Lee Yee Wuen v Perfect Oil Resources (Sabah) Sdn Bhd (S-02(IM)(NCvC)-1920-10/2022)

days of the date of the Order. [2] Appeal 1936 - Enclosure 1 dated 7 October 2022 is an appeal by the appellant Perfect Oil Resources (Sabah) Sdn Bhd against the whole of the decision of the learned High Court Judge given on 21 September 2022 in imposing a fine RM2,000.00 and costs of RM10,000.00 for contempt on the 2nd respondent Ladang Sri Harapan (Sabah) Sdn Bhd instead of the 1st respondent Lee Yee Wuen as the managing director of Ladang Sri Harapan (Sabah) Sdn Bhd responsible for the breach of the injunction order. [3] The above two (2) appeals are related. Hence, to facilitate the determination of these appeals, we find it more convenient to decide these 2 appeals in a single judgment as they are interrelated. [4] For ease of reference, we will refer the parties according to their positions in the High Court. The Background [5] The salient facts are as follows: [6] The 2nd Respondent is a company incorporated in Malaysia carrying on the business of oil palm plantation. [7] The applicant and the 2d Respondent were family related businesses set up by the late Mr Lee Poh Sin (“the deceased”) who had passed away on 10 September 2018. [8] The deceased was survived by his wife and two (2) children, the 1st respondent and a son, Lee Kai Wuen. [9] Both the 1st respondent and Lee Kai Wuen were shareholders and directors of the 2nd respondent. Lee Kai Wuen was also a director of the applicant. [10] On 8 October 2004, the applicant became the registered owner of a parcel of land measuring 2,000 acres held under CL No. 085311146 situated in the District of Sandakan, Sabah. The said land was an existing oil palm estate with a quarry located inside. [11] In 2005, the deceased decided to increase 2nd respondent’s land bank by buying an adjoining parcel of land held under CL No. 085337515 measuring 1132 hectares. [12] The said land was already developed as an oil palm plantation at the time of its purchase in 2005. After the purchase of the said land, 2nd respondent allowed the applicant to use its private estate road inside the new plantation measuring 2.5 KM for its vehicles to pass through (hereinafter referred to as "the access road”). [13] At all material times, the access road is the main transportation route for 2nd respondent’s operations. The access road has a direct access to the main public road. Erected at the side of the access road are estate office, workshop, labour quarters for the workers, all belonging to the 2nd respondent. [14] Sometime in August 2019, the 2nd respondent discovered that applicant had chopped down a few of its oil palm trees to widen and re-align the access road for its own convenience. In addition, applicant had also removed the gate at the boundary which was erected inside the 2nd respondent’s plantation. The gate is meant to control the vehicle movement on the access road during the height of the Covid-19 pandemic. [15] In line with the relevant standard operating procedure imposed by the relevant authorities, 2nd respondent issued a Memo on 23 May 2020 to all visitors and suppliers informing them that they would be restricted from entering the operation area of 2nd respondent’s plantation and that they are only allowed to enter the operation area for necessary purposes as stated in the economic reopening standard operating procedure. The Memo further states that visitors and suppliers who wish to enter the plantation will have to submit a formal request to the Board of Directors and state the purpose of their entry and provide any authorisation paperwork from the relevant authority (if any). This action was taken during the Covid-19 pandemic when the government had allowed the oil palm plantation sector to resume operation. [16] On 1 June 2020, the 2nd respondent informed the applicant that its workers must obtain written permission from them and provide certain documents before they can use the access road due to the Covid-19 pandemic where there were strict movement controls being put in place by the Government. [17] On 5 June 2020, the applicant files a writ action against 2nd respondent seeking a declaration that it is entitled to "unfettered use" of the access road (“Main Suit”). In the claim, the applicant has averred as follows: "The Plaintiff became the registered owner CL 085311146 (the Plaintiff land) in 2004 and the Defendant became the registered owner of CL 085337515 (the Defendant's land) in 2005 from the previous owner. They are related companies. The Plaintiff had been using the access road through the Defendant's land even before the purchase of the Defendant's land and continued since the registration of the ownership of the Defendant's land for transporting fresh fruit palms and stones to its buyers. The Defendant began to obstruct the use of the access road in May 2020 by imposing unreasonable terms to prevent the Plaintiff's agents and servants from using the access road...". [18] The applicant claimed that the 2nd respondent’s refusal to allow the applicant use of the access road caused it to suffer loss and damages as it could not deliver the fresh fruit bunch from its oil palm plantation and the stones from its quarry to its customers. [19] Concurrently with the filing of the writ of summons, applicant applied for an interim injunction against the 2nd respondent where the applicant inter alia, prayed for a declaration that the applicant was entitled to an unfettered use of the access road and an interim injunction against the 2nd respondent whether by itself or by its servants and / or agents or howsoever and in whatsoever capacity from interfering with in whatsoever manner, whether by blockage, interference, interruption or other obstruction by whatsoever means, mode or manner or structure, the applicant’s right of unfettered access to use the access road through the 2nd respondent’s land pending the disposal of the main suit. [20] On 4 September 2020, the learned judge granted the interim injunction limiting its scope to only allowing the applicant to transport its fresh fruit bunch and quarry stones out of its land by its own lorries. [21] Dissatisfied, the 2nd respondent appealed against the said decision but its appeal was dismissed by the Court of Appeal. [22] On 10 September 2020, the 2nd respondent wrote a letter to applicant requesting it to furnish a list of the vehicles and drivers who would be using the access road to transport its fresh fruit bunch and quarry stones. This is to facilitate the checking by the independent security personnel manning the gates at the entry and exit points of 2nd respondent’s plantations. This is also to comply with necessary standard operating procedure in relation to Movement Control Order which was applicable at the material time. [23] On 15 September 2020, the applicant’s solicitors by its letter stated that the 2nd respondent has no right to impose any conditions for the use of the access road. [24] Upon receipt of the said letter, the 2nd respondent’s solicitors by letter dated 17 September 2020, clarified the reasons for the conditions imposed. [25] On 23 September 2020, applicant’s solicitors requested for the standard operating procedure and stated that the reasons given by the 2nd respondent for its request are mere excuses. [26] On 24 September 2020, 2nd respondent wrote to the applicant requesting for a list of vehicles and drivers together with each lorry's registration cards and the identity cards of the drivers in order to fulfil the standard operating procedure during the Covid-19 pandemic at the material time. [27] On 24 September 2020, the 2nd respondent’s solicitors forwarded the relevant standard operating procedure including the latest press statement issued by the Director of Sabah State Health Department which came with a stern warning that failure to comply strictly with the standard operating procedure will result in offenders being charged under section 24 of the Prevention and Control of Infectious Diseases Act 1988 (Act 342). [28] On 28 September 2020, the learned judge granted an ad interim stay of the Interim Injunction pending disposal of 2nd respondent’s application for stay of execution pending its appeal to the Court of Appeal. However, the 2nd respondent’s stay application was subsequently dismissed by the learned High Court Judge on 30 November 2020. [29] On 29 September 2020, the applicant forwarded to the 2nd respondent a long list of vehicles and the names of the drivers. When the 2nd respondent checked the list, it was found that the applicant had included many vehicles and names of drivers belonging to third parties who are not within the scope of the Interim Injunction. The applicant refused to provide the vehicles' registration card and driver's identity card claiming that these are sensitive and confidential documents. [30] On 14 October 2020, the applicant filed an application to vary the scope of the interim Injunction under notice of application dated 14 October 2020. The purpose is to widen the scope of the Interim Injunction to include the applicant’s agents and or servants and licensees and state and federal agencies and professional consultancy firms to inspect the plantation and quarry operations. [31] On 30 November 2020, the 2nd respondent wrote to the applicant requesting it to provide a list of the lorries and drivers that need to use the access road together with each lorry's registration card and the driver's identity card. The applicant was also requested to remind the designated lorry drivers to follow the relevant standard operating procedure. [32] On 3 December 2020, the applicant’s solicitors responded to the said letter. [33] On 4 December 2020, the applicant wrote to 2nd respondent and insisted that the list which was supplied on the 29 September 2020 will be the one it is relying on. It also did not furnish the registration cards and driver's identity card. [34] Upon receipt of the said letter, the 2nd respondent reminded the applicant by letter dated 4 December 2020 that the Interim Injunction only permits applicant’s vehicles to deliver the fresh fruit bunch and quarry stones. [35] On 16 December 2020, the applicant filed an ex parte notice of application for leave to commence committal proceedings against the 1st and 2nd respondent. The grounds relied upon by the applicant to apply for the Order of Committal under enclosure 80 are as follows: "... that the 1st and 2d Respondents have not complied with the said Order of this Honourable Court dated 4th September 2020 in High Court Suit No. SDK-22NCvC-12/6-2020 by refusing to allow the Applicant from having an unfettered use of the access road under CL 0853337515 stated in the said Order and depriving the Applicant of the use of the same for transporting FFB and stones from the Applicant's land held under CL 085311146 and also the Order granting a right of way by the ACLR Beluran on 18th September 2020 to allow the Applicant to have a right of way over the 2nd Respondent's land." [36] On 15 January 2021, the learned judge granted leave for the applicant to commence contempt proceedings against both the respondents. [37] On 8 February 2021, the respondents applied to set aside the Leave Order on the grounds, inter alia, that there was suppression of material acts in that applicant has failed to make full and frank disclosure of all the correspondence exchanged applicant and 2nd respondent relating to the documentation requested by the latter to enable them to identify the persons who would be using the access road pursuant to the interim injunction. [38] On 19 April 2021, the learned judge in her decision found that there was indeed suppression of material facts by the applicant as complained by the respondents. The learned judge accordingly set aside the Leave Order. [39] On 27 July 2021, the Court of Appeal allowed the applicant appeal and set aside the High Court decision. [40] Being dissatisfied with the decision of the Court of Appeal, the respondents filed a notice of motion for leave to appeal to the Federal Court on 6 August 2021. [41] On 20 August 2021, the respondents applied for a stay of the committal proceedings pending the disposal of the leave application to the Federal Court. [42] On 30 November 2021, the High Court granted a stay of the committal proceedings pending the disposal of the leave application by the Federal Court. [43] However, on 13 April 2022, the respondents leave application was dismissed by the Federal Court. [44] On 21 September 2022, the High Court found the respondents guilty of breaching the terms of the interim injunction and ordered 2nd respondent to pay a fine of RM2,000 per day calculated from 5 September 2020 until full compliance. The 2nd respondents were given 14 days to pay up the fine. [45] On 28 September 2022, the High Court dismissed the applicant’s claim on the Main Suit. [46] Being dissatisfied with the learned judge’s decision dated 21 September 2022, the respondents filed a notice of appeal on 28 September 2022. [47] On 3 October 2022, the 2nd respondent filed a notice of application to suspend the payment of the fine pursuant to Order 52 rule 7 & 9 of the Rules of Court 2012. The High Court granted an ad interim stay pending the disposal of the said application. [48] On 27 March 2023, the learned judge granted the 2nd respondent’s application to suspend the payment of the fine pending the disposal of this appeal. High Court’s Decision [49] The learned judge in her grounds of judgment, which we reproduce, inter alia held as follows: [18] The issue before this Court in dealing with enclosure 96 was whether the Respondents have breached the terms of the Injunction Order and if so, whether they were liable to be held in contempt. [19] It was the Applicant's case that the Respondents have failed to comply with the terms of the Injunction Order and continued to do so as at the date of their affidavit in reply filed on 06.09.2021. There was no controversy on this as the Respondents have not denied that the Applicants have not, since the grant of the Injunction Order, been able to use the access road. [20] The Respondents' case was that they had not wilfully or deliberately refused to comply with the Injunction Order. [21] Instead, the Respondents contended as follows:

that the Respondents were merely having regards to the requisite and necessary Covid-19 related Standard Operating Procedures ("SOPs") when they insisted that the Applicant complied with their requirements on the use of the access road;

(ii) that the Applicant had not fulfilled these requirements, namely in not providing the list of vehicles and the details of the drivers who would be using the access road and by not providing a copy of the vehicle's registration cards and the drivers' identification documents; and

(iii) that contrary to the terms of the Injunction Order, the Applicant was seeking to allow use by third parties of the access road not connected to the delivery of fresh fruit bunch and quarry stones. [22] In addition, the Respondents contended that the requirements under

and (ii) above were standard procedures which they had also applied to other users of the access road from neighbouring landowners. [23] The Respondents' answers being as such, this Court found that the Applicant has established that there has been non-compliance of the Injunction Order by the Respondents. The task for this Court was to determine whether the explanation by the Respondents absolved them from liability and or amounted to mitigating factors in their favour. [24] I will first deal with the Respondents' contention that the Applicant had sought to allow use by third parties of the access road. The Respondents specifically referred to the clarification by this Court during the ruling of the 2nd Respondent's stay application on 24.11.2020 (see exhibit "L-17") to support their contention that the injunction was specifically only for the Applicant to transport the fresh fruit bunch and not for the use of third parties. The Applicant on the other hand contended that the terms were wide enough to include third parties. [25] This issue boiled down to the interpretation of the terms of the Injunction Order but first, it must be noted that notwithstanding the aforementioned clarification, the Injunction Order was not amended in any way. [26] In any event, the answer to the Respondents' argument was found in the case of TO Thomas v. Asia Fishing Industry Pt Ltd where court stated that - "A person who has bona fide acted on an erroneous view of an order or injunction may, according to the circumstances, none the less be justly adjudged guilty of contempt in procedure or civil contempt as it is sometimes called". [27] In Ann Joo Steel Bhd v. Pengarah Tanah Dan Galian Negeri Pulau Pinang & Anor And Another Appeal [ 2019] 9 CLJ 153, the Federal Court emphasised that a court order must be complied and not ignored even if it is on the ground that it is a nullity. Citing R v Poplar Borough Council, ex parte London County Council (No 2); R v. Same, ex parte Managers of Metropolitan Asylums Board (No 2) [1922] 1 KB 95), the court stated that - "It is also well-settled too that the motive for disobedience is irrelevant". [28] Based on the above authorities, on the facts of the present case, it was apparent that it was not opened for the Respondents to offer their own interpretation of the terms of the Injunction Order. [29] The same arguments could be made for the Respondents' reliance on the Covid-19 SOPs and the Applicant's alleged non-compliance of the said SOPs. In the first place, as far as the Covid-19 issue was concerned, notwithstanding the lifting of the strict protocols by the authorities since April 2022, it was not in dispute that the Respondents still had not allowed the Applicant use of the access road. [30] Secondly and even if this Court was wrong in all of the above, it was not disputed that in their effort to comply with the Respondents' requirements, the Applicant had, on 29.09.2020 i.e. 3 weeks after the Injunction Order was granted, provided a list of the intended users (exhibit "L-7") of the access road. Although admittedly the list included third parties, it also included the Applicant's own vehicles and personnel with their identification card (NRIC) numbers and description of the vehicles. Thus, even if the Respondents were correct to say that the Injunction Order strictly excluded third parties, there was no reason why they refused the Applicant's own vehicles and personnel access since 29.09.2020. [31] On the other hand, I found merits in the submissions by the Applicant that the Respondents had exercised double standards in their insistence on the production of the vehicles' registration cards and NRIC of the drivers when it was evident from exhibit "L-13" that the other neighbouring landowners did not do so save for one, i.e. Berkat Bersaudara Sdn Bhd. This was contrary to the express averment in paragraph 27 of the Respondents' affidavit in opposition (encl. 160). Thus, I found that the Respondents were not acting in good faith in their purported reasoning in continuing to disobey the Injunction Order. Needless to say, this finding went against the Respondents' contention that they had not acted wilfully or deliberately. [32] Based on the above, I did not find that the purported reasons given by the Respondents to have absolved them in any way from complying with the Injunction Order. Consequently, I found that the Applicant has established beyond reasonable doubt the Respondents' guilt of being in contempt of court and I so held. Sentence [33] It was urged by the Applicant for the Court to impose custodial sentence against the 1st Respondent and in so doing, solely cited the case of J v. J [2020] MLJU 1839 as support. [34] I did not find this case to be of any assistance. For one, it involved a family dispute which was not the case here. For another, the contemnor therein was the husband who was found to have deliberately refused his wife access to the children of the marriage despite the court order. Here, although the managing director of the 2nd Respondent, the 1st Respondent was not a party to the present action. [35] That was not to say that company directors are immune from liability for contempt of court by the company. Case law is replete with decisions on this issue. Suffice for me to cite the Privy Council case of Datuk Hong Kim Sui v. Tiu Shi Kian & anor [1987] 1 MLJ 345 where the appellant who was the managing director of the company which was the subject of an interlocutory injunction order was also found to be liable for contempt for disobedience of the order. [37] With the above in mind, I had considered that the Applicant's only basis to urge this Court to impose custodial sentence against the 1st Respondent was that she had told "countless lies" and "half-truths" in Court. Although abhorrent, I did not view this ground to be sufficient to commit the 1st Respondent to prison on the facts of this case. [38] On the other hand, I did not view the submission by learned counsel for the Applicant that the 2nd Respondent be fined RM1,000.00 per day was reflective of the nature of the non-compliance. As noted earlier, the Respondents had not provided a cogent reason why they did not allow the Applicant the use of the access road and that the purported reasons were all found to be baseless and or clouded with bad faith. [39] In the circumstances, I sentenced the 2nd Respondent to a fine of RM2,000.00 per day from 05.09.2020 until the date of full compliance of the Injunction Order. I further made an order that the sum accrued from 05.09.2020 until the date of this Order be paid within 14 days from the date thereof. [40] I also ordered costs to be paid by the Respondents to the Applicant. Postscript [41] On 28.09.2022, this Court delivered its judgment after trial on the Applicant's claim and the 2nd Respondent's counterclaim. The Applicant's claim was dismissed and the 2nd Respondent's counterclaim in part. The Applicant has since filed an appeal against the said decision. Sole Issue for Determination in Appeal 1920 [50] Whether the 1st and 2nd respondent had wilfully, deliberately disobeying or disregarding the terms of the injunction order of the court dated 4 September 2020. The Legal Principles of Law on Contempt of Court [51] Azahar Mohamed J (as he then was) in Mediacorp News Pte Ltd & Ors v. Mediabanc (Johor Bharu) Sdn Bhd & Ors; Lim Leong Wuoh & Ors (Proposed Contemnors) [2011] 5 CLJ 454; [2010] 5 MLJ 562 states that: "[5] I should note at once that it is settled law that in order to sustain a conviction in contempt proceedings, the standard of proof required is one beyond a reasonable doubt. Therefore, it is incumbent upon the applicants to prove beyond a reasonable doubt that the person asked to be committed, namely the proposed contempt parties had wilfully, deliberately disobeying, or disregarding the order of the court. The authority to support this proposition is to be found in the judgment of Lee Hun Hoe CJ (Borneo) in TO Thomas v. Asia Fishing Industry Pte Ltd [1974] 1 LNS 163; [1977] 1 MLJ 151. There, His Lordship had this to say at p. 155 of the report: Wilfully, disobeying an order of the court constituted contempt. This commonly consists in a party's doing otherwise than he is enjoined to do, or not doing what he is commanded or required to do by the process, order or decree of the court: Miller v. Knox. The contempt must be wilful. An order of court must have been contumaciously disregarded. It is no good if it is casual, accidental and unintentional: Fairclough & Sons v. Manchester Ship Canal Co (No 2). [6] Most important of all, in Re Bramblevale Ltd [1970] Ch 128 Lord Denning MR said at p. 137: A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phase, it must be proved beyond reasonable doubt.” [52] In the case of Monatech (M) Sdn Bhd v. Jasa Keramat Sdn Bhd [2002| 4 CLJ 401, the Federal Court through the judgment delivered by Haidar Mohd Noor FCJ (as he then was) held as follows: What therefore is contempt of court 'is interference with the due administration of justice' - per Nicholls LJ at p. 923 of Attorney-General v. Hislop and Another [1991] 1 All ER 911 (CA): In view of the generality of the phrase "interference with the due administration of justice" we are of the view that the categories of contempt are never closed. To that extent we respectfully endorse the statement made by Low Hop Bing J, in Chandra Sri Ram v. Murray Hiebert [1997] 3 CLJ Supp 518 at pp. 549-550: “The circumstances and categories of facts which may arise and which may constitute contempt of court, in a particular case, are never closed. This is the same position as in the case of negligence in which the scope for development is limitless. Contempt of court may arise from any act or form whatsoever, ranging from libel or slander emanating from any contemptuous utterance, news item, report or article, to an act of disobedience to a court order or a failure to comply with a procedural requirement established by law. Any of these acts, in varying degrees, affects the administration of justice or may impede the fair trial of sub judices matters, civil or criminal, for the time being pending in any court. The particular matrix of the individual case is of paramount importance in determining whether a particular circumstance attracts the application of the law of contempt. Hence, a positive perception of the facts is a prerequisite in deciding whether or not there is any contravention necessitating the invocation of the law of contempt”. [53] In the case of Wee Choo Keong v. MBf Holdings Bhd & Anor [1993] 2 MLJ 217, 220, the Supreme Court through the judgment delivered by Abdul Hamid Omar, LP (as he then was) said: "lt is established law that o 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”.

(A) Appeal 1920 (Appeal Against Contempt Proceedings) [54] Having considered the submissions of both the learned counsels and having perused the appeal records, we unanimously dismissed the appeal. Our reasons now follow: [55] The respondents had provided reasons why they did not allow the applicant the use of the access road. Cogent reasons have indeed been given by the respondents in various affidavits filed by the respondents in the affidavit in opposition dated 6 September 2021, affidavit in reply dated 27 September 2021, and further affidavit in reply dated 4 October 2021. [56] Lee Yee Wuen (1st respondent), managing director of the 2nd respondent in her affidavit in opposition affirmed on 6 September 2021, inter alia said as follows: “8. Contrary to what the Applicant alleges, the Respondents did not refuse to allow the Applicant to use the Access Road for transporting the FFB and the stones out of their land. As a matter of fact, it was the Applicant who did not want to follow the terms of the Injunction Order dated 04.09.2020, which limits the usage of the Access Road to the Applicant only and not third parties affiliated to the Applicant. This will be elaborated below.

I am advised by the Respondents' solicitors and verily believe that the grounds relied upon by the Applicant to apply for the Order of Committal in Enclosure 80 against the Respondents are as follows: "... that the 1st and 2nd Respondents have not complied with the said Order of this Honourable Court dated 4th September 2020 in High Court Suit No. SDK- 22NCvC-12/6-2020 by refusing to allow the Applicant from having an unfettered use of the access road under CL 0853337515 stated in the said Order and depriving the Applicant of the use of the same for transporting FFB and stones from the Applicant's land held under CL 085311146 and also the Order granting a right of way by the ACLR Beluran on 18th September 2020 to allow the Applicant to have a right of way over the 2nd Respondent's land.

Hence, it is clear that the Applicant is fully aware that the Interim Order dated 04.09.2020 only permits it to transport FFB and stones through the 2nd Respondent's land and not every other person who may have business dealings with it.

In reply to paragraph 8 of the AIS, I say that the conditions imposed by the 2nd Respondent for the Applicant to provide a list of the vehicles and drivers who would be using the Access Road, together with each lorry's registration card and driver's IC were necessary for several reasons. Firstly, it is a standard procedure for the 2nd Respondent to inform the 3rd party security firm who are manning the entry and exit points to know the authorized persons to enter the 2nd Respondent's plantation. Secondly, it is to comply with the Economic Reopening Standard Operating Procedure (SOP) for the agriculture sector. Thirdly, there had been a big spike in the number of new infections in the State and the Government were taking steps to control the spread of the COVID-19 virus and warning the pubic of the consequences of not complying with the SOP.

However, instead of furnishing the requested information, the Applicant by their solicitor's letter dated 15.09.2020 stated that the 2nd Respondent has no right to impose any conditions for the use of the Access Road and threatened to cite the Respondents for contempt of court.

On 23.09.2020, the Applicant's solicitors requested for the SOP and still insisted that the 2nd Respondent's request are mere excuses to circumvent the Interim Order dated 04.09.2020 and claiming that only "vehicles" are passing through the Access Road.

The 2nd Respondent's solicitors have responded to the letter from Messrs Tan Pang Tsen & Co. vide their letter dated 24.09.2020. In their reply, the said solicitors forwarded the relevant SOP including the latest Press Statement issued by the Director of the Sabah State Health Department which came with a stern warning that failure to comply strictly with the SOP will result in offenders being charged under Section 24 of the Prevention and Control of Infectious Diseases Act 1988 (Act 342).

The 2nd Respondent has sent a follow-up reminder to the Applicant vide their letter dated 24.09.2020.

In reply to paragraph 9 of the AlS, the Respondents state that the Applicant replied by a letter dated 29.09.2020 enclosing what purports to be a long list of vehicles and drivers. However, upon going through the list it was found that the list included many vehicles not belonging to the Applicant as well as names of persons not under their direct employment.

The Applicant refused to furnish copies of the lorry's registration cards and their drivers' Identity Card claiming that it is inconvenient to provide them because these are sensitive and confidential documents. As the Applicant insisted that the third party's vehicles must be allowed to use the Access Road as well, naturally the Respondents cannot accept the list of vehicles provided by the Applicant.

On 30.11.2020, the 2nd Respondent wrote to the Applicant requesting the latter to provide a list of their lorries and their drivers that need to use the Access Road together with each lorry's registration cards and the drivers' Identity Cards. The Applicant was also requested to remind the designated lorry drivers to follow the SOP set by the 2nd Respondent.

In reply to paragraphs 12 and 13 of the AIS, I am advised by the Respondents' solicitors and verily believe that the Respondents are entitled to set conditions for parties using the Access Road. The Applicant is well aware that as the COVID-19 situation worsens, the relevant authorities have to revise and tighten their SOP in order to meet the challenging situation. As a matter of fact, in January 2021, the State Government even went so far as to impose a voluntary 30-day lockdown in the plantations to curb the spread of the virus. According to the press release, the 30-day lockdown in the plantation sector is to facilitate the mass COVID-19 screening of oil palm plantation workers in Sabah, with the aim of containing the spread of the virus. The lockdown restrictions including among others, following strict measures to be adhered to, restricted access into the estates, strict SOPs in movements of food, supply and services including fertilisers and other agrochemicals, spare parts, and machineries into the operations. It also included restricted movement of workers and all other employees out of the estates. The press release further stated that the State Authority will enhance policing and have check-points throughout the State where plantations are located to monitor movement controls.

As the owner of the plantation land, the Respondents bear the full responsibility of checking each and every lorry and truck and its occupants passing through the 2nd Respondent's land to ensure the SOP implemented by the Government are fully complied with. This is because any infection inside the plantation could lead to the total shutdown of the operations which could have a crippling effect on the 2nd Respondent's finances. It is thus not unreasonable for the 2nd Respondent to be extra cautious when dealing with the entry of people into its plantations.

Furthermore, the Respondents have imposed conditions following the SOP Economic Reopening released by the Ministry of Plantation and Commodity Enterprises for agriculture sector prior to 04.09.2020 for the period from March to June 2020. This SOP ought to be followed in view of the extension of the Movement Control Order (MCO) until the end of December 2020. It is therefore an afterthought for the Applicant to aver that the Respondents had imposed its own SOPs and had breached the Interim Order when it is apparent that the Applicant did not want to comply with the SOP nor to furnish the documents requested by the 2nd Respondent. I verily believe that the conditions stipulated in the 2nd Respondents letters are not materially different from the SOP enforced by the relevant authorities.

In reply to paragraphs 16 and 17 of the AIS, despite the 2nd Respondent's assurance, the Applicant continued to demand the 2nd Respondent to use the Access Road based on the list provided on

29.09.2020. I verily believe that the 2nd Respondent's request for the Applicant to provide the registration cards of their vehicles and particulars of their drivers is reasonable because the Interim Order only allows the Applicant to transport the FFB and stones and not other third parties. As the landowner, the 2nd Respondent is entitled to know who are the persons passing through their land. This is crucial as the Access Road is the main road of the 2nd Respondent with the 2nd Respondent's estate office, workshop and labour quarters built along each side of the road. The labour quarters are also occupied by the children of the workers. The 2nd Respondent was merely taking steps to protect the security and safeguard its own plantations.

As such, there was no wilful or deliberate refusal by the Respondents to comply with the Interim Order as alleged by the Applicant.

Accordingly, the Respondents respectfully pray that the contempt application be dismissed with costs”. [57] Further, the 1st respondent in her affidavit in in reply dated 27 September 2021, inter alia said as follows: “10. In reply to paragraphs 8 to 10 of the AlO, the Respondents did not blatantly refused to comply with the Interim Order dated 04.09.2020. It was the Applicant who did not want to follow the terms of the Interim Order, which limits the usage of the Access Road to the Applicant only and not third parties affiliated to the Applicant. 1 am advised by the Respondents' solicitors and verily believe that in any event, these are matters to be deliberated at the inter parte committal proceedings and the Respondents have filed their Affidavit in Opposition [Enclosure No. 160] for this purpose.

In reply to paragraphs 12 to 17.1 of the AlO, the Applicant has not in Applicant's solicitors' letter dated 30.08.2021 denied that some of the their employees have tested positive for COVID-19 recently. Importantly, this is the reason why the Respondents required the designated drivers of the Applicant to have a current negative PCR test and to comply with the SOP. The Respondents did not do this out of the blue. The Applicant cannot thereafter allege that this is a deliberate act to breach the Interim Order when the Respondents were merely trying to protect their staffs and agents in the estate.

Moreover, I am advised by the Respondents' solicitors and verily believe that the grounds relied upon by the Applicant to apply for the Order of Committal in Enclosure 80 against the Respondents are as follows: "... that the 1st and 2nd Respondents have not complied with the said Order of this Honourable Court dated 4th September 2020 in the High Court Suit No. SDK-22NCvC-12/6-2020 by refusing to allow the Applicant from having an unfettered use of the access road under CL 0853337515 stated in the said Order and depriving the Applicant of the use of the same for transporting FFB and stones from the Applicant's land held under CL 085311146 and also the Order granting a right of way by the ACLR Beluran on 18th September 2020 to allow the Applicant to have a right of way over the 2nd Respondent's land." Hence, it is clear that the Applicant is fully aware that the Interim Order only permits it to transport FFB and stones through the 2nd Respondent's land and not every other persons who may have business dealings with it or for other purposes.

Despite what is stated in the Interim Order, the Applicant's solicitors forwarded a list of vehicles and drivers to the Respondent which includes several pickup trucks and additional drivers. To the best of my knowledge, pickup trucks were not used for carrying FFB and stones. Moreover, the people listed under nos. 1-8 and 10-12 of item (iti) are not lorry drivers, only nos. 15 and 16 are lorry drivers. I do not know who the others are as I have been excluded from the management since April 2019 and have no access to the records or the operations of the company. I wonder what the intention of the Applicant is in applying for these vehicles and people to get into the Respondents' estate.

In addition, the Applicant has failed to furnish to the Respondents the photocopies of the vehicles' registration cards and drivers' Identity Cards to enable the Respondents to issue the gate passes to enable the private security firm manning the gate to act accordingly. The security firm will only allow vehicles with gate passes to pass through the 2nd Respondent's gates. The Applicant will only have themselves to blame as they are not willing to furnish proof of ownership of their vehicles and the identity of their drivers. If these were furnished to the Respondents, I would have been able to confirm if the other persons in the list are the Applicant's workers as it is the Respondents' headquarter that will be checking the proper documentation and issue the gate passes.

Furthermore, I am advised by the Respondents' solicitors and verily believe that the Applicant's reliance on the Personal Data Protection Act 2020 ("PDPA") is misplaced. The Applicant's solicitors also failed to specify the section of PDPA relied on by the Applicant.

With regards to the Applicant's averment that the Applicant's vehicles and drivers will only be passing the access road and drivers will not have contact with the Respondents' staffs and agents, I will say that the Applicant has underestimated the transmissibility of COVID-19. There must be a reason why the Government SOP unquestionably requires the particulars and temperatures of each and every person coming into the plantation to be taken at the entry points. The Applicant has also not denied that some of their employees have tested positive for COVID-19 recently. Moreover, the present COVID-19 situation in Sabah is still grave and alarming. The Respondents' employees only managed to get their 1st dose of vaccine recently. It does not give them much protection yet.

As such, I have reason to believe that it is not unreasonable for the Respondents to reject the Applicant's list of vehicles and drivers and to only allow the 2 drivers of the Applicant to use the Access Road”. [58] Lastly, the 1st respondent in her further affidavit in reply dated 4 October 2021, inter alia said as follows: “5. In paragraph 11.5 of the said Affidavit in Reply, the said deponent claimed that he has been further advised by his solicitors that the Interim Order dated 04.09.2020 which was granted by this Honourable Court did not indicate the right of unfettered access is limited to the purpose for carrying FFB and stones. The same averment was repeated in paragraph 14 of the Affidavit in Reply. Further, in paragraph 11.6 thereof, the deponent claimed that the Respondents are imposing conditions which are clearly outside the terms of the said Order and interfering with the Applicant's right to nominate any of its staff who have the necessary driving licence to drive the vehicles. The "staff" which the deponent was referring to are the persons contained in Exhibit "A" of the Affidavit in Reply. The deponent is implying that the Interim Order extends to those persons as well and that the Respondents have prevented them from using the access road.

I am advised by the Respondents' solicitors and verily believe that the averments made by the deponent in the aforesaid paragraphs of the Affidavit in Reply regarding the scope of the Interim Order are totally untrue and misleading. I have been informed by the Respondents' solicitors and I verily believe that during the clarification hearings on the 24th and 25th November 2020 the Learned High Court Judge has clarified that the Order granted was to enable the Applicant to transport out the FFB and the stones from the Applicant's land pending the disposal of the Suit. This is clearly reflected in the Notes of Proceedings dated 24.11.2020 and 25.11.2020 respectively which the Respondents' solicitors have recently obtained from the Secretary to the Learned Judge. The Respondents' solicitors will refer to the said Notes of Proceedings during the hearing of the contempt proceedings. [59] In view of the above, it is therefore clear that the respondents had provided strong reason why they did not allow the applicant the use of the access road. [60] In addition, having read in detail the various affidavits filed by both parties, we accept the contention by the learned counsel for the respondents that it is not unreasonable for the respondents to impose the conditions for the applicant to provide a list of the vehicles and drivers who would be using the access road, together with each lorry's registration card and driver's IC based on the following grounds:

Firstly, it is a standard procedure for the 2nd respondent to inform the third-party security firm who are manning the entry and exit points to know the authorized persons to enter its own plantation, bearing in mind that this is a private property and not a public road.

(ii) Secondly, it is to comply with the standard operating procedure for the agriculture sector in force at the material time. The particulars are not only essential but compulsory because the interim injunction was granted at a time when the Covid-19 pandemic was at its peak.

(iii) Thirdly, as the owner of the plantation land, respondents bears the full responsibility of checking each and every lorry and truck and its occupants passing through its land to ensure the standard operating procedure implemented by the government are fully complied with. This is because any infection inside the plantation could lead to the total shutdown of the operations which could have a crippling effect on its finances. It is thus not unreasonable for respondents to be extra cautious when dealing with the entry of people into its plantations. [61] It is further submitted by the respondents that the learned judge erroneously held that the respondents had exercised double standards in their insistence on the production of the vehicles' registration cards and the NRIC of the drivers. The learned judge ought to have accepted the respondent’s explanation that those documents are necessary to facilitate the independent security personnel in carrying out their duties at the entrance and exit check points of LSH's plantations. The learned judge also failed to recognise that as the undisputed land owner where the access road is situated, respondents is entitled to determine the identity of the persons entering its land, more so when the Movement Control Order was still in place at the material time. [62] We agree with the respondent’s argument on this issue and need say no more. [63] We have also closely examined the judgment of the learned judge and we find that there was lack of positive perception of the facts of this case by the learned judge and in the circumstances in error in ruling that: “…As noted earlier, the Respondents had not provided a cogent reason why they did not allow the Applicant the use of the access road and that the purported reasons were all found to be baseless and or clouded with bad faith”. (see paragraph 38 of the grounds of judgment) [64] It is pertinent to note that intention or mens rea is not an essential ingredient for the purpose of finding a person guilty of contempt of court in general or contempt by a breach or contravention of a court order in particular, as in the instant case. Whether or not the respondents had the intention of committing contempt is to be determined, by reference to all the facts and circumstances of the case here including, most importantly, the conduct of the respondents as mens rea is a mental element in which direct evidence is not easily available. [65] Taken as a whole, to our mind, by any standard, the conduct of the respondents falls far short of wilfully or deliberately disobeying or disregarding to comply with the terms of the Interim Injunction. [66] It is for all these reasons, we find that the respondents cannot be held in contempt. The learned judge was plainly wrong in analyzing the relevant elements in arriving at her decision. Hence, we set aside the High Court order and allowed the 1st and 2nd respondent appeal with costs of RM20,000.00 here and below.

(B) Appeal 1936 (Appeal Against Sentence) [67] Consequently, we dismissed the applicant’s Appeal 1936 with no order as to costs. Date: 6 Mac 2025 - sgd - Azmi bin Ariffin Judge Court of Appeal Malaysia Counsel For the 1st Appellant :

Yapp Chu Chon @ Norbert Yapp 2. Brian Yapp Hon Min [Norbert Yapp & Associates] For the 2nd Appellant :

Yapp Chu Chon @ Norbert Yapp 2. Brian Yapp Hon Min [Norbert Yapp & Associates] For the Respondents : Morgan Tsen [Tan Pang Tsen & Co]