KENWINGSTON SDN BHD LEONG KEN SENG

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR CIVIL APPEAL NO. WA-12AC-16-03/2021 BETWEEN KENWINGSTON SDN BHD APPELLANT AND LEONG KEN SENG RESPONDENT IN THE KUALA LUMPUR SESSIONS COURT WILAYAH PERSEKUTUAN KUALA LUMPUR CIVIL SUIT NO. WA-B52C-8-03/2020 BETWEEN LEONG KEN SENG PLAINTIFF AND KENWINGSTON SDN BHD DEFENDANT GROUNDS OF DECISION Introduction [1] This is an appeal against the sessions court decision in dismissing an application to set aside a default judgment and reinstate the defence and counterclaim. [2] The Appellant/Defendant is a private limited company involved in the construction business. [3] The Respondent/Plaintiff is also a private limited company involved in the construction contracting business. Background and Preliminary [4] The Appellant is the main contractor to construct and complete a project described as “Cadangan Pembangunan 4 Blok Pangsapuri Servis (1502) Unit Yang Mengandungi: 2 (i) Blok A: 328 Unit Pangsapuri Servis 33 Tingkat; (ii) Blok B: 338 Unit Pangsapuri Servis 34 Tingkat; (iii) Blok C: 418 Unit Pangsapuri Servis 35 Tingkat; (iv) Blok D: 418 Unit Pangsapuri Servis 35 Tingkat; Di atas 1 Tingkat Ruang Perniagaan (40 Unit), Kemudahan Penduduk dan 4 Tingkat Tempat Letak Kereta Bawah Tanah (Lower Ground) Dengan Pejabat Pengurusan Di Tingkat “Lower Ground 1” Di Atas Lot 26992, Jalan 33/26, Seksyen 10 Wangsa Maju, Mukim Setapak Dalam Bandaraya Kuala Lumpur for M/S Champion Priority Sdn Bhd “ (“Project”). [5] Consequently, the Respondent was appointed by the Appellant as its sub-contractor to carry out and complete the skim coat, brick plastering and door frame construction works for Blocks A and B of the Project (“Works”). [6] There were disputes and differences that arose between the parties for non payment of the Works carried out and the Respondent therefore on 12 March 2020 instituted KLHC Sessions Court Suit no. WA-B52C-8- 03/2020 (“Suit”) to claim against the Appellant. In consequence, the Appellant defended and counterclaimed against the Respondent. [7] On 5 May 2020, the Respondent’s solicitors wrote to the Appellant’s solicitors to request for the discovery of the following documents for purposes of the Suit: 3 (i) all Payment Certificates for Sub-Contractors issued by the Appellant to the Respondent, and all supporting documents thereof. These documents were pleaded in paragraph 5(d) of the Appellant’s Defence and Counterclaim; (ii) the floor plans for each floor of Blocks A and B of the Project; and (iii) the main contract between the Appellant and the developer of the Project as pleaded in paragraph 5(c) of the Defence and Counterclaim. [8] The Respondent’s solicitor’s request was denied by the Appellant’s solicitors. [9] As the result, the Respondent’s solicitors on 18 May 2020 issued a notice to produce the aforementioned documents but was again rejected by the Appellant’s solicitors. [10] By reason of the Appellant’s refusal to provide the documents as sought, the Respondent on 27 May 2020 made an application (“Discovery Application”) to the sessions court judge praying for the following: (1) that the Defendant gives discovery by making or serving on the Plaintiff or his solicitors a list of :- (a) the documents on which the Defendant relies or will rely; (b) the documents which could: 4 (i) adversely affect its cause; (ii) adversely affect the Plaintiff’s case; or (iii) support the Plaintiff’s case, which are or have been in its possession, custody or power (“List of Documents”), and make and file an affidavit verifying such List of Documents and to serve a copy thereon on the Plaintiff and its solicitors, within 7 days of this Order; (2) that the Defendant shall state in the affidavit referred to in (1) above whether the documents specified in Appendix A hereto is, or has at any time been, in its possession, custody or power, and if not then in its possession, custody or power when it parted with it and what has become of it; (3) that the Defendant shall cause to be bound and paginated all documents disclosed in Schedule 1 Part 1 in the List of Documents and the documents specified in Appendix A hereto, and shall file and serve the same on the Plaintiff’s solicitors within 7 days of this order; (4) that the Defendant do, on reasonable notice, produce at Messrs Wendy and Partners, situate at A-09-01, Block A, Tropicana Avenue, Persiaran Tropicana Avenue, 47410 Petaling Jaya, Selangor Darul Ehsan, or such other place as this Honourable Court sees fit, the documents specified in items 1 and 3 of Appendix A hereto, and that the Plaintiff or its solicitors be at liberty to inspect the documents so produced and be entitled to be supplied with copies thereof; (5) that unless the Defendant complies with this order, the Defendant’s Defence and Counterclaim in this Suit dated 21-4-2020 and filed herein shall stand struck out without further order of court and the action herein shall be adjudged 5 in the Plaintiff’s favour with the requisite orders and/or judgment as prayed for by the Plaintiff ; and (6) costs. [11] The sessions court judge on 28 July 2020 allowed the Discovery Application with cost of RM3,000.00 given to the Plaintiff (“Discovery Order”). [12] As the result, the Appellant on 4 August 2020 filed an appeal against the Discovery Order to the high court as well as applied for a stay against the Discovery Order (“Stay Application”). [13] The Appellant’s Stay Application was heard and dismissed by the sessions court judge on 12 October 2020. The learned sessions court judge accordingly struck out the Appellant’s Defence and Counterclaim and entered judgment for the Plaintiff (“Judgment”). [14] Upon the dismissal of the Stay Application, the Appellant thereafter complied with Discovery Order within 7 days from 12 October 2020 and on 20 November 2020 withdrew its appeal against the Discovery Order. [15] In addition, the Appellant on 6 November 2020 applied to the sessions court judge to set aside the Judgment and reinstate the Defence and Counterclaim (Setting Aside Application). 6 [16] The affidavits which were filed for purposes of the Setting Aside Application are as follows: (i) Defendant’s affidavit in support affirmed by Lim Kim Eng dated 6 November 2020; (ii) Plaintiff’s affidavit in reply affirmed by Leong Kian Chuan dated 27 November 2020; and (iii) Defendant’s affidavit in reply affirmed by Lim Kim Eng dated 10 December 2020. [16] The learned sessions court judge heard the Setting Aside Application on 23 February 2021 and dismissed it with costs of RM1,500.00. [17] As the result, the Appellant on 1 March 2021 appealed again to the high court against the dismissal of the Setting Aside Application. [18] During the course of the appeal and upon the Appellant’s application to stay the execution of the judgment entered by the learned sessions court judge, the parties on 10 May 2021 consented to the application on condition that the Appellant deposits the judgment sum of RM447,733.92 to be held by the Respondent’s solicitor’s firm as stakeholder pending the disposal of the appeal (“Security”). 7 [19] I heard the appeal on 13 July 2021. After having read the written submissions of the parties and oral arguments of counsel, I allowed the appeal by remitting the matter back to the sessions court for trial on condition that the Security that has been given by the Appellant shall be maintained until the disposal of the trial to be dealt with by the sessions court upon the making of the trial decision. Costs of the appeal shall be in the cause of the sessions court suit. [20] I now furnish below the grounds of my decision. Contentions and Findings [21] The Appellant principally contended that the Setting Aside Application ought to be allowed by reason that the Judgment entered essence is a default judgment not on merits of the case. The Appellant has merits in its defence and counterclaim as evidenced by the non-filing of summary judgment as well as striking out applications against the Appellant by the Respondent. Moreover there was no contumelious conduct on part of the Appellant by reason that the documents sought by the Respondent were produced and given to the Respondent within 7 days after the dismissal of its Stay Application. [22] Furthermore, the Appellant contended that it is valid and proper to apply to set aside the Judgment pursuant to Order 19 rule 7(1) of the Rules of Court 2012 (“RC”) following the Singapore case of Toh Wee Ping 8 Benjamin & another v Grande Corp Pte Ltd [2020] SGCA 48 CA. Alternatively, the Appellant relies generally relies on Orders 1A and 2 and particularly on Order 24 rules 16 and 17 of the ROC. [23] In opposition, the Respondent counter contended the Appellant ought to have appealed instead of setting aside the Judgment because the sessions court is functus officious following the cases of Lim Oh & Ors v Allen & Gledhill [2001] 3 CLJ 233 FC and How Hock Sing v Lee Say Peng & Ors [2015] 9 CLJ 368. [24] In addition, the Respondent stressed that it was fit and proper for the learned sessions court judge to strike out the Appellant’s Defence and Counterclaim and according entered the Judgment for non-compliance of the Discovery Order because it is in substance an “unless order’ following Lim Goh Eng Holdings Sdn Bhd v Off-Shore-CPI Supply Sdn Bhd [2020] MLJU 275. This has been made crystal clear by SM Komathy Suppiah J as follows: “[8] An unless order is an order of the Court which requires a person to do something within a fixed time and states the consequences of transgression. There is abundant authority to the effect that an unless order being a pre-emptory order of the Court, must be adhered to and its non compliance would automatically attract the penalty prescribed in the order. Failure to comply may therefore result in the dismissal of an action or the striking out of the defence. See How Hock Sing @ Low Kim Peng [2015] MLJU 712 and Reiss v Woolf [1952] 2 All ER 112. … [11] The plaintiff was unable to cite any authority in support of its proposition that an application was required for an action to be struck out pursuant to an unless order. The Unless Order of 1 April 2019, in my judgment, was a self executing order, which 9 did not require the defendant to make an application. Under the self executing order, all that would needed to be determined was whether the plaintiff had complied with the terms of the Unless Order. If it had not, the action action would be automatically struck out without further order and the plaintiff cannot seek the Court to revive it.” [25] Finally, the Respondent basically contended that the Appellant sealed its own doom by failing to produce the requisite documents within the prescribed time in the Discovery Order and thereafter did not comply with the same wholly even when the appellant subsequently produced the documents after its Stay Application was dismissed. [26] The function of this court sitting in appeal is prescribed by Order 55 rule 2 RC as follows: 2. Appeal to be by re-hearing on notice (O. 55 r. 2) All appeals to the High Court shall be by way of re-hearing and shall be brought by giving a notice of appeal within fourteen days from the date of the decision appealed from. Since it is a non trial decision from the sessions court, the appeal is by way of re-hearing afresh albeit it is a re-hearing; see also Malaysian Civil Procedure 2015 at paragraph 55/2/1. Put simply, I am unshackled by the findings of the sessions court judge. [27] It is not seriously in dispute between the parties that the Judgment is a default judgment. As to whether intervention ought to be by way of appeal or setting aside, I have held as follows in Bei Jing Bao Shu Tang 10 Sci-Tech Pharmaceutical Co Ltd v Ban Kah Chai Sdn Bhd & Anor [2019] 1 LNS 242: [18] Moreover Mr. Young in gist submitted that Yantai has meritorious triable issues on trade mark law to be determined at trial. Accordingly the Judgment ought to be set aside following the Court of Appeal case of Lembaga Kemajuan Tanah Persekutuan (FELDA) v. Awang Soh bin Mamat & Ors [2009] 5 CLJ 1; [2009] 1 LNS 547; [2009] 4 MLJ 610. [19] In opposition, Mr. Suaran Singh of counsel for BJBST submitted that the Application is misconceived following Order 35 rule 1 and 2 of the Rules of Court 2012 and the Court of Appeal case of Kirba Daisy a/p John Das v. Mahinder Singh a/l Bachhittar Singh [2012] 5 MLJ 712 which was followed in N Vasantha Rajan a/l Nadarajah, wasi harta pusaka N Arumugam Pillai alias NTS Arumugam Pillai son of Nagappa Pillai v. Yeoh Soon Peng & Anor [2018] 1 LNS 105; [2018] MLJU 1394. In this regard, the appropriate relief would have been for Yantai to appeal instead against the Judgment to the Court of Appeal. [20] That notwithstanding, Mr. Suaran Singh further in gist submitted that the excuses given by GPZ on behalf of Yantai are flimsy and unacceptable both in respect of the late Application as well as the absence of Yantai at the trial on 20 November 2017. [21] It is appropriate that I should firstly deal with the question whether Yantai should as a matter of law challenge the Judgment by way of a setting aside application as done in this Application or appeal to the Court of Appeal. … [24] ... In the Court of Appeal case of Kirba Daisy a/p John Das v. Mahinder Singh a/l Bachhittar Singh (supra ), KN Segara JCA held that Order 35 rule (2) (1) of the then Rules of the High Court 1980 was not applicable to the factual matrix of the case as the learned High Court judge was functus officio upon pronouncement of the final judgment. Thus the High Court judge could not set aside the final judgment and the only remedy is by way of appeal against the findings in the judgment to an appellate court. However in the earlier Court of Appeal case of Lembaga Kemajuan Tanah Persekutuan (FELDA) v. Awang Soh bin Mamat & Ors (supra), James Foong JCA (later FCJ) held that setting aside is permissible and the factors to be considered in the setting aside application in respect of a judgment obtained after trial are those as identified in the English case of Shocked & Anor v. Goldschmidt & Ors [1998] 1 All ER 375. In that English case, Leggatt LJ held with reference to the then English RSC Order 35 rule 2(1) that on an application to set aside a judgment given after trial in the 11 absence of the applicant, different considerations applied than those on an application to set aside a default judgment. The predominant consideration for the court was not whether there was a defence on the merits but the reason why the applicant had absented himself. If the absence was deliberate and not due to accident or mistake, the court would be unlikely to allow a re-hearing. Other relevant considerations included the prospects of success of the applicant in a retrial, the delay in applying to set aside, the conduct of the applicant, whether the successful party would be prejudiced by the judgment being set aside and the public interest in there being an end to litigation. … [26] In my view, both the Court of Appeal decisions above may be reconciled in that there are two avenues actually available to the absent party who may either appeal to the Court of Appeal or alternatively apply to set aside the judgment in the High Court. The setting aside avenue seems to be specifically provided in Order 35 rule 2 of the Rules of Court 2012 notwithstanding that the Court is otherwise generally functus officio.” [28] In that case, I was dealing with a default judgment obtained at trial in contrast with an interlocutory proceeding here where the court has not even begun hearing the merits of the case. Albeit and since there are conflicting court of appeal decisions between Lembaga Kemajuan Tanah Persekutuan (FELDA) v Awang Soh bin Mamat & Ors [2009] 5 CLJ 1 and Kirba Daisy a/p John Das v Mahinder Singh a/l Bachhittar Singh [2012] 5 MLJ 712, I may choose either decision following Dalip Bhagwan Singh v PP [1997] 4 CLJ 645 FC. In any event, I have held and I maintain here that intervention by either setting aside or appeal is permissible. [29] The Appellant specifically on Order 24 rules 16 and 17 of the RC which provide as follows: 12 16. Failure to comply with requirement for discovery (O. 24 r. 16) (1) If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rule 11(1), the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly. (2) (There is no paragraph (2)) (3) (There is no paragraph (3)) (4) (There is no paragraph (4)) (5) A party who is required by any rule in this Order, or by any order made thereunder, to make a discovery of documents or to produce any document for the purpose of inspection or any other purpose, but who fails to comply with any provision of that rule or with that order, as the case may be, may not rely on those documents save with the leave of the Court. 17. Revocation and variation of orders (O. 24 r. 17) Any order made under this Order (including an order made on appeal) may, on sufNicient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in connection with which the original order was made. [30] In the Singapore case of Toh Wee Ping Benjamin & another v Grande Corp Pte Ltd (supra), Judith Prakash JA held as follows: “[29] The main issue before us was what was the effect of the appellants’ defence having been struck out? Specifically, were the appellants deemed to have acceded to the entirety of the SOC, including the quantum of loss payable? It is important to note in this regard that the appellants did not challenge the findings that the Judge had made as to certain causes of action having been made out. Their challenge, rather, was whether the amounts awarded could be legally linked to the causes of action. 13 [30] To answer the appellants’ contentions, we first considered the procedural rules governing the matter and then scrutinised Grande’s SOC and the Judge’s decision. The procedural framework [31] The starting point was O 24 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”) which contains the rules applicable to the discovery and inspection of documents in civil proceedings. Where a party to a proceeding fails to comply with his discovery obligations as in the present case, the rules equip the court with a variety of levers to regulate the discovery process and, by extension, the dispute resolution process. [32] One such lever is found in O 24 r 16(1) of the ROC which provides: Failure to comply with requirement for discovery, etc. (O. 24, r.16) 16.—(1) If any party who is required by any Rule in this Order, or by any order made thereunder, to make discovery of documents or to produce any document for the purpose of inspection of any other purpose, fails to comply with any provision of the Rules in this Order, or with any order made thereunder, or both, as the case may be, then, without prejudice to Rule 11(1), in the case of a failure to comply with any such provision, the Court may make such order as it thinks just including, in particular, an order that the action be dismissed, or as the case may be, an order that the defence be struck out and judgment be entered accordingly. [33] The power to strike out a defence is one that is exercised by the courts with circumspection and the principles governing it are fairly settled. As mentioned earlier, there was no challenge to the Judge’s exercise of those principles when he struck out the appellants’ defence. Thus, the concern placed before us was only as to the consequences that follow when a defence is struck out. For present purposes, the important words in O 24 r 16(1) are the last few, viz, “judgment be entered accordingly”. What do those words mean? [34] It has been suggested that where a defence is struck out under O 24 r 16(1), the parties are placed effectively in the same position as if no defence had been filed from the very beginning, which is the regime set out in O 19 of the ROC. No authority has stated this explicitly but it would appear to be logical that once a defence is struck out, parties’ rights and liabilities would echo those which would have pertained had no defence been filed at all especially since the rule authorising the striking out has no further provision on what is to be done thereafter. In written submissions for the assessment hearing, it was stated that the meaning of O 24 r 16(1) was that the court “shall give such judgment as the plaintiff appears entitled to on his statement of claim” which is the language employed in O 19 r 7(1) of the ROC.” (emphasis added) 14 [31] The RC and the Singapore Rules of Court are in pari materia in respect of Order 24 on discovery and inspection of documents and I share the views of Judith JA which are persuasive and cogent. This is the justification to intervene by way of setting aside the default judgment obtained for non-compliance of orders made during the pre-trial discovery process. Thus, this has to be made akin to Order 19 rule 9 RC which provides: 9. Setting aside judgment (O. 19 r. 9) The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order. [32] I am mindful that the appellant also relied on Order 24 rule 17 RC but I find that that provision is confined to revoke or vary a discovery or production order consequent to disability to produce say by reason of impossibility or undue hardship to do so. It cannot be resorted consequent to the making of an Order 24 rule 16(1) order or an “unless order” of similar effect. [33] Nonetheless, I am aware that the Respondent has relied on the case of Lim Oh & Ors v Allen & Gledhill (supra) to make a case for an appeal rather than setting aside the Judgment but I find that the facts are starkly different and distinguishable. In that case, it concerned re-instituting a case instead of appealing against the judgment. The case closer in point albeit dissimilar is How Hock Sing v Lee Say Peng & Ors (supra) but it 15 is, in any event, a case of coordinate jurisdiction which I am plainly not bound for the above adumbrated reason. [34] Consequently, the Appellant is subject to the principles on setting aside a default judgment which is trite. In Lai Yoke Ngan v Chin Teck Kwee [1997] 3 CLJ 305 FC, Mohd Azmi FCJ held as follows: “The principle of setting aside a default judgment under O 13 r 8 has been well established and needs no detailed repetition. What is important to observe is that a default judgment is not a judgment on the merits. Accordingly, when such judgment is obtained irregularly, such irregularity would be a sufficient ground by itself for setting it aside. But where the default judgment has been obtained regularly, in order to succeed, the defendant must file an affidavit of merits, ie the defendant must disclose by affidavit evidence that prima facie he has a defence on the merits. Put in another way, the affidavit must disclose that he has an arguable or triable issue on the merits (see Evans v. Bartlam [1937] AC 473). The following judgment of Lee Hun Hoe CJ in Fira Development Sdn Bhd v. Goldwin Sdn Bhd [1989] 1 CLJ Rep 32; [1989] 1 MLJ 40 at p 41 is also instructive: Where judgment is entered on the failure of a defendant to take any of the procedural steps laid down under the Rules of the High Court 1980, the court has an absolute discretion to set aside the judgment, if necessary, on terms and allow the case to be heard on the merits. Lord Atkin stated clearly the principles in which the court should act in Evans v. Bartlam [1937] AC 473 in these words: '... The principle obviously is that unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure.' In the instant case, the learned judge did not consider the judgment to be irregular. The Mallal's Supreme Court Practice (2nd Ed) (Vol 1) at p 84 explains the position where the judgment is regular thus: 'The discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing a defence on the merits; or for some very sufficient reason:Bank Bumiputra Malaysia Bhd v. Majlis Amanah Ra'ayat [1978] 1 LNS 15; [1979] 1 MLJ 23; Farden v. Richter (1889) 23 QBD 124.' A defence on the merits means merely raising only an arguable or triable issue, eg contributory negligence in a running down case in White v. Weston[1968] 2 QB 16 647. A judgment in default is not a judgment on the merits: L Oppenheim & Co v. Mahomed Haneef [1922] 1 AC 482.” (emphasis added) [35] I am satisfied from my review of the Appellant’s affidavits and defence filed in the sessions court suit that there is an arguable defence and counterclaim. This is corroborated by the Respondent neither filing a summary judgment of claim nor striking out of the counterclaim as contended by the Appellant. [36] Moreover based on the facts as disclosed in the affidavits, I am also satisfied that the Appellant’s non-compliance of the Discovery Order is due to the gross carelessness on the part of its solicitors in not applying and securing an interim stay of the Discovery Order pending the hearing of the Stay Application as well as appeal against the Discovery Order in the high court. However, I do not find that it was intentional or contumelious conduct of the Appellant in purposely withholding the requisite documents and this can be seen from the Appellant’s production of documents to the Respondent shortly after the Stay Application has been dismissed. [37] That notwithstanding, I also noticed that the Respondent’s manner of pursuit of its case is overly aggressive by pursuing production of documents during the pleadings stage without awaiting the pre-trial case management stage. More pertinently, I find that the documents sought in the Discovery Application is too vague, wide and extensive and with an automatic “unless order” built-in. This ought not to be encouraged in my view. The production of documentary evidence should nowadays be left 17 to the judge to deal with them at the pre-trial case management pursuant to Order 34 rule 2 RC. The usage of Order 24 RC should thereafter be resorted to only for specific critical documents that is necessary but unproduced. In addition, an “unless order” should also be sparingly made only when there is proven track record of party default such as that as occurred in How Hock Sing v Lee Say Peng & Ors (supra). [38] In the circumstances, I find that the Appellant ought to be given the opportunity to defend the case and counterclaim accordingly and the Judgment should therefore be accordingly set aside and the Defence and Counterclaim reinstated. Nonetheless, I acknowledge that the Appellant’s solicitors were at fault for having caused the non-timeous production of the requisite documents in the first instance which is not excusable; see Chua Cheng Wan v Chua Thiam Siew & Ors [2000] 1 CLJ 433 and Padiberas Nasional Berhad v Maknuzul Litamuin Sdn Bhd & Ors [2010] 1 LNS 1815. [39] The setting aside decision is always discretionary and may be allowed on terms dependent upon the justice of the case. Consequently in balancing the relative interest of both parties, it is my opinion that the appeal should be allowed but subject to the Security paid in by the Appellant be maintained until the disposal of the suit after trial. 18 Conclusion [40] It is for the foregoing reasons that I allowed the appeal as so ordered. Dated this 26 July 2021 t.t. LIM CHONG FONG JUDGE CONSTRUCTION COURT 1 HIGH COURT KUALA LUMPUR COUNSEL FOR THE APPELLANT: YAP YOON JAN SOLICITORS FOR THE APPELLANT: WENDY & PARTNERS COUNSEL FOR THE RESPONDENT: MICHAEL YAP CHIH HONG SOLICITORS FOR THE RESPONDENT: TOMMY THOMAS 19