LIM Chee Yong v Thong Hoe Khin (WA-12BNCC-28-08/2023)

The respondent filed an application to strike out the appellant’s appeal (“Striking Out Application”), alleging multiple non-compliances by the appellant with the provisions of the Rules of Court 2012 (“ROC”).

The court allowed the Striking Out Application, for the reasons explained below.

The appellant’s claim against the respondent for the return of his investment and profit on the investment, was dismissed by the Sessions Court after a full trial. The appellant filed an appeal against the decision of the Sessions Court.

However, in the filing of the appeal, the respondent claimed that the appellant had on multiple occasions, failed to comply with the requirements and timelines imposed under the ROC.

The respondent therefore filed the Striking Out Application, to strike out the appeal. S/N /iin/oRoBEScdoOp/N00Bw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 ! C. Considerations and Findings

Order 55 of the ROC sets out the requirements and timelines on the filing of appeals to the high court from the subordinate courts. These requirements and timelines state that: a. The appellant shall file a notice of appeal within fourteen days from the date of the decision appealed from (order 55 rule 2); b. The appellant shall serve a duplicate copy of the notice of appeal on all respondents within the time limited for the filing of an appeal (order 55 rule 3(4)); c. The appellant shall apply for the notes of proceedings and grounds of judgment to the court appealed from, within the time limited for the filing of an appeal (order 55 rule 3(5)); d. In the case of an appeal from a decision after trial, the appellant shall file a record of appeal, which shall contain a copy of inter alia, a memorandum of appeal, within one month from the filing of the notice of appeal (order 55 rule 4(1)); and e. The appellant shall serve a copy of the record of appeal on all respondents within the time limited for the filing of the record of appeal (order 55 rule 4(8)). S/N /iin/oRoBEScdoOp/N00Bw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 ! [7] In the present case, the Sessions Court dismissed the appellant’s claim on 15 August 2023. The following steps were taken by the appellant: a. The appellant filed the notice of appeal on 29 August 2023; b. The appellant served the unsealed notice of appeal on the respondent by e-mail on 29 August 2023 at 4.29 pm, and the sealed notice of appeal by e-mail on 1 September 2023 and by hand on 4 September 2023; c. The appellant applied for the grounds of judgment of the Sessions Court on 5 September 2023; d. The appellant filed the record of appeal on 29 September 2023; and e. The appellant served the record of appeal by e-mail on 29 September 2023 at 3.14 pm, and by hand on 5 October 2023.

Having considered the provisions of order 55 of the ROC, the court notes that: a. The appellant was required to file the notice of appeal within fourteen days from the date of the decision of the Sessions Court on 15 August 2023, ie. by 29 August

The notice of appeal was filed within time, on 29 August 2023; S/N /iin/oRoBEScdoOp/N00Bw ! b. The appellant was required to serve a duplicate copy of the notice of appeal on the respondent within the time limited for the filing of an appeal, ie. by 29 August 2023. In this regard, the appellant had filed the following documents out of time: i. The unsealed notice of appeal, which was served by e-mail after 4 pm on 29 August 2023, and is deemed under order 62 rule 8 of the ROC to be served on 30 August 2023; and ii. The sealed notice of appeal, which was served by e-mail on 1 September 2023, and by hand on 4 September 2023; c. The appellant was required to apply for the notes of proceedings and grounds of judgment to the Sessions Court, within the time limited for the filing of an appeal, ie. by 29 August 2023. The appellant applied for the grounds of judgment of the Sessions Court out of time, on 5 September 2023; d. The appellant was required to file a record of appeal containing a memorandum of appeal, within one month from the filing of the notice of appeal, ie. by 29 September

The record of appeal was filed within time, on 29 September 2023. However, the memorandum of appeal was filed out of time on 9 February 2024; and S/N /iin/oRoBEScdoOp/N00Bw ! e. The record of appeal was served on the respondent out of time: i. By e-mail on 29 September 2023 (after 12 pm on a Friday), deemed under order 62 rule 8 of the ROC to be served on 2 October 2023; and ii. By hand, on 5 October 2023. [9] As can be seen from the chronology of the filing and service of documents for the appeal, the appellant had on multiple occasions failed to comply with the requirements and timelines under the ROC. [10] There are three observations I made in respect of these non-compliances. [11] First, in respect of the appellant’s argument that the services of the notice of appeal and the record of appeal were effected by e-mail within the timeline prescribed under the ROC, I find the appellant’s reliance on order 62 rule 6(1)(cc) of the ROC to support his argument, to be wrong in law. [12] Order 62 rule 6(1) of the ROC provides that: “(1) The service of any document, not being a document which in accordance with these Rules is required to be served personally, may be effected – S/N /iin/oRoBEScdoOp/N00Bw !

by leaving the document at the proper address of the person to be served;

by prepaid registered post;

by facsimile in accordance with paragraph (3);

(cc) by means of electronic communication in accordance with any practice direction issued for that purpose;

in such other manner as may be agreed between the party serving and the party to be served; or

in such other manner as the Court may direct.” (emphasis added) [13] Order 62 rule 6(1)(cc) provides that the service of documents may be effected by means of electronic communication, in accordance with any practice direction issued for that purpose. I accept that e-mail falls within the purview of electronic communication. However, the rule must be read as a whole – and when read as a whole, it is clear that service by way of e-mail under rule 6(1)(cc) is only effective if done in accordance with any practice direction issued. [14] It is not in dispute that no practice direction has been issued for the purpose of service of documents by way of electronic communication. S/N /iin/oRoBEScdoOp/N00Bw ! As such, until and unless a practice direction is issued for such purpose, the appellant cannot rely on rule 6(1)(cc) to effect service by e-mail. [15] A similar finding was made in Lim Kwee Fen & Anor (trading under the name and style of HH Fresh Market) v KT Home Mart Sdn Bhd [2023] 10 MLJ 506, where the court held as follows: “[14] In my view the reliance on O 62 r 6(1)(cc) as a mode of service was a futile act. The appellants argued that ‘email’ was a form of electronic communication envisaged by O 62 r 6(1)(cc) and therefore the service by email on 6 January 2022 was valid. The argument was most unbecoming. This is because the argument is based solely on the first part of the para (cc) which states, ‘by means of electronic communication’ which I accept ‘email’ is one but completely ignores the second part which states, ‘in accordance with any practice direction issued for that purpose’. Counsel could not say what the practice direction says because the practice direction has not been issued yet. It does not exist. In my view, without the practice direction, the mode of service under para (cc) cannot be affected. A valid service can only be made in accordance with such practice direction and one must wait until that happens. In the meantime, there can be no valid service by way of email under para (cc). In the circumstances, I had no hesitation in holding that the manner of service utilised by the appellants did not fall within the mode envisaged in O 62 r 6(1)(cc).” (emphasis added) S/N /iin/oRoBEScdoOp/N00Bw ! [16] Thus, it is wholly misconceived for the appellant to have relied on order 62 rule 6(1)(cc) of the ROC, to argue that service of the notice of appeal and the record of appeal was properly effected by e-mail. [17] Further, it is also not possible for the appellant to rely on order 62 rule 1(d) of the ROC, which provides that service of documents can be effected in such other manner as may be agreed between the parties, as the method of service by e-mail had never been agreed between the appellant and the respondent. [18] The second observation I made is in relation to the late filing of the supplementary record of appeal, which contains the memorandum of appeal. The document was filed more than two months after the filing of the Striking Out Application, and more than four months after the due date for filing of the record of appeal, which should contain the memorandum of appeal. [19] What is especially striking is the fact that the appellant had proceeded to file the supplementary record of appeal containing the memorandum of appeal, without applying for leave of court to file the document out of time. Even when this issue was raised by the court during submissions, learned counsel did not provide any indication that an application for leave to file the supplementary record of appeal containing the memorandum of appeal out of time would be made. It therefore appeared to the court that learned counsel does not place any importance on the requirements in the ROC, and the need to correct the defects arising in these proceedings, caused by the appellant’s own delay. S/N /iin/oRoBEScdoOp/N00Bw ! [20] As leave of court has not been obtained to file the memorandum of appeal out of time, I find there to be no valid memorandum of appeal before the court. [21] My final observation is that no explanation was given by the appellant for his failure to comply with the provisions of the ROC. The position taken by the appellant is that the service of documents was made within time, by way of e-mail. As explained above, this position is in my view erroneous. In any event, the appellant’s position on the service of documents does not explain why documents were filed out of time. [22] The appellant’s failure to provide an acceptable explanation for the late service and filing of documents for the appeal shows the lackadaisical attitude of the appellant towards his duty to comply with requirements under the ROC. [23] In Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793, in dealing with an application to file a supplementary record of appeal out of time, the Court of Appeal held that: “[8] Delay per se may not be fatal, but without supplying a reasonable explanation may have the effect of the court being unsympathetic to an applicant who wishes an extension of time. How is the court to exercise its discretion when the materials in support of the application are not before it? It is trite that the burden is on the applicant to supply sufficient material, to assist the court in its deliberation before exercising that discretion empowered by the Rules of the Court of Appeal 1994 (Tan Siew Peng v OCBC (M) Bhd [1998] 2 MLJ 420). S/N /iin/oRoBEScdoOp/N00Bw [9] To compound this, the applicant showed an outright show of defiance of the law when, in spite of being warned by two sources viz the court and the respondent, the applicant ignored them and had filed the record of appeal, without rectifying the flaws first. The record of appeal was filed on 16 July 2007 by the applicant, allegedly within eight weeks from 21 May 2007 ie the date the notice of appeal was filed, purportedly in compliance with Practice Direction No 1 of 1996.” (emphasis added) [24] The same behaviour shown by the applicant in Chuah Tim Lan (supra) is shown by the appellant in this case – that of contumelious conduct and a complete and utter disregard of the timelines and requirements in the ROC. D.

[25] It is on this basis that the court was constrained to allow the Striking Out Application, with costs. Dated 15 August 2025 ADLIN ABDUL MAJID Judge High Court of Malaya Kuala Lumpur S/N /iin/oRoBEScdoOp/N00Bw ! Counsel: Appellant : Nurzahirahazana Zamri of Messrs. Qing Chambers Respondent : Damian Kiethan (together with Christina Erin Ong) of Messrs. Raj, Ong & Yudistra S/N /iin/oRoBEScdoOp/N00Bw