Mohd Saari Yusoff JCA:

On 4 January 2002, the applicant applied to the High Court for stay of execution of the Court Order granted on 12 December 2001 pending appeal. The learned judge dismissed the application on 14 May 2002, hence this application for stay.

The facts may briefly be stated as follows. At all material times, the applicant, a Malaysian, was carrying on business at Ngan & Ngan Holdings Sdn Bhd, Tingkat 10, Wisma Central, Jalan Ampang, 50450 Kuala Lumpur. The respondent was a company based in Singapore.

On 22 December 1999, the respondent obtained judgment in default ("the said judgment") against the applicant at the High Court Singapore videSuit No. 1404 of 1999. Pursuant to O.S. No R2-24-23-2000 filed by the respondent at High Court Malaya at Kuala Lumpur, the learned judge granted leave to the respondent for the said judgment to be registered pursuant to s. 4(2) of Reciprocal Enforcement of Judgment Act 1958.

In the present case, the writ issued by Singapore High Court was served on the applicant through an agent, which act was ultra viresof our law namely O. 65 RHC 1980. In his written submission, the learned cousel for the applicant cited the recent decision of Wahab J in Commerzbank (South East Asia Ltd) v. Tow Kong Liang[2002] 3 CLJ 95, which followed the ratio in the case of United Overseas Bank Ltd v. Wong Hai Ong[1999] 5 CLJ 405. In United Overseas Bank (supra),at p. 415 Ian Chin J said:

In my view there is absolutely no reason why service of the legal process of Singapore or Brunei Darussalam cannot and should not be done through the special provision of the Singapore O. 11 r. 3(8) which is by our judicial officer and that, in my view, is the only permissible method of service other than the method under O. 65. The fact that service by an agent is not expressly prohibited does not mean that Singapore O. 11 r. 3(8) need not be complied with. That provision and O. 65 are enacted for observance and not to be ignored, and, implicitly, all other methods of service will not be allowed since it amounts to the exercise of the jurisdiction of the Singapore courts in Malaysia. Therefore, in my respectful view, the said opinion expressed in this regard by Malaysian High Court Practice(vol 1, 1998 edn) at pp. 4424-4454 is not correct.

In so far as the Singapore O. 11 r. 3(8)(a) is concerned, it cannot be read as allowing the service of the writ in Malaysia by a private agent as that is only allowed in Malysia in respect of processes originating in Malaysia and not foreign process.

Further, his lordship said:

It was mentioned that the defendant should have taken action in Singapore to set aside the service and since he had not done so, he should not be allowed to challenge the validity of the service, citting Harrisons Trading (Peninsular) Sdn Bhd v. Juta Perkasa Sdn Bhd & Ors[1977] 2 SLR 496. No doubt he could do that but the failure to do so does not mean that this court is precluded from considering and taking into account the fact that the service of the writ was in breach of the said rules and that it would be contrary to Malaysia"s public policy to enforce such a judgment. There is more to it than just the right of the defendant. It is a matter affecting the sovereignty of Malaysia and the observance of the said rules. This is a matter which the said Act allows the court yo take into consideration irrespective of whether action had been taken to set aside the service. It does not do injustice to the plaintiff as all they need to do is to have the said judgment set aside and then to serve the writ through the proper channel and in accordance with the Singapore O. 11 r. 3(8) or O. 65.

However, in Saeed U Khan v. Lee Kok Hooi[2000] 7 CLJ 454, the learned trial judge disagreed with the ratioin United Overseas Bank"s case (supra).Be that as it may, for purpose of this proceeding, in view of the conflicting decision, it affords a ground for the appellate court to determine the issue, meaning the applicant