Yew See Tak v Cg Computers Sdn Bhd (PA-22NCvC-156-09/2021)

CG COMPUTERS SDN BHD (No. Syarikat: 389271-M)

LI CHAU GING (No. K/P: 670123-07-5065)

TAN PHAIK CHEE (No. K/P: 671231-07-5382

SIM CHEE PING (No. Pasport: K1070542A)

BUDIARTO HALIM (No. Pasport: X575697

SITI USWATUN HASANAH BINTI AHMAD JOHARI (No. K/P: 950227-07-5250)

7.

MUHAMAD AFIQ AQIL BIN KAMARULL HISHAM (No. K/P:961017-05-5175) …DEFENDAN-DEFENDAN 09/12/2025 14:14:22 PA-22NCvC-156-09/2021 Kand. 219 Page 2 of 11 GROUNDS OF JUDGMENT (Enclosure 170) INTRODUCTION [1] This is an application by the 4th (D4) and 5th Defendant (D5) to set aside the Amended Writ and service of the Amended Writ (Enclosure 170) pursuant to Order 2 rule 2 and/or Order 12 rule 10 of the Rules of Court 2012 (ROC). [2] This Court dismissed the application, and the reasons are as follows. BRIEF FACTS [3] On 12th January 2021, the Plaintiff submitted his Apple iPhone-X (iPhone) to the 1st Defendant's store (CG Switch) at Sunway Carnival Mall (Switch Store) for a routine software update. The software update was performed, and the Plaintiff’s iPhone was returned to him that same day. [4] Approximately 2 months after the service, on 06.03.2021, the Plaintiff discovered that a significant amount of cryptocurrency (which was securely stored on his iPhone) had been stolen. The Plaintiff further contended that CG Switch’s employees accessed his cryptocurrency wallet without authorization. [5] The Plaintiff commenced this Suit, inter alia, for damages in the sum of RM3,369,930.55 against D4 and D5 in their personal capacity as the directors of CG Switch for the tort of conspiracy, alleging that they Page 3 of 11 knowingly authorized, directed, or procured the wrongful acts committed by CG Switch’s employees resulting in the theft of the cryptocurrency. [6] This application in Enclosure 170 by D4 and D5 is on the basis that the Order for renewal of the Amended Writ for a third time is irregular for non-compliance of Order 6 Rule 7 of the ROC. Thus, the service of the Amended Writ on D4 and D5 is invalid. [7] The following is the sequence of events-Date Event 21.09.2021 The Writ was filed at the Penang High Court 11.10.2021 The Plaintiff filed an application to serve the Writ out of Jurisdiction (Enclosure 9) on D4 and D5, who were residing in Jakarta.

9.12.2021 The Plaintiff filed an application to amend the Amended Writ and the Statement of Claim (Enclosure 17)

17.01.2022 Order granted for the application to amend the Amended

Writ (Enclosure 22)

07.2022 The Amended Writ of Summons expired 03.02.2023 The Plaintiff filed an application to renew the Amended Writ (Enclosure 76)

26.05.2023 The Court allowed Enclosure 76 (First Renewal) in Enclosure 83. The Writ was renewed for 6 months from the date of the Order (26.05.2023) Validity of the Amended Writ until 25.11.2023.

24.11.2023. The Plaintiff filed an application to renew the Writ for the second time (Enclosure 91)

31.01.2024 The Court allowed Enclosure 91 (Second Renewal) in Enclosure 101. The Writ was renewed for another 6 months from the date of the Order (31.01.2024) Validity of the Amended Writ until 30.07.2024.

13.03.2024. The Court allowed the Plaintiff’s application for leave to serve the Amended Writ out of Jurisdiction on D4 and D5 (Enclosure 115)

24.05.2024 The Plaintiff filed an application to renew the Amended Writ for the third time (Enclosure 121)

02.08.2024 The Court allowed Enclosure 121 for renewal of the Amended Writ (Third Renewal) in Enclosure 129. The Writ was renewed for another 6 months from 26.05.2024 until 25.11.2025 15.10.2024 Service of the Writ was perfected on D4 and D5 by way of personal service. [8] D4 and D5 in Enclosure 170 applied to set aside the Amended Writ, so as the effect is to render the service against D4 and D5 as invalid and ineffective. [9] Enclosure 170 posed a question as to whether the court may exercise its inherent powers to override the express terms of Order 6 Rule 7(2) of the ROC to renew a writ beyond the second time. [10] For ease of convenience, Enclosure 170 seeks-

A temporary stay over these proceedings, including the filing of D4 and D5’s defence and all pre-trial documents. (Note: this is now academic as D4 and D5 have filed their defence and complied with filing pre-trial documents)

(ii) The Reamended Writ (pursuant to the 3rd Renewal Order), Statement of Claim dated 21.9.2021, and service thereof be set aside.

(iii) A declaration that the Reamended Writ and Statement of Claim were not served on D4 and D5.

(iv) Discharge of the 3rd Renewal Order.

Costs. Plaintiff’s Contention [11] The Plaintiff contended that D4 and D5’s application in Enclosure 170 ought to be dismissed because-

The 1st and 3rd Renewal Orders were properly granted.

The service of the Writ on D4 and D5 was within the validity period of the Writ under the 3rd Renewal Order. And thus, proper and valid.

This court has jurisdiction over D4 and D5 under Section 23(1) of the Courts of Judicature Act 1964 and Order 11 rule 1(C),

(H) and/or (J) of the ROC. [12] It was contended that the Plaintiff could not serve D4 and D5 as the applications for substituted service (Enclosure 7) and the leave to serve out of jurisdiction (Enclosure 9) were objected and heavily contested. Furthermore, the Plaintiff has to deal with a solicitor in Indonesia to serve the Amended Writ. [13] After leave was granted on 13.3.2024, the Plaintiff had only 2 months and 13 days to serve the Writ on D4 and D5 in Indonesia. This would include: Page 6 of 11 • preparing a translation of the papers into the Indonesian language by a certified translator • ensuring the method of service did not contravene Indonesian laws • preparing for occasions where D4 and D5 could not be served [14] The Plaintiff further contended that, if justice of the case requires it, discretion over the limitation of renewing a writ twice can be exercised, citing the Federal Court’s case of FIMBank Plc v The Owners and/or Demise Charterer Ship or Vessel now known as ‘Bao Lai’ [2023] 6 MLJ 563. [15] The Plaintiff also contended that he is not indolent, as he had engaged SR Legal in Indonesia in May 2024 to arrange service. Discussions were held on whether to serve through diplomatic channels or personal service. [16] The Plaintiff further contended that D4 and D5 withdrew their consent for Messrs J. B. Lim (the solicitors) to act for them, and when Enclosure 9 was filed, D4 and D5 appointed different solicitors. D4 and D5 had also instructed their security personnel to refuse service from Plaintiff’s Indonesian agent. This is an indication that they are evading service. Defendants’ Contention [17] D4 and D5 contended that the third renewal is irregular and ultra vires of Order 6 Rule 7(2) of the ROC that limits renewals of a writ in West Malaysia to two times only. Page 7 of 11 [18] D4 and D5 also contended that the Plaintiff cannot rely on Order 92 of the ROC to override the express limitation in Order 6 Rule 7(2) of the ROC. [19] D4 and D5 further contended that the Plaintiff has failed to show “inability to serve” and reasonable diligence. The Plaintiff has failed to demonstrate any proactive efforts on his part to effect service of the Amended Writ by relying only to “pertukaran emel dengan agen di Indonesia” dated May 2024, almost two months after leave to serve out of jurisdiction was granted on 13.3.2024 and no explanation was given for what steps were taken between March and May 2024. This defeats the requirement of continuous efforts and the authorities relied on by the Plaintiff are inapplicable. ANALYSIS AND FINDINGS [20] Based on the inherent power of the Court, and in the interest of justice, this Court dismissed Enclosure 170. This Court is of the view that the reason put forward by the Plaintiff is justified. [21] This Court observed that the validity of the Amended Writ based on the Order dated 31.01.2024 (Enclosure 101) was for six months from that Order. That means the Order dated 31.01.2024 was valid until 30.07.2024, and the application to renew the Amended Writ was made on 24.05.2024, before the expiry of the Amended Writ. Therefore, this Court finds that the application for the renewal of the third Amended Writ was made within time before expiry. Thus, the only issue now remaining is whether allowing the renewal for a third time is in contravention of Order 6 Rule 7(2) of the ROC. Page 8 of 11 [22] This Court is further satisfied that the Plaintiff had explained the reasons as to why the Amended Writ could not be served and as such, the third extension is necessary. This can be seen from the application for substituted service as well as the application to serve out of jurisdiction which requires communication with the lawyer/agent in Indonesia to serve D4 and D5. Attempts by the Plaintiff to serve D4 and D5 have been made. In Duli Yang Amat Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v. Captain Hamzah Mohd Noor & Another Appeal [2009] 1 MLRA 528, the Court held that “… courts must be satisfied that serious efforts had been made to serve…”. [23] In this regard, this Court is satisfied that the Plaintiff has made a serious effort to serve the Amended Writ to D4 and D5 in Indonesia. [24] Also, special circumstances exist that justify the Court’s exercise of its inherent powers under Order 92 Rule 4 of the ROC. [25] Accordingly, this Court finds that the Defendants would not be shut out of a defence. There is also no prejudice to the Defendants if the writ is renewed. This Court is guided by the Federal Court case of National Union of Bank Employees v Director General of Trade Unions & Anor [2013] 6 MLJ 167, which held “In exercising its discretion, the court must have regard to justice.”. Thus, justice must override technical non-compliance. [26] Based on this, this Court, in applying its discretion, has allowed the renewal of the Amended Writ for the third time, balancing between the discretion of the Court for justice and the Page 9 of 11 statutory right of the Plaintiff for the claim, over the limitation of renewing a writ. [27] In this regard, reference is made to the case of FIMBank Plc v The Owners and/or Demise Charterer Ship or Vessel now known as ‘Bao Lai’ [2023] 6 MLJ 563, where the Federal Court unanimously held-

Fimbank had, through the commencement of its claim in rem, acquired a statutory right of action in rem to proceed against the vessel. A statutory right of action in rem crystallised upon the issuance of a writ, conferring upon the plaintiff the status of a secured creditor. In the present appeal, although the ownership of the vessel had changed three times since the issuance of the writ, Fimbank's statutory right of action in rem persisted. Order 6 r 7(2) of the Rules could not be utilised to defeat this right. Nor could it be used to deny a claim that had been brought within time where there was no factual or legal basis to do so, as was the case here. Order 6 r 7(2) of the Rules, being subsidiary legislation, could not eradicate or annihilate a statutory right of action in rem that had accrued within the limitation period. (paras 36-37)

A plain or grammatical reading of O 6 r 7(2) of the Rules, where the words therein were taken in vacuo without consideration of the rest of the provisions in the Rules, would result in a construction that there was an absolute limit of five renewals of the writ that could be sought by Fimbank. However, such an interpretation would defeat Fimbank's statutory right of action in rem and effectively override its status as a secured creditor, resulting in manifest injustice to Fimbank. This could not have been the intention behind O 6 r 7(2) of the Rules. Fimbank had not slept on the writ, nor had it forsaken any steps to effect service of the same. In fact, it had diligently monitored the movements of the vessel throughout the period of validity of the writ. Fimbank could not be faulted for the non-arrival of the vessel into Malaysian waters, rendering service of the writ an impossibility. The Page 10 of 11 changes in ownership of the vessel after the writ's issuance were similarly beyond Fimbank's control. (paras 38-39)

The purpose of the Rules was to facilitate the administration of justice; not to incapacitate it. To read O 6 r 7(2) of the Rules in a manner which placed an absolute cap or limit on the number of times a writ in rem might be renewed, diverged from the purpose of the Rules and punished a diligent litigant. Manifest injustice would result to Fimbank in the event that its statutory right to prosecute its claim in rem and to obtain security for its claim were defeated by reason of a pedantic reading of O 6 r 7(2) of the Rules. This was a situation that warranted the invocation of the court's inherent powers to prevent injustice. The courts below erred in holding that they did not have the power to renew a writ in rem for the sixth time, notwithstanding the injustice that would result to Fimbank, by sole reason of the express wording of O 6 r 7(2) of the Rules. The construction accorded to O 6 r 7(2) of the Rules by the courts below ignored the practical difficulties faced by plaintiffs in effecting service of a writ in rem where the defendant's vessel never came into the jurisdiction. It also potentially incentivised owners of a vessel to evade liability by keeping their vessel out of the jurisdiction until the limitation period for the claim expired. Therefore, the answers to all four questions of law posed were in the negative. (paras 40, 49, 50 & 55) [28] The case of FIMBank Plc (supra) raised the issue of whether the court might exercise its inherent powers to renew a writ in rem beyond the fifth time to prevent injustice to a plaintiff where the service of the writ was an impossibility. Similar to this case, the Plaintiff was unable to serve the Amended Writ, twice and later the Amended Writ was renewed for a third time when Order 6 Rule 7(2) of the ROC provides “Subject to paragraph

(2A), where efforts to serve a writ on a defendant have been unsuccessful, the court may by order extend the validity of the writ twice (in Sabah and Sarawak thrice), not exceeding six months at any one time, beginning with the day next following Page 11 of 11 that on which it would otherwise expire, as may be specified in the order”. This means the Amended Writ was renewed beyond the limitation in Order 6 Rule 7(2), but applying the case of FIMBank Plc (supra), this Court finds that it is justified for the third renewal. [29] Therefore, as the court was within its powers to grant the third Renewal of the Amended Writ, and accordingly, the service on D4 and D5 was therefore valid. There is no basis to set aside the Order for the third renewal and the service of the Amended Writ on D4 and D5. CONCLUSION [30] Based on the above deliberations, Enclosure 170 is dismissed. Dated: 2 DECEMBER 2025 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of The High Court OCVC 2 Pulau Pinang For the Plaintiff : Nurul Hanani binti Azamuddin Messrs. Raj, Ong & Yudistra For the 4th and 5th : Dharmesh Singh Penesar & Kukaneswari Defendants a/p Murugan Messrs. Teja Singh Penesar & Co.