Lee Chung Boon v Teoh AI Chin (BA-12B-104-10/2024)

The AR omitted the signed versions of the witness statements which had been amended before being tendered and marked (attaching only the unsigned versions), certificates tendered under section 90A of the Evidence Act 1950 and an Order of the Sessions Court in contested proceedings regarding the admissibility of certain documents. The Defendant argued that this breached Order 55 Rule 4(1)(h) of the RC which provides that the AR “shall contain copies of ….all such documentary exhibits and other documents the parties shall consider relevant for the purposes of the appeal.”

The reason why there were excluded documents is that the Plaintiff had first breached Order 55 Rule 4(4) of the RC which provides that “a draft index of the documents to be included in the record of appeal shall be sent by the solicitors for the appellant to the solicitors for the respondent who or, if more than one, any of whom may, within forty-eight hours, object to the inclusion or exclusion of any document.” It is not disputed that the Plaintiff did not forward a draft index of the AR before the AR was finalized, compiled, filed and served on the Defendant. This was the principal complaint of the Defendant raised at the first case management on 7-11-2024 after the AR was served by e-mail on 3-11-2024. [5] The Plaintiff argued that the documents which had been omitted from the AR were not relevant for the purposes of the appeal. The Plaintiff also argued that the non-compliance complained of can be cured by Order 1A and Order 2 Rule 3 of the RC and therefore sought the extension of time in Enclosure 19 to rectify the AR, if necessary. [6] This Court first considered the non-service of the draft index to the AR and whether it is fatal. Based on case law, that appears to be the case. The Defendant referred to the following authorities and the propositions cited concerning mandatory procedural rules for the orderly conduct of litigation proceedings:

Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793 [CA] (“Chuah Tim Lan”) on the Court’s demand for adherence to mandatory rules based on the language used by the drafters and the incurability of breaches of such rules. One of the many breaches in that case was the non-service of the draft index to the appeal record (rule 18(6) of the Rules of the Court of Appeal 1994). The Court of Appeal found that the non-compliance of the rules was not a mere irregularity and as such, no record of appeal was deemed to have been filed.

Mazni bt Ibrahim v Rosaidy Effandy dari Tetuan Khairil & Co [2013] 2 MLJ 499 [CA] (“Mazni”) on the attempted filing of excluded documents in a supplementary record of appeal, which filing would not have remedied the non-service of the draft record of appeal that necessitated it. The Court of Appeal held as follows: “[20] …Allowing encl 8a would not have remedied non service of the draft record of appeal before it was filed. Such failure is a fundamental threat to the reliability of records of appeals before the appellant courts that it cannot be countenanced under any circumstances. Such defect is, therefore, fatal to the record of appeal. Without a record of appeal, the appeal is fundamentally defective.”

Pembinaan Kogo Sdn Bhd dan lain-lain v LPI Capital Bhd (dahulunya dikenali sebagai London & Pacific Insurance Co Ltd) [2006] 6 MLJ 651 [CA] on the incompetence of an appeal without a complete and proper record of appeal. [7] Both Chuah Tim Lan and Mazni are Court of Appeal decisions and the principles for which they are cited are binding on this Court. They have also been followed in other High Court cases (Donnis Jikut (trading under the name and style of PP Engineering) v Brother’s Construction (M) Sdn Bhd [2024] 12 MLJ 138 [HC]; HH Ideal Sdn Bhd v Technology Engineering Concept Sdn Bhd [2018] MLJU 1457). The principles cited are not peculiar to the specific complaint about defects in an appeal record, but apply generally to what are construed to be mandatory rules. The nature of the defect or the documents excluded from the appeal record is secondary. [8] As one might expect, the Plaintiff sought to rely on Order 1A and Order 2 Rule 3 of the RC to argue that the non-service of the draft index to the AR was a technical non-compliance that can be cured. It may even be intuitively considered to be trivial. On this point however, the cases cited have referred to the Federal Court decision in Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj Tunku Mahkota Johor v Datuk Captain Hamzah bin Mohd Noor and Another Appeal [2009] 4 MLJ 149 [FC] on the limits of Order 1A of the RC: “[46] The technical non-compliance of any rule may be remedied where there is an accidental omission or oversight by a party. A general provision such as O 1A of the RHC is for the court or judge to give heed to justice over technical non-compliance. It must not supersede a mandatory requirement of the Rules. Order 1A cannot be invoked when a party intentionally disregards in complying with the Rules. Otherwise, parties would be encouraged to ignore the Rules.” Thus, Order 1A and by extension, Order 2 Rule 3 of the RC, can only be invoked in the case of accidental omission or oversight and cannot override a mandatory requirement of the rules. [9] The issue of prejudice was also dealt with in Mazni in the following manner: “[24] We were not unaware that this potentially leaves the appellant, assuming there is merit in her case, without remedy and an injustice. But this is only true if there is merit in her originating motion. Hence, it is mere speculation. Neither the High Court at the time of the originating motion nor this court in the appeal herein can possibly know in which direction the merits lay before hearing. Both courts can only determine where merits and justice lay after each respectively had read the application, all the documents required and put before the court in accordance with law, the submissions and heard any oral submissions. But the record of appeal in the first occasion was incomplete and in the second occasion, the record of appeal in the Court of Appeal suffered from the fundamental defect of the draft not having been served upon the respondent and containing a submission denied to have been made or used by the respondent's counsel. It was not made possible to show where the merits and therefore justice lay.” [10] This Court considered itself bound by the views expressed by the appellate courts as highlighted above. Considering the mandatory language of Order 55 Rule 4 of the RC pertaining to the preparation, filing and service of the record of appeal in an appeal to the High Court, there is no scope to dispense with the process of scrutiny, and if necessary, reference to the Registrar on the inclusion or exclusion of disputed documents as part of that process. Thus, the Plaintiff’s failure to serve the draft index to the AR was not curable when coupled with the defects in the AR complained of. [11] Enclosure 19 was filed under Order 3 Rule 5 of the RC, essentially to invoke the discretion of the Court to allow the Plaintiff to now serve the draft index to the AR on the Defendant’s solicitors and validate the AR filed. For the same reason, this Court dismissed Enclosure 19. [12] Additionally, it was highlighted that Enclosure 19 was filed by the Plaintiff on 7-1-2025, well after the objection was first raised and almost a month past the deadline of 10-12-2024 set by the Deputy Registrar to file all interlocutory applications in the appeal. When considered, there was also no explanation as to why there was non-compliance with Order 55 Rule 4 of the RC in the first place. The power to extend time is discretionary and per Soh Keng Hian v American International Assurance Co Ltd [1996] 2 CLJ 449: “It is axiomatic that this Court is seised of a wide discretion to extend time in proper and deserving cases. But it is not an unprincipled discretion. There must be some relevant evidential material made available to us before we may exercise discretion.” [13] Evidently, the Plaintiff did not regard the complaints raised by the Defendant as to the propriety of the AR with any seriousness or accept any fault in the AR. The Plaintiff argued that the AR contained the index referred to in Order 55 Rule 4(4) of the RC and attempted to turn the tables on the Defendant for not giving sooner notice of their objection to the AR before filing Enclosure 15. The belated filing of Enclosure 19 was tokenism and the facetious prayers and arguments worsened this performative gesture. All in all, the dismissive attitude of counsel for the Plaintiff did not sit well. [14] For completeness, the Defendant also raised an issue about the admissibility of the Plaintiff’s affidavit filed to oppose Enclosure 15 (“Enclosure 17”). Enclosure 17 was undated and the stamp and signature of the Commissioner for Oaths was allegedly fabricated. This was a serious allegation that the Court was not in a position to determine and therefore, it was not a consideration in the decision to allow Enclosure 15 and dismiss Enclosure 19. Conclusion [15] In summary, Order 55 Rule 4 of the RC are mandatory rules, breach of which are not irregularities that can be cured by Order 1A and Order 2 of the RC. This Court was given no good reason to exercise its discretion to extend time under Order 3 Rule 5 of the RC to serve the index to the AR or to validate the AR filed. Bertarikh : 18 April 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam Untuk Perayu: Yek Jo-Ee, Messrs Yek & Co. Untuk Responden: Ben Lee Kam Foo (with Atiqah Maisarah Binti Azrul Hisham),