P O H v XXXX (33A-1398-07/2012)

This was the Petitioner-Wife's application under Order 52 rule 4 of the Rules of Court 2012 (“Rules of Court”) to cite the Petitioner-Husband for contempt for allegedly breaching court orders, granted in August 2012 and varied in October 2021 (collectively “the Court Orders”), concerning child maintenance payments.

In the interest of privacy of the parties concerned and due to the sensitivity of the issues, the Petitioner-Husband and Petitioner-Wife have been anonymised as KOH and POH, while the children of the marriage have been anonymised as SOH and MOH. The factual background [3] The Petitioner-Husband, and Petitioner-Wife (collectively “the Parties”), aged 51 and 46 respectively at the time of the hearing of this Application, were married in 2004 and were blessed with two children, SOH and MOH, born in 2008 and 2009 respectively. (“the Children”).

In August 2012, the Parties’ marriage was dissolved and an Amended Decree Nisi was granted (“the August 2012 Court Order”). One of the terms of the August 2012 Court Order was for the Petitioner-Husband to pay monthly child maintenance in the amount of MYR2,000. The term read:

…

(vi) Pempetisyen Suami akan membayar kepada Pempetisyen-Isteri secara bulanan sebanyak RM2,000 dalam masa tujuh hari pertama setiap bulan sebagai sumbangan terhadap pembelanjaan 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 3 pembelajaran anak-anak perkahwinan tersebut termasuk semua kos sampingan, buku-buku sekolah, alat-alat tulis, aktiviti kurikulum tambahan, yuran sekolah, yuran tuisyen dan untuk premium insurans untuk nombor polisi **** dan **** untuk MOH dan SOH masing-masing dan kos perubatan dan pembantu rumah. Ianya dipersetujui bahawa apabila tiba tempoh matang, hasil polisi akan digunakan untuk pembelajaran anak-anak. Perbelanjaan bagi permohonan untuk pembantu rumah baru atau memperbaharui visa pembantu rumah akan dikongsi bersama; [5] Since 2013, the Petitioner-Husband failed to comply with the maintenance payment obligations stipulated by the August 2012 Court Order. Faced with the burden of supporting both herself and the Children, the Petitioner-Wife was compelled to accept the Petitioner-Husband's offer to reside with him, which she did from 2016 until March

Despite such living arrangement, the Petitioner-Husband persistently refused to fulfill his legal obligation to provide the court-ordered monthly maintenance. As a result, the Petitioner-Wife continued to bear the financial responsibility for the Children without the support that had been previously mandated. [6] In March 2021, the Petitioner-Wife claimed that she and the Children were forced to leave the Petitioner-Husband's residence. [7] In August 2021, the Petitioner-Wife filed an application for ancillary relief to vary (“the Variation Application”) the maintenance order, seeking monthly amounts of MYR5,000 and MYR3,000 for SOH and MOH respectively. She argued that both Children required additional funds, since SOH had been diagnosed with mild Autism Spectrum Disorder, Asperger Syndrome, and Attention Deficit Hyperactive 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 4 Disorder (“ADHD”), while MOH suffered from chronic eczema requiring ongoing treatment and medication. [8] In October 2021, the Court allowed the Variation Application which included a prayer for the Petitioner-Husband to pay MYR74,000 in maintenance arrears from July 2018 to July 2021, based on the August 2012 Court Order (“the October 2021 Court Order”). The relevant terms of the October 2021 Court Order included:

Bagi anak perkahwinan SOH:- (1.1) Pempetisyen Suami akan membayar kepada Pempetisyen Isteri secara bulanan sebanyak RM5,000 mulai Ogos 2021 pada atau sebelum hari ketujuh (ke-7) setiap bulan sebagai nafkah bagi SOH, sehingga SOH tidak lagi dalam keadaan hilangupaya (on the ceasing of his disabilities); (1.2) Nafkah untuk SOH di atas adalah tertakluk kepada peningkatan pada kadar 8% setiap tahun dan nafkah ini adalah tidak termasuk kos pendidikan tahap tinggi (tertiary education) SOH; (1.3) Pempetisyen Suami akan membayar kesemua kos pendidikan (termasuk tetapi tidak terhad kepada yuran sekolah / universiti, kos sampingan, pakaian seragam, buku-buku, alat-alat tulis, dan komputer / tablet yang diperlukan untuk pendidikan), perubatan, pergigian, optikal serta insurans bagi SOH sehingga SOH tidak lagi dalam keadaan hilangupaya (on the ceasing of his disabilities);

Bagi anak perkahwinan MOH:- (2.1) Pempetisyen Suami akan membayar kepada Pempetisyen Isteri secara bulanan sebanyak RM3,000 mulai Ogos 2021 pada atau sebelum hari ketujuh (ke-7) setiap bulan sebagai nafkah untuk MOH, sehingga MOH tamat pelajaran ijazah sarjana muda pertama (first bachelor’s degree); (2.2) Nafkah untuk MOH di atas adalah tertakluk kepada peningkatan pada kadar 8% setiap tahun dan nafkah ini adalah tidak termasuk kos pendidikan tahap tinggi (tertiary education) MOH; 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 5 (2.3) Pempetisyen Suami akan membayar kesemua kos pendidikan (termasuk tetapi tidak terhad kepada yuran sekolah / universiti, kos sampingan, pakaian seragam, buku-buku, alat-alat tulis, dan komputer / tablet yang diperlukan untuk pendidikan), perubatan, pergigian, optikal serta insurans bagi MOH, sehingga MOH tamat pelajaran ijazah sarjana muda pertama (first bachelor’s degree).

Pempetisyen Suami membayar balik tunggakkan nafkah anak-anak perkahwinan RM2,000 sebulan bagi bulan Julai 2018 sehingga bulan Julai 2021, yang berjumlah sebanyak RM74,000 kepada Pempetisyen Isteri dalam tempoh masa tujuh (7) hari dari tarikh Perintah ini. [9] In March 2022, the Petitioner-Wife initiated garnishee proceedings against the Petitioner-Husband to recover MYR138,000 in arrears at that time for the Children’s maintenance. In May 2022, pursuant to the garnishee proceedings, the Petitioner-Wife had recovered only MYR31,174.51. [10] In July 2022, the Petitioner-Husband filed an application to set aside, vary, or amend the October 2021 Court Order ("the Setting-Aside Application"). The Setting-Aside Application was dismissed in February 2023. [11] The Petitioner-Husband continued to refuse payments under both Court Orders, which now totalled MYR266,825.49. Due to this ongoing breach, the Petitioner-Wife obtained leave in November 2023 to commence committal proceedings against the Petitioner-Husband for violating the terms of the Court Orders. The issues [12] The issues for consideration were (a) whether the amount claimed by the Petitioner-Wife was lawful; (b) whether the Court Orders could be 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 6 enforced through committal proceedings; (c) whether the Petitioner-Husband had willfully refused to comply with the Court Orders; and (d) whether this Application was filed in bad faith. [13] This Application was allowed with costs for the following reasons. Contentions, evaluation, and findings Whether amount claimed by the Petitioner-Wife was lawful [14] In opposing this Application, the Petitioner-Husband had averred that the amount claimed by the Petitioner-Wife was not in accordance with the law in that it was contrary to sections 86 and 98 of the Law Reform (Marriage & Divorce) Act 1976 (“Law Reform (Marriage & Divorce) Act”), both of which read: Section 86 – Recovery of arrears of maintenance

Subject to subsection (3), arrears of unsecured maintenance, whether payable by agreement or under an order of court, shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his or her bankruptcy and, where they accrued due before his or her death, shall be a debt due from his or her estate.

Subject to subsection (3), arrears of unsecured maintenance which accrued due before the death of the person entitled thereto shall be recoverable as a debt by the legal personal representatives of such person.

No amount owing as maintenance shall be recoverable in any suit if it accrued due more than three years before the institution of the suit. ***** Section 98 – Recovery of arrears of maintenance Section 86 shall apply, mutatis mutandis, to orders for the payment of maintenance for the benefit of any child. 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 7 [Emphasis added.] [15] The Petitioner-Husband contended that the amount of MYR74,000 in maintenance arrears claimed by the Petitioner-Wife was based on the August 2012 Court Order, and as such, the Petitioner-Wife was barred from claiming such arrears due to the three-year limitation period stipulated in section 86(3) of the Law Reform (Marriage & Divorce) Act. However, I found his contention unacceptable for the following reasons. [16] First and foremost, it was important to note that these averments were not affirmed in the Petitioner-Husband’s affidavit in reply. In fact, in his affidavit in reply, the only defence he raised was one of impecuniosity, claiming that he was unable to comply with both Court Orders due to financial hardship. [17] Given this, I agreed with the Petitioner-Wife’s argument that the Petitioner-Husband must strictly adhere to the issues raised in his pleadings and should not be allowed to roam beyond the same. This principle was clearly established by the Federal Court in Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944; [2015] 6 MLJ 10, where Justice Ramly Ali FCJ stated in the following passages: [29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded.... [30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428, had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd v. 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 8 Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [Emphasis added.] [18] The Petitioner-Husband’s conduct in raising this argument at the submission stage was inequitable as it prejudiced the Petitioner-Wife. It was essential to remember that the purpose of pleadings is to prevent surprise to the opposing party, as a matter of natural justice, according to procedural rules. ‘A "defence by ambush" should not be allowed to continue as part of our procedural law when it results in injustice to a litigant’, as stated by Zaleha Zahari JCA (as she then was) in Tengku Ismail Tengku Sulaiman & Ors v. Sia Cheng Soon & Anor [2006] 3 CLJ

[19] Therefore, the Petitioner-Husband's argument regarding the application of sections 86(3) and 98 of the Law Reform (Marriage & Divorce) Act was unacceptable. [20] Even if I had considered his argument regarding the application of these sections, I would have rejected it for the following reasons. [21] The Petitioner-Husband argued that the amount of MYR74,000 claimed by the Petitioner-Wife in maintenance arrears was not in accordance with the law, as it was based on the August 2012 Court Order, granted more than three years ago. He relied on the High Court case of Re Pan Kok Fai & Anor [2020] CLJU 1731, where the petitioner-wife in that case, had commenced committal proceedings against the petitioner-husband 11 years after the cause of action for non-payment of maintenance arose. In that case, the High Court held 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 9 that the petitioner-wife should have filed an action to recover the arrears as a debt, as she was barred by sections 86(3) and 98 of the Law Reform (Marriage & Divorce) Act. [22] In my view, Re Pan Kok Fai & Anor may be distinguished. In that case, the petitioner-wife waited 11 years after the cause of action for non-payment of maintenance accrued before initiating committal proceedings. Thus, she was beyond the time period prescribed by sections 86 and 98 of the Law Reform (Marriage & Divorce) Act. [23] In the present case, the Petitioner-Wife filed the Variation Application in August 2021 to recover maintenance arrears from July 2018 to July 2021, which covered a period of three years preceding the filing. The Court allowed this application in October 2021, and in this Application filed in November 2023, which was within three years from the October 2021 Court Order, she sought to enforce the maintenance arrears. [24] Therefore, the cause of action for the Petitioner-Wife to initiate committal proceedings for the amount of MYR74,000 in maintenance arrears accrued on 2 November 2021, after the lapse of the time specified in the October 2021 Court Order. The amount of MYR74,000 was recognised by the Court as a debt due by the Petitioner-Husband to the Petitioner-Wife, payable within seven days from 25 October 2021, which would have been on or before 2 November 2021. [25] Thus, the Petitioner-Husband’s contention that the amount claimed by the Petitioner-Wife was not in accordance with the law had no merit. 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 10 Whether Court Orders could be enforced through committal proceedings [26] The Petitioner-Husband contended that the amount due under the Court Orders were not recoverable by way of committal proceedings, on the authorities of Hong Leong Bank Bhd v. Phung Tze Thiam [2008] 4 CLJ 742, and Lee Lay Ling v Goh Kim Nam & Cheah Pei Ching [2014] 8 MLJ 805. [27] I could not accept the Petitioner-Husband’s argument for the following reasons. As mentioned earlier, this averment was not included in the Petitioner-Husband’s affidavit in reply. Therefore, the Court could not consider an argument that was not properly pleaded. [28] Moreover, despite the authorities cited by the Petitioner-Husband, the decisions in Hong Kwi Seong v. Ganad Media Sdn Bhd [2013] 2 MLJ 251 and Khoo Peng Lai v. Tan Ah Hin & Ors [2017] 1 LNS 2144 remain valid and applicable precedents. In the latter case, Mohd Nazlan Mohd Ghazali J (as he then was) stated in the following passages: [52] In this context, I do not consider that the respondents had willfully and contumaciously disobeyed the Amended Order, more so as there is a difference of opinion whether the law permits enforcement of payment of money or money judgment by committal proceedings. On the one hand there are cases such as the Court of Appeal decision in Hong Leong Bank Berhad v. Phung Tze Thiam @ John Phuang [2008] 4 CLJ 742 which held that an order for payment of a monetary judgment cannot be enforced by means of a committal proceedings. The Court of Appeal in Hong Kwi Seong v. Ganad Media Sdn Bhd [2013] 9 CLJ 277; [2013] 2 MLJ 251 on the other hand took the opposite position. [53] It is of interest to observe that the Singapore Court of Appeal in Mok Kah Hong v. Zheng Zhuan Yao [2016] SGCA 8 discussed the divergence, preferred the view pronounced in Hong Kwi Seong, and suggested that "a distinction ought to be drawn between a judgment or order for the payment of money within a specified time, to which an order of committal is available as a mode of enforcement, and a judgment or order for the payment of 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 11 money simpliciter without a specified timeframe, to which an order of committal will not be available." [Emphasis added.] [29] The Petitioner-Husband was clearly obligated to pay child maintenance by the deadlines specified in both Court Orders. However, he willfully refused to make these payments within the prescribed timeframes set by the Court Orders. [30] Under Order 45 rule 5(1)(a) of the Rules of Court, the Court Orders are enforceable through committal proceedings. The provision states: Order 45 – Enforcement of judgment and orders Rule 5 – Enforcement of judgment to do or abstain from doing an act

Where-

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

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

(A) with the leave of the Court, an order of committal;

(B) where that person is a body corporate, with the leave of the Court, an order of committal against any director or other officer of the body;

(C) subject to the provision of the Debtors Act 1957, an order of committal against that person or, where that person is a body corporate, against any such officer. [Emphasis added.] 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 12 [31] Therefore, the argument that the Court Orders were not enforceable through committal proceedings was without merit. Whether Petitioner-Husband had willfully refused to comply with the Court

[32] In opposing the committal proceedings, the Petitioner-Husband did not dispute the amount claimed by the Petitioner-Wife, nor did he deny non-compliance with the terms of the Court Orders. Instead, he relied on affidavits filed pursuant to the Setting-Aside Application, which included various allegations about incidents that occurred before the Variation Application was filed. [33] He argued that the Petitioner-Wife had never requested maintenance payments during the period when they and their Children lived together from 2016 to 2021. Additionally, he asserted that he had been experiencing significant health and financial problems, which he attributed to the actions of the Petitioner-Wife. The Petitioner-Husband also expressed dissatisfaction with the Court Orders, referring to them as "unreasonable and wholly unconscionable," and claimed he did not agree to the terms of the August 2012 Court Order. He further alleged that due to his declining health and financial struggles, he was unable to secure adequate legal representation to contest the Variation Application effectively. [34] I found the Petitioner-Husband’s arguments unconvincing for several reasons. Firstly, both Parties were represented by the same solicitors who drafted the August 2012 Court Order. Therefore, his claim that he did not consented to the terms of the August 2012 Court Order was without merit. 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 13 [35] Secondly, the October 2021 Court Order, which was granted pursuant to the Variation Application, remained legally valid and binding on both Parties. It was important to note that the Petitioner-Husband did not file an appeal against the October 2021 Court Order. This inaction effectively affirmed the validity and enforceability of the Court Orders. [36] Furthermore, the Setting-Aside Application which was filed by the Petitioner-Husband nine months after the October 2021 Court Order was granted, was dismissed by the Court. By upholding the October 2021 Court Order and dismissing the Setting-Aside Application, the Court affirmed that the October 2021 Court Order was final, not subject to revision, and must be adhered to by both Parties. Such dismissal underscored the enforceability of the October 2021 Court Order, and the Petitioner-Husband’s obligation to comply with its terms. [37] After reviewing the affidavits filed by the Petitioner-Husband pursuant to this Application, it became clear that they essentially represented his attempt to re-litigate issues that had already been definitively resolved by the Court. The Court had already addressed and concluded these matters prior to granting the October 2021 Court Order. Therefore, it was not within the Court’s purview to revisit or reconsider any issues that the Petitioner-Husband raised concerning events that occurred before the October 2021 Court Order. These issues were now considered settled. [38] Moreover, the Petitioner-Husband’s ongoing dissatisfaction with the terms of the Court Orders did not provide a valid justification for his non-compliance with the same. Court orders are binding and must be adhered to, irrespective of personal disagreements or objections to 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 14 their terms. Compliance with such orders is mandatory and not subject to personal discretion. The Petitioner-Husband’s grievances or dissatisfaction with the Court Orders did not excuse his failure to meet his legal obligations as stipulated in the same. [39] The Petitioner-Husband further contended that his failure to comply with the terms of the Court Orders was neither wilful nor deliberate. He argued that his financial difficulties were the primary reason for his non-compliance. To support this argument, he presented his bank statements, which he claimed were indicative that he was left with the bare minimum to cover his essential living expenses. [40] This Court was mindful that contempt must be based on wilful refusal to comply with an order of the court. This is based particularly on the words of Lee Hun Hoe (Borneo) CJ in T O Thomas v Asia Fishing Industry Pte Ltd [1977] 1 LNS 126 Ltd [1977] 1 MLJ 151 (“TO Thomas”), where in citing the case of Fairclough & Sons v. Manchester Ship Cane Co. (No 2) [1897] WN 7, his Lordship had stated that ‘an order of court must have been contumaciously disregarded. It is no good if it is casual, accidental and unintentional.’ [41] In my view, however, ‘intention’ referred to by Lee Hun Hoe (Borneo) CJ in TO Thomas was addressed in the context of clarity and unambiguity of an order of the court. In the present case, the terms of the Court Orders, which the Respondent in the present case was fully aware of, were crystal clear. [42] In any event, in TO Thomas, it was further stated by Lee Hun Hoe (Borneo) CJ, in the following passage: 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 15 Intention is of no consequence in the matter of contempt by disobedience to a court order: A-G v. Walthamstow Urban District Council; [1895] 11 TLR

Stancomb v. Trowbridge Urban District Council [1910] 2 Ch. 190. In particular, Donovan LJ expressed his view clearly in Re A-G's Application, A-G v. Butterworth [1963] 1 QB 696 in these words: - I conceive the position, however, to be this. Regina v. Odham's Press Ltd [1957] 1 QB 73 ex parte A-G [1956] 3 All ER 494 makes it clear that an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherently likely so to interfere. [Emphasis added.] [43] My attention was drawn also to the case of Jasa Keramat Sdn Bhd v. Monatech (M) Sdn Bhd [2001] 4 MLJ 577, which established that “mens rea” is not a necessary element to prove in contempt proceedings. The Court of Appeal in that case ruled that lack of intention did not preclude an alleged contemnor from being found guilty of contempt. Thus, the Petitioner-Husband’s intention, or lack thereof, did not negate the fact that his conduct constituted contempt of court. [44] Throughout these proceedings, the Petitioner-Husband had consistently claimed financial hardship, citing a basic salary of approximately MYR2,800. However, his statements regarding his “basic monthly expenditure,” which amounted to MYR13,638.68, contradicted his claims of poverty. This discrepancy undermined his argument of financial incapacity. [45] Moreover, it was important to recognise that financial situations are inherently variable. They are not fixed or permanent, and may fluctuate based on factors such as job status, economic conditions, or personal choices. Financial difficulties, though challenging, are often temporary 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 16 and may be managed or alleviated through various means, such as careful budgeting, seeking additional employment, or accessing community resources and social services. [46] In contrast, a parent's responsibility to their children is constant and does not fluctuate with their financial situation. The duty to care for and provide for one’s children remains essential regardless of financial circumstances. Using financial hardship as an excuse to neglect a child's needs ignores the reality that such challenges should be addressed rather than used as a justification for failing to meet parental responsibilities. It underscored the importance of finding solutions and providing for children’s needs through all available means, emphasising that love, care, and resourcefulness are paramount, regardless of financial status. [47] Therefore, the Petitioner-Husband’s excuse of financial incapacity, and his claim that he did not willfully refuse to comply with the terms of the Court Orders, was untenable Whether this Application was filed in bad faith [48] The Petitioner-Husband argued that this Application was tainted by bad faith and was unsustainable, asserting that the Petitioner-Wife was aware of his alleged financial difficulties, yet chose to file this Application out of spite. [49] I found this argument unpersuasive for the following reasons. At this juncture, it was vital to remind both Parties that the principles underlying contempt of court are not intended to serve as a tool for personal retribution or to vindicate the Court's dignity. This Application 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 17 should not be viewed as an opportunity for personal revenge or as a means to gain leverage over the Petitioner-Husband. [50] Contempt of court is aimed at preventing actions that could obstruct or interfere with the fair and orderly administration of justice, thereby safeguarding the public's interest in the effective functioning of the legal system. The integrity of the Court must be upheld, not for the sake of its prestige, but to ensure that the rule of law is respected and that Court orders are followed without exception. [51] I also found instructive the case of Lee Chang Yong v Teng Wai Yee [2017] MLJU 1841, where it was stated: The object of the law of contempt is not to protect Judges and their dignity but to protect the rights of the public by ensuring that the administration of justice is not obstructed or prevented. To constitute contempt of court, there must be some “act done, or writing published calculated to bring a Court or Judge of the Court into contempt or to lower his authority” or “calculated to obstruct or interfere with the due course of justice or the lawful process of the Courts”. [Emphasis added.] [52] Despite his claims of poverty, the Petitioner-Husband had not made any effort to pay child maintenance since 2013 or to seek a variation of the Court Orders. His apparent disregard for the Court Orders suggested a lack of concern not only for the legal mandates but, more importantly, for the well-being of the Children, whose welfare was compromised due to the willful refusal of the Petitioner-Husband to fulfill his maintenance obligations. 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 18 [53] Furthermore, the Petitioner-Husband’s attitude towards the Court Orders had been notably dismissive. His failure to comply was not due to oversight or unavoidable circumstances but rather a deliberate choice to prioritise other matters over the Court Orders, and ultimately the welfare of the Children. [54] The issues raised in this Application, coupled with the absence of any evidence indicating bad faith, highlighted its seriousness and the genuine need for judicial intervention. This underscored the necessity for careful consideration of this Application, affirming that it should not be dismissed lightly or regarded as an attempt to exploit the legal system for improper purposes. Whether contempt had been proved beyond a reasonable doubt [55] The Court must be convinced beyond a reasonable doubt that the Petitioner-Husband had indeed violated the terms of the Court Orders. This principle is well-established in numerous cases including Re Bramblevale Ltd [1970] 1 Ch 125, Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor [1993] 4 CLJ 177, and Tan Sri Dato' (Dr) Rozali Ismail v. Lim Pang Cheong @ George Lim & Ors [2012] 2 CLJ 849. This principle serves as a crucial safeguard, ensuring that contempt proceedings are conducted with the utmost fairness and precision. The rigorous burden of proof guarantees that only those who have willfully and unmistakably breached a court order are held accountable. This standard upholds the integrity of the judicial process and protects individuals from unjust penalties, ensuring that actions are based on clear and unequivocal evidence. In Tan Sri Dato' (Dr) Rozali Ismail v. 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 19 Lim Pang Cheong @ George Lim & Ors, it was stated by Arifin Zakaria CJ in the following passage: [24] Contempt of court has traditionally been classified as being either criminal or civil… 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] [56] In the present case, the Petitioner-Wife had established, beyond a reasonable doubt, that the Petitioner-Husband was in contempt of court. The evidence presented unequivocally demonstrated that the Petitioner-Husband had wilfully ignored the terms of the Court Orders, thereby undermining the authority of the Court. Conclusion [57] In conclusion, after a meticulous and judicious consideration of all the evidence presented before this Court, along with the arguments put forth by Counsel, this Application was allowed with costs. With the finding of contempt established, the next crucial issue before the Court was determining the appropriate sanction for the Petitioner-Husband’s non-compliance. [58] The power of this Court to punish the Petitioner-Husband for contempt of court is found in article 126 of the Federal Constitution, and section 13 of the Courts of Judicature Act 1964, both of which read: 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 20 Federal Constitution Article 126 – Power to punish for contempt The Federal Court, the Court of Appeal or a High Court shall have power to punish any contempt of itself. ****** Courts of Judicature Act 1964 Section 13 - Contempt The Federal Court, the Court of Appeal and the High Court shall have power to punish any contempt of itself. [59] The Petitioner-Husband was, therefore, ordered to pay the amount of MYR266,825.49 within three months from 27 June 2024, that is, the date this decision was delivered – failing which he is to be imprisoned until he purges the contempt. Dated: 19 September 2024 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 21 Counsel: For the Petitioner-Husband – Joshua Tan; Messrs Chai & Partners For the Petitioner-Wife – Goh Loh Boon and Wong Yee Fung; Messrs WH Kan Cases referred to: ➢ Boon & Cheah Steel Pipes Sdn Bhd v Asia Insurance Co Ltd & Ors [1973] 1 MLJ 101 ➢ Fairclough & Sons v. Manchester Ship Cane Co. (No 2) [1897] WN 7 ➢ Hong Kwi Seong v Ganad Media Sdn Bhd [2013] 2 MLJ 251 ➢ Hong Leong Bank Bhd v. Phung Tze Thiam [2008] 4 CLJ 742 ➢ Jasa Keramat Sdn Bhd v. Monatech (M) Sdn Bhd [2001] 4 MLJ 577 ➢ Khoo Peng Lai v. Tan Ah Hin & Ors [2017] 1 LNS 2144 ➢ Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396; [1996] 1 MLJ 223 ➢ Lee Chang Yong v Teng Wai Yee [2017] MLJU 1841 ➢ Lee Lay Ling v Goh Kim Nam & Cheah Pei Ching [2014] 8 MLJ 805. ➢ Re H E Kingdon v. S C Goho [1947] 1 LNS 87 ➢ Re Pan Kok Fai & Anor [2020] CLJU 1731 ➢ Samuel Naik Siang Ting v Public Bank Bhd [2015] 6 MLJ 1 and Arab Malaysian Bank Berhad v Lee Chiong & Anor [2000] MLJU 750 ➢ Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor [1993] 4 CLJ 177 ➢ Tengku Ismail Tengku Sulaiman & Ors v. Sia Cheng Soon & Anor [2006] 3 CLJ 556 ➢ TO Thomas v Asia Fishing Industry Pte Ltd [1977] 1 LNS 126 Ltd [1977] 1 MLJ 151 19 September 2024 ……………………………………………………………………………………………… _______________________________________________________________________ 22 Legislation referred to: ➢ Courts of Judicature Act 1964 – section 13 ➢ Federal Constitution – article 126 ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 86, 98 ➢ Guardianship of Infants Act 1961 – sections 3 and 5 ➢ Rules of Court 2012 – Order 45, Order 52