Private International Law in the Malaysia Courts

because they did not follow the "god fearing principles" found in malaysia. the fact 1 [2005] 6 m.l.j. 760. section 26(4) of the civil law act states: to malaysian gamblers. in light of singapore's newfound ambitions in that field, perhaps these on the matter of state sovereignty, he held that the earlier cases had misunderstood lord under or in respect of any contract or agreement rendered null and void by subsec- 15 [1992] 2 m.l.j. 146 (supreme court). and saeed u khan v lee kok hooi.16 (2006) 10 sybil 357­362 © 2006 singapore year book of international law and contributors (a) the original service of writ upon him by the judgment creditors was done by a the koran, the bible, hindu scripture and buddhist philosophy, all condemning gambling, yii chee meng v teo ash king @ teo cho teck & anor18 o65 r2 (1) this rule applies in relation to the service of any process required in the main part of the decision was focused on the issue of service of writ for foreign (b) the judgment debtor was ill and illiterate (in both malay and english); and a case decided the final two grounds were quickly disposed of by the judge who held that illness and parties and to serve the ends of justice; be against malaysian public policy. regarding the first line of defence, the judge held that 2 revised in 1972. laws of malaysia act 99. that country's permission. of course, in the foreign country itself, the manner in which the sent by him to the high court with an intimation that it is desirable that effect should to the sovereignty of malaysia. the precedence for the matter of sovereignty was taken from registered post addressed to him in that foreign country, see o11 r 5(3)(a). but that foreign proceedings done by a private agent is acceptable by the malaysian courts. this (b) the defendant bears this burden of proof; and reciprocity by the courts of reciprocating countries. this is the rationale behind s which lists the belief in god and good social behaviour amongst them, it was not possible for mellish [1824].17 362 singapore year book of international law (2006) malayan banking berhad v ng man heng9 the defendant, being a muslim, was obviously acting contrary to the tenets of his faith. no action shall be brought or maintained in any court for recovering any sum of bhd15 14 ibid. (a) is there a more appropriate forum where the case can be heard in the interest of the the fact that the proceedings were based on a foreign gaming transaction did not matter a sound and definitive judgment. this has been provided for in one of the cases discussed here, 360 singapore year book of international law (2006) sign the guarantee upon which the substantive issue of the case was based. of malaya. queensland, can become the subject of proceedings in malaysia. 5(1) of reja, which limits and specifies the grounds on which registration can be justice lau bee lan held that three elements have there were four noteworthy cases in the malaysia courts in 2005. two of these cases dealt out of the jurisdiction is an exercise of sovereignty within the country in which service is b. jupiters limited (trading as conrad international treasury casino) v secretary who forwards them to the foreign office. if an individual is served ... by the courts in united despite his misgivings and an earlier decision4 it is incorporated and domiciled. it must then be served ... through the machinery of iii. forum non conveniens the judge then went on to discuss the issue of public policy. equating gambling with means of that machinery... in the foreign country, he need not be served personally so be effected by leaving a copy of it and of the translation with the person to be served. of the reja and a warning against the overly lenient use of the public policy argument: in connection therewith, shall be null and void, and no action shall be brought or judgment under the reja was allowed to stand. tenuous grounds. even the public policy limb must be interpreted restrictively because for leave to re-amend their writ of summons and statement of claim. illiteracy were not grounds to reject a reja application and with regard to misrepresentation later presented the cheques, they discovered that the defendant had counter-manded them. plaintiff and let the defendant learn his lesson by simply paying what he owed. of the state of sabah, had got into debt gambling at the ritz carlton casino in london. 5 unreported judgment, [2005] m.l.j. 534. be improper for a malaysian court to make decisions that will ultimately affect land in taking these matters into consideration, it was held that singapore was indeed the better carry you. it may lead you from the sound law", per burrough j in richardson v to be examined when determining whether to stay a proceeding: syed ahmad helmy went on to say that there is nothing in o65 that states that service for he did not mean that for every single writ to be served abroad, one needs to first obtain reja. the judgment debtor objected to this registration based on three grounds: in the ritz carlton case above, the judge had mentioned the issue of whether service for the matter to rest. (section 31(1)) both two issues were raised in defence. firstly, that the foreign process served on the defendant finally there is a case that uses the principle of forum non conveniens in a sensible manner that is why our rules provide for service through the judicial authorities of that the background of this case is as follows. the defendants had in 1999 made a stay appli- tions (1) and (2), or to pay any sum of money by way of commission, fee, reward the new claim then included the original sum of money contested and a declaration that in which documents may be served on bodies corporate, service of the process shall in particular the parts reciting scripture. the judge ruled in favour of the defendant but as overseas bank and commerzbank held that, based on the vrontados, it would follow that by lord denning mr (as he then was). lord denning had held that "... service of writ gambling to be an acceptable activity in malaysia. he then went on to quote extensively from any promise, express or implied, to pay any person any sum of money paid by him because the service hern & ors20 4 united overseas bank v wong hai ong [1999] 1 m.l.j. 474 (high court, kuching). it was held that this rule was the method by which or otherwise in respect of any such contract or of any services in relation thereto or his case heard would not put him at any disadvantage. the issue of res judicata was also because the question before the court was one of procedure (the civil law act being one a foreign proceedings cannot be done via a private agent. the registration of the singapore by a private agent is a perfectly acceptable method of serving a writ in malaysia. justice maintained to recover any such sum of money. unlike the ritz carlton case, however, judgment was not obtained abroad. in this case, service shall be effected by the process server. (sections 26(2) and 26(4)) and the contracts act 19507 lim kin tong5 country where a letter of request from such a tribunal requesting service on a person it is "a very unruly horse, and once you get astride it you never know where it will anything alleged to be won on any wager, or entrusted to any person to abide the and commerzbank enforcement of judgment act 1958 (reja).2 own country.14 sovereignty and this would mean that it is against public policy to accept the validity of such 17 ibid. at 492. was followed by the court in sunkyong international inc v malaysian rubber dvpt corp to prove his point that gambling is a heinous act. long as it is served on him in accordance with the law of that foreign country, e.g. by served in this case. in singapore. the plaintiff was the only witness and having to cross the causeway to have the argument by the plaintiff that the issue was one of dishonoured cheques and not gaming, sidestepped as being for the good of the nation as it helps to prevent gambling activities i. misuse of public policy argument of money that was exchanged between the plaintiff and defendant was a loan or a gift. in earlier cases such as united overseas bank ltd v wong hai ong10 be given to the request. 11 [2002] 2 m.l.j. 353 (high court, johor bahru). been made. he owed the casino approximately seven million malaysian ringgit (rm 7,000,000). he in queensland, australia. he had issued two cheques which totalled approximately two stayed as singapore would be the better forum. applying the principles of forum non where the high court decided that the overly restrictive approach taken by many malaysian and therefore fell under the auspices of the bills of exchange act 1949,8 in malaysia of any such process sent with the letter is received by the minister and is which serves to emphasise one of the ideals that is the foundation of private international law, because it was done without the malaysian government's consent, it was an affront on her our foreign office... in accordance with the way in which a company is served in its (c) would it cause an injustice to the plaintiff if the case was heard elsewhere. notice of service from foreign countries had to be served. failure to do so would be an affront in application for registration of foreign judgments the court must be slow to refuse country: or through a british consular authority in that country, see rsc, o11 in saeed u khan, it was also held that service family into poverty. the judge refused to look into similar cases decided in other countries rr 5(5) and 6. the practice is for the documents to be lodged here with the master's service of foreign proceedings would have to be according to o65 r2. service by a private was rejected by the defendants then requested that the proceedings based on the amended claims be million malaysian ringgit (rm 2,000,000). he went on to incur losses and when the casino (south east asia ltd) v tow kong lian,11 furthermore, it was held that the plaintiff would suffer no injustice if the case were heard agent is unacceptable (as o65 states that service should be done by a process server) and that gambling is legal (provided it is licensed) in malaysia was conveniently and bafflingly it was held in the kuala lumpur high court that it could not because the civil law issue has split the malaysian judiciary and there are both cases that hold that service of public policy argument. they serve as a warning to casinos the world over against giving credit one of its residents. it is not intended to mean that all forms of service of foreign proceedings the court of appeal, he reluctantly had to allow the foreign process to be deemed properly r2 (3) subject to paragraph (4) and to any written law which provides for the manner 9 [2005] 1 m.l.j. 470. judges is unfounded and based on the misinterpretation of a judgment of lord denning's. to be read within its ordinary meaning, that is to say, it is to be used only in cases where one agreements by way of wager are void; and no suit shall be brought for recovering one of the defendants was holding a share in property (bought with the contested money) on private international law in the malaysia courts with malaysians getting into debt due to gambling abroad and both have arguably misused the this outstanding sum that was being claimed. 8 revised in 1978. laws of malysia act 204. and was trying to get that judgment enforced in malaysia by virtue of registration under the the court. this was because the nature of the transaction (the c.c.f.) was purely for the where the situation was reversed and the singapore court had been asked to nations and the smooth administration of justice. government has made a request to the malaysian government to serve a notice of writ on a resulting or a constructive trust for the plaintiffs. the property was situated in singapore. serving a writ out of jurisdiction can be construed as interfering with the sovereignty of dismissed seeing as how the initial 1999 decision denying a stay was made when the issue registration on tenuous ground as it will lead to our judgments not being accorded the plaintiffs had commenced proceedings in malaysia to claim the outstanding sum. the from being run by the underworld. not deserving, having partaken in an activity frowned upon by religion. however, justice syed ahmad helmy disputed this interpretation. he held that o65 was this is another case of a malaysian who got into debt gambling overseas and refused to challenged. if we begin to widen the scope set out by parliament in s 5(1) of reja, was of the opinion that he did not deserve it as he had been involved in an activity frowned is served out of jurisdiction. in my opinion, it must be served in the country in which justice syed ahmad helmy closed with a summation of the principles behind the rules a. the ritz carlton casino ltd & anor v datuk seri osu haji sukam1 question before the court was whether what is essentially a gaming debt, enforceable in was in contravention of order 65 of the rules of the high court 19803 the precedence for this decision was the singapore case of eng liat kiang v eng bak the judge ruled in favour of the defendant and the judgment of the english high court in this case, heard in the high court of kota kinabalu, the defendant, an ex-chief minister connection with civil proceedings pending before a court or other tribunal of a foreign 20 [1995] 1 sing.l.r. 577. judge then went on to state that, as a policy, gambling contracts should not be enforced writ is served must be in accordance with the law of that country. this line of reasoning was not to be enforced. costs were not awarded to the defendant though because the judge singapore, then we can expect refusal to register our judgments in foreign courts on foreign proceedings by private agents is acceptable and cases that hold that it is not. in the high court 1980. it would be helpful to reproduce the rule here: it was held that taking lord denning's decision as a whole, what he had actually meant ii. service of writ for foreign proceedings in malaysia civil law act reads: money or valuable thing alleged to be won upon any wager or which has been processes by private agents was not permissible, because that decision had been reversed by granting credit facilities to a man who might then voluntarily use it and drive himself and his 10 supra note 4. however, after the application for a stay of proceedings was rejected, the plaintiffs applied 7 revised in 1974. laws of malaysia act 136. procedures for the service of a writ abroad. it is those procedures that have to be followed. here, the judgment creditor had obtained a judgment from the singapore high court and/or inducement, seeing as it is a substantive matter, it should be dealt with in the court of his that held that the service of foreign which is the very same scope in the legislation of reciprocating countries such as however, the judge in his mercy, chose instead to focus on the immorality of the casino dennings' decision by not reading it in its entirety. lord denning indeed had stated that 6 revised in 1972. laws of malysia act 67. serve to protect the nation's sovereignty but only to hinder the principle of the comity of did not pay and the plaintiffs had obtained judgment from the english high court. the the issue of the service of writ for foreign proceedings in malaysia has been one that needs 18 [2005] 5 m.l.j. 354 (high court, kuching). afro continental nigeria ltd v meridian shipping co sa (the vrontados)12 present case, justice syed ahmad helmy, in an excellent and clear judgment, hopefully puts it is hoped that this case should settle the matter of service for foreign proceedings in of trust in property was not amongst the claims being made by the plaintiff. service. initial service was invalid; forum. this decision was based primarily on the fact that when it comes to matter of was that being aware of the sensitivities of sovereignty, a legal system would have its own cases should be noted by the republic's legal fraternity. he later made part-payment of his debt but there remained an outstanding balance. it is (c) the judgment creditor had misrepresented and/or induced the judgment debtor to 19 [1987] a.c. 460. prostitution, he stated that based on the malaysian rukun negara (national principles) governing procedural law) and therefore malaysian law as the lex fori should govern. the upon by his religion. it is submitted that perhaps it would have been better to find for the only applies to individuals. there is no similar rule to tell us how a foreign company rejected. during the application in 1999, the salient issue in this case was whether a sum conveniens established in the spiliada,19 12 [1982] 2 lloyd's rep 241. 13 ibid. at 245. plaintiffs then sought to have that judgment enforced in malaysia under the reciprocal result of any game or other uncertain event on which any wager is made. land, it is really the lex situs that governs; seeing as how singapore is the lex situs it would the comity of nations. deposited in the hands of any person to abide the event on which any wager has another nation: stay proceedings because the case dealt with land in malaysia. this they duly did. purpose of gaming in the casino. 10 sybil private international law in the malaysia courts 359 and therefore the singapore court had no jurisdiction to hear the case because the malaysia once and for all, and in the future, there will be no more decisions that do not in malaysia, and to justify this reasoning he quoted verbatim the ritz carlton judgment, 10 sybil private international law in the malaysia courts 361 by azmi sharom are to be done in that manner. cation in the malaysian court to stay the proceedings in favour of singapore, which was proceedings. the problem can be traced to order 65 rule 2 (o65 r2) of the rules of the specifically prohibit the enforcement of agreements based on gambling. section 26(2) of the act 19566 effected. it can only be done with the consent of that country".13 ll.b (sheffield), ll.m (nottingham), phd (soas, london); associate professor, faculty of law, university was done by a private agent. secondly, that for the court to enforce the judgment would 3 pu(a) 50/1980, which deals with the service of foreign process. section 31(1) of the contracts act reads: private agent. this was an unacceptable method of service of foreign proceedings 16 [2001] 5 m.l.j. 416 (high court, kuala lumpur). singapore. 358 singapore year book of international law (2006) pay. the defendant in this case had opened a cheque cashing facility (c.c.f.) in a casino with the ritz carlton case, costs were not awarded as it was held that the defendant was where the substance of the case was heard (i.e., singapore) and he was not going to intervene.