Oag Engineering Sdn. Bhd. v Ng Hoe Keong (WA-22IP-42-07/2020)

Content

1 DALAM MAHKAMAH TINGGI DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR GUAMAN NO.: WA-22IP-42-07/2020

Preamble

pursuant to order 52 rule 3 of the Rules of Court 2012 (“ROC 2012”), seeking leave to make an application for an order of committal against: a. The plaintiffs; b. Jonathan Chong, a director of the 1st to 4th plaintiffs (“Jonathan”); and c. Sunida Rahmatullah, a director of the 5th plaintiff (“Sunida”) (collectively, the “Alleged Contemnors”). S/N kZy8O75c90m5khvus9rv3g [2] Leave was granted on 1 August 2024, by way of an order in enclosure 443. Following the grant of leave, the defendants filed an application in enclosure 446, pursuant to order 52 rule 4 of the ROC 2012, seeking an order of committal against the Alleged Contemnors (“Committal Application”). [3] After considering the evidence before the court and the submissions of learned counsel, the court dismissed the Committal Application. The reasons for this decision are set out below. B. Background Facts [4] The plaintiffs filed this action against the defendants for inter alia breach of confidentiality, conspiracy to injure and unlawful interference with the plaintiffs’ trade and business. [5] In the course of these proceedings, the plaintiffs filed an application for an ex-parte Anton Piller order against the defendants, to enter the defendants’ premises to search and seize identified documents in the defendants’ possession. The court granted an ex-parte Anton Piller order on 5 August 2020 (“Ex-Parte APO”) and thereafter an ad-interim Anton Piller order on 25 August 2020 (“Ad-Interim APO”). The Ex-Parte APO and the Ad-Interim APO shall collectively be referred to as the “APO”. [6] The Ad-Interim APO was executed by the plaintiffs between September 2020 to April 2021. S/N kZy8O75c90m5khvus9rv3g [7] On 21 June 2023, the plaintiffs’ application for an inter-parte APO was allowed by the court (“Inter-Parte APO”). [8] On 22 December 2022, the 3rd defendant’s office was raided by the Malaysian Anti-Corruption Commission (“MACC”) (“Raid”). The defendants alleged that the Raid was conducted following a disclosure by the Alleged Contemnors of information obtained in the execution of APO to the MACC, in breach of the APO. [9] It is on this basis that the defendants sought and obtained leave to make an application for an order of committal against the Alleged Contemnors. The Committal Application was filed after leave was obtained. C. Considerations and Findings [10] The filing of the Committal Application by the defendants is premised on the allegation that the plaintiffs had breached an undertaking in paragraph 2 of the Third Schedule of the APO (“Plaintiffs’ Undertaking”). The Plaintiffs’ Undertaking states: “2. The Plaintiffs will not, without the permission of the Court, use any information and/or items and/or documentation obtained as a result of the carrying out of this Order nor inform any person(s) outside of these proceedings except for the purposes of these proceedings (including adding any further parties to the proceedings) or commencing any civil proceedings in S/N kZy8O75c90m5khvus9rv3g relation to the same or related subject matter to these proceedings until after the inter parte hearing date; and” (emphasis added) [11] On its proper construction, the Plaintiffs’ Undertaking prohibits the use or disclosure of materials obtained pursuant to the APO for purposes extraneous to these proceedings, unless leave of court is first obtained. The prohibition is framed in broad terms and extends to disclosure to third parties – which would include investigative authorities – unless such disclosure falls within the permitted purposes stated therein. [12] The defendants claimed that the Raid was conducted following a disclosure of information by the Alleged Contemnors to the MACC, in breach of the Plaintiffs’ Undertaking. It is the defendants’ case that such act is a breach of a court order, namely the APO, and amounts to contempt of court which warrants an order of committal being made against the Alleged Contemnors. [13] It is necessary to emphasise that a breach of the Plaintiffs’ Undertaking would have serious and far-reaching consequences, as it undermines the grant of the APO. When a court grants an Anton Piller order to preserve evidence, the order must necessarily come with an undertaking to protect the confidentiality of information and documents seized. In the absence of such protection, the integrity of the documents and information obtained, and consequently the efficacy of the Anton Piller order, would be diminished. S/N kZy8O75c90m5khvus9rv3g [14] Contempt of court is generally committed when there is conduct that brings the authority and administration of law into disrespect or disregard, and this includes non-compliance with a court order. In Wee Choo Keong v MBF Holdings Bhd [1993] 2 MLJ 217, the Supreme Court held: “It is established law that a person against whom an order of court has been issued is duty bound to obey that order until it is set aside. It is not open for him to decide for himself whether the order was wrongly issued and therefore does not require obedience. His duty is one of obedience until such time as the order may be set aside or varied. Any person who fails to obey an order of court runs the risk of being held in contempt with all its attendant consequences.” (emphasis added) [15] The allegation made against the Alleged Contemnors in this case, which is that of non-compliance with the APO, falls within the category of conduct described in Wee Choo Keong (supra). [16] In an action for an order of committal, the burden lies on the applicant to prove the alleged contempt beyond reasonable doubt (see Tan Sri Dato’ (Dr) Rozali Ismail v Lim Pang Cheong [2012] 2 CLJ 849). This reflects the quasi-criminal nature of such proceedings, where the liberty of the alleged contemnor is at stake. [17] In the present case, upon consideration of the evidence before the court, I made two principal findings which lead to the conclusion that S/N kZy8O75c90m5khvus9rv3g the act of contempt alleged by the defendants to have been committed by the Alleged Contemnors has not been established beyond reasonable doubt. [18] The first finding relates to the claim by the defendants that during the Raid, officers of the MACC: a. Referred to matters relating to the employment of the 4th defendant with the OAG group of companies (“OAG Group”); b. Requested for accounts and projects allegedly secured by the 3rd defendant between 2018 to 2019; and c. Requested for bank statements of the 1st, 2nd, 4th and 5th defendants. [19] The defendants submit that the issues raised and documents requested by the MACC during the Raid demonstrate that information obtained through the APO was used to lodge a report with the MACC, thereby leading to the Raid. [20] I am unable to accept this submission. The matters raised by the MACC during the Raid do not, without more, establish that information obtained through the execution of the APO was disclosed to the MACC. Critically, there is no evidence identifying the source of the information relied upon by the MACC, nor any evidence demonstrating that such information originated from the execution of the APO. It bears reiterating that contempt must be proven beyond reasonable doubt. Given the S/N kZy8O75c90m5khvus9rv3g quasi-criminal nature of committal proceedings, any reasonable doubt must enure to the benefit of the Alleged Contemnors. [21] The second finding relates to the identity of the person who made the report to the MACC. On 25 March 2025, at the request of the defendants’ solicitors, the MACC provided a copy of an investigation paper dated 22 January 2025 relating to the Raid. The document identifies the maker of the report as Hafizah Abu Hassan, a director of the 5th plaintiff and the Human Resource Manager of the OAG Group (“Hafizah”). [22] The defendants contend that the Alleged Contemnors, in particular Jonathan, directed Hafizah to lodge the report. However, no evidence has been adduced to substantiate this allegation. Further, the plaintiffs have admitted that it was Hafizah herself who lodged the report based on the plaintiffs’ internal guidelines. It is material to note that Hafizah is not named as one of the Alleged Contemnors. [23] In the absence of direct evidence, the defendants urged the court to draw an inference from the surrounding facts and the conduct of the parties, that Jonathan directed Hafizah to lodge the report. The defendants relied on Sundram A/L Ramasamy v Arujunan A/L Arumugam [1994] CLJ 300, where the Supreme Court held that a reasonable inference based on objective facts may carry probative value. [24] However, Sundram A/L Ramasamy (supra) concerned a negligence claim arising from a road traffic accident, where the applicable standard of proof is on a balance of probabilities. In the present case, even if an inference could be drawn from the surrounding circumstances, S/N kZy8O75c90m5khvus9rv3g such an inference cannot, in the context of committal proceedings, substitute for proof beyond reasonable doubt. Unlike civil proceedings, where inferences may suffice on a balance of probabilities, the present standard requires cogent and compelling evidence. I find that this threshold has not been met, and that there is insufficient evidence that the Alleged Contemnors had directed Hafizah to lodge a report to the MACC. [25] For completeness, it is important to highlight that one of the Alleged Contemnors, Sunida, has not been present in court throughout proceedings for the Committal Application, despite the defendants’ attempts to serve cause papers on her, and to notify her of these proceedings. During oral submissions, in response to the court’s query, the defendants’ counsel confirmed that the defendants accept that the court’s determination in respect of Jonathan would equally apply to Sunida. D. Decision [26] In light of the foregoing findings, the court finds that the defendants have failed to establish, beyond reasonable doubt, that the Alleged Contemnors breached the Plaintiffs’ Undertaking. The Committal Application is therefore dismissed against all the Alleged Contemnors, with costs. S/N kZy8O75c90m5khvus9rv3g Dated 17 April 2026 ADLIN ABDUL MAJID Judge High Court of Malaya Kuala Lumpur Counsel: Plaintiffs : Ling Hua Keong (together with Chong Yue Thong) of Messrs. Ling & Mok Defendants : Foong Cheng Leong (together with Low Li Qun and Rachel Tan Li Ying) of Messrs. Foong Cheng Leong & Co S/N kZy8O75c90m5khvus9rv3g