SERVICE BY ELECTRONIC MEANS IN MALAYSIAN CIVIL PROCEDURE

 Authored by Radhia Razali

Abstract

The Rules of Court (Amendment) 2020, effective 15 December 2020, formally embedded electronic service into the Rules of Court 2012 (ROC 2012). Key innovations include Order 63A Rule 17 (service via the Electronic Filing System, 'EFS'), and Order 62 Rule 6(1)(cc) (service by electronic communication subject to a practice direction). However, two High Court decisions — Lim Kwee Fen & Anor v KT Home Mart Sdn Bhd [2023] 10 MLJ 506 and Lim Chee Yong v Thong Hoe Khin [2025] CLJU 2381 — have clarified that, in the absence of a governing practice direction, email service under Order 62 Rule 6(1)(cc) is invalid, with serious consequences for appeals.

1.  Introduction

Service of process is a cornerstone of procedural fairness, directly affecting a court's jurisdiction. Historically, Malaysian civil procedure confined service to personal delivery or prepaid AR registered post. The Electronic Filing System ('EFS') introduced digital filing infrastructure but, for years, remained a filing-only tool, solicitors still had to serve hard copies on opposing parties.

The COVID-19 pandemic accelerated change. The Rules of Court (Amendment) 2020 (PU(A) 381/2020) introduced formal electronic service as a permanent feature of the ROC 2012, amending Orders 10, 62, and 63A. Its most consequential innovation was Order 63A Rule 17 — permitting inter-party service through the EFS itself.

2.  The Legislative Framework

2.1  Order 63A Rule 17: Service via the EFS

Rule 17 permits service of documents between solicitors who are both registered EFS users. Once the document is transmitted and received into the court's computer system, it is deemed served — the date and time of first receipt in the court's system is the deemed service date. A system-generated record is admissible as evidence of service. Crucially, this deeming provision elevates electronic transmission to the status of effective personal service, the highest standard in Malaysian procedure.

Rule 17 does not, however, equate e-filing with e-serving. Filing a document on the court's system and serving it on the opposing party through the same system are distinct acts. A solicitor who e-files a document without also using the EFS service function to transmit it to opposing counsel has not effected valid service.

2.2  Order 62 Rule 6(1)(cc): Service by Electronic Communication

Separately, Order 62 Rule 6(1)(cc), provides that ordinary service may be effected 'by means of electronic communication in accordance with any practice direction issued for that purpose.' Email falls within 'electronic communication', but service is only valid if effected in compliance with a practice direction. As of the time of writing, no such practice direction has been issued. This creates a critical gap: the provision exists in the Rules, but cannot be activated.

3.  Judicial Clarification: Two Key Decisions

3.1  Lim Kwee Fen & Anor v KT Home Mart Sdn Bhd [2023] 10 MLJ 506

In this High Court decision (Amarjeet Singh J), the appellants appealed a sessions court decision on a tenancy dispute. They filed their record of appeal on 6 January 2022 and on the same day emailed it to the respondent's solicitors. A hard copy was only delivered on 14 January 2022 — eight days late under Order 55 Rule 4(8), which requires service within the same deadline as filing (one month from notice of appeal).

The appellants advanced two service arguments. First, that email constituted valid service under Order 62 Rule 6(1)(cc). The court rejected this, holding:

"[T]he argument is based solely on the first part of para (cc)... 'by means of electronic communication' which I accept 'email' is one but completely ignores the second part which states, 'in accordance with any practice direction issued for that purpose'. Counsel could not say what the practice direction says because the practice direction has not been issued yet. It does not exist. Without the practice direction, the mode of service under para (cc) cannot be affected." — [14]

Second, the appellants argued that e-filing the record of appeal constituted simultaneous e-service under Order 63A Rule 17. The court also rejected this, confirming that e-filing and e-serving are two distinct acts: Rule 17 requires the serving solicitor to actively use the EFS to transmit the document to the receiving solicitor. Merely filing the document in court does not amount to service on the other party.

The court further held that the record of appeal was also incompetent because it omitted the memorandum of appeal, a mandatory document under Order 55 Rule 4(1). The memorandum was only included in a supplementary record filed some two months and ten days out of time, without any application to extend time. Both defects; (i) late service and (ii) absence of the memorandum rendered the appeal incompetent and it was struck out.

3.2  Lim Chee Yong v Thong Hoe Khin [2025] CLJU 2381

This more recent High Court decision (Adlin Abdul Majid J) confirmed and extended the Lim Kwee Fen principles. The appellant's investment claim was dismissed by the Sessions Court on 15 August 2023. Multiple procedural lapses followed:

(a)  The unsealed notice of appeal was served by email after 4 pm on 29 August 2023, and under Order 62 Rule 8, a document transmitted after 4 pm is deemed served on the next day — making it one day late. The sealed notice of appeal was served even later, on 1 September 2023 by email and 4 September 2023 by hand.

(b)  The application for grounds of judgment was filed out of time on 5 September 2023 (due by 29 August 2023).

(c)  The record of appeal was filed on time on 29 September 2023, but was served by email after 12 pm on a Friday — deemed under Order 62 Rule 8 to be served on 2 October 2023, and physically served even later on 5 October 2023.

(d)  The memorandum of appeal was not included in the record of appeal. It was only filed on 9 February 2024 — over four months late — in a supplementary record, without leave of court.

Reaffirming Lim Kwee Fen, the court held that the appellant's reliance on Order 62 Rule 6(1)(cc) to validate email service was wrong in law. No practice direction existed; therefore, email could not constitute valid service under that provision. The court also noted the appellant could not rely on Order 62 Rule 6(1)(d) (service by agreed method) as no such agreement existed.

The court criticised the appellant's overall conduct as reflecting a 'lackadaisical attitude' and — citing Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793 — characterised the behaviour as 'contumelious conduct and a complete and utter disregard of the timelines and requirements in the ROC.' The striking out application was allowed with costs.

4.  Practical Implications and the Way Forward

These two decisions collectively establish the following clear principles for Malaysian civil litigation:

(i)   Email is not valid service under Order 62 Rule 6(1)(cc) until a practice direction is issued. Practitioners who serve documents solely by email risk the same fate as the appellants in both cases — a struck-out appeal.

(ii)  E-filing ≠ e-serving. Filing via the EFS only satisfies the filing obligation. Service must be separately effected under Order 63A Rule 17, which requires active use of the EFS service function to transmit the document to the other party's registered account.

(iii) The Order 62 Rule 8 deemed service timing rule has teeth. Service by email (where otherwise valid) or by other means after the prescribed cut-off time is deemed served on the next working day — a trap for practitioners who serve at the last minute.

(iv)  Omitting the memorandum of appeal from the record of appeal is fatal without a timely extension of time application. It cannot be cured by filing it in a supplementary record without leave, and courts will not treat this lightly.

The urgent gap remains: the Chief Registrar's Office has not issued the practice direction contemplated by Order 62 Rule 6(1)(cc) and Order 10 Rule 1(1)(d). Until it does, practitioners should serve all documents through the EFS (Order 63A Rule 17) where both parties are registered users, and by physical means (leaving at address for service or prepaid registered post) in all other cases. Email service, standing alone, is legally precarious.

5.  Conclusion

The 2020 amendments represent a genuine step toward a digitally integrated civil justice system. Order 63A Rule 17 provides a legally robust and efficient mechanism for electronic service between represented parties. However, the broader promise of electronic communication under Orders 10 and 62 remains unrealised pending practice directions. The decisions in Lim Kwee Fen and Lim Chee Yong are a sharp reminder that statutory recognition of a mode of service is not the same as its legal activation. Until the practice direction is issued, Malaysian litigants and their counsel must remain anchored — for most service purposes — to the established physical methods that have governed the profession for decades.