Ian Chin J::

Introduction

(1) 1 This is an application by two foreign judgment creditors, The Ritz Hotel Casino Ltd and RHC Ltd, to have a judgment obtained by them in the English High Court (‘the Judgment’) against the judgment debtor, Datu Sri Osu Haji Sukam, registered as a judgment of the High Court in Sabah and Sarawak pursuant to the Reciprocal Enforcement of Judgment Act 1958 (‘the Act’). The Judgment is for an equivalent RM7,142,859.98. I ordered that the application be heard inter partes because though the initial application could be dealt with ex parte because the judgment debtor would nevertheless have the right to apply to set aside the registration of the judgment under s 5 of the Act. That being the case I was of the view that I might as well at this stage deal with the argument, if any, as to whether the registration of the judgment would be liable to be set aside. Hence the application was heard inter partes. The judgment debtor contended that the Judgment for various reasons should or could not be registered which contentions I will now turn to but only with two of them and actually only one is sufficient to dispose of the matter herein. The other was also dealt with to highlight the difficult a High Court judge faces where there are pending appeals against his decision.

Non-Compliance with O 65

(2) 2 Reliance was placed on my decision in United Overseas Bank Ltd v Wong Hai Ong [1999] 1 MLJ 474 to argue on behalf of the judgment debtor that since the foreign process was served by a private agent on the judgment debtor in Malaysia it contravened O 65 of the Rules of the High Court 1980 and the Judgment was consequently irregular. That case concerned the service of a Singapore High Court writ by a private agent in Kuching, Sarawak, Malaysia and which I held not permissible. Unbeknown to both counsel, this case was reversed by the Court of Appeal on 26 January 2004 but thus far the grounds of decision of the Court of Appeal are still being awaited as there is a pending application for leave to appeal against the decision of the Court of Appeal to the Federal Court which application was on 11 April 2005 adjourned indefinitely to await the grounds of decision of the Court of Appeal. In the meantime, I either postpone (1) indefinitely all cases that may crop up concerning the same issues until the grounds of decision of the Court of Appeal are known or until the matter of the appeal is dealt with by the Federal Court or (2) proceed to hear the matters relying on the ruling of the Court of Appeal though not knowing its reasons. I chose the latter course to avoid a pile up of cases.

(3) 3 As for the over-turning of the said decision by the Court of Appeal, it may well be the end of reciprocity to Malaysia’s disadvantage because while we now allow the service of a foreign process by a private agent in Malaysia we do not know how many foreign countries allow the service of a Malaysian process by a private agent in that foreign country. Worse still, we may open Malaysia to a foreign country to exercise extra-territorial jurisdiction by allowing a foreigner to sue in his own country a Malaysian in respect of, say, a contract made in Malaysia between a Malaysian and a foreigner; imagine the expense a Malaysian would be put to in having to travel to a distant country to defend himself. Be that as it may, I have to conclude relying on the said decision of the Court of Appeal that there is no merit in the argument that a foreign process cannot be served by a private agent in Malaysia. I turn now to the argument ‘that the enforcement of the judgment would be contrary to public policy in Malaysia’ (see s 5(1)(v) of the Act).

Public policy

(4) 4 Now the judgment recovered in the English court was for a gambling debt incurred by the judgment debtor after he was allowed by the judgment creditors to gamble on credit as opposed to cash in a casino in London. Is the enforcement of such a judgment in Malaysia contr