Datuk Wira Khiu Fu Siang v Foo Hiap Siong (WA-23CY-3-02/2023)

DATUK WIRA KHIU FU SIANG [NO. K/P: 811219-01-5733]

OUTSTANDING ENTREPRENEURS SDN BHD [NO. SYARIKAT.: 201601036022 (1206963-M)]

OE ACADEMY SDN BHD [NO. SYARIKAT.: 201901032833 (1342163- PLAINTIF-PLAINTIF DAN FOO HIAP SIONG (NO. K/P: 780211-14-6289) (Dalam kapasiti individu dan juga yang mengamal sebagai pemilik tunggal firma guaman di Tetuan Foo Hiap Siong & Co) … DEFENDAN GROUNDS OF JUDGEMENT (Enclosure 54) INTRODUCTION [1] This is the Plaintiffs’ application (Enclosure 54) seeking for a Committal Order against Foo Hiap Siong (in his capacity as the sole proprietor of Messrs. Foo Hiap Siong & Co), the Defendant in this suit and one Cheong Yin Mui (CYM), who is the Defendant’s wife and employee. BRIEF FACTS [2] The Defendant is a practising advocate and solicitor of the High Court of Malaya and a member of the Malaysian Bar Council for sixteen

years. [3] The Plaintiffs initiated this defamation suit against the Defendant and obtained an Interim Injunction Order dated 7/4/2023 (Injunction Order) where in essence, the Defendant is to withdraw, remove and/or delete all statements, references and/or pictures concerning and/or referring to the Plaintiffs and/or the business of the Plaintiffs including references to “Dato Wira 初三” (or translated as “Dato Wira Chu San”), “ 初三”(or translated as Chu San”), “OE” brand and/or “OE Academy” 8 days from the date of the Injunction Order and no further postings with those references are permitted on the Defendant’s Facebook Page. [4] The Interim Injunction Order are as follows- “(1) Sementara menunggu pelupusan sepenuhnya tindakan ini, suatu Perintah Injunksi Interim bahawa Defendan adalah dihalang dan dilarang samada melalui dirinya dan/atau ejen, nomini, pekerja dan/atau wakilnya daripada bercakap atau menulis mengenai Plaintif-Plaintif kepada mana-mana pihak ketiga kecuali bagi tujuan membela tindakan undang-undang di Mahkamah;

Sementara menunggu pelupusan sepenuhnya tindakan ini, suatu Perintah Injunksi Interim bahawa Defendan samada melalui dirinya dan/atau ejen, nomini, pekerja dan/atau wakilnya dihalang dan dilarang daripada terus menerbitkan atau menyebabkan diterbitkan untuk selanjutnya menyebarkan atau menyebabkan disebarkan apa-apa pernyataan-pernyataan, perkataan-perkataan dan/atau gambar-gambar mengenai dan/atau merujuk kepada Plaintif-Plaintif dan perniagaan Plaintif-Plaintif termasuk “Dato Wira 初 三”(atau diterjemahkan kepada “Dato Wira Chu San”), “初三 ”(atau diterjemahkan kepada Chu San”), jenama “OE” dan/atau “OE Academy” dan/atau perkataan-perkataan lain yang mempunyai rujukan sama dalam apa-apa cara pun termasuk dan/atau tidak terhad kepada apa-apa yang didakwa oleh Defendan dalam halaman Akaun Facebook Defendan dengan URL https://www.facebook.com/herculesx dan/atau mana-mana laman Facebook yang lain dan/atau melalui emel dan/atau Whatappp dan/atau melalui telefon bimbit dan/atau internet dan/atau blog dan/atau surat dan/atau sidang akhbar dan/atau media televisyen (termasuk dan tidak terhad kepada stesen “8TV”) dan/atau forum/seminar dan/atau media lain kepada mana-mana pihak lain dan/atau pihak ketiga, sama ada secara bertulis atau sebaliknya dan/atau mana-mana cara lain;

Sementara menunggu pelupusan sepenuhnya tindakan ini, suatu Perintah Injunksi Interim bahawa Defendan dilarang samada melalui dirinya dan/atau egennya dan/atau nomini dan/atau pekerjanya dan/atau wakilnya daripada memfitnahkan Plaintif-Plaintif dan/atau menjejaskan/menjatuhkan nama baik perniagaan dan/atau karakter Plaintif-Plaintif dalam apa-apa jua cara termasuk menyebarkan dan/atau menerbitkan lagi Kenyataan-Kenyataan Fitnah tersebut seperti yang ditakrifkan dan/atau diplidkan dalam Penyataan Tuntutan dan/atau secara mendakwa, mendedahkan, berkomunikasi, menyebarkan, menerbitkan dan/atau membenarkan dakwaan, pendedahan, komunikasi, penyebaran, penerbitan kepada mana-mana pihak ketiga dan/atau orang lain mengenai Plaintif-Plaintif dan mana-mana kursus-kursus Plaintif-Plaintif dalam apa juga cara pun yang membawa kesan yang sama;

Sementara menunggu pelupusan sepenuhnya tindakan ini, suatu Perintah Injunksi Interim bahawa Defendan hendaklah dalam tempoh 8 hari dari tarikh Perintah Mahkamah ini menarik balik (“withdraw”), membatalkan (“remove”) dan/atau memadamkan (“delete”) kesemua pernyataan-pernyataan, perkataan-perkataan, rujukan-rujukan dan/atau gambar-gambar mengenai dan/atau merujuk kepada Plaintif-Plaintif dan/atau perniagaan Plaintif-Plaintif termasuk rujukan kepada “Dato Wira 初三”(atau diterjemahkan kepada “Dato Wira Chu San”), “初三”(atau diterjemahkan kepada Chu San”), jenama “OE” dan/atau “OE Academy” dan/atau perkataan-perkataan lain yang mempunyai rujukan sama yang telah dibuat, disiarkan dan/atau disebarkan oleh Defendan dalam halaman/laman Akaun Facebook Defendan dengan URL https://www.facebook.com/herculesx dan/atau mana-mana halaman / laman Akaun Facebook lain yang dikawal dan/atau dimiliki olehnya sebelum ini sehingga tarikh Perintah ini dan dalam mana-mana laman media, blog dan internet yang dikawal oleh Defendan; dan

Kos permohonan ini sebanyak RM10,000.00 dibayar oleh pihak Defendan kepada Plaintif-Plaintif, tertakluk kepada fi alokatur. [5] According to the Plaintiffs, a notice was given to the Defendant to comply with the Injunction Order latest by 15/4/2023, that is 8 days from the date of the Court order. [6] However, the Defendant had breached the Injunction Order where he did not withdraw, remove and/or delete all statements, references and/or pictures concerning and/or referring to the Plaintiffs and/or the business of the Plaintiffs including references to “Dato Wira 初三” (or translated as “Dato Wira Chu San”), “初三”(or translated as Chu San”), “OE” brand and/or “OE Academy” after the expiry of the 8 days, and the Defendant had allowed further postings and/or comments on his Facebook Page containing those references. [7] Additionally, CYM has aided and abetted the Defendant in breaching paragraph 2 of the Injunction Order wherein she continued to use the reference “初三” (“Chu San”) and/or insinuate and/or mock the first Plaintiff by using the words “初三” (“Chu San”) in CYM’s Facebook postings after 7/4/2023. [8] Thus, the Plaintiffs filed an application for leave to commence committal proceedings against the Defendant and CYM for the non-compliance of the Injunction Order. The leave was granted on 19/10/2023. [9] Subsequently on 1/11/2023, the Plaintiffs filed Enclosure 54 for a Committal Order. [10] The Defendant contended that the failure to remove the said Facebook posts was due to genuine oversight. The Defendant acknowledges the importance of compliance and deeply regrets any inadvertent oversight. FINDINGS AND ANALYSIS Laws on Committal [11] Article 126 of the Federal Constitution provides the power of this Court to deal with punishment on contempt-

“Power to punish for contempt The Federal Court, the Court of Appeal or a High Court shall have power to punish any contempt of itself.”. [12] This provision is further reiterated in section 13 of the Courts of Judicature Act 1964 (Act 91). [13] Non-compliance of a court order amounts to contempt of court as deliberated in the Supreme Court case of Wee Choo Keong v MBF Holdings Bhd & Anor and Another Appeal [1993] 2 MLJ 217; [1993] 3 CLJ 210, which held- “…Obedience to Court Order It is established law that a person against whom an order of Court has been issued is duty bound to obey that order until it is set aside. It is not open for him to decide for himself whether the order was wrongly issued and therefore does not require obedience. His duty is one of obedience until such time as the order may be set aside or varied. Any person who fails to obey an order of Court runs the risk of being held in contempt with all its attendant consequences…” [14] Accordingly, Order 45 rule 5(1) and Order 45 rule 5(1)(A) of the Rules of Court 2012 (ROC) provide- “(1) Where-

a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or

a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to these Rules, the judgment or order may be enforced by one or more of the following means:

(A) with the leave of the Court, an order of committal;” [15] O52 of ROC deals with committal. In this regard, the Court of Appeal in CIMB Bank Berhad & Anor v Tan Hoo Eng & Another Appeal, [2024] 2 MLRA 560, held- “(1) Following the approach in Uthayakumar Ponnusamy v. Abdul Wahab Abdul Kassim (Pengarah Penjara Kajang) & Ors, the committal proceedings against the appellants were a civil action. A breach of Court orders was usually regarded as civil contempt. A criminal contempt was where the Public Prosecutor initiated the action or where the contempt was in the face of the Court, in the sense that the conduct in question interfered with the due administration of justice. In light of the above, the application for contempt, which was based on the alleged breach of the High Court Order dated 23 July 2020, was not a criminal contempt merely because it arose from criminal proceedings. It was, at best, a complaint of civil contempt which was governed by O 52 of the Rules of Court 2012 ("ROC 2012"). The mere fact that the contempt complained of emanated from a criminal proceeding did not, without more, make it a criminal contempt. Proceedings for contempt were separate and distinct from the proceedings as regards the main matter before the Court, be it civil or criminal. If the contempt proceedings were initiated by an aggrieved or affected party against a party in breach to enforce an order, then it would, with limited exception, be inevitably a civil contempt and the proceedings were civil in nature. Hence, O 52 of the ROC 2012 was applicable.”. [16] The legal principle of contempt was further deliberated in the case of Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458, 467-468; [2012] 2 CLJ 849; [2012] 2 AMR 429, [2012] 2 MLRA 717 that- “[20] In dealing with the applications to set aside the leave for committal proceedings, it is necessary for us to consider the law of contempt. A good starting point would be the definition of contempt of court itself. Oswald’s Contempt of Court (3rd Ed), at p 6 gives a general definition of contempt of court as follows: To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during the litigation. [21] The jurisprudence for arming the court with the power to punish a contempt is best expounded by Brown J in Re HE Kingdon v SC Goho [1948] MLJ 17 as follows: But the root principle on which this inherent power to punish for contempt is founded, and the purpose for which it must be exercised, is not to vindicate the dignity of the individual judge or other judicial officer of a court or even of the court itself, but to prevent an undue interference with the administration of justice in the public interest. [22] Hence, the power to punish a contempt is not derived merely from statute nor truly from common law but instead flows from the very concept of a court of law (see Borrie & Lowe’s The Law of Contempt (3rd Ed), at p 465; and Master Jacob (1970) 23 Current Legal Problems 23). [23] Article 126 of the Federal Constitution empowers the Federal Court, the Court of Appeal and the High Court to punish any contempt of itself. This is repeated in s 13 of the Courts of Judicature Act 1964. However since the RFC has no procedural provision on committal, therefore, by virtue of r 3 of the RFC, the procedure under O 52 of the RHC may be adopted. Thus, an applicant can bring contempt proceedings via O 52 of the RHC without having to go through the Criminal Procedure Code or the Penal Code even if the relief sought is imprisonment. (See Chandra Sri Ram v. Murray Hiebert [1997] 1 MLRH 669; [1997] 3 MLJ 240; Arthur Lee Meng Kwang v. Faber Merlin Malaysia Berhad & Ors [1986] 1 MLRA 159; [1986] 2 MLJ 193 and Chung Onn v. Wee Tian Peng [1996] 4 MLRH 150; [1996] 5 MLJ 521). [24] Contempt of court has traditionally been classified as being either criminal or civil. 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. [26] 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…” [29] It is settled law that committal proceeding is criminal in nature since it involves the liberty of the alleged contemnor. Premised upon that, the law has provided procedural safeguards in committal proceeding which requires strict compliance…” [17] It was established in Tan Sri Dato’ (Dr) Rozali Ismail (supra) that any conduct that tends to bring the authority and administration of the law into disrespect or disregard is an act of contempt. Breach of the Injunction Order [18] Based on the facts and as admitted by the Defendant and CMY in their affidavit, the Defendant had failed, neglected and/or refused to withdraw, remove and/or delete all words and references which is about and/or refers to the Plaintiffs and/or the Plaintiffs’ business including the references of “Dato Wira 初三” (or translated as “Dato Wira Chu San”), “ 初三”(or translated as Chu San”), “OE” brand and/or “OE Academy” and/or any other words containing the same reference after the expiry of the 8 days from the Injunction Order, that is after 15/4/2023 as provided for by the Injunction Order. Likewise, CMY has aided and abetted to the act of contempt. [19] The Defendant had further failed to comply with paragraph 2 of the Injunction Order wherein Facebook postings were made by the Defendant and/or comments were made on the Defendant’s Facebook postings after the Injunction Order which contained the words and references which is about and/or refers to the Plaintiffs and/or the Plaintiffs’ business including the reference of “初三”(or translated as “Chu San”). [20] It is trite that where the Court, orders a party to perform an act within a specified time, but the said party fails to do so, that party can be committed for contempt of Court (Dr Mohd Yussof bin Najar Din & Ors v Najar Din bin Chatra & Ors [1998] MLJU 125, Hong Kwi Seong v Ganad Media Sdn Bhd (And Another Appeal) [2013] 2 MLJ 251, 258- 259; [2012] 6 AMR 221; [2012] 8 CLJ 667 & BYD Auto Industry Co Ltd v Amdac (M) Sdn Bhd [2017] 11 MLJ 513). [21] In Dr Mohd Yussof bin Najar Din & Ors v Najar Din bin Chatra & Prs [1998] MLJU 125, the Court held- “All the 3 defendants had more than a fair opportunity to comply with the orders dated 7/4/97 and 9/6/97 before the committal proceedings were instituted. The orders of Court dated 7/4/97 and 9/6/97 were binding on the defendants unless and until set aside. No stay of execution of the said orders were ever obtained by the defendants. To ignore Court orders and allow defendants to be excused even if they believed that at some future time the orders would be set aside, is a recipe for chaos in the administration of justice. Disobedience to a judgment or order to do an act within a time specified is civil contempt.” [22] In Hong Kwi Seong v Ganad Media Sdn Bhd [2013] 2 MLJ 251, 258-259, it was held- “[15] The specific terms of the judgment or order are of overriding importance, as they are to be construed by the court in order to determine the legal effect as to whether the defendant is required to do an act within a time specified therein and whether the defendant has refused or neglected to do so within the prescribed time in the context of O 45 r 1(a). The court will then decide whether or not to grant leave to the plaintiff to pursue an order of committal under O 45 r 1(a)(i). … [19] In the instant appeal, the terms of the order clearly directed the appellant to pay the judgment sum in five instalments on or before the respective dates. In other words, the appellant was directed to do an act within a specified date. Despite that, the appellant had refused or neglected to do. The terms of the order in the instant appeal are peremptory in the sense that the appellant was commanded to make payment. These terms come within the scope of O 45 r 5(1)(a)(i). We are therefore unable to sustain the submission presented for the defendant. We answer the above question in the affirmative.” [23] In BYD Auto Industry Co Ltd v Amdac (M) Sdn Bhd [2017] 11 MLJ 513, the Court held- “[31] This court finds that the present case falls squarely within ratio of the Court of Appeal decision in Hong Kwi Seong v Ganad Media Sdn Bhd, where the terms of the order clearly directed the respondent to pay the sum of RM4.5m within 30 days of the order. The only distinction to be drawn from the facts of this case herein and that of Hong Kwi Seong v Ganad Media Sdn Bhd is, in that case, the said sum in question was a judgment sum. However, the similarity is, the said sum was ordered to be paid within a stipulated time frame and hence could be enforced by way of committal for contempt. It is undisputed, that the respondent failed to adhere to the commandment to make the payment of the said sum stated in the order.” [24] The Defendant and CMY admitted to the publication which led to the breach of the Injunction Order as stated in the affidavit by both the Defendant and CMY as reproduced- “Dakwaan penghinaan mahkamah oleh Foo Hiap Siong ("Defendan"}

Foo Hiap Siong sesungguhnya menyatakan bahawa kegagalan Foo Hiap Siong menarik balik, membatalkan dan/atau memadam Siaran Facebook pos yang dinyatakan oleh Plaintif-plaintif di perenggan 12 (a),

(b), (c), (d), dan (e) AS Plaintif dan/atau perenggan 12 (a), (b), (c), (d), dan

kenyataan tersebut bukannya disengajakan.

Foo Hiap Siong sesungguhnya menyatakan bahawa Foo Hiap Siong telah berusaha sepenuhnya untuk mematuhi dengan segala perintah Mahkamah bertarikh 07.04.2023 iaitu memadam siaran-siaran Facebook saya yang mengandungi perkataan-perkataan yang merujuk kepada Plaintif-plaintif yang telah disiar dalam halaman Akaun Facebook saya sebagaimana yang diperintahkan. Akan tetapi, secara tidak disengajakan dan bukanlah bermotif jahat untuk mengingkar perintah mahkamah bertarikh 07.04.2023 tersebut, Foo Hiap Siong terlepas pandang Siaran Facebook pos yang dinyatakan oleh Plaintif-plaintif di perenggan 12 (a) sehingga (e) AS Plaintif tersebut.

Foo Hiap Siong sesungguhnya menyatakan bahawa Siaran Facebook pos yang dinyatakan oleh Plaintif-plaintif di perenggan 12 (a), (b), (c), (d), dan (e) AS Plaintif tersebut telahpun dipadam dengan kadar segera sebaik sahaja menerima Notis Permohonan Plaintif di Kandungan 54 dan Kenyataan tersebut.”. [25] Clearly, based on the facts, that the Defendant and CMY admitted the publication. It is also a fact that both pleaded guilty during the proceeding. Thus, leaving only the issue of mitigation of the sentence. Obstruction of Justice [26] In the case of Malaysian Bar v Tan Sri Dato' Abdul Hamid Omar, [1989] 2 MLJ 281; [1989] 2 CLJ 373; [1989] 1 MLRA 194, the Supreme Court held- “[9] …what amounts to contempt are acts done calculated to obstruct or interfere with the lawful process of the Court.”. [27] The courts in a number of cases held that a specific mens rea is not required on contempt of court (Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor [1993] 4 CLJ 177; [1994] 3 MLJ 530, IJM Corporation Bhd v Harta Kumpulan Sdn Bhd (No. 2) [2008] 8 CLJ 308, Arab-Malaysian Prima Realty Sdn Bhd v Sri Kelangkota-Rakan Engineering J.V. Sdn Bhd & Ors [2000] 2 CLJ 632). [28] In Attorney-General v Butterworth and Others [1962] 3 WLR 819; [1963] 1 QB 696, the UK Court of Appeal held that “… an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherently likely so to interfere.” (See also T.O. Thomas v Asia Fishing Industry Pte Ltd [1977] 1 MLJ 151 (FC), and Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [2001] 4 MLJ 577; [2001] 4 AMR 4241; [2001] 4 CLJ 549 (COA). [29] On 7/4/2023, CYM published on Facebook post saying that the words “初” (Chu San) cannnot be used or referred temporarily. This shows that CYM has knowledge of the Injunction Order to restrain the Defendants from making statements referring to the Plaintiffs including the reference “初”. [30] This is a clear indication of CMY knowledge of the Injunction Order and thus, she had committed contempt by obstructing the administration of justice with her conduct. She has aid and abet with the Defendant that amounting to the breach. Furthermore, the Injunction Order is against the Defendant, who is the sole proprietor of the legal firm where CYM is employed as a finance manager. [31] Accordingly, CMY committed the contempt for her aid and abetment to the breach of the Injunction Order. The contempt lies in obstructing the course of justice. [32] Likewise, in Tan Sri Dato’ (Dr) Rozali Ismail (supra), it was held- “[28] Hence, the law of contempt is wide enough to cover not only those who are bound by the court order, but other parties who assist the disobedience to the court order. It was reported in Attorney General v. Times Newspapers Ltd [1991] 2 All ER 398 that a person, who knowingly impeded or interfered with the administration of justice in an action between two other parties, was guilty of contempt of court notwithstanding that he was neither named in any order of the court nor had assisted a person against whom an order was made.”. [33] Apparently, the law of contempt is wide enough to cover other parties who aid and abet in the breach of a court order and thus, obstructed the administration of justice. [34] This was also deliberated in Cham Pei Chin & Ors v Yap Sow Foong @ Yap Ah Kit & Ors [2000] MLJU 306, which held- “I would agree with counsel for the 2nd contemnor that the court cannot commit for contempt a person not included in an injunction but the court can commit such a person who, knowing of the injunction, aids and abets a defendant in committing a breach of it. In relation to this, Halsbury's Laws of England (4th Edition Reissue) Vol.24 page 539 Para 1015 read: "Breach by stranger. A person who has not been restrained by an injunction cannot be committed for being in breach of it, but he may be committed for contempt if, with knowledge of the injunction, he aids and abets its breach. The contempt lies in obstructing the course of justice." In relation to aiding and abetting, Halsbury's Laws of England (4th Edition) Vol.9 page 51 Para 85 read: "Aiding and abetting breach of order. A stranger to an action who aids and abets the breach of a court order obstructs the course of justice, and is guilty of contempt punishable by committal. The punishment is inflicted, not for a technical infringement of the order, but for aiding and abetting others in setting the court at defiance." In Seaward v Paterson [1897] 1 Ch 545 it was held that the court has undoubted jurisdiction to commit a person not included in an injunction who, knowing of the injunction, aids and abets a defendant in committing breach of it… ... North J held the court not only had jurisdiction to commit the defendant for the breach of the injunction but also to commit Murray for aiding and abetting the breach. He found that Murray knew all about the injunction from the very first and held that he was also liable for the contempt although the injunction was made in an action to which he was not a party.” (emphasis is ours) [35] Notably, in Murray Hiebert v Chandra Sri Ram [1999] 4 MLJ 321, the Court of Appeal held- "Dato' Kam's stand is that mens rea is not a necessary ingredient to establish liability for contempt. He says that mens rea is only relevant to sentencing. He cites Reg v Odhams Press Ltd & Ors; ex p Attorney-General [1957] 1 QB 73 and AG, Malaysia v Manjeet Singh Dhillon [1991] 1 MLJ 160 at p 180. … On matter (a), the High Court said at p 121 of the appeal record: In my considered view, I hold that in order to establish contempt of court as a result of publication scandalizing the court or interfering with the course of justice, as in the instant case, intention or mens rea on the part of the alleged contemnor is not an essential ingredient … The test is whether the matter complained of had the tendency or was calculated to interfere with the due administration of justice, not whether the perpetrator intended that result … I am of the view that contempt of court generally and publication contempt, as in the instant case in particular, is an offence of strict liability in which intention on the part of the contemnor is irrelevant, so long as he has published the article which has all the other ingredients alluded to above. In the light of the above authorities, it seems clear to me that it is no defence for the respondent to contend that he did not know or think or intend that the article was contemptuous or that he had some other motive for publishing.”. (Emphasis Added) [36] Mens rea is not an essential element. In Teo Cheng Hua v Ker Min Choo & Ors [2015] 5 MLJ 365; [2015] 7 CLJ 328, the Court of Appeal held: “[29] … Though mens rea is not a necessary element for contempt, (Murray Hiebert v Chandra Sri Ram (supra)), we are satisfied that there was clear mens rea in the conduct of the appellant in lodging the second Form 75 and the second statutory declaration.” [37] The Defendant being an Advocate and Solicitor of the High Court of Malaya, would have known of the gravity and effect of a Court Order and should abide by the Injunction Order. [38] The evidence when considered in its totality established, beyond a reasonable doubt, the guilt of the Defendant and CMY, on the charge of the contempt in question. Consequently, this Court finds the Defendant and CMY, guilty of contempt for the breach of the Injunction Order. Additionally, both the Defendant and CMY had also pleaded guilty in Court. Sentencing [39] In the case of Letitia Bosman v. Public Prosecutor and other appeals (No 1) [2020] 5 MLRA 636; [2020] 5 MLJ 277; [2020] 8 CLJ 147; [2020] 6 AMR 801 (FC) the Federal Court held- "[125] In passing sentence, the court takes into consideration the mitigating and aggravating factors in order to ensure that the sentence is in accordance with the law. Passing a sentence according to law means the sentence imposed must not only be within the ambit of the sentence period stipulated but also assessed and passed according to established judicial principles (see Jafa bin Daud at p 316 of the judgment of Mohamed Azmi J)." [40] In PP v Jafa bin Daud [1981] 1 MLJ 315 the Court held that “A sentence according to law" means that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles.”. [41] Additionally, sentencing is a discretion of the trial court (Loh Hock Seng v Public Prosecutor [1980] 2 MLJ 13 & DA Duncan v PP [1980] 2 MLJ 195; [1980] 1 MLRA 55). [42] The sentencing trend involving a contemnor for breaching a Court Order as submitted by the Plaintiffs are as follows-Case Sentence MBf Holdings Berhad & Anor v Houng Hai Kong & 2 Ors [1994] 4 CLJ 1002 2 years imprisonment Hosland bin Hussin v Majlis Agama Islam Wilayah Persekutuan [2012] 4 MLJ 137 1year imprisonment Tan Sri Datuk Nadraja a/l Ratnam v Murali a/l Subramaniam (Dato Sivakumar a/l Nadraja, intervener) [2017] MLJU 2307 1month imprisonment Lee Lim Huat v Yusuf Khan Bin Ghows Khan & Anor [1997] 2 MLJ 472 1month imprisonment Plastech Industries System Sdn Bhd v N & C Resources Sdn Bhd & Ors [2015] 7 CLJ 252 2 months imprisonment IJM Corporation Bhd v Harta Kumpulan Sdn Bhd (Part 2) [2007] MLJU 822 14 days imprisonment [43] In Lee Lim Huat v Yusuf Khan Bin Ghows Khan & Anor [1997] 2 MLJ 472, the Court of Appeal held- “[42] We are here not dealing with the case of a layman accused of breaching an injunction. The appellant is a member of the Bar. As such he, more than anyone else, should respect and obey an injunction issued by the Court. The dignity of the judicial arm of Government will surely be eroded if orders of a Court are honoured more in their breach than observance by members of the Bar. The sentence passed should, apart from reflecting the gravity of the particular offence, act as a deterrent to would be violators of injunctions. We therefore reject the argument that this was an earlier offence as being entirely irrelevant. [43] The learned Judge when considering the punishment to be imposed took into account all relevant circumstances. It has not been demonstrated that he erred either in principle or that he had passed a sentence that was manifestly excessive. On the other hand, taking into account all the circumstances of the case, we find the sentence to be extremely lenient. Had we heard the matter at first instance we would have been disposed to passing a longer term of imprisonment.”. (Emphasis Added) [44] In MBf Holdings Berhad & Anor v Houng Hai Kong & 2 Ors [1994] 4 CLJ 1002, the 1st and 3rd Defendants were found guilty of contempt of court and were sentence to imprisonment. The 3rd Defendant was a member of the bar and was imposed a heavier sentence of 2 years imprisonment for each offence as compared to the 1st Defendant who was sentenced to 2 weeks of imprisonment. The Court held as follows- “[7] The 3rd defendant, however, deserves a more serious punishment. The 3rd defendant is a Member of Parliament and therefore a public officer. In addition he is also a member of the Bar and therefore an officer of the Court. As a member of the Bar the 3rd defendant has an onerous duty to protect the dignity of the Court and to see that justice is upheld. It is also expected of him to show greater respect for an order of Court. The 3rd defendant by obtrusively defying the power of the Court, has clearly shown no respect whatsoever for the Court and has indeed committed contumelious conduct against the order of Court. In view of the above, the 3rd defendant is sentenced to two years imprisonment for each of the offences.” [45] Similarly, in this instant suit, the Defendant is an advocate and solicitor for 16 years as he declared. Thus, if we were to make a comparison by applying the ratio of the sentence pronounced in Lee Lim Huat (supra) and the sentence given by this Court against the Defendant, which is three (3) days of imprisonment and a fine of RM100,000.00, the sentence of this Court is considered justified despite the fact that the Defendant is a member of the Bar for 16 years. In Lee Lim Huat (supra), the Court of Appeal held that 1month imprisonment is extremely lenient considering that the contemnor is a member of the Bar. [46] This Court therefore, passed sentence to the contemnors as recorded. The Defendant: three (3) days imprisonment and a fine of RM100,000.00, to be paid within 14 days, if failed, three months imprisonment. CMY: Fine of RM50,000.00 to be paid within 14 days, if failed, two months imprisonment. Order accordingly. (YA DR. SUZANA BINTI MUHAMAD SAID) JUDICIAL COMMISSIONER OF THE HIGH COURT NCVC 1 Kuala Lumpur Court. Dated: 16 May 2024 COUNSELS For the Plaintiffs MESSRS. YONG SL & KOH Unit 1C-2A, Level 2, Block K, Jalan Temenggung 27/9, Bandar Mahkota Cheras, 43200 Selangor Darul Ehsan. For the Defendant & Cheong Yin Mui MESSRS FOO HIAP SIONG & CO. No. 38A-1-2F, 2nd Floor Shamelin Business Centre Jalan 4/91, Taman Shamelin Perkasa 56100 Kuala Lumpur.