for sale at that place, starting on a specified day. The boat
owing to some avoidable cause, does not start at the time appointed, where by the arrival of the
cargo at Mymensingh is delayed beyond the time when it would have arrived if the boat had
sailed according to the contract. After that date, and before the arrival of the cargo, the price of
jute falls. The measure of the compensation payable to B by A is the difference between the price
which B could have obtained for the cargo at Mymensingh at the time when it would have
arrived if forwarded in due course, and its market price at the time when it actually arrived.

Conclusion

I would like to answer that, No, John don’t have to pay for the rice bags. Moreover he demand to
compensation for any loss, according to, Section 73 of Contract Act
Question(6104)

U Ngwe explores and extracts the precious stones in Mogok and he wants to sell and export that
stones. Give your legal opinion under the state-owned Economic Enterprises law.(chapter-4)

Answer

I would like to answer that,My legal opinion under the state-owned Economic Enterprises law
are follow as,

I would like to present that, U Ngwe explores and extracts the precious stones in Mogok and he
wants to sell and export that stones.

According to, Section 3 of the state-owned Economic Enterprises law provides that, Under Section 3 of
this law, the Government has the sole right to carry out the following economic enterprises as State
owned economic enterprises:-

(a) extraction of teak and sale of the same in the country and abroad;
(b) cultivation and conservation of forest plantation with the exception of village-owned fire-
wood plantation cultivated by the villagers for their personal use;
(c) exploration, extraction and sale of petroleum and natural gas and production of products of
the same;
(d) exploration and extraction of pearls, jade and precious stones and export of the same;
(e) breeding and production of fish and prawns in fisheries which have been reserved for
research by the Government;
(f) Postal and Telecommunications Service;
(g) Air Transport Service and Railway Transport Service;
(h) Banking Service and Insurance Service;
(i) Broadcasting Service and Television Service;
(j) exploration and extraction of metals and export of the same;
(k) Electricity Generating Services other than those permitted by law to private and Co-
operative electricity generating services;
(l) manufacture of products relating to security and defence which the Government has, from
time to time, prescribed by notifications.

According to Section 4, the Government may, by notification, permit in the interest of the Union
of Myanmar any economic enterprise which is prescribed under section 3 to be operated solely
by the Government to be carried out by joint venture between the Government and any other
person or any other economic organization or under conditions by any person or any economic
organization subject to conditions.

Under Paragraph 3 of procedures relating to permission to carry out economic enterprises

defined under Section 3 of the State-owned economic enterprises law, the Government may, in
the interests of the State, permit any enterprise which is prescribed under Section 3 of the State-
owned Economic Enterprises Law to be carried out solely by the Government, in any of the
following form;

(a) Joint-Venture between the organization and citizen or a foreigner;

(b) Joint-Venture between the organization, a citizen and a foreigner;
(c) Joint-Venture between a citizen and a foreigner;
(d) Enterprise by a citizen or a foreigner.
According to Paragraph 4 of this procedure, when any citizen or any foreigner applies to carry
out any economic enterprise which is prescribed under Section 3 of the said law, the following
procedures are required:-
(a)Application shall be made in attached Form (A) to the State Economic Organization
concerned;
(b)The organization shall submit the proposal to its ministry together with its.
(c)If the Ministry concerned considers the proposed enterprise submitted by the organization is
not covered by the Union of Myanmar Foreign Investment Law and is also in the interests of the
State, the ministry concerned shall submit the following particulars together with explanations
and its comments, to the Government:-
* Type of business to be carried out;
* Type of organization to be formed;
* Estimated amount of capital to be invested;
* Financial amount of capital to be invested; 7
* Duration to be carried out;
* Estimated income and expenses;
* Economic and social justification for the State;
* Condition to be prescribed.

Conclusion
I would like to answer that, My legal opinion under the state-owned Economic Enterprises law
are above as, and to make required procedure for his economic enterprise.

Question(6105)

Mr Willian, a Citizen of China,was married to Ma That, a Myanmar girl, and lived in

theMyanmar.He purchased two acres of U Kyaw’s land to build a big house for his falimy.But he
could not afford to continue to be a legal land owner. When his son, U Maung, reached the age
of majority, he applied a grant for such land. Discuss whether U Maung can be allowed to get
the grant or not.(chapter-3)

Answer

I would like to answer that, U Maung could not be allowed to get the grant According to the
Transfer of Immoveable Property Restriction Law, because Mr Willian isn’t a a citizen since he
purchased two acres of U Kyaw’s land.
I would like to present that, Mr Willian, a Citizen of China,was married to Ma That, a Myanmar
girl, and lived in theMyanmar.He purchased two acres of U Kyaw’s land to build a big house for
his falimy.But he could not afford to continue to be a legalland owner. When his son, U Maung,
reached the age of majority, he applied a grant for such land.
According to Section (3)of the Transfer of Immoveable Property Restriction Law, No person
shall transfer any immoveable property by way of sale, purchase, gift, acceptance of a gift,
mortgage, acceptance of a mortgage, exchange or transfer and acceptance of a transfer by any
other means to a foreigner or a company owned by a foreigner.
According to Section (3)of the Transfer of Immoveable Property Restriction Law, No foreigner
or a company owned by a foreigner shall transfer any immoveable property by way of sale,
purchase, gift, acceptance of a gift, mortgage, acceptance of a mortgage exchange, or transfer
and acceptance of a transfer by any other means.
Illustration
Before provision of the Transfer of Immoveable Property Restriction Law(1952), if a foreigner
purchased Immoveable Property,This contract and business is void , Yarjanan &U Aung Myint
and two 1975 B.L.R(CC)84,
Conclusion
So,I would like to answer that, U Maung could not be allowed to get the grant According to the
Transfer of Immoveable Property Restriction Law-1987, because Mr Willian isn’t a a citizen
since he purchased two acres of U Kyaw’s land.