ANG GEE GUAN v Janice Ng Kerh Chin (WA-33-180-04/2021)

This was an application (“this Application”) by the Respondent wife to set aside the Divorce Order dated 15 September 2021 (“the Order”), the Decree Nisi dated 15 September 2021 (“the Decree Nisi”); and the Decree Nisi made absolute on 11 October 2021 (“the Decree Absolute”). The factual background [2] On 12 April 2021, the Petitioner had filed a divorce petition (“the Petition”), together with an affidavit in support, statement as to the arrangement for the child, notice of proceedings and statement of acknowledgment of service (“collectively, the Cause Papers”).

Since the Petitioner was unable to serve the Cause Papers at the Respondent’s addresses, he applied to Court for substituted service, which was allowed on 10 June 2021. After substituted service of the Cause Papers had been completed, the hearing date was scheduled for 15 September 2021.

The Respondent had failed to attend the hearing, although the Petitioner claimed that he had informed the Respondent, by way of 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 3 registered post, of the hearing of the Petition, and had enclosed the Arahan untuk Perbicaraan and the Notis Perbicaraan. The Court, therefore granted the Order, Decree Nisi, and eventually the Decree Absolute.

On 30 March 2022, the Respondent filed this Application, which was dismissed for the following reasons. Contentions, evaluation, and findings

The Respondent’s contention was that she had not attended the divorce proceedings simply because she had no knowledge of the same, as she was at all times at the Melaka address.

In my view, this argument was untenable for the simple reason that it was a bare averment and was inconsistent with contemporaneous documentary evidence, and sworn affidavits that showed otherwise.

These included attempts made by one Leong Zhi Hong to personally serve the Cause Papers on the Respondent at the Melaka address on 20 April 2021, and the effort by one individual named Masrulnizam Bin Ramli, who had even pasted the Cause Papers at the Respondent’s Melaka address. 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 4

On 9 September 2021, for the purpose of notifying the Respondent of the hearing date, the Petitioner’s solicitors had served, by way of registered post, a letter dated 8 September 2021 to the Respondent’s Melaka address which had reached such address on 13 September 2021.

Despite these attempts, there was no response from the Respondent. Furthermore, the Petitioner, in support of his contention, had adduced as evidence, affidavits of service, photos, postal receipts, and sworn statements made by various individuals. As such, the irresistible inference was that the Respondent had indeed knowledge of the divorce proceedings and Cause Papers, and, hence, it was inequitable for this Court to entertain the Respondent’s bare averment that she had not received the Cause Papers or the notification for hearing.

In any event, the Petitioner had applied and was allowed to resort to substituted service of the Cause Papers, and according to the facts and documents, the Petitioner had complied fully with the terms of the Order for substituted service. What was crucial to note was that the substituted service of the Cause Papers was not disputed by the Respondent. In fact, there was no application whatsoever by the Respondent to even challenge the validity of the Order for substituted service. 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 5

It is trite law that the validity of an Order for substituted service can only be challenged by proceedings instituted for that very purpose. It cannot be challenged collaterally in other proceedings.

On this point I found instructive the cases of Ng Han Seng & Ors v. Scotch Leasing Sdn Bhd (Appointed Receivers And Managers) [2003] 4 MLJ 647 and Ng Choon Mei v Yap Kean Hong [2021] MLJU 1096, where in the latter case, in referring to the Federal Court case of Development & Commercial Bank Berhad v Aspatra Corporation Sdn Bhd & Anor [1996] 1 CLJ 141, the implications of failing to challenge an order for substituted service was explained by Nik Hashim JCA, in the following passage: The respondent had complied with the ss order and the appellants could not now challenge the ss order in their applications for that would amount to a collateral attack on the validity of the process thereto which is not permitted. The validity of the ss order can only be challenged by proceedings instituted for the very purpose. It cannot be challenged collaterally in other proceedings. Peh Swee Chin FCJ, delivering the judgment of the then Supreme Court in Development & Commercial Bank Bhd v. Aspatra Corp Sdn Bhd & Anor and Another Appeal [1996] 1 CLJ 141 at p. 146 said: The order of substituted service of the High Court... must be obeyed by everyone save in a few and rare exceptions and it can only be challenged as regards its validity by the only way of having it set aside by proceedings instituted for the very purpose. It cannot be challenged thus collaterally in any proceedings as regards its validity save in a very few rare exceptions... [Emphasis added.] 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 6

As a consequence of failing to challenge the Order for substituted service of the Cause Papers, it was my view that the Respondent’s contention of non-service of the Cause Papers was a non-starter. Whether reliance on Orders 13 and 42 of the Rules of Court was misconceived [15] The Respondent filed this Application pursuant to Order 13 rule 8 and Order 42 rule 13 of the Rules of Court 2012 (“Rules of Court”), both of which read: Order 13 – Default of appearance to writ Rule 8 - Setting aside judgment The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. ***** Order 42 – Judgment and orders Rule 13 – Setting aside or varying judgment and orders Save as otherwise provided in these Rules, where provisions are made in these Rules for the setting aside or varying of any order or judgment, a party intending to set aside or to vary such order or judgment shall make an application to the Court and serve it on the party who has obtained the order or judgment within thirty days after the receipt of the order or judgment by him 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 7

However, divorce proceedings are governed by the Law Reform (Marriage & Divorce) Act 1976 (“Law Reform (Marriage & Divorce) Act”) with its procedures prescribed by the Divorce and Matrimonial Proceedings Rules (“DMP Rules”). The relationship between the Rules of Court and both the Law Reform (Marriage & Divorce) Act and DMP Rules is explained in rule 3(1) of the DMP Rules, which reads: Rule 3 – Application, of other rules

Subject to these Rules and to any other written law, the Subordinate Courts Rules 1980 and the Rules of the High Court 1980 shall apply with necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the Sessions Court in West Malaysia or the First Class Magistrate’s Court in East Malaysia and in the High Court respectively. [Emphasis added.] [17] On this point, I found instructive the case of Ong Gim Huat v Toh Suan Lin Amy [1992] 2 MLJ 610, where it was stated by Dzaiddin J (as he then was) in the following passage: In my opinion, the Rules contain a complete set of rules and procedures in matrimonial proceedings under the Act. Where it is intended for the Rules to apply or incorporate the procedure under the Rules of the High Court, the Rules specifically provided for it. [Emphasis added.] 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 8 [18] Since the Law Reform (Marriage & Divorce) Act and the DMP Rules are specific, as opposed to the Rules of Court which is of general application, the maxim generalia specialibus non derogant applies. As such, it was my view that the relevant provision that applied in the present case was section 61 of the Law Reform (Marriage & Divorce) Act, which reads: Section 61 – Decree nisi and proceedings thereafter

Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant unless the court by general or special order from time to time fixes a shorter period.

Where a decree nisi of divorce has been granted and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the court and on that application the court may-

notwithstanding the provisions of the last foregoing subsection, make the decree absolute;

rescind the decree nisi;

require further inquiry; or

otherwise deal with the case as it thinks fit. [Emphasis added.] 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 9 [19] Hence, this Application which was pursuant to Order 13 rule 8 and Order 42 rule 13 of the Rules of Court, and the Respondent’s reliance on cases such as Evans v. Bartlam [1937] 2 All ER 646, Fira Development Sdn. Bhd. v. Goldwin Sdn. Bhd. [1989] 1 MLJ 40, and Hasil Bumi Development Sdn. Bhd. & Ors v. United Malayan Banking Corp Bhd [1994] 1 MLJ 312, were both misconceived, as these rules and cases were not relevant to this Application, as they were in relation to setting aside a judgment in default. Whether hearing by way of email was proper [20] The Respondent proceeded to submit that she was prejudiced by the divorce proceedings, as it was conducted via email correspondences by the previous judge. [21] On this point, my attention was brought to rule 29(2) of the DMP Rules, which reads: Rule 29 – Directions for trial

The registrar shall, if he considers it practicable to do so, give directions for trial by fixing the date, place and, as nearly as may be, the time of the trial and giving notice thereof to every party to the cause. [Emphasis added.] 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 10 [22] During the case management on 12 August 2021, it was decided that the divorce petition would be conducted by way of email exchanges due to the implementation of the Movement Control Order (“MCO”) in Malaysia. It was undisputed that during the MCO, Courts were empowered to conduct proceedings through remote technology, as stipulated by section 15A of the Courts of Judicature Act 1964 (“Courts of Judicature Act”), which reads: Section 15A – Court may conduct proceedings through remote communication technology

Without limiting section 15, the Court may, in the interest of justice, conduct the proceedings of any cause or matter, civil or criminal, through a remote communication technology.

In the case of the High Court, the place in which the High Court is held to conduct the proceedings of any cause or matter, civil or criminal, through a remote communication technology shall be deemed to be conducted within the local jurisdiction of such High Court.

Nothing in this section shall affect the operation of section 5 of the Evidence of Child Witness Act 2007 [Act 676], sections 265A and 272B of the Criminal Procedure Code [Act 593] and section 32A of the Evidence Act 1950 [Act 56].

In this section, "place" includes cyberspace, virtual place or virtual space. ***** Section 3 – Interpretation "remote communication technology" means a live video link, a live television link or any other electronic means of communication; 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 11 [Emphasis added.] [23] Remote communication technology has been interpreted in section 3 of the Courts of Judicature Act to mean ‘a live video link, a live television link or any other electronic means of communication’ which undeniably includes communication via email, as decided in several cases including Rexallent Construction Sdn Bhd v MSIG Insurance (Malaysia) Berhad & Other Cases [2022] MLJU 1736. [24] It was crucial to note that the decision to conduct the hearing via email was made by the Judge at her own behest, and not at the Petitioner’s insistence. I was, therefore, unable to agree with the Respondent that the Petitioner had deliberately attempted to deny the Respondent her right to be heard. [25] In any event, the Petitioner had sent to the Respondent a letter dated 8 September 2021, in which the Respondent was informed of the hearing date of the divorce petition, and which contained the email address of the Registrar, whom the Respondent could have contacted, but which she had failed to do. The Respondent’s reasons, therefore, for failing to attend to the hearing of the divorce petition was lackluster and unsubstantiated. The Respondent’s submission that she was prejudiced due to the fact that the hearing was conducted by way of 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 12 email correspondence, did not hold water too, and in my view, was an afterthought. [26] The Respondent had also argued that she was prejudiced by the fact that the Decree Nisi was made absolute immediately. [27] As a general rule, pursuant to section 61 of the Law Reform (Marriage & Divorce) Act, it is only at the expiry of three months from the date of the decree nisi that it would be rendered absolute. However, the Court has the discretion to make the decree nisi absolute immediately, provided there is exceptional reason to do so. In the present case, the Court’s decision to render the decree nisi absolute immediately is not unprecedented as there is a plethora of cases illustrating how and when a decree nisi may be made absolute immediately. In my view, the previous judge would have had her reasons to do so, and as such, I was unable to accept the Respondent’s submission that the Petitioner had an ulterior motive in applying for the decree nisi to be made absolute immediately. Whether exceptional circumstances had been established by the Respondent for setting aside the Decree Nisi [28] Having taken the view that section 61 of the Law Reform (Marriage & Divorce) Act applies to the exclusion of Order 13 and 42 of the Rules of Court, it must be noted that section 61(2) of the Law Reform (Marriage & Divorce) Act stipulates that a decree nisi can only be rescinded before it was made absolute. In fact, there is no statutory 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 13 provision in the Act which provides for a decree nisi to be set aside after it has been made absolute. [29] I found instructive the case of Wong Cheng Ping v. Chin Guan Seng [2010] 14 MLRH, where it was stated by Yeoh Wee Siam JC (as she then was), in the following passage, that there is no provision in the Law Reform (Marriage & Divorce) Act for setting aside a decree nisi, save for exceptional circumstances: There is no provision in the Act for rescinding or setting aside a decree nisi that already has been made absolute. It appears to me that it is the intention of Parliament to preserve the integrity and finality of a decree nisi that already has been made absolute after three months. As such, parties are not allowed to freely apply to the court at any time to rescind or set it aside unless for very good reasons or in exceptional circumstances. [Emphasis added.] [30] The Respondent, in contending that the terms of the Order were unfair, oppressive and prejudicial, relied on the case of Liew Nyuk Ching v Jong Khee Kie [2013] 4 MLJ 930 to convince this Court that the Order, Decree Nisi, and Decree Absolute should be set aside. However, my attention was brought to the differences between Liew Nyuk Ching v Jong Khee Kie and the present case where in that case, the husband, who was not proficient in English, found it challenging to understand the cause papers served upon him. Furthermore, the terms of the order were not favourable to the husband, with regard to the matrimonial asset and access to the children. 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 14 [31] In the present case, the terms were not unfavourable to the Respondent as the Petitioner had agreed for the Respondent to have full custody and control over their child. The Petitioner had also agreed to pay 50% of the monthly instalment for the financing of the matrimonial asset and subsequently, to transfer all his shares in the matrimonial asset to the child upon the latter attaining the age of 21. [32] In any event, the approach of the Court is to be extremely cautious in allowing applications to set aside a decree nisi that has been made absolute, in light of more recent authorities such as Hung Moy (P) v. Ang Cha Hooi [2021] 5 MLRA and Ng Choon Mei v Yap Kean Hong [2021] MLJU 1096, as the ramifications could lead to severe hardship. [33] Based on a perusal of the affidavit evidence, it was my view that the Respondent had failed to show the existence of very good reasons or exceptional circumstances to set aside the Order, Decree Nisi, and Decree Absolute. Although she insisted that she had remained a dutiful wife and a caring daughter-in-law, she had contradicted herself when she averred that the marriage had already broken down, due to the Petitioner’s alleged extramarital affair, and his purported failure as a responsible husband and father. [34] It was crucial to note that the Respondent had failed to attend the mediation sessions held by the Marriage Tribunal which aim is to attempt to resolve the marital disputes. This by itself had fortified this Court’s conclusion that the marriage was beyond redemption. 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 15 [35] On this point, reference was made to the case of Hung Moy (P) v. Ang Cha Hooi [2021] 5 MLRA, where the Court of Appeal held that in determining if a decree nisi which was made absolute, should be set aside, the Court should consider if the marriage had already broken down. This was stated very clearly by Hadhariah Syed Ismail JCA, in the following passage: [37] To us, para. 35 above show the respondent agrees that the marriage has irretrievably broken down and could not be saved. That the respondent can see their marriage is over with the presence of a third party. That the time has come for the respondent to accept the fact that their marriage should be dissolved no matter what his terms are. The appellant has re-marry someone else. The parties have been living apart for more than ten years (from 2008 until now). The delay in approaching the court. On top of that both the appellant and the respondent is now in their ripe old age of 70 years old. How much longer can both of them lived. We were of the considered view that these are the relevant factors that the High Court Judge should have taken into account before setting aside the decree nisi and decree nisi absolute. To us, for the appellant to start again the divorce proceedings for the second time is unduly harsh and unfair. Given the circumstances the appellant is in, we are of the view that the respondent had no good reasons to set aside the decree nisi and decree nisi absolute. On this ground alone, we took the view that the learned High Court Judge had erred in setting aside the decree nisi and decree nisi absolute. [Emphasis added.] [36] In a similar vein, given the circumstances, and in the interest of justice, it would be unduly harsh for the Petitioner to resume divorce 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 16 proceedings, when it was obvious that the outcome of such proceedings would be the same. [37] I also took note of the fact that the Respondent’s dissatisfaction with the terms of the Order was particularly in relation to maintenance and distribution of the matrimonial asset. In my view, the issue of maintenance could be further addressed by an application to vary pursuant to sections 83 and 96 of the Law Reform (Marriage & Divorce) Act, instead of an application to set aside the Order, Decree Nisi, and Decree Absolute. Conclusion [38] In the upshot, based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, and submissions of both parties, this Application was dismissed. Dated: 17 October 2022 SIGNED …………………………………………. 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 17 (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner – Alex Chong and Tan Zu Ka; Messrs Kuah, Lim, Chin & Co For the Respondent – Ee Pei Ying; Messrs HS Chew & Co Cases referred to: ➢ Development & Commercial Bank Berhad v Aspatra Corporation Sdn Bhd & Anor [1996] 1 CLJ 141 ➢ Evans v. Bartlam [1937] 2 All ER 646 ➢ Fira Development Sdn. Bhd. v. Goldwin Sdn. Bhd. [1989] 1 MLJ 40 ➢ Hasil Bumi Development Sdn. Bhd. & Ors v. United Malayan Banking Corp Bhd [1994] 1 MLJ 312, ➢ Hung Moy (P) v. Ang Cha Hooi [2021] 5 MLRA ➢ Liew Nyuk Ching v Jong Khee Kie [2013] 4 MLJ 930 ➢ Ng Choon Mei v Yap Kean Hong [2021] MLJU 1096 ➢ Ng Han Seng & Ors v. Scotch Leasing Sdn Bhd (Appointed Receivers And Managers) [2003] 4 MLJ 647 ➢ Ong Gim Huat v Toh Suan Lin Amy [1992] 2 MLJ 610 17 October 2022 ……………………………………………………………………………………………… …………………………………………………………………………………………… 18 ➢ Rexallent Construction Sdn Bhd v MSIG Insurance (Malaysia) Berhad & Other Cases [2022] MLJU 1736 ➢ Wong Cheng Ping v. Chin Guan Seng [2010] 14 MLRH Legislation referred to: ➢ Courts of Judicature Act 1964 – sections 3, 15A ➢ Divorce and Matrimonial Proceedings Rules 1980 – rules 3, 29(2) ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 61, 83, 96 ➢ Rules of Court 2012 – Order 13 rule 8, Order 42 rule 13