Seng San Bing v Satin Straits Sdn. Bhd. (WA-37J-17-03/2024)

The issue before the Court is whether a Judgment Creditor [“JC”] can issue a Judgment Notice under Order 74 Rules 12 and 13 of the Rules of Court 2012 [“ROC”] read with section 4(7) of the Debtors Act 1957 against a person in respect of a judgment debt owed by a corporate Judgment Debtor [“JD”], more so when he is no longer a director of the JD, to compel him to attend court – “to show cause why you should not be committed to Prison for having disobeyed the order of the Court dated the 24 June 2024 that is to say, in having made default in payment in one lump sum of RM80,917.27 on/or before 28 August 2024 due thereunder.”

Section 4(7) of the Debtors Act 1957 reads as follows-

If the judgment debtor makes default in payment according to any such order, a notice in the form prescribed by rules of court may be issued, on the request of the judgment creditor, calling upon the judgment debtor to attend before the court at a time therein stated and show cause why he should not be committed to prison for such default. [Emphasis added].

Order 74 Rules 12 and 13 ROC read as follows-

Application for judgment notice (O. 74 r. 12) Every application for a notice (which is referred to as a "judgment notice") under section 4 of the Act shall be by praecipe in Form 178 verified by the oath of the applicant.

Judgment notice (O. 74 r. 13) A judgment notice shall be in Form 179 and shall be served personally, not less than four clear days before the day appointed for the debtor's attendance unless the Court otherwise orders. [Emphasis added] Judgment Notice set aside

The SAR had set aside a Judgment Notice (“JN”) issued to a former director of the JD Jaimie Sia Zui Keng (“Jaimie”) pursuant to an application by Jamie. On 14-05-2025, I had dismissed the appeal by the JC. Leave to appeal to the Court of Appeal was granted by the Court of Appeal on 10-09-2025.

These are my Grounds of Decision.

Jaimie is a director of RHB Private Equity Holdings Sdn Bhd (“RHB”). RHB had invested in the JD and pursuant to the investment, Jaimie was appointed to be a director of the JD.

Besides Jamie, there are also two other directors in the JD. They are Peter Charles Smerling and Lum Chong Heng [See Enclosure 36, Exhibit J-2, page 69].

Over the years, there were disputes between the management of the JD and RHB. This led to RHB’s decision to pull out from its investments in the JD by selling its shares to the existing shareholders of the JD pursuant to the terms of a Put Option Agreement dated 18-04-2013 between them (“Put Option Agreement”). However, the JD’s shareholders refused to comply with the terms of the Put Option Agreement. RHB has since successfully obtained a Judgment dated 25-10-2023 compelling the JD’s shareholders to specifically perform their obligation under the Put Option Agreement. The JD shareholders have filed an appeal against the judgment.

Jaimie contends that during this material time, he already had the intention of resigning as a director of the JD. However, before he could do so, he was summoned by a Judgment Debtor Summons dated 14-03-2024 (“JDS”) to be examined before the High Court Registrar on the JD’s ability to satisfy payment of a total sum of RM 80,917.37 granted under a Judgment dated 29-01-2024 and Orders dated 12-04-2022, 15-03-2023 and 31-03-2023 against the JD.

Jaimie accordingly attended to the JDS proceedings. On 10-06- 2024, Jaimie resigned as a director of the JD. [Enclosure 36, Exhibit J-4, page 81].

On 24-06-2024, the High Court Registrar ordered the JD to make a lump sum payment of RM 80,917.37 on or before 28-08-2024 and costs of RM 4,000.00 to the JC.

Jaimie by his solicitors’ letters dated 09-07-2024 and 12-08-2024 informed Peter Charles Smerling and Lum Chong Heng who are also directors of the JD [Enclosure 36, Exhibit J-2, page 69] of the terms of the JDS Order and informed the JD to make the payment as ordered thereunder to the JC. [Enclosure 36, Exhibit J-7, pages 105 – 110 and Exhibit J-8, pages 126 – 131].

However, the JD failed to comply with the JDS Order. The JC then filed the Judgment Notice and Praecipe against Jaimie on 30-08-

2024.

Jamie then filed an application [Enclosure 35] to set aside the Judgment Notice and Praecipe which was allowed by the High Court Registrar on 13-01-2025 with costs of RM 3,000.00 to be paid to Jaimie. The JC appealed to me. Grounds of appeal of the JC

The JC’s grounds of appeal [as set out in Enclosure 88 JC written submissions] are-i. The learned SAR had seriously erred in delivering the Order to set aside and strike out the Judgment Notice which had circumvented and altered the effect of the prior JDS Order when the learned SAR was functus officio [See paragraphs 24 - 28 Enclosure 88]; ii. The learned SAR is plainly wrong for granting the Order to set aside and strike out the Judgment Notice (Enclosure 83) as a back-door appeal by the JD against the JDS Order (Enclosure 29) [See paragraphs 29 - 31 Enclosure 88]; iii. The learned SAR manifestly erred by failing to appreciate the fundamental legal principles governing Judgment Notices [See paragraphs 32 - 41 Enclosure 88]; and iv. The Learned SAR seriously erred in setting aside the Judgment Notice when no power conferred upon the court to do so [See paragraphs 42 - 52 Enclosure 88].

As the JC is proceeding under section 4(7) of the Debtors Act 1957 read with O74 rule 12 to 14 ROC, I propose to first set out section 4 of the Debtors Act 1957 followed by O74 rules 12 to 14 ROC. Law on section 4 Debtors Act 1957 and O74 rule 12 to 14 ROC

Judgment debtor summons

Where the judgment of a court is for the recovery or payment of money whether by instalments or otherwise the party entitled to enforce it (hereinafter called the judgment creditor) may, subject to and in accordance with any rules of court, summon the judgment debtor, or if the judgment debtor is a corporation an officer of that corporation, to be orally examined before the court respecting the judgment debtor’s ability to pay or satisfy the judgment debt, and for the discovery of property applicable to such payment and to the disposal that the judgment debtor has made of such property.

The judgment debtor, or, where the judgment debtor is a corporation, the officer thereof who has been summoned, shall, when called upon, produce all books, papers or documents in his possession or power relating to such property.

The judgment creditor may subpoena as a witness any person whom he considers likely to be able to supply information respecting the judgment debtor’s ability to pay the judgment debt or respecting his property.

Whether the judgment debtor, or, where the judgment debtor is a corporation, the officer thereof, appears or not the judgment creditor and other witnesses may be examined on oath respecting the matters aforesaid.

If the judgment debtor, or, where the judgment debtor is a corporation, the officer thereof having been duly served does not appear, the court may—

order him to be arrested and brought before the court to be examined; or

make an order against the judgment debtor ex-parte.

Upon such examination or non-appearance as aforesaid the court may order the judgment debtor to pay the judgment debt either—

in one sum whether forthwith or within such period as the court may fix; or (b) by such instalments payable at such times as the court may fix.

If the judgment debtor makes default in payment according to any such order, a notice in the form prescribed by rules of court may be issued, on the request of the judgment creditor, calling upon the judgment debtor to attend before the court at a time therein stated and show cause why he should not be committed to prison for such default.

Any such notice shall be personally served upon the judgment debtor; and if, on the day so named, or on any subsequent day to which the matter may be adjourned, no sufficient cause is shown by the judgment debtor, the court may commit him to the civil prison for a term which may extend to six weeks or until earlier payment of any instalment or instalments or other sum due.

A debtor shall not be committed to prison under this section unless it appears that, since the date of the order directing payment, whether forthwith, or within a specified period or by instalments, he has had sufficient means to comply with the order. [Emphasis added] ROC

Order 74 rules 12 to 17 ROC read as follows. Judgment notice

Application for judgment notice (O. 74 r. 12) Every application for a notice (which is referred to as a "judgment notice") under section 4 of the Act shall be by praecipe in Form 178 verified by the oath of the applicant.

Judgment notice (O. 74 r. 13) A judgment notice shall be in Form 179 and shall be served personally, not less than four clear days before the day appointed for the debtor's attendance unless the Court otherwise orders.

Hearing of judgment notice (O. 74 r. 14)

On the hearing of a judgment notice the Court may make an order of commitment to [sic, it should be “or”] vary the instalment order as it thinks just.

If an order of commitment is made, the Court may direct the execution of such order to be suspended to enable the debtor to pay the amount in respect of which the order is made. Commitment

Order of commitment (O. 74 r. 15) An order of commitment under subsection 4(8) or section 17 of the Debtors Act 1957 shall be in Form 180.

Payment by debtor (O. 74 r. 16) Where an order of commitment for non-payment of money is made the debtor may, at any time, either to the Sheriff or, if he is in prison, to the officer in charge of the prison, pay the amount stated in the order and obtain his discharge.

Certificate of satisfaction (O. 74 r. 17)

Where any judgment debt, in respect of which a debtor is imprisoned under the Act is satisfied by payment or otherwise, the judgment creditor shall lodge with the Registrar a certificate of satisfaction signed by him in Form 181… [Emphasis added]

I shall now consider the grounds of appeal one by one. Ground of appeal 1 - The learned SAR had seriously erred in delivering the Order to set aside and strike out the Judgment Notice which had circumvented and altered the effect of the prior JDS Order when the learned SAR was functus officio [See paragraphs 24 - 28 Enclosure 88] Ground of appeal 2 - The learned SAR is plainly wrong for granting the Order to set aside and strike out the Judgment Notice (Enclosure 83) as a back-door appeal by the JD against the JDS Order (Enclosure 29) [See paragraphs 29 - 31 Enclosure 88]

I shall consider Grounds of appeal [1] and [2] together.

I hold that Grounds of appeal [1] and [2] are devoid of merits as the JDS Order is still in existence.

The Debtors Act 1957 together with Order 74 ROC regulates the execution of a money judgment against a judgment debtor and also provides remedies for preventing a defendant from absconding and disposing of his property to frustrate the legal process and judgment that may be thereby made against him.

In respect of the execution of a money judgment against a judgment debtor, there is a 2-step process. They are-i. Firstly, a Judgment debtor summons is issued pursuant to section 4(1) of the Debtors Act 1957 by a judgment creditor to obtain a Judgment debtor summons order under section 4(6) of the Debtors Act 1957; and ii. Secondly, a Judgment Notice is issued pursuant to section 4(7) of the Debtors Act 1957 read with Order 74 rule 12 ROC to enforce the Judgment debtor summons order under Order 74 rule 14 ROC by an order of commitment to prison for having disobeyed the Judgment debtor summons order. First step

By the Debtors Act 1957, section 4(1), a judgment creditor who has obtained judgment or order for payment or recovery of money against a judgment debtor may summon the judgment debtor to be orally examined before the court to obtain information in respect of the judgment debtor’s ability to pay or satisfy the judgment debt and for the discovery of the property available for satisfaction or payment of the judgment debt. This is to enable the judgment creditor to determine the appropriate and effective mode of enforcement of the judgment. Upon examination, the judgment debtor may be ordered to pay the judgment by one lump sum or by instalments, failing compliance, he may be committed to civil prison. [See Sweet and Maxwell Malaysian Civil Procedure Volume I - 2024 Edition, 74/0/2]. Second step

The Debtors Act 1957 section 4(7) provides that if the judgment debtor makes default in payment according to any court order made upon hearing of the judgment debtor summons under section 4(6), a notice in the form prescribed by rules of court may be issued on the request of the judgment creditor, calling upon the judgment debtor to attend before the court at the time therein and show cause why he should not be committed to prison for such default.

Order 74 ROC provides the procedure and forms of request to be used by the judgment creditor for notice (referred to as “judgment notice”) to be issued to the judgment debtor for attending before the court to show cause under section 4(7) Debtors Act 1957. Order 74 rule 13 ROC prescribes the form of such judgment notice. [See Sweet and Maxwell Malaysian Civil Procedure Volume I - 2024 Edition, 74/12/1]

Therefore, the setting aside of a Judgment Notice does not mean the JDS Order is also set aside. Ground of appeal 3 - The learned SAR manifestly erred by failing to appreciate the fundamental legal principles governing Judgment Notices [See paragraphs 32 - 41 Enclosure 88] Ground of appeal 4 - The Learned SAR seriously erred in setting aside the Judgment Notice when no power conferred upon the court to do so [See paragraphs 42 - 52 Enclosure 88]

I shall consider Grounds of appeal [3] and [4] together.

Section 4(1) Debtors Act 1957 expressly states that in a Judgment debtor summons “if the judgment debtor is a corporation an officer of that corporation” may be orally examined before the court respecting the judgment debtor’s ability to pay or satisfy the judgment debt, and for the discovery of property applicable to such payment and to the disposal that the judgment debtor has made of such property. [Emphasis added]

In contrast, if there is non-compliance with a JDS Order by a corporation, there is no provision under section 4(7) Debtors Act 1957 to summon and commit an officer of that corporation to prison, more so a person who is no longer an officer of that corporation. Section 4(7) Debtors Act 1957 as drafted is applicable only to a human debtor.

This is clear from the wording of section 4(7) Debtors Act which reads-If the judgment debtor makes default in payment according to any such order, a notice in the form prescribed by rules of court may be issued, on the request of the judgment creditor, calling upon the judgment debtor to attend before the court at a time therein stated and show cause why he should not be committed to prison for such default. [Emphasis added]

Section 4(7) Debtors Act being a penal section must be construed strictly. More so, in view of Jaimie’s resignation as a director of the JD on 10-06-2024, he would not be able to provide the Court with the necessary explanation or evidence on why the JD could not or did not comply with the JDS Order by 28-08-2024 as required under the said order.

More importantly, Jaimie’s attendance to the proceedings will not in any way assist the JC to receive the payment ordered under the JDS Order since he is no longer in a position to compel the JD to make any payment.

I also note there are presently 2 remaining directors of the JD who the JC may file a Praecipe against for a Judgment Notice to be issued against either or both of them to show cause for the JD.

Alternatively, the JC may initiate contempt proceedings against the directors of the JD for not paying the judgment sum provided all procedural requirements have been complied with. [See Hong Kwi Seong v Ganad Media Sdn Bhd [2013] 2 MLJ 251, CA].

In conclusion, I hold that Grounds of appeal [3] and [4] are devoid of merits.

I would also like to touch on an issue raised by the JC. This concerns Jamie’s resignation from the JD. Jamie’s resignation from the JD

The JC had questioned Jamie’s resignation and alleged that the resignation was backdated and impliedly mala fide [See enclosure 88 JC WS paragraphs 5 and 6]. I note no proof has been shown by the JC. As the burden of proof is on the JC, I hold that this allegation is not proven. [See the recent Federal Court decision in Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 2 AMR, FC].

Further, pursuant to Section 208(3) of the Companies Act 2016 (“Companies Act”), Jaimie’s resignation is effective on 10-06-2024 when his resignation letter dated 10-06-2024 [See Enclosure 36, Exhibit J-4, page 81] was delivered to the Company Secretaries of the JD.

Section 208 (1) to (3) of the Companies Act state as follows-Section 208. Vacation of office of director

The office of a director of a company shall be vacated if the person holding that office-

resigns in accordance with subsection (2);

has retired in accordance with this Act or the constitution of the company but is not re-elected;

is removed from office in accordance with this Act or the constitution of the company;

becomes disqualified from being a director under section 198 or 199;

becomes of unsound mind or a person whose person or estate is liable to be dealt with in any way under the Mental

dies; or

otherwise vacates his office in accordance with the constitution of the company.

Subject to subsection 196(3) and section 209, a director may resign his office by giving a written notice to the company at its registered office.

A notice under subsection (2) shall be effective when it is delivered at the address of the registered office or at a later date specified in the notice. [Emphasis added]

The delay in the submission of Jaimie’s resignation to the Companies Commission Malaysia (“CCM”) is not within Jaimie’s control. It is the duty of the Company Secretaries of the JD to update the registry of the CCM on Jaimie’s resignation within 14 days from the date of resignation. [See: section 58(1)(c) Companies Act].

In any event, the delay was because the Company Secretaries of the JD were seeking for confirmation on whether RHB would be appointing another director in place of Jaimie. [See Enclosure 36, Exhibit J-5, pages 83 - 98].

Ultimately, in the CCM Particulars of Directors/Officers and in the Notification of Change in the Register of Directors, Managers and Secretaries submitted by the Company Secretaries of the JD, it states that Jaimie’s resignation took effect on 10-06-2024.

For the reasons above, I dismiss the appeal with costs of RM 3,000 subject to allocatur. Dated: 13th October 2025 …………(signed)…………… Leong Wai Hong Judge High Court of Malaya Kuala Lumpur (NCC 6) Counsel for Judgment Creditor: Boo Honn Chin. O S Kim & Associates (Kuala Lumpur) Counsel for Aggrieved Party: Andrea Chew Mei Yng and Lim Qian Wen. Lee Hishammuddin Allen & Gledhill (Kuala Lumpur) CASES REFERRED TO: 1) Hong Kwi Seong v Ganad Media Sdn Bhd [2013] 2 MLJ 251, CA. 2) Teoh Kiang Hong v Theow Say Kow @ Teoh Kiang Seng, Henry [2025] 2 AMR, FC. LEGISLATION REFERRED TO: 1) Companies Act, section 58(1)(c), section 208 (1), (2) and (3). 2) Debtors Act 1957, section 4, section 4(1), section 4(6) and section 4(7). 3) Mental Health Act 2001 [Act 615]. 4) Rules of Court 2012, Order 74 Rules 12, 13, 14, 15, 16 and 17. BOOK REFERRED TO: 1) Sweet and Maxwell Malaysian Civil Procedure Volume I - 2024 Edition, 74/0/2