Effecting service via an exhibit in an affidavit
- Gavin Jayapal
- 3 days ago
- 5 min read
Service of cause papers via an affidavit
Whilst researching a point, I came across an interesting proposition of law. In Zhang Junmei v Pengarah Imigresen [2022] MLJU 2995, the HC was tasked with hearing a JR leave application. The HC heard parties and dismissed the application for leave.
Brief facts
The Applicants for JR were 11 individuals (8 from China, 3 from Vietnam). They were arrested on 13.12.2021 and alleged that they had been unlawfully detained.
Their solicitors (Messrs Bachan Kartar) filed an application for habeas corpus for their release from detention (Habeas application).
Whilst the Habeas application was pending, the Applicants applied for criminal revision for the issuance of a Special Pass under Regulation 14 of the Immigration Regulations 1963 or alternatively, that they be granted bail (Criminal Revision proceedings).
Whilst under arrest, the Applicants had their visit passes cancelled by the Director General of Immigration on 31.12.2021.
The Criminal Revision proceedings were dismissed. An appeal was lodged then withdrawn.
The Habeas application, however, was successful. The HC found their arrest on 13.12.2021 to have been unlawful and an order for Habeas was issued on 12.05.2022.
On 10.06.2022, the Applicants filed fresh JR proceedings to quash the decision of the DG to cancel their visit passes.
The JR proceedings
At the JR proceedings, the HC considered O. 53, r. 3(6) ROC 2012 which states:
“(6) An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.”
The question that arose was: when was the decision first communicated to the Applicants?
The HC considers the previous proceedings
The HC considered the Applicants’ assertions (that they had been made to sign blank pieces of paper, paras. 25-27). Crucially, the HC made this observation:
[28] During the course of the hearing on 18 October 2022, learned counsel for the 11 Applicants admitted that they received copies of the Affidavits exhibiting the Notices of Cancellation of 31 December 2021 on 10 February 2022.
The HC examined this further and noted that the Notices of Cancellation were annexed to an affidavit which had been served on the Applicants’ solicitors:
[54] Even if they had not been served, it was admitted by learned counsel for the 11 Applicants, Mr. Gurbachan Singh a/l Bagawan Singh, that the Notices of Cancellation of 31 December 2021 were all exhibited to an affidavit, and served upon the solicitors for the 11 Applicants, Messrs Bachan & Kartar on 10 February 2022.
[55] Therefore, it is indisputable that the decision to cancel their passes as set out in each of the Notices of Cancellation dated 31 December 2021 have been communicated to them, at the very latest through their said solicitors, on 10 February 2022.
[56] Knowledge of the said solicitors would be imputed upon their clients, see Overseas Chinese Banking Corp Ltd v. Lee Tan Hwa (Goh Ah Chwee & Anor, Interveners [1989] 1 MLJ 261 and Yap Kok Ming v. Machang Timber Sdn Bhd (Company No. 054818m) (Formerly Known As Weeluk Corporation Sdn Bhd [1999] 1 LNS 48, more so, when the alleged wrongful cancellation of the visit passes have featured in both the MT2 Habeas Corpus Application and the MT3 Criminal Revision Proceedings.
[63] To seal their fate, there was no reason given as to why they did not bestir themselves to file judicial review proceedings within the prescribed time when the Notices of Cancellation of 31 December 2021 were [admittedly] at the very least, communicated to them, through their said solicitors on 10 February 2022, and they have reproduced them in their Affidavit (Enclosure 2 pages 77 to 87).
The HC dismissed the application for leave.
Critique
The decision above provides strong persuasive precedent towards the notion that service can be effected via affidavit. However, I have my reservations.
For regular cause papers, it is arguable that service via an affidavit may be effectual. However, for a document as serious as a cancellation pass, it is incumbent upon the Government to ensure that personal service is effected.
It is also necessary for fundamental rights of individuals to be observed. Merely being a foreign national does not remove safeguards against unlawful detention, nor does it absolve the Government of its duty to act in accordance with the law.
As observed ~250 years ago in Entick v Carrington [1765] EWHC KB J98:
In the case of Wilkes, a member of the Commons House, all his books and papers were seized and taken away; we were told by one of these messengers that he was obliged by his oath to sweep away all papers whatsoever; if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law. The defendants have no right to avail themselves of the usage of these warrants since the Revolution, and if that would have justified them they have not averred it in their plea, so it could not be put, nor was in issue at the trial; we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society;
In the limited scope of Judicial Review, I am of the view that personal service must be effected. To be fair to His Lordship, he did not accept the evidence of the Applicants that personal service had not been effected (paras. 51-54). The learned Judge observed that the Applicants’ allegations were self-serving and would be rejected.
If these facts were not present, I would suggest that O. 53, r. 3(6) ROC 2012 further makes it mandatory that service must be effected on the Applicant himself and not his solicitor.
Conclusion
Effecting service via an affidavit is a possibility and one would be circumspect with regard to the same. Solicitors must take especial care with regard to the same to ensure that they are not caught out.
GAVIN JAYAPAL
The information contained here is for general information purposes only. The writer does not endeavour to keep the information up to date and correct, makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the article or the information, products, services, law, cases or related graphics contained herein for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
Consult your solicitor before you undertake any legal action whatsoever. In no event will the writer be held liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this article.
Through this article you are able to link to other websites which are not under the writer’s control. The writer has no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.
Comments