1. ) LOW HUEI YING v Andrew Gregory Sewell (Beramal Di Bawah Nama Dan Gaya Tetuan Andrew Sewell) (WA-22NCvC-257-05/2022)

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1 DALAM MAHKAMAH TINGGI DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN, MALAYSIA WRIT SAMAN NO.: WA-22NCVC-257-05/2022

Lampiran

Lampiran 4 melalui emel atas kehendak Defendan. ADALAH PADA HARI INI DIPERINTAHKAN bahawa ad interim berkuatkuasa serta merta sehingga 21.7.2022 terhadap Defendan seperti berikut:- i) Satu perintah injunksi larangan (prohibitory injunction) interim terhadap Defendan daripada menggunakan ataupun membekalkan maklumat-maklumat peribadi Plaintif-Plaintif sama ada secara langsung ataupun secara tidak langsung dalam apa jua kapasiti, melainkan sekiranya dibenarkan oleh Mahkamah Yang Mulia ini; ii) Satu injunksi larangan interim untuk menghalang Defendan daripada berhubung dengan pihak-pihak yang berkaitan samada secara langsung atau tidak langsung dengan prosiding mahkamah yang berlangsung di Belgium yang melibatkan Plaintif-plaintif, melainkan sekiranya dibenarkan oleh Mahkamah Yang Mulia ini; iii) Satu injunksi larangan interim untuk menghalang Defendan daripada berhubung dengan pihak-pihak yang berkaitan yang melibatkan status dan kepentingan Plaintif Kedua di Malaysia ataupun di Belgium; dan iv) Satu injunksi larangan interim untuk menghalang Defendan daripada menghubungi dan/atau komunikasi dengan Plaintif dan/atau pihak-pihak ketiga lain yang turut membantu dalam kesinambungan kehidupan Plaintif-Plaintif secara langsung melainkan melalui peguamcara Plaintif-Plaintif. [8] Thereafter, as gathered from the minutes recorded in the Case Management System (CMS) on 21.07.2022, the presiding Judge at that time, extended the Ad Interim Order until the disposal of Enclosure 17 which was the recusal application of the Plaintiffs’ solicitors filed by the Defendant. [9] Subsequently, on 4.7.2023, Enclosure 17 was dismissed and this Court has allowed the Ad Interim Order to be extended until the hearing of Enclosure 4. Enclosure 4 was then fixed for hearing on the 31.10.2023 but was rescheduled to 26.3.2024, as the Defendant’s counsel had to attend a religious ceremony (‘menunaikan hajat’) in India as stated in his letter to this Court dated 20.10.2023 (Letter L167). Thereafter, Enclosure 4 was further fixed for hearing on the 16.8.2024 and postponed, as I was on a long medical leave post-surgery. Enclosure 4 was later fixed to 2.10.2024 but was vacated as per a letter from the Defendant’s counsel (L187) that he has a part-heard at Sungai Petani High Court which was fixed earlier by that Court as the accused has been in custody for a year and a half under section 39B of the Dangerous Drugs Act. The next hearing date was then fixed on the 22.11.2024 but was also postponed as the Defendant’s counsel was sick on that day. And finally, Enclosures 4 and 16 were both heard and decided on the 21.02.2025. Enclosure 16 [10] In Enclosure 16, the Defendants sought for the following reliefs- (a) bahawa Perintah Sementara dibatalkan secara ab initio “rescinded ab initio" dan satu Pendengaran semula ditetapkan untuk Permohonan Plaintif-Plaintif untuk lnjunksi; (b) atau secara alternatif kepada (a) atas, lnjunksi Sementara yang diperolehi oleh Plaintif-Plaintif pada 24/5/22 dibatalkan secara ab initio “rescinded ab initio”; (c) atau secara alternatif kepada (a) & (b) di atas, lnjunksi Sementara yang diperolehi oleh Plaintiff-Plaintiff pada 24/5/22 dibatalkan dan diketepikan “be Struck Down & Set Aside"; Enclosure 272 [11] In Enclosure 272, the Defendant sought for- 1. Suatu perintah komital terhadap Plaintif Pertama di bawah Aturan 52 Kaedah 4 Kaedah-Kaedah Mahkamah 2012; 2. Mahkamah menjatuhkan hukuman penjara dan / atau denda terhadap Plaintif Pertama; 3. Plaintif Pertama diperintahkan untuk berhenti menggunakan Perintah Sementara secara ultra vires dan extra-judiciously. Parties’ Contention (Enclosure 4) [12] The Plaintiffs pleaded non-disclosure of confidential information. In paragraph 12 of the Plaintiffs’ statement of claim, it was pleaded- "Antara yang lain, maklumat-maklumat peribadi yang dibekalkan adalah seperti berikut:- (i) Butiran kes, latar belakang kes dan kertas-kertas kausa yang terlibat dalam tindakan sivil di Belgium; (ii) Butiran peribadi Plaintif Kedua yang merupakan subjek dalam tindakan tersebut; (iii) Butiran tetang peguamcara Plaintif Pertama iaitu Bornet & Associates dan e-mel kepada firma tersebut.” [13] Another contention of the Plaintiffs is that the Defendant has acted in conflicts of interest against his professional capacity as her solicitor. The Plaintiffs contended that the Defendant is not an ordinary person. He has a fiduciary duty towards the 1st Plaintiff on any professional communications as her former solicitor in accordance with section 126 of the Evidence Act 1950 which reads- “(1) No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment.” [14] The Plaintiffs further contended the Defendant as her solicitor, had confidential information to an ongoing proceeding in Belgium. The subject matter to that proceeding is the 2nd Plaintiff. The Defendant has threatened and did in fact carry out his threats to make disclosures to prejudice the ongoing proceeding in Belgium. This was expressly contained in paragraph 8.56 of the Defendant’s affidavit in reply to the Injunction Application of Enclosure 4 (Enclosure 26) affirmed on 29.6.2022 at exhibit ‘AGS-5’ that the Defendant is ‘duty bound to inform the court in Belgium’ pertaining to the behaviour of the 2nd Plaintiff including reporting to the Immigration Department and his school. [15] The Plaintiffs contended that the threats if carried out will cause irreparable damage and is irreversible. [16] It was not disputed that the 1st Plaintiff and the Defendant had an intimate relationship and was romantically involved and blessed with a son from that relationship. In this regard, the 1st Plaintiff contended that the Defendant has breached his professional capacity pursuant to Rule 3 and Rule 5 of the Legal Profession (Practice and Etiquette) Rules 1978. [17] The Defendant in Enclosure 54, stated that he did not dispute that he had acted as a solicitor for the 1st Plaintiff but only for two (2) occasions while preparing two (2) legal opinions. [18] The Defendant contended that he was first appointed by the 1st Plaintiff on 26.5.2020 and after the legal opinion was emailed to the 1st Plaintiff’s solicitor in Belgium, his appointment ceased. The Defendant then, was again appointed on 20.4.2021 – 2.4.2022 to undertake Legal Opinion No. 2 and once emailed to the 1st Plaintiff’s solicitor in Belgium, his appointment again ceased. [19] The Defendant’s contention in Enclosure 54 is reproduced- “4.1 P1 lied to this Honourable Court to obtain its Imprimatur via the Interim Order for the clandestine purpose of attempting to Gag Defendant from exposing her commission of several crimes – this is the Smoke & 4. Mirrors created by Plaintiffs… 6 A false picture of Defendant as a Johnny Depp has been painted to this Honourable Court by P1 that Defendant is a bully of a single helpless mother and her 11year old son when the actual truth is a 180-degree opposite. 4. Defendant has no malice/hatred towards Plaintiffs… 7 Defendant’s only purpose is to protect his handicapped toddler son on whom P2 committed Assault & Battery on 5/4/22. It is for this that Defendant invited P1 to talk and amicably resolve the serious issue. Only when P1 refused to talk did Defendant inform P1 of the action that he would take…”. [20] The Defendant also contended-i. The Plaintiffs failed to disclose a bona fide serious question to be tried; ii. The Plaintiffs’ allegation that the Defendant has acted in conflict of interest and sacrificed his professional independence is not a triable issue; iii. The Plaintiffs’ allegation that the Defendant is duty bound as a fiduciary to act in a good faith is not a triable issue; iv. The Plaintiffs’ allegation that the Defendant has acted in harass, intimidate and threaten the Plaintiffs is not a triable issue. (Enclosure 16) [21] The Plaintiffs contended that the Ad Interim Order is an Inter-parte Order based on the fact that the Plaintiffs took positive steps to serve the cause papers and inform the Defendant to be present on the hearing date. The absence of the Defendant does not convert an inter-parte application into an ex-parte application. [22] The Plaintiffs submitted that the Ad Interim Order is necessary for the following reasons-i. The Defendant is not an ordinary person. He has a fiduciary duty to the 1st Plaintiff. He was engaged as a solicitor and was provided with confidential information to an ongoing proceeding in Belgium. The subject matter to that proceeding is the 2nd Plaintiff; ii. The Defendant has threatened and did in fact carry out his threats to make disclosures to prejudice the ongoing proceeding in Belgium; iii. The breach was done in the guise of performing an obligation; iv. The cause of action against the Defendant includes harassment; v. The harassment has continued against the Plaintiffs; vi. The threats if carried out will cause irreparable damage and is irreversible. [23] Consequently, the Plaintiffs contended that the Ad-Interim Order was not an ex-parte order as the papers have been duly served on the Defendant but he has failed to attend court. [24] The Defendant as the applicant in Enclosure 16, contended that the Ad-Interim Order is an Ex-Parte Order and may be set aside by the following reasons-i. The cause papers and the notice of hearing were not duly served on the Defendant on or before 24.05.2022; ii. The Plaintiffs failed to give necessary undertaking for damages when applied for an ad interim injunction on 24.05.2022; iii. The Plaintiffs failed to make a full and frank disclosure to this Honourable Court of all relevant facts which they know or ought to know which may be material to exercise the court’s discretion on whether or not to grant the Ad-Interim Injunctions; iv. The Plaintiff have made misleading averments to confuse this Honourable Court. (Enclosure 272) [25] The Plaintiffs contended that-i) The Defendant trivialised and abused a committal application by making scanty and trivial allegations against the 1st Plaintiff. ii) The Defendant’s application was not premised on breach of any order/judgment. iii) The Defendant did not substantiate his allegations with supporting evidence. iv) The Defendant did not descend into the particulars of the contemptuous acts and how these acts frustrate and obstruct the administration of justice. v) The Defendant treated a committal application as a platform to make 48 spurious allegations that he has deemed proven. vi) The Defendant did not rise to the standard of beyond reasonable doubt for all 48 charges that he has levelled against the 1st Plaintiff. [26] The Defendant contended that the Affidavit in Support, affirmed by Low Huei Ying on 17.05.2022 (Enclosure 50) and the Affidavit in Reply, affirmed by Low Huei Ying on 13.07.2022 (Enclosure 41), filed in support of Enclosure 4, contain substantial false and/or misleading statements made by the Plaintiffs in an attempt to obtain an ad interim and interim injunction against the Defendant. The Defendant contended that this is an interference or obstruction in the administration of justice and thus, an act of contempt. ANALYSIS AND FINDINGS [27] Enclosure 16 was filed by the Defendant pertaining to the Ad Interim Order which was granted pending disposal of Enclosure 4. Enclosure 4 was recently heard and disposed on 21.02.2025. [28] Enclosure 16 is an inter parte’s application accompanied by a certificate of urgency. As a matter of fact, based on the fair copy of the Ad Interim Order, the Plaintiffs’ counsel did not proceed with the hearing of the interim injunction in the absence of the Defendant on the first return date. Instead, the Plaintiffs’ counsel prayed for an ad interim injunction and submitted that it necessitated an ad interim injunction which was allowed accordingly. The Ad Interim Order [29] The Ad Interim Order is confined only to prohibitory orders to prevent disclosure and communication of confidential information and an order preventing any disruption and harassment against the Plaintiffs. The purpose of the Ad Interim Order was to maintain status quo until the disposal of Enclosure 4. [30] The Defendant sought to struck off or set aside the Ad Interim injunction on the basis that the Plaintiffs are guilty of inequitable conduct by being dishonest and/or having practiced deception on this Court. The Defendant contended that the position taken by the Plaintiffs was contrary to the position taken in the said affidavits and written submissions. By taking this contrary position it is argued that the Plaintiffs’ have been dishonest and/or have practiced deception on this Court. It was further argued that the remedy of ‘injunction’ is an equitable remedy and that the Plaintiffs did not come to court with clean hands. [31] This Court is of the view that this is not a case of failure to make a full and frank disclosure or a case of suppression of material facts at the time of granting an ad interim injunction. There is no evidence of bad faith on part of the 1st Plaintiff. This Court observed that the 1st Plaintiff’s averments and submissions at that point in time, was only pertaining to the Ad Interim Order, as Enclosure 4 is yet to be heard by this Court. [32] As is the usual practice, at the hearing of an injunction application, it may not be heard on the date that has been fixed. Therefore, upon an oral application by the Plaintiff, the court has power, and usually grants an ‘ad interim injunction’ order. The duration of an ad interim injunction is generally until the disposal of the inter parte’s hearing, unless the court otherwise orders. The purpose of an ad interim injunction is to maintain the status quo until the inter parte’s hearing. In RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3 CLJ 83; [2002] 2 AMR 2457 (CA), the Court of Appeal held- [22] In this country Low Hop Bing J has also granted an ad interim injunction pending the hearing of an application for an interim injunction which was to be heard inter partes in Jakob Renner v. Scott King [1999] 4 MLRH 347; [2000] 5 MLJ 254; [2000] 3 CLJ 569. The learned judge relied on a decision of the court in India in Jagjit Singh Khanna v. Dr Rakhul Das Mullick & Anor AIR [1988] Cal 9 and said:- Applying the principle enunciated in the above case, I am of the view that it is within the jurisdiction of our superior courts to grant ad interim injunction pending the disposal of an application for interlocutory injunction, such as encl 2 in the instant case. This view is in line with the powers of the High Court under s 25 of the Courts of Judicature Act 1964 and the additional powers under para 6 of the schedule to the same Act which include the power to grant injunction in any manner whatsoever. [33] Similarly, in this instant case, the Ad Interim Order expired the same day when Enclosure 4 was heard and allowed. In view of the above, this Court has dismissed Enclosure 16 which sought to struck off or set aside the Ad Interim injunction. [34] Further, on a balance of probabilities, this Court finds that the Plaintiffs’ version of what transpired on 24.5.2022 is more relatable based on the Order given by the Court. It was clear that the Ad Interim Order, was an order given in the absence of the Defendant, who failed to attend the hearing, despite the cause papers being served on him. Nevertheless, this Ad Interim Order is an order even though temporary in nature, is to retain the status quo of the parties until disposal of Enclosure 4. [35] In fact, the Plaintiffs’ solicitors even took a step forward to inform the Defendant of the hearing date, by calling the Defendant, where he requested the documents to be served by email and this was admitted by the Defendant in paragraph 11.2 of his affidavit in support (Enclosure 33). The said email apparently went to spam folder which is clearly not within the Plaintiffs’ control. [36] Finally, this Court finds that whether Enclosure 16 is allowed or dismissed, has become academic, upon disposal of Enclosure 4. As both Enclosures 16 and 4 were heard and disposed together. The Interim Injunction [37] In granting an interim injunction, the following matters must be considered (Bench Book, Civil Procedure (3rd edition)- (a) the plaintiff’s claim against the defendant must disclose a bona fide serious issue to be tried. Plaintiff is to show locus. At this interlocutory stage, the court is not required to make a final determination on the merits of the claim or the rights of the parties; (b) the court must then consider where the justice of the case lies. In determining where the justice of the case lies, the court must consider (1) the harm that the injunction would produce by its grant; and (2) the harm that would result from its refusal, and to a conclusion as to which party would suffer greater injustice. In determining this, the court must consider whether damages would constitute an adequate remedy in respect of the plaintiff’s claim. If damages are adequate, the court should not grant an injunction order; (c) If the relevant factors are evenly balanced, the court should maintain the status quo. (d) An interlocutory mandatory injunction should only be granted in an “unusually strong and clear” or “unusually sharp and clear”.” [38] Further in Keet Gerald Francis Noel John v. Mohd Noor @ Harun Bin Abdullah & 2 Ors [1994] 1 MLRA 454; [1995] 1 CLJ 293; [1995] 1 MLJ 193; [1995] 1 AMR 373, the Court of Appeal held- “[3] A Judge hearing an application for an interlocutory injunction should undertake an inquiry along the following lines: (a) firstly, he must ask himself whether the totality of the facts presented before him discloses a bona fide serious issue to be tried; (b) having found that an issue has been disclosed that requires further investigation, he must consider where the justice of the case lies. In making his assessment, he must take into account all relevant matters, including the practical realities of the case; the Judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and intended to maintain the status quo.” [39] Order 29 of the ROC provides that an interim injunction or an interlocutory (temporary) injunction is an order against a legal entity directing them to do or not to do a specified act or acts until the determination of the plaintiff’s claim at full trial. It may be granted at any stage of a suit (Bank Islam Malaysia Berhad v Tinta Press [1985] CLJU 73; [1985] 1 LNS 73 [1986] 1 MLJ 256, Karuppannan s/o Chellapan v Balakrishnan s/o Subban [1994] 3 MLJ 584; [1994] 4 CLJ 479; [1994] 3 AMR 2279). [40] Generally, a prohibitory injunction order is an order restraining the Defendant from doing something (Section 52 of the Specific Relief Act 1950; Gibb & Co v Malaysia Building Society Bhd [1982] 1 MLRA 283; [1982] 1 MLJ 271; [1982] CLJ 99; Victoria Enterprise v Chin Wei Yoon [2004] CLJU 470; [2005] 2 MLJ 743). [41] In most circumstances, the Plaintiff is usually expected to provide an undertaking as to damages. It may be stated in the application itself or in the affidavit in support but an undertaking is not a mandatory requirement for an injunction (Dato’ Tan Toh Hua v Tan Toh Hong & Ors [2001] 1 MLJ 369; [2001] 1 CLJ 732, Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors [1988] 1 MLRH 132; [1988] 3 MLJ 90; [1998] 1 CLJ (Rep) 435, Pengkalen Securities Sdn Bhd v Leow Li Lain [1996] 3 MLRH 463; [1997] 5 CLJ 440). [42] In Dato’ Tan Toh Hua (supra), the Court of Appeal held- “[10] As to the issue of the petitioners' failure to provide an undertaking as to damages, we agree with Edgar Joseph Jr J (as he then was) when in the case of Cheng Hang Guan & Ors v. Perumahan Farlim (Penang) Sdn Bhd & Ors [1988] 1 MLRH 132; [1988] 3 MLJ 90; [1998] 1 CLJ (Rep) 435 he said: In any event, the court will not generally deny a plaintiff an interlocutory injunction to which he would otherwise be entitled simply on the ground that his cross undertaking in damages would be of limited or of no value. So, for example, in Allen v. Jambo Holdings Ltd. the Court of Appeal held, when granting a Mareva injunction, that a cross undertaking was acceptable from the plaintiffs although he was legally aided. The rationale behind this was that questions of financial ability ought not to affect the position in regard to what is the essential justice of the case. [11] In fact the case of Pengkalen Securities Sdn Bhd v. Leow Li Lain [1996] 3 MLRH 463; [1997] 5 CLJ 440 held that it was not necessary for the plaintiff to give an undertaking as to damages since the injustice that could be caused to the plaintiff was very great if the injunction was not allowed. We would hold the same view in the light of the facts and circumstances existing in this appeal.”. [43] In ESPL (M) Sdn Bhd v Radio & General Engineering Sdn Bhd [2005] 2 MLJ 422; [2004] 4 CLJ 674; [2004] 6 AMR 119, the Court of Appeal held that the requirements for an application for a mandatory injunction are the same as those for an application for a prohibitory injunction. [44] The basis for Enclosure 4 is to preserve the status quo of the parties and to prevent an action by a party under an obligation (See American Cynamid v Ethicon [1975] AC 396, Keet Gerald Francis Noel John v Mohd Noor @ Harun Abdullah & Ors [1994] 1 MLRA 454; [1995] 1 CLJ 293; [1995] 1 MLJ 193; [1995] 1 AMR 373 and section 4(c) of the Specific Relief Act 1950). There are Issues to Be Tried [45] The facts of this Suit are clear: the 1st Plaintiff is a party to an ongoing custody proceeding in Belgium. The 2nd Plaintiff is a minor and he is the subject matter of the ongoing proceeding in Belgium. The Defendant is a solicitor and was retained by the 1st Plaintiff. The 1st Plaintiff contended that the Defendant has confidential information belonging to the Plaintiffs. The threats made by the Defendant relate to the ongoing proceedings in Belgium which would be detrimental to the Plaintiffs. [46] At this stage, this Court only needs to determine whether the totality of the facts presented before this Court, discloses bona fide serious issues to be tried. The general view of ‘a serious question to be tried’ means that the action is not frivolous or vexatious. [47] The Plaintiffs pleaded non-disclosure of confidential information pertaining to court proceedings in Belgium. In Interstate M & E Sdn Bhd & Ors v. Fore-Sight Trading Sdn Bhd & Ors [2007] 1 LNS 220; [2007] 4 MLRH 891; [2007] 6 MLJ 677 at p 697, it was held- "The object of an interlocutory injunction is to protect the plaintiffs here against injury of their rights which could not be adequately compensated by damages recoverable in the action if the uncertainty is resolved in his favour at the trial. If there is a risk of substantial injury or prejudice to the plaintiffs despite any rights to damages that the plaintiffs here may have through apprehended or continuing breaches before the final hearing of the proceedings, prima facie the plaintiffs would be entitled to the grant of an interlocutory injunction. But, if it appears that interlocutory relief will cause hardship or inconvenience to the defendants or even to third parties then the court will, in exercising its discretion, decide as to where the balance of justice would like... The correct test to apply would be the test as propagated by Turner LJ in Munro v. Wivenhoe and Brightlingsea Ry Co [1865] 4 De GJ &S 723 at p 733 and that test is worded in this way: This court when called upon to grant an interlocutory injunction will act according to the justice of the case as ascertained upon the evidence before it and according to the comparative injury which may arise from granting or withholding the injunction. " [48] This Court will not determine the conflict and liability as detailed considerations would be carried out at trial. This Court agrees with the Plaintiffs that the claims are not frivolous or vexatious. Furthermore, this Court opines that the Plaintiffs would not be adequately compensated should the Plaintiffs eventually win the Suit. This is because the communications and dissemination of information by the Defendant would likely be detrimental to the Plaintiffs in the Belgium Proceedings. [49] Thus, the Plaintiffs have satisfied this court that there is a bona fide and serious question to be tried in respect of the Plaintiffs’ cause of action against the Defendant. Balance of Convenience [50] This Court is of a considered view that on a balance of convenience, that it would cause more harm to the Plaintiffs if the interim injunction is not granted. On the contrary, in the event the interim injunction is granted, this would have the effect of maintaining the status quo of the parties until the disposal of this Suit. [51] It can be seen of the possibilities if the Plaintiffs fail at the trial, all that the Defendant would suffer because of the injunction, is that he would not be able to disclose confidential information of the Plaintiffs pertaining to the proceedings in Belgium. In contrast, if the injunction is refused and the Plaintiffs should succeed in their claim, they would suffer loss and inconvenience. [52] Therefore, upon considering and taking into account all the relevant matters, including the practical realities of this case by weighing the harm that this interim injunction would produce if granted, against the harm that would result from its refusal, this Court comes to the conclusion that the Plaintiffs would suffer greater injustice if relief is withheld. Thus, the Plaintiffs should be entitled for the injunction. [53] Furthermore, damages are not an adequate remedy for the Plaintiffs. It is not possible to assess the amount of damages the Plaintiffs would have suffered if they win at trial. Therefore, the balance of convenience lies in favour of a grant of the interim injunction. [54] As such, this Court finds that it would be just and equitable that the Plaintiff's interest be protected by immediate issue of an injunction, otherwise irreparable injury and inconvenience would result (Gibb & Co v Malaysia Building Society Bhd [1982] 1 MLRA 283; [1982] 1 MLJ 271; [1982] CLJ 99, and Shepherd Homes Ltd v Sandham [1970] 3 All ER 402; [1971] 1 Ch 340). The Law on Contempt [55] The Federal Court in the case of Tan Sri Dato’ Dr Rozali Ismail & Ors v Lim Pang Cheong & Ors [2012] 2 MLRA 717; [2012] 3 MLJ 458; [2012] 2 CLJ 849; [2012] 2 AMR 429 held- “[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.”. [56] It is trite that the standard of proof in a committal proceeding is to prove beyond reasonable doubt. In Tan Sri Dato’ Dr Rozali Ismail (supra), the Federal Court held- “[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.”. (Emphasis Added) [57] Further, in the case of Tan Sri Dato’ Kam Woon Wah v Dato’ Seri Andrew Kam Tai Yeow & Anor [2024] MLJU 2725; [2024] MLRHU 1144, where the case of Edmund Ming Kwan v Extra Excel (Malaysia) Sdn Bhd & Ors (No 2) [2007] 9 CLJ 400, was referred, the Court held- ‘In dealing with the issue of whether a statement made by a contemnor was intended to be false and misleading and whether it was made with actual intention of interfering with due administration of justice, one has to look at the requirement sets out in Edmund Ming Kwan (supra) where Vincent Ng J had summarized the following: “[4] On the question whether the statement was intended to be false and misleading (mens rea) and whether it was made with actual or inevitable intent or consequence of frustrating or obstructing the administration of justice, this court would have to: (i) firstly, look at the relationship between the alleged false statements and the issues to be decided in the main proceedings (see Keeley v Brooking [1979] 25 ALR 45); (ii) secondly, bear in mind that unlike the offence of perjury, contempt requires the actual or inevitable intent or consequence of frustrating or obstructing the administration of justice (see Jaginder Singh & Ors v Attorney-General [1983] CLJ (Rep) 176 at 179, Coward v Stapleton [1953] 90 CLR 573, Re Bride, Ex-parte Steward [1984] WB 455, R v Christopher Charles Murfett [2004] VSC 160 and Halsburys Laws of England, 4th Ed Vol 9(1) pp 242 – 243); (iii) thirdly, be mindful that a ‘mere falsity of evidence is not enough to justify a contempt charge’ (see Yee Sang Metal [2002] HKCU 1255); and, (iv) fourthly, be slow to draw inferences from affidavits as to the bona fides or mala fides of the alleged contemnor (see in Re Smith and Fawcett Ltd [1942] Ch 304)”. [Emphasis added]”. [58] The Defendant main complaint is the allegations of false and misleading statements in the 1st Plaintiffs’ affidavits. In this regard, the case of Tan Sri Dato’ Kam Woon Wah (supra) held- ‘In the current scenario, the crucial elements of a demonstrated intention by the Defendants to obstruct the course of justice are absent from the Plaintiff’s statement. Furthermore, the Plaintiff has not furnished details on how the administration of justice is purportedly affected in both Suit 822 and Suit 114. This alone should be sufficient to allow the Defendants their applications with costs.’ [59] This Court agrees with the Plaintiffs’ submission, that the Defendant did not satisfy the 3 ingredients as elaborated in Edmund Ming Kwan @ Kwaun Yee Ming, Edmund v Extra Excel (Malaysia) Sdn Bhd & Ors (Part 1) [2007] 7 MLJ 250; [2007] 9 CLJ 373- ‘To prove an offence of criminal contempt the petitioner would have to establish or clinch three essential ingredients namely: (i) the statement deposed to is in fact false and misleading (actus reus); (ii) the statement was intended to be false and misleading (mens rea); and, iii) the statement was made with the actual or inevitable intention or consequence of frustrating or obstructing the administration of justice or interferes with or impedes the administration of justice.’ [60] Further, in Edmund Ming Kuan (supra) it was held- “The court should be slow to allow the cross-examination of the respondents on the grounds that the affidavits filed in interlocutory proceedings allegedly contain misleading information. This is because such a decision would set a dangerous precedent for our courts by opening the floodgates for similar strategies to be adopted by litigants even in cases such as urgent injunction applications. Surely, to condone or to approve of this strategy would severely impair the court's viability in the administration of justice. Hundreds of affidavits are filed in our courts everyday, most of which contain statements of facts which are in dispute. If litigants could file motions for contempt founded on contents of affidavits and then allowed to cross-examine the deponent on such affidavits, our courts would be bogged down with contempt proceedings rather than have the true and substantial relief sought litigated.”. [61] The above cited cases were relied upon by the Plaintiffs and this Court agreed that, if the Defendant’s contention was to challenge the veracity of the facts deposed by the 1st Plaintiff, the Defendant ought to establish the truth or falsehood of the impugned statements. Otherwise, the allegations of falsehood are not proven. In this case, this Court is not persuaded that, just because the wordings in the 1st Plaintiff’s affidavit were interpreted differently by the Defendant, the statements are false or misleading. [62] Furthermore, the number of 48 counts of charges premised on allegations of false and misleading information in the affidavits, are massive. The Defendant definitely has to prove all the 48 charges and he has to prove them, beyond reasonable doubt. [63] In this regard, the Court is of the view that the Defendant has failed to prove that the impugned statements have frustrated or obstructed the administration of justice. [64] Accordingly, as submitted by the Plaintiffs, the Defendant’s application was not premised on the breach of an order/judgment, instead it was for making alleged false and misleading statements and based on the requirements needed in the case of Edmund Ming Kuan (supra), the Defendant has failed. [65] Likewise, in Tan Sri Dato’ Kam Woon Wah (supra) it was held- ‘In the current scenario, the crucial elements of a demonstrated intention by the Defendants to obstruct the course of justice are absent from the Plaintiff’s statement. Furthermore, the Plaintiff has not furnished details on how the administration of justice is purportedly affected in both Suit 822 and Suit 114. This alone should be sufficient to allow the Defendants their applications with costs.’ [66] It was undisputed that Enclosure 252 is not consequent to a breach of an order or judgment. Instead, the Defendant contended that there was an interference of the due administration of justice by the false/misleading Affidavits of the 1st Plaintiff and relied on the second part of contempt consisting of any other conduct that involves an interference with the due administration of justice as held in Tan Sri Dato’ Dr Rozali Ismail (supra)- “[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… [27] This reclassification was adopted by the Court of Appeal in Jasa Keramat Sdn Bhd v. Monatech (M) Sdn Bhd [2001] 1 MLRA 602; [2001] 4 MLJ 577. [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.”. [67] Further, in Jasa Keramat Sdn Bhd v. Monatech (M) Sdn Bhd [2001] 1 MLRA 602; [2001] 4 CLJ 549; [2001] 4 MLJ 577; [2001] 4 AMR 4241, the Court of Appeal held- [101] Lastly, we would like to say that we are aware of the far-reaching consequences of this decision as this is perhaps the first time in this country that the court finds a person guilty of contempt not for breach of a particular order of court but for conduct of interfering with the due administration of justice or the course of justice, by disposing the subject matter of a pending proceeding under questionable circumstance to questionable people to frustrate the outcome of the proceedings and the execution thereof. This judgment must not be understood to mean that whenever there is a pending proceeding, any disposal of the subject matter of the proceedings or the assets of one of the parties thereto is contempt. No, far from it. Whether an act amounts to an interference with the due administration of justice or the course of justice and therefore contempt, or not, depends on the circumstances of each case. The act, as stated by Lloyd LJ in Attorney-General v. Newspaper Publishing PLC [1988] 1 Ch 33 (CA) must be sufficiently serious and sufficiently closely connected with the particular proceedings. The court will have to consider whether the act is done in good faith, in the ordinary course of business or whether it is one with a view to frustrate the proceedings thus rendering any subsequent order of court ineffective and fruitless. We do not think we can draw an exhaustive list, because, as in all cases, it depends on the circumstances of each case. However, we are certain that he who is honest should have nothing to fear but he who is not should have a lot to ponder.”. [68] Therefore, the law of contempt is wide enough to cover for situations when there is an interference in the administration of justice and even covers any other parties who assisted those who are bound by the Court orders. So, the question is, does the Affidavits of the 1st Plaintiff contained false and misleading statements that constitute an interference/obstruction in the administration of justice? [69] This Court is not convinced that the Defendant has proven the charges in his statement against the 1st Plaintiff, beyond reasonable doubt, hence it ought not be allowed. [70] This Court is not persuaded to agree with the Defendant that the affidavits of the 1st Plaintiff as contradicting. The most important to this Court is, what was meant by the 1st Plaintiff. The affidavits do not contain insulting remarks and offensive language and also free from scandalous or oppressive matter (see O41 R6 of the ROC and Repco (M) Sdn Bhd v. Tan Tho Fatt & Ors [2003] 6 CL J 478; [2003] 1 LNS 211; [2003] 6 MLJ 146). [71] Therefore, this Court agrees with the case of Tan Sri Dato’ Kam Woon Wah (supra), relied upon by the Plaintiffs. Furthermore, the Defendant has failed to prove his claim without reasonable doubt. There is a matter of interpretation of the words referred to in the affidavits. Above all, the Defendant is not without remedy to state his position and proof his case during trial proper. [72] In any event, the Defendant has failed to convince this Court about the false and/or misleading statements in the Plaintiffs’ affidavits and put forth his position on how these obstruct or interfere with the administration of justice. CONCLUSION [73] Therefore, based on the above deliberations, Enclosure 4 is allowed. Accordingly, Enclosure 16 and 272 are dismissed with costs. -SGD- (DR. SUZANA BINTI MUHAMAD SAID) JUDICIAL COMMISIONER OF THE HIGH COURT NCVC 1 KUALA LUMPUR Dated: 30 APRIL 2025 COUNSELS FOR THE PLAINTIFFS Tetuan Seah Balan Ravi & Co. Peguambela & Peguamcara Unit A, Tingkat 13, Wisma 1 Alliance No. 1, Lorong Kasawari 4B, Taman Eng Ann 41150 Klang Selangor Darul Ehsan FOR THE DEFENDANT Tetuan Manjit Singh Sachdev, Mohammad Radzi & Partners Peguambela & Peguamcara Suite 18.05A, Tingkat 18, Johor Bahru City Square (Office Tower) No. 106-108, Jalan Wong Ah Fook Ibrahim International Business District 80888 Johor Bahru Johor Darul Takzim