The Principles of AR Registered Post
The article seeks to discuss on the principles of AR Registered Post with reference to relevant case law and statute.
What is AR Registered Post?
Apart from the personal service, another method for service of court documents is by way of the AR Registered Post. AR Registered Post is a mail service offered by Pos Malaysia allowing the sender to serve court document to the Defendant’s last known address. ‘Last known’ address is defined in Ramlan bin Kamal v Perbadanan Nasional Bhd [2004] 1 MLJ 425 as the most recent known residence of the Defendant and nowhere else.
By serving court document via A.R Registered Post it will be able to establish proof of mailing via producing the AR card because the Defendant could ‘play dumb’ by rejecting personal service (by hand) of court document such as writ and originating summons and Thomson v Pheney (1832), has established that personal service may be affected by tossing the writ on him or by leaving it at the spot near him and there is no need for acknowledgement. This is further established in Ady Marketing Sdn Bhd v Seri Mutiara Development Sdn Bhd & Anor [2021] MLJU 2290 where the judge Choo Kah Sing comments that AR Registered Post provides evidence of the posting and to borrow Justice of VC George’s words, it is just a sophisticated version of the ordinary registered post.
However, the Court following Order 10 of Rules Of Courts 2012 (“ROC 2012”) will often require the advocate to take further measure ensuring ‘justice’ to be serve to the Defendant and that is by A.R. registered post with proof filed together in Affidavit of Service. Pursuant to the recent case law of Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] MLJU 300 the usual practice of serving a court document is on the basis of “duly served”, provided in Order 10, rule 1(4) ROC 2012.
Thus, to interpret Order 10 literally and to read with Section 12 of the Interpretations Act 1948 and 1967 (hereinafter referred to as “Interpretation Acts”) would mean that proof of posting will be conclusive proof of service, that is, service shall be presumed to be effected when passed to the postal service and this was the view by the Court of Appeal in Yap Ke Huat & Ors v Pembangunan Warisan Murni Sejahtera Sdn Bhd & Anor [2008] MLJU 128 where the court held there was no provision of law that the plaintiff must prove that the person named in the post had received the court documents unless rebutted by the Defendant.
The leading case that distinguishes the previous decision
However, the recent case law of Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] MLJU 300 on A.R Registered Post shows otherwise. It was established that the acknowledgment of receipt card (AR Card) must be produce as proof of service by exhibiting it in affidavit of service. Besides that, the Federal Court Judge, Abdul Rahman Sebli made explanation that proof of service can also be by someone authorized by the Defendant to accept the service of Writ on his behalf. The rationale is that it is necessary for the Court to exercise caution before entering Judgement in Default of Appearance. The Court also commented that there is nothing in Section 12 to say that posting by registered post (wide enough to include AR Registered Post) is conclusive proof of service. Also, it is a wrong approach that posting of the writ by AR registered post was conclusive proof of service which will cause a serious miscarriage of justice to the defendant.
Furthermore, the Halsbury’s Laws of Malaysia on Civil Procedure (Volumes 7(1) and 7(2)) updated on October 2021, the author commented that the previous approach of A.R. Registered Post that presumption of service when it is posted is a wrongful approach and would cause a serious miscarriage of justice to the Defendants as they had lost the chance of having the Judgement in Default of Appearance set aside.
Conclusion
In conclusion, the recent principle governing the AR Registered Post would be the principle stated in the case of Goh Teng Whoo & Anor v Ample Objectives Sdn Bhd [2021] MLJU 300.
For instance, the case of Darshan, Syed, Amarjit & Partners v Saniah Bt Sabri [2021] MLJU 2609 where Su Tiang Joo JC also agreed to his lordship, Abdul Rahman Sebli FCJ’s viewpoint and further commented that if the old doctrine is to be followed, then it will be an anathema to the concept of justice and fair play that a defendant who has no knowledge of the action is attached with liability without being given the opportunity to explain why the default judgment should not be entered against him.
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