Chong Wong Kim v Chew Ah Yeang (WA-12ANCC-80-06/2022)

The issue for determination before this Court is whether the Plaintiff had properly and validly served the Writ and Statement of Claim on the Defendant to entitle the Plaintiff to enter judgment in default of appearance against the Defendant on 5.12.2017 before the Sessions Court (‘the Judgment in Default’).

In support of the Judgment in Default, the Plaintiff had relied on the affidavit of service affirmed on 20.11.2017 by one Muhamad Amirul Hafiz bin Abu Talib (‘the Affidavit of Service’).

The Defendant’s application to set aside the Judgment in Default was dismissed by the Sessions Court on 20.2.2018.

Thereafter the Defendant failed to file his Notice of Appeal against the decision of the Sessions Court within the time stipulated under the Rules of Court 2012. However, the Defendant had obtained leave from the Court of Appeal on 1.10.2019 to file the Notice of Appeal out of time before the High Court to set aside the Judgment in Default (‘the Leave Order’). [5]

on 15.11.2017, Muhamad Amirul Hafiz bin Abu Talib was at the Defendant’s house to serve the Writ and Statement of Claim on the Defendant;

He rang the doorbell and a man came out from the house;

Muhamad Amirul Hafiz bin Abu Talib asked if the man was Chew Ah Yeang bearing the NRIC No. 710805-05-5161 to which the man answered in the affirmative;

Muhamad Amirul Hafiz bin Abu Talib informed him he was from Messrs Vasudevan A and that he was there to serve the Writ and Statement of Claim on him;

However, the Defendant refused to accept service of the cause papers and instead chose to shut himself in his house;

Muhamad Amirul Hafiz bin Abu Talib thereafter placed the Writ and Statement of Claim into the letterbox at the Defendant’s house. [11] Whilst it is trite law that where a defendant refuses to accept the service of the Writ and the process server throws the cause papers in front of him, it would be deemed as good service in law [See: Thomson v Pheney (1832) 1DPC 441; Heath v White (1844) 2 D & L 40 (referred as ‘drop service’ cases)], the question in this case is whether a defendant who had been informed of the purpose of the visit by the process server i.e service of the cause papers on him but had refused to accept the same, chose to enter into his house instead, the process server could place the cause papers into the Defendant’s letterbox in his absence to constitute valid and proper service. Court’s Deliberations [12] The Defendant contended that unlike the drop service cases in Thomson v Pheney and Heath v White, in the present case, the cause papers were not left by the process server in the plain view of the Defendant as he had already gone into his house and closed the door when Muhamad Amirul Hafiz bin Abu Talib chose to place the cause papers into the letterbox. [13] Accordingly, the Defendant contended that the Plaintiff had not properly and validly effected service of the Writ and Statement of Claim on him and therefore the Judgment in Default ought to be set aside ex debito justitiae. [14] With respect I am unable to agree. [15] In this case it is undisputed that the process server had met and confirmed the identity of the Defendant at the address of service. Muhamad Amirul Hafiz bin Abu Talib had also informed the Defendant of the purpose of his visit which the Defendant had understood. [16] Notwithstanding the aforesaid, the Defendant refused to accept service of the cause papers and instead chose to avoid service by going back inside his house. In other words, the Defendant chose to frustrate the process of service of the cause papers on him. He opted to play ‘hide and seek’. [17] The facts in the present case are similar to that in Hong Leong Finance Berhad v Pasir Permata Sdn Bhd & Ors [1989] 1 CLJ (Rep) 598. The relevant passages are reproduced below: “The writ and statement of claim in this suit, were filed on 12 July 1986 and from his affidavit affirmed on 27 August 1986, the process server has deposed that on that day at about 12.10 p.m. he had proceeded to the office of the 3rd defendant at Messrs. Foo Ngit Tse & Brothers Sdn. Bhd., 2nd floor, Hongkong & Shanghai Banking Corporation Berhad Chambers, Station Road, Ipoh, for the sole purpose of serving the writ and statement of claim on him. At the premises, the process server met first of all the 3rd defendant’s secretary. He identified himself and explained the purpose of his visit but on being informed of this by his secretary, the 3rd defendant refused to see the process server, and his secretary referred the process server to the accountant of the company, a Mr. Tan. The process server again explained the purpose of his visit to Mr. Tan and stressed the fact that he must serve a copy of the writ statement of claim on the 3rd defendant and to nobody else. Mr. Tan took two copies of the writ and statement of claim, and instructed an office boy to take them to the 3rd defendant and to have one copy signed and acknowledged by the 3rd defendant himself. Minutes later the office boy came out of the 3rd defendant’s office and informed the process server that the 3rd defendant refused to sign on the proof copy of the writ and statement of claim. Before leaving, the process server left a copy of the writ and statement of claim on the table of the 3rd defendant's secretary. The issue is whether that is good personal service of the writ and statement of claim on the 3rd defendant. The 3rd defendant maintains that it is not, as only his secretary had been served with the writ and statement of claim but not himself. The whole purpose of serving a writ and statement of claim is to make a defendant aware of the fact that legal proceedings had already commenced against him and that he is entitled within the time limited in the writ, to enter an appearance and make his defence but in default of him doing so, the plaintiff may proceed to enter judgment and levy execution against him. I consider that this purpose was achieved when the office boy disappeared into the 3rd defendant’s office with 2 copies of the writ and statement of claim. It is not disputed that the 3rd defendant was in office at the material time and the office boy must have handed the documents to him with directions that the 3rd defendant acknowledge on one copy. The fact that the 3rd defendant refused to do so but chose instead to play hide and seek must work to his detriment as all the process server is expected to do is to bring the writ and statement of claim to the knowledge and attention of the 3rd defendant. The fact of the acknowledgement of service is nothing more than to confirm knowledge of the existence of legal proceedings had been parted to the 3rd defendant and to avoid any possible allegation of non-service. In this case the 3rd defendant was at his office premises but he chose to hide in the sanctuary of his office and he must have had sight of the writ and statement of claim or knew the nature of the documents that the office boy had brought for his attention. On the facts of this case, I am satisfied that there had been personal service of the writ and statement of claim on the 3rd defendant, even though the act of actual handing over by the process server and 3rd defendant's acknowledgement were not apparently present.” [emphasis added] [18] I agree with the principle enunciated by Justice Siti Norma Yaakop (as she then was) that where the defendant had chosen to deliberately avoid accepting service of the cause papers after having been informed of the purpose of the process server’s visit, such conduct of the defendant must work to his detriment. [19] Thus, to my mind, once Muhamad Amirul Hafiz bin Abu Talib, the process server in our present case had brought to the attention and knowledge of the Defendant the Writ and Statement of Claim, it would suffice to constitute effective and regular service for the process server to place the said cause papers into the letterbox of the Defendant even without the Defendant being present when he did so. [20] To hold otherwise would open the floodgate for all defendants to avoid personal service by simply shutting themselves up in their house each time a process server had affirmatively identified them and had informed the purpose of the visit and the nature of the documents to be served upon the defendants. Conclusion [21] For the above reason, the Defendant’s appeal is dismissed with costs. [22] For the avoidance of doubt, the decision herein is confined only to the question of regularity or otherwise of the service of the Writ and Statement of Claim. The decision does not deal with the merits or otherwise of the Defendant’s defence to the Plaintiff’s claim. Dated the 8th day of May 2023 ONG CHEE KWAN Judicial Commissioner High Court of Kuala Lumpur, NCC2 COUNSEL:

Mr. Ramesh Sivakumar for Appellant Messrs. Goik, Ramesh & Loo (Kuala Lumpur)

Mr. Ramesh Lachmanan with Mr. Vasudevan Appu and Mr. Irfan Arsad for Respondent Messrs. Vasudevan A & Co. (Kajang)

Thomson v Pheney (1832) 1DPC 441 2. Heath v White (1844) 2 D & L 40 3. Hong Leong Finance Berhad v Pasir Permata Sdn Bhd & Ors [1989] 1 CLJ (Rep) 598

Rules of Court 2012