1. ) Mohd Sabri Bin Ismail v 1. ) Tanah Melayu Chemicals Berhad (WA-22NCC-185-04/2021)

MOHD SABRI BIN ISMAIL

MOHD TAUFIK BIN MOHAMAD PUJI

AHMAD AFIFI AFFIQ BIN KHALID (NRIC NO.: 881206-35-5599) … PLAINTIFFS

TANAH MELAYU CHEMICALS BERHAD

SYED AZAUDIN BIN SYED AHMAD (NRIC NO.: 910424–06–5231)

NUR FASEHAH BINTI GHAZALI (NRIC NO.: 900324–11–5466)

MUHAMAD RIDHWAN BIN MUHAMAD ROSLI (NRIC NO.: 890301–11–5109) … DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] Enclosure (Enc.) 57 is the Plaintiffs’ application to commit the 2nd and 4th Defendants to prison or fined for contempt of Court for alleged failure to comply with the terms of an order of Court dated 13.10.2021 (Enc. 45). Background [2] On 13.10. 2021, the Plaintiffs obtained Judgment against the Defendants. The salient parts of the Order in Enc. 45 read: “…THEREFORE, IT IS ORDERED as follows:

A declaratory order that the 1st and 2nd Defendants are found to be jointly and severally liable to have breached the Share Sale Agreement dated 06.03.2020 (the “Agreement”) by way of their failure, neglect, refusal and/or omission to make payment of the Shareholders’ Loan(s), due and owing to the Plaintiffs, in the amount of RM1,500,000.00. as well as all interest sums which are due pursuant thereto;

A declaratory order that the 2nd, 3rd and 4th Defendants are found to be jointly and severally liable to have breached the Deed of Personal Guarantee dated 06.03.2020 (the “Guarantee”) by way of their failure, neglect, refusal and/or omission to make payment of the Shareholders’ Loan(s), due and owing to the Plaintiffs, in the amount of RM1,500,000.00, as well as all interest sums which are due pursuant thereto;

A declaratory order that the Defendants are jointly and severally liable to pay all interest sums, which have and continue to accrue on the Shareholders’ Loan(s) pursuant to Clause 2.3 of the Agreement and Clause 1 of the Guarantee, to the Plaintiffs;

An order for specific performance of the Agreement and/or the Guarantee that the Defendants are jointly and severally liable to pay the Shareholders’ Loan(s), due and owing to the Plaintiffs, in the amount of RM1,500,000.00 within seven (7) days from the date of this Order obtained;

An order for specific performance of the Agreement and/or the Guarantee that interest at the rate of 1.5% per month on the Shareholders’ Loan(s) calculated from 06.06.2020 until date of full and final payment, be payable within seven (7) days from the date of this Order obtained;

Costs of this application shall be paid by the Defendants to the Plaintiffs in the amount of RM20,000.00, subject to allocator fee.” [3] Payment was not made by the Defendants. [4] Leave to commence these contempt proceedings against the 2nd and 4th Defendants was granted by this court on 21.03.2022 in an ex parte application by the Plaintiffs pursuant to Order 52 Rule 3 Rules of Court 2012 (“ROC 2012”). The law [5] The power to punish for contempt has been set out by the Federal Court in Tan Sri Dato (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458; [2012] 2 CLJ 849, where Arifin Zakaria CJ explained: “[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, 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 Courts to punish any contempt of itself. This is repeated in s 13 of the Court 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 contemp 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] 3 MLJ 240; Arthur Lee Meng Kwang v Faber Merlin Malaysia Bhd & Ors [1986] 2 MLJ 193 and Chung Onn v Wee Tian Peng [1996] 5 MLJ 521). “ [6] As to what is contempt, the Federal Court in Monatech (M) Sdn Bhd v Jasa Keramat Sdn Bhd [2002] 4 MLJ 241; [2002] 4 CLJ 401 speaking through Haidar FCJ held that contempt of court is interference with the due administration of justice and further held that the categories of contempt are not closed. [7] 10 years later, in the case of Tan Sri Dato (Dr) Rozali Ismail supra, Arifin Zakaria CJ explained: “Contempt has been reclassified either as (1) a specific conduct of contempt for breach of a particular court order; or (2) a more general conduct for interfering with the due administration or the course of justice. This classification is better explained in the words of Sir Donaldson MR in Attorney-General v Newspaper Publishing Plc, at p 362: Of greater assistance is the reclassification as (a) conduct which involves a breach, or assisting in the breach, of a court order; and (b) any other conduct which involves an interference with the due administration of justice, either in a particular case or, more generally, as a continuing process, the first category being a special form of the latter, such inference being a characteristic common to all contempts per Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at p 449.” [8] It is also settled law that contempt proceedings are criminal in nature because they involve the liberty of the alleged contemnor and as such, has to be proven beyond a reasonable doubt. Arifin Zakaria CJ in Tan Sri Dato (Dr) Rozali Ismail supra went on to say: “[29] It is settled law that committal proceedings are 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. In this regard, Cross J in Re B (JA) (An Infant) [1965] Ch 1112 had this to say: Committal is a very serious matter. The courts must proceed very carefully before they make an order to commit to prison; and rules have been laid down to secure that the alleged contemnor knows clearly what is being alleged against him and has every opportunity to meet the allegations. For example, it is provided that there must be personal service of the motion on him even though he appears by solicitors, and that the notice of motion must set out the grounds on which he is said to be in contempt; further, he must be served as well as with the motion, with the affidavits which constitute the evidence in support of it. It is clear that if safeguards such as these have not been observed in any particular case, then the process is defective even though in the particular case no harm may have been done. For example, if the notice has not been personally served the fact that the respondent knows all about it, and indeed attends the hearing of the motion, makes no difference. In the same way, as is shown by Taylor v Roe, if the notice of motion does not give the grounds of the alleged contempt or the affidavits are not served at the same time as the notice of motion, that is a fatal defect, even though the defendants gets to know everything before the motion comes on, and indeed answers the affidavits. When, however, one passes away from safeguards which are laid down in the interests of the contemnor and comes to consider mere verbal deficiencies in the documents in question — cases where the documents do not comply strictly with the rules, but it is impossible that in any conceivable case the contemnor could be in any way prejudiced by the defects — then it seems to me that there is no reason why the courts should be any slower to waive such technical irregularities in a committal proceeding than they would in any other proceeding. (Emphasis added.) [30] In similar tone, Lord Denning MR in McIlraith v Grady [1968] 1 QB 468 said at p 477: The second appeal is as to the committal order. Here we must remember the fundamental principle that no man’s liberty is to be taken away unless every requirement of the law has been strictly complied with. [31] Later, in Re Bramblevale Ltd [1970] 1 Ch 125, Lord Denning MR reaffirmed the same and had this to say: 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 phrase, it must be proved beyond reasonable doubt (see Lord Denning MR in at p 137).” [9] It is thus incumbent upon the Plaintiffs to prove beyond a reasonable doubt that the 2nd and 4th Defendants have wilfully or deliberately disobeyed or disregarded the Enc. 45 order. In the case of MediaCorp News Ptd Ltd & Ors v MediaBanc (Johor Bahru) Sdn Bhd & Ors [2010] 5 MLJ 562; [2010] 1 LNS 296, Azahar Mohamed J (now CJM) emphasised the same point thus: "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 willfully, 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: "Willfully, 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 willful. 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)." [10] After having read the cause papers, considered the written as well as oral submissions by the Plaintiffs’ counsel, I dismissed the committal application on 29.7.2022. The short point on this application is the timely service of the Order under O.45, r.7(2) ROC 2012, the failure to do so was fatal to the application for committal. Non-compliance with Rules is fatal [11] Order 45, r. 7(2)(a) and (b) ROC 2012 expressly provide that an order requiring a person to do an act shall not be enforced unless the order was served personally on the person before the expiration of the time within which he was required to do the act. Order 45, r. 7(2)(a) and (b) ROC 2012 reads: "(2) Subject to Order 26, rule 7(3), and paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless:

(a) a copy of the order had been served personally on the person required to do or abstain from doing the act in question; and

(b) in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act." (emphasis added) [12] It is incumbent upon this court to first consider that the order dated 13.10.2021 was couched in clear terms which are sufficient to affix criminal liability on the defendants should they commit a breach thereof. The Order enjoins payment to be made within 7 days of the Order i.e. by 20.10.21. Indeed, the grounds for committal in the Order 52, r. 3(2) statement and in Enc. 57 charged that the Order was breached due to non-payment on or before 20.10.2021. [13] By 20.10.21, there was however no service on the 2nd and 4th Defendants when the alleged contempt for breach of Enc. 45 crystallised. [14] The Plaintiffs’ affidavit of service in Enc. 48 shows that the Order in Enc. 45 was instead served on the 2nd and 4th Defendants respectively only on 14.11.21 and 5.11.21 i.e. after a lapse of 24 days and 15 days after the period stated in the Order. [15] There has as such, been a clear breach of the express mandatory requirement under Order 45, r. 7(2)(b) ROC 2012 requiring that the order must be served by 20.10.21. [16] As the order was served after the time limited for the act has expired it cannot be enforced by contempt. The application is doomed to fail. In Iberian Trust Ltd v Founders Trust And Investment Co Ltd [1932] 2 KB 87 Luxmoore J held: “I think it is quite plain from the decision in Duffield v. Elwes (1840) 2 Beav. that that order could not be enforced by penal proceedings, because there can be no default in compliance with an order ordering something to be done within a certain time when the order was not served until after the time within which the act was to be done has expired.” (emphasis added) [17] If an order cannot be served before the time limit for doing an act expires, a supplemental order extending the time fixed must be obtained: Re Seal [1903] 1 Ch 87 (Byrne J). No attempt to extend time was made by the Plaintiffs in this case. [18] The strict requirements of the ROC 2012 must be complied with to the very letter as contempt of court is an offence of a criminal character since the liberty of the alleged contemnors are at stake. [19] In Wong Chim Yiam v Bar Malaysia [2019] 3 MLJ 129; [2019] 2 CLJ 390, Vernon Ong JCA (now FCJ) observed: "[18] Given that contempt proceedings involve the liberty of an individual, committal is a very serious matter. As such, the court must proceed very carefully before making an order to commit to prison. In this light, rules have been promulgated to ensure that the alleged contemnor knows clearly what is being alleged against him and is accorded every opportunity to meet the allegations. For instance, it is expressly provided that an order requiring a person to do an act shall not be enforced unless the order was served personally on the person before the expiration of the time within which he was required to do the act (O 45 r 7(2)(b))." (emphasis added) [20] There was no contempt. [21] For the forgoing reasons, the committal application was dismissed with no order as to costs. Dated: 1st October 2022 -sgd- ….……………………….. Liza Chan Sow Keng Judicial Commissioner High Court of Malaya at Kuala Lumpur COUNSEL: For the Plaintiffs : Ms Yap Sher Min (Messrs David & Paulian) CASES REFERRED: Tan Sri Dato’(Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458 Iberian Trust Ltd. Founders Trust and Investment Co. Ltd [1932] 2 KB 87 Monatech (M) Sdn Bhd v Jasa Keramat Sdn Bhd [2002] 4 MLJ 241; [2002] 4 CLJ 401 MediaCorp News Ptd Ltd & Ors v MediaBanc (Johor Bahru) Sdn Bhd & Ors [2010] 5 MLJ 562; [2010] 1 LNS 296 Re Seal [1903] 1 Ch 87 Wong Chim Yiam v Bar Malaysia [2019] 3 MLJ 129; [2019] 2 CLJ 390 STATUTE/LEGISLATION REFERRED: Order 45 Rule 7(2)(a) and (b), Order 52 Rule 3(2) Rules of Court 2012