Cimb Bank Berhad v Tan Hoo Eng (A-05-203-05/2021)

CIMB BANK BERHAD (Company No: 13491-P)

JANNY CHEAH …APPELLANTS HEARD TOGETHER WITH IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)

CIMB BANK BERHAD (Company No: 13491-P)

LIM CHEW LIANG … APPELLANTS [In The High Court of Malaya at Ipoh In Perak Darul Ridzuan Criminal Application No. AA-44-1-01/2020 … APPLICANT

CIMB BANK BERHAD (Company No: 13491-P)

JANNY CHEAH … PROPOSED RESPONDENTS FOR COMMITTAL] [In The High Court of Malaya at Ipoh In Perak Darul Ridzuan Criminal Application No. AA-44-1-01/2020 … APPLICANT

CIMB BANK BERHAD (Company No: 13491-P)

LIM CHEW LIANG … PROPOSED RESPONDENTS FOR COMMITTAL] CORUM: HANIPAH BINTI FARIKULLAH, JCA NOR BEE BINTI ARIFFIN, JCA AHMAD NASFY BIN HAJI YASIN, JCA INTRODUCTION [ 1 ] The appellant filed two (2) motions before us (Encl. 45 in Appeal 202 and Encl. 39 in Appeal 203) for abridgement of time to file and serve their petition of appeals in order for their appeals to be accepted as valid and proper. [ 2 ] The two motions were filed by the appellant pursuant to a preliminary objection raised by the respondent that the two (2) petitions of appeal filed in both appeals were contrary to Order 65(1) of the Rules of Court of Appeal 1994 (‘’RCA 1994) and section 53(1) of the Court of Judicature Act 1964 (“CJA 1964”). [ 3 ] The respondent is the applicant in these committal proceedings. The appellants were cited by the respondent for non-compliance with the court order. The leave to commence the two committal proceedings was granted by the High Court. The appellants filed an application before the High Court to set aside to set aside the leave application but were refused by the High Court. Hence, the appellants appealed to the Court of Appeal. BACKGROUND FACTS [ 4 ] The background facts leading to the filing of these appeals are as follows. [ 5 ] The respondent’s accounts with the first appellant i.e. CIMB Bank Berhad (hereinafter referred to as “the Bank””) were frozen vide two Freezing Orders dated 30.04.2014 and 15.05.2014 respectively, pursuant to Section 44 of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (“AMLATFA”). [ 6 ] Prior to the lapse of the Freezing Orders, a Section 50 AMLATFA Seizure Order dated 24.7.2014 (“Section 50 Seizure Order”) was issued by the Public Prosecutor directing the Bank to seize the respondent’s accounts with the Bank. [ 7 ] On 23.7.2020, the Ipoh High Court ordered that the respondent is at liberty to utilise her properties that were unlawfully seized by the Public Prosecutor. [ 8 ] Vide a letter dated 24.7.2020, the respondent’s solicitor served the Bank with the Court Order dated 23.7.2020 in order to inform the Bank that both Freezing Orders were set aside and that the respondent was free to deal with her accounts. [ 9 ] On 3.8.2020, the Bank filed an application for clarification of the 23.7.2020 Court Order to clarify the ambit of the 23.7.2020 Court Order as:-

The 23.7.2020 Court Order only made reference to the Section 44 Freezing Orders as having been set aside (the Section 50 Seizure Order not mentioned); and

The Bank was not a party to these subject proceedings and not named as a party to the 23.7.2020 Court Order [10] At the hearing of the Bank’s clarification application on 11.8.2020, the Learned High Court Judge took the position that as the Bank was not a party to the proceedings, the Bank had no locus standi to seek clarification of the Court Order dated 23.7.2020. However, the learned High Court Judge did state that the 23.7.2020 Court Order was intended to also set aside the Section 50 Seizure Order. [11] Following the feedback from the clarification, on 11.8.2020, the Bank released the respondent’s accounts. [12] The respondent’s solicitor, by its letter dated 25.8.2020 to the Bank, gave notice that the respondent will not pursue committal proceedings against the Bank for failing to comply with the Order dated 23.7.2020 if the Bank or its solicitors tender an unreserved apology to the Ipoh High Court Judge within 7 days. [13] On 28.8.2020, the Bank through its solicitor handed a copy of a letter of apology dated 27.8.2020 and the solicitor’s letter dated 28.8.2020 to the Learned High Court Judge’s secretary placing on record that at no time had the Bank and/or its solicitors intended to act in breach/contempt of the 23.7.2020 Court Order and explaining the events that passed since such Order. [14] The respondent had however by such date already filed its ex-parte application and obtained leave to commence the first committal proceedings against the appellants on 18.8.2020. [15] The appellants proceeded to file Encl. 47 to set aside the Order for Leave granted for the respondent to commence the first committal proceedings. [16] The respondent had also obtained leave to commence the second committal proceedings against the appellants on 8.1.2021. [17] Following that, the appellants proceeded to file Encl. 71 to set aside the Order for Leave granted for the respondent to commence the second committal proceedings against the appellants. [18] Both Encl. 47 and 71 were heard together and were dismissed by the High Court Judge. Following to the dismissal, the appellants filed in this court Appeal 202 against the decision on Encl. 71 and Appeal 203 against the decision on Encl. 47. [19] The appellants then filed Encl. 45 in Appeal 202 and Encl. 39 in Appeal 203 to regularise their petitions of appeal filed out of time in order for their appeals to be accepted as valid and proper. PRELIMINARY OBJECTIONS [20] On 19.11.2021, the respondent by a Notis Bantahan Awal Terhadap Rayuan-Rayuan dated 19.11.2021 (Encl. 36 in Appeal 202 and Encl. 30 in Appeal 203) raised a preliminary objection, inter alia, that the Petitions of Appeal filed by the appellants in both Appeals 202 and Appeal 203 failed to comply with Rules 65(1) of the RCA 1994 and section 53(1) of the CJA 1964. The Facts Leading to the Applications [21] Following to the filing of Appeal 202 and Appeal 203, the appellants on 16.6.2021, had filed and served on the respondent’s solicitors, appeal records for Appeal 202 and Appeal 203 together with the memorandum of appeals relating to both appeals. [22] On 5.7.2021, at the case management before the Court of Appeal’s Deputy Registrar, attended to by solicitors for the appellants and the respondent, the Deputy Registrar directed that:

as appeal records had also already been prepared by the Ipoh High Court (since the appeals originated from a Criminal Court), the appeal records prepared by the Ipoh High Court would apply to the appeals and the appeal records prepared by the appellants’ solicitors were expunged.

the appellants’ solicitors file/serve the Petitions of Appeal for both Appeals containing the appellants’ grounds of appeal on/before the next case management on 11.8.2021. [23]

on the 5.7.2021 Case Management when directions by the Court of Appeal were given for filing of the Petitions of Appeal on/before 11.8.2021;

(ii) upon receipt of the Petitions of Appeal on 10.8.2021;

(iii) at any of the subsequent Case Managements on 11.8.2021 and 6.9.2021. [31] The appellants also contended that the 16.6.2021 appeal record together with Memorandum of Appeal were filed based on the civil nature of committal proceedings and appeal against the Committal Leave Orders regardless of the originality of criminal proceedings before the High Court. [32] It was stressed by the appellants that the Memorandum of Appeal and the Petition of Appeal are both identical and were received by the respondent without any objection until three (3) months later vide the notice of Preliminary Objections dated 19.11.2021. [33] Therefore, it was submitted for the appellants that the Preliminary Objections were an afterthought and an abuse of the Court’s process particularly when the appellants have filed motions to enlarge/abridgement of time with full explanation given on the reasons for the delay. [34] Whilst maintaining the position that the 16.6.2021 Memorandum of Appeals were in due compliance with the Rules that apply with the Petitions of Appeal satisfying the administrative requirement for ‘Criminal Appeals’, the appellants had in the abundance of caution filed this application to enlarge time until 10.8.2021 for filing/service of the Petitions of Appeal. DECISION [35] It must be noted that Appeal 202 and Appeal 203 arose from the appeals by the appellants against the two decisions of the High Court which granted leave to commence committal proceedings against the appellants. [36] Referring to the Federal Court decisions in Tan Sri Dato’ (Dr) Rozali Ismail & Ors V Lim Pang Cheong & Ors [2012] 2 CLJ 849, this Court in Uthayakumar Ponnusamy V. Abdul Wahab Abdul Kassim (Pengarah Penjara Kajang) & Ors [2020] 1 CLJ 82 states that it is well established that contempt of court can be classified into two distinct categories, that is civil or criminal. [37] In England, the general approach has been that a criminal contempt is an act which so threatens the administration of justice that requires punishment whereas by contrast, a civil contempt involves disobedience of a court order. However, O. 52 of the RHC is inapplicable for contempt in criminal proceedings where the contempt is in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court (see O. 52 r. 1(2)(a)(ii) of the RHC). One thing is clear, be it civil or criminal contempt, the standard of proof required in either type is the same, which is beyond reasonable doubt. [38] Contempt has been reclassified either as (1) a specific conduct of contempt for breach of a particular court order; or (2) a more general conduct for interfering with the due administration or the course of justice. This classification is better explained in the words of Sir Donaldson MR in Attorney-General v. Newspaper Publishing Plc, (supra) at p. 362: “Of greater assistance is the reclassification as (a) conduct which involves a breach, or assisting in the breach, of a court order; and (b) any other conduct which involves an interference with the due administration of justice, either in a particular case or, more generally, as a continuing process, the first category being a special form of the latter, such inference being a characteristic common to all contempts per Lord Diplock in Attorney-General v. Leveller Magazine Ltd [1979] AC 440 at 449.” (See Tan Sri Dato' (Dr) Rozali Ismail & Ors, supra) [39] The difference in classification between civil and criminal contempt was explained by this court in Uthayakumar by referring to Miller v. Miller, 652 SE 2d 754 - SC: Court of Appeals 2007, the Court of Appeals of South Carolina, and it would be apposite to quote the relevant passage from that decision, as it is highly persuasive and relevant to the issue at hand: “The determination of whether contempt is civil or criminal depends on the underlying purpose of the contempt ruling. In Floyd v. Floyd, we provided a comprehensive review of the differences between civil and criminal contempt: The major factor in determining whether a contempt is civil or criminal is the purpose for which the power is exercised, including the nature of the relief and the purpose for which the sentence is imposed. The purpose of civil contempt is to coerce the defendant to do the thing required by the order for the benefit of the complainant. The primary purposes of criminal contempt are to preserve the court’s authority and to punish for disobedience of its orders. If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.” [40] Equally importantly, this court went on to state that in civil contempt, the party complaining of the breach initiates contempt proceedings; whilst in criminal contempt, the court of its own motion frames the complaint against the alleged contemnor, or the Attorney General, or the party with sufficient interest in the subject matter, moves the court. [41] Following the approach of this court in Uthayakumar, we are of the view that the committal proceedings against the appellants are a civil action. A breach of the court orders is usually regarded as civil contempt. A criminal contempt is where the Public Prosecutor initiates the action or where the contempt is in the face of the Court, in the sense that the conduct in question interferes with the due administration of justice. (see Uthayakumar Ponnusamy v. Abdul Wahab Abdul Kassim & Ors [2018] 1 LNS 1333) [42] In light of the above, we are of the view that the application for contempt which is based on the alleged breach of the High Court Order dated 23.7.2020 is not a criminal contempt, merely because it arose from criminal proceedings. [43] We find that it is at best a complaint of civil contempt which is governed by O. 52 of the Rules of Court 2012. The mere fact that the contempt complained of emanates from a criminal proceeding does not, without more, make it a criminal contempt. Proceedings for contempt are separate and distinct from the proceedings as regards the main matter before the court, be it civil or criminal. If the contempt proceedings are initiated by an aggrieved or affected party against a party in breach to enforce the order, then, it would with limited exception, be inevitably a civil contempt and the proceedings are civil in nature. Thus, O. 52 of the Rules of Court 2012 is applicable. [44] Hence in our view, the appellants were correct in filing the Memorandum of Appeal and the Records of Appeal in accordance with Order 18 of the RCA 1994. CONCLUSION [45] For the above reasons, we are of the view that Enclosure 45 in Appeal 202 and Enclosure 39 in Appeal 203 for abridgement of time to file Petition of Appeal are therefore struck off. Each party is to bear their own cost. Consequently, we are directing the appeal records filed on 16.6.2021 to be used in Appeal 202 and Appeal 203. Dated: 18 December 2023 Signed HANIPAH BINTI FARIKULLAH Judge Court of Appeal Malaysia Putrajaya Counsel/Solicitors: For the appellants : Shamsul Sulaiman, Khoo Guan Huat & Melissa Long Lai Messrs Shean Delamore & Co 7th Floor, Wisma Hamzan Kwong Hing No. 1, Leboh Ampang 50100 Kuala Lumpur For the respondent : Gurbachan Singh Messrs Bachan and Kartar No. 10, Medan Istana 1 Bandar Ipoh Raya 30000 Ipoh, Perak