1. Pan Kok Fai (S8-33-1093-2006)

PAN KOK FAI

TSEN CHEE FONG (P) (NO. K/P.: 710527-10-6159) PEMPETISYEN-PEMPETISYEN (Application for Committal) [1] This is an application under Order 52 of the Rules of Court 2012 (“ROC”) by Tsen Chee Fong, the petitioner wife (“PW”), for an order for committal against her ex-husband, Pan Kok Fai (“PH”) for arrears in spousal maintenance and child maintenance due pursuant to a Decree Nisi granted by this Court on 20.11.2016 (“Decree Nisi”). [2] PW and PH were married on 22.4.1993. On PW and PH’s joint petition for divorce and with their consent, this Court granted the Decree Nisi to dissolve the marriage. The Decree Nisi was made absolute on 8.3.2007. The terms of the Decree Nisi are reproduced below: “(a) bahawa hak penjagaan kedua-dua nak perempuan yang bernama Pan Kah Ying (No. Sijil Kelahiran: K 155287) dan Pan Kah Mun (No. Sijil Kelahiran: AS 35164) diberi kepada Pempetisyen Isteri;

bahawa Pempetisyen Suami diberi akses kepada kanak-kanak tersebut pada bila-bila masa tetapi hanya terhad pada waktu siang sahaja di tempat yang dipersetujui sesuai dan Pempetisyen Isteri dimaklumkan terlebih S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 2 dahulu;

bahawa akses yang diberikan kepada Pempetisyen Suami termasuk hak untuk membawa kanan-kanak tersebut keluar bercuti semasa cuti perayaan atau cuti sekolah dengan kebenaran dan dengan syarat Pempetisyen Isteri dimaklumkan terlebih dahulu dan dibenarkan Pempetisyen Isteri;

bahawa pada setiap kali akses yang diberikan, kanak-kanak tersebut perlu di hantar pulang selewat-lewatnya pada pukul 10.00 malam dan Pempetisyen Suami tidak dibenarkan membawa kanak-kanak tersebut untuk bermalam;

bahawa Pempetisyen Suami membuat peruntukan kos perbelanjaan sebanyak 10% daripada jumlah keseluruhan gaji pendapatan Pempetisyen Suami setiap bulan kepada kanak-kanak tersebut dan jumlah tersebut perlulah didepositkan ke dalam akaun simpanan Pempetisyen Isteri pada hari kelima belas setiap bulan bermula daripada tarikh Petisyen ini;

bahawa Pempetisyen Suami membuat peruntukan sebanyak 5% daripada gaji pendapatan Pempetisyen Suami kepada Pempetisyen Isteri setiap bulan dan jumlah tersebut perlulah didepositkan ke dalam akaun simpanan Pempetisyen Isteri dengan peruntukkan kepada kanak-kanak pada hari kelima belas setiap bulan bermula daripada tarikh Petisyen ini;

bahawa Pempetisyen Suami memindahkan ½ bahagian milikannya bagi ketiga-tiga hartanah kepada Pempetisyen Isteri sebagai pemilik tunggal bagi ketiga-tiga hartanah tersebut:

sebuah unit komersial yang terletak di Pandan Indah Commercial Park, dengan alamat pos No. 28-C, Jalan 6/5, Taman Komersial Pandan Indah, 55100 Kuala Lumpur;

(ii) sebuah unit apartment yang terletak di Taman Lembah Maju, dengan alamat pos Unit No. 8-3R, Tingkat 3, Jalan Maju 1/16, Taman Lembah Maju, 56100 Kuala Lumpur;

(iii) sebuah unit apartment yang terletak di Glory Beach Resort, Port Dickson, dengan alamat post unit parcel No. F8-9, Glory Beach Resort, Batu 2, Jalan S’ban, 71009 Port Dickson, Negeri Sembilan.

bahawa bagi hartanah yang terletak di Unit 8-2A, Jalan Perdana 5/11 Pandan Perdana, 55300 Kuala Lumpur, Pempetisyen Suami dan Pempetisyen Isteri akan bertanggung jawab sama bahagian terhadap segala tunggakan yang tertunggak dengan pihak peminjam;

bahawa Pempetisyen Suami perlu diberi hak keutamaan untuk membeli “Option to Purchase” ketiga-tiga hartanah tersebut di atas jika sebarang S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 3 penjualan diadakan untuk ketiga-tiga hartanah tersebut;

bahawa jika dalam keadaan di mana Pempetisyen Isteri telah meninggal dunia sebelum sebarang penjualan hartanah-hartanah tersebut, hakmilik hartanah-hartanah tersebut adalah dikuatkuasakan dan dipindahmilik kepada kedua-dua kanak-kanak tersebut dengan bahagian yang sama;

bahawa Pempetisyen Suami perlu menandatangani segala dokumen pindahmilik dan sebarang dokumen berkaitan untuk menyempurnakan transaksi pindahan ketiga-tiga hartanah-hartanah tersebut dan segala kos dan pembelajaan pemindahan adalah ditanggung oleh Pempetisyen Isteri;

bahawa Pempetisyen Isteri akan bertanggungjawab penuh dan membuat pembayaran ansuran yang dikenakan oleh pihak peminjam bank selepas pindah milk tersebut;

bahawa kesemua wang sewaan yang diterima daripada ketiga-tiga hartanah tersebut setiap bulan adalah diberikan kepada Pempetisyen Isteri dan Pempetisyen Suami tidak berhak untuk menerima wang sewaan tersebut bermula dari tarikh Petisyen ini;

bahawa Pempetisyen Suami memindahkan saham miliknya di syarikat Malaysian Central Depository Sdn Bhd kepada Pempetisyen Isteri sebagai pemilik tunggal dan segala kos dan pembelajaan pemindahan adalah ditanggung oleh Pempetisyen Isteri;

bahawa Pempetisyen Suami memindahkan keahlian The Vacation Superclub Membership dengan syarikat Tanco Resorts Berhad dan keahlian di Berjaya Vacation Club Berhad kepada Pempetisyen Isteri sebagai pemilik dan segala kos dan pembelajaan pemindahan adalah ditanggung oleh Pempetisyen Isteri; dan

bahawa segala kos permohonan ini adalah ditanggung oleh Pempetisyen Isteri.” [3] PW applied for and was granted leave to apply for a committal order against PH on 26.10.2017 for his alleged contempt of the Decree Nisi. On 7.11.2017, PW filed her application to commit PH for arrears in spousal maintenance in the sum of RM43,533.39 for PW and the sum of RM59,113.73 for children’s maintenance for their two children totaling the sum of RM102,647.10 payable pursuant to the orders in paragraphs (e) and (f) of the Decree Nisi. S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 4 LAW ON CONTEMPT OF COURT [4] The Court’s power to punish any contempt of Court is provided in Art. 126 of the Federal Constitution and is repeated in section 13 of the Courts of Judicature Act 1964, which state: “The Federal Court, the Court of Appeal or a High Court shall have power to punish any contempt of itself”; [5]

(M) Sdn Bhd v Wong Kai Chuan & Anor [1993] 4 CLJ 177. In Tan Sri Dato’ (Dr) Rozali Ismail v Lim Pang Cheong @ George Lim & Ors (supra), Arifin Zakaria CJ said: “[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] and clearly stated that the alleged act of contempt must be “adequately described and particularized in detail in the statement itself”; and that “the accompanying affidavit is only to verify the facts relied in that statement. It cannot add facts to it. Any deficiency in the statement cannot be supplemented or cured by any further affidavit at a later time.” [8] His Lordship quoted with approval the following passage from Lord Denning MR’s judgment in Re Bramblevale Ltd [1970] 1 Ch 125, “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.” [Emphasis added] and the decisions of the Court of Appeal in McIlraith v. Grady [1968] 1 S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 6 QB 468, where Lord Denning MR held that in a committal order “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”; and in Chiltern District Council v. Keane [1985] 2 All ER 118, where Sir Donaldson MR at p. 119 said “However, where the liberty of the subject is involved, this court has time and again asserted that the procedural rules applicable must be strictly complied with.” [9] This similar position was taken by the Supreme Court in Arthur Lee Meng Kwang v Faber Merlin Malaysia Bhd & Ors [1986] 2 CLJ 109; [1986] 2 MLJ 193, SC. In Syarikat M Mohamed v Mahindapal Singh & Ors [1991] 2 MLJ 112; [1991] 4 CLJ Rep 16; [1991] 1 CLJ 582, K.C. Vohrah J (as he then was) held "since committal proceedings are quasi-criminal proceedings and the liberty of the subject is involved, the procedural rules applicable must be strictly enforced” as “the defendants …… need to know with particularity what charge or charges they are faced with, charges which can land them in prison.” In Lee Lay Ling v Goh Kim Nam [2013] 1 LNS 1000, S. Nantha Balan JC (as he then was) held: “it is clear that for committal, the charge of contempt must be based on the grounds as set out in the statement filed pursuant to Order 52 of the Rules of Court 2012 and it would be impermissible for the party applying for committal to rely on matters stated in affidavits or submissions.” ANALYSIS [10] In this instant case, in paragraph 5 of her supporting statement made pursuant to Order 52 rule 3(2) of the ROC (“Contempt Statement”), PW states PH had failed/ neglected/ refused to make the payment under the Decree Nisi. [11] Although, PW included in a table in paragraph 6 of the Contempt S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 7 Statement the amount of payment that she says is due from PH, she did not provide any details in the Contempt Statement as to how the amount of maintenance she claims to be in arrears was arrived at. The table is reproduced below: Penerima Nafkah Tahun Jumlah (RM) Kanak-kanak 20.11.2006 - 15.9.2017 59,113.73 Pemohon 20.11.2006 – 11.12.2014 45,533.37 JUMLAH 102,647.10 [12] Additionally, although PW had reproduced the orders in paragraphs (e) and (f) of the Decree Nisi in the Contempt Statement, she did not state in the Statement that PH had breached both these orders. It is only from the averments in PW’s affidavit can it be construed that PH had failed to pay spousal and child maintenance ordered in the Decree Nisi. Her affidavit also shows that PW had used PH’s annual income statement for the year 2012 to calculate the amount of maintenance she claims to be in arrears for the children from November 2006 to September 2017 and for herself from November 2006 to November 2014, the date of her remarriage. [13] From her affidavit, it is clear that PW had erred in the calculation of the arrears in maintenance allegedly owed by PH - she had used his annual income for 2012 as a basis of calculation instead of his monthly salary stipulated in the Decree Nisi. PW averred in her affidavit that she had calculated the sum of maintenance allegedly in arrears for the years 2006 to 2017 for child maintenance and for the years 2006 to 2014 for spousal maintenance based on his annual income for the year 2012 which S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 8 she said she had obtained from PH’s former wife. [14] Under the Decree Nisi, PH was ordered to pay PW 10% of his monthly salary for child maintenance and 5% of his monthly salary for spousal maintenance. He was not ordered in the Decree Nisi to pay the maintenance from a percentage of his annual income for the maintenance. Paragraphs (e) and (f) of the Decree Nisi state “jumlah keseluruhan gaji pendapatan Pempetisyen Suami setiap bulan”. [15] By failing to adequately describe and particularize in detail the alleged act of contempt committed by PH in her Contempt Statement, PW had failed to comply with the procedural rules and safeguards stipulated in Order 52 of the ROC. Accordingly, PW’s statement of PH’s alleged act of contempt in her Contempt Statement is defective at law. For this reason alone, as held by the Federal Court in Tan Sri Dato’ (Dr) Rozali Ismail v Lim Pang Cheong @ George Lim & Ors (supra), PW’s application for an order of committal against PH must be dismissed. [16] Recovery of arrears in maintenance is regulated by sections 86 and 98 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). Section 86 states that arrears for unsecured maintenance, whether payable by agreement or under an order of court, shall be recoverable as debt and provable in bankruptcy, subject to section 86(3), which states “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”. By operation of section 98 of the LRA the provisions in section 86 applies mutatis mutandis, to orders for payments of child maintenance.” [17] PW should have filed an action to recover the alleged arrears in maintenance as a debt due. But instead PW had instituted this committal S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 9 proceedings against PH in 2017, which is 11 years after the cause of action for non-payment of maintenance accrued, despite the provisions in sections 86(3) and 98 of the LRA stating that amounts of arrears in maintenance which is due more than 3 years before the institution of the suit is not recoverable. [18] Therefore, even if PW had strictly complied with the procedural requirements and had described and particularized in sufficient detail the alleged act of contempt committed by PH in her Contempt Statement, the amount of arrears in maintenance she claims to be owing is wrong since she did not use a percentage of PH’s monthly salary to calculate the amount due as ordered in the Decree Nisi and she had also claimed for amounts which has been due since 2006 i.e. more than 3 years before she instituted these committal proceedings in 2017. [19] Additionally, section 95 of the LRA (prior to its amendment by the Law Reform (Marriage and Divorce) (Amendment) Act 2017) provides that an order for maintenance of a child shall expire on the child reaching the age of 18 years. The eldest child of the marriage, Pan Kah Ying was born on 11.4.1994 and the younger child, Pan Kah Mun, was born on 29.8.2000. Therefore, the eldest child would have reached the age of 18 years on 11.4.2012. Pursuant to section 95 of the LRA, PH is no longer obliged to pay child maintenance for the eldest child from 11.4.2012 onwards. However, PW is her Contempt Statement claims arrears in child maintenance for both children until 15.9.2017. [20] Statutorily, pursuant to sections 86(3) and 98 of the LRA, any amount of arrears in maintenance beyond 3 years prior to PW’s institution of the committal proceedings against PH is not recoverable and pursuant S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 10 to section 95 of the LRA, PH’s obligation to pay child maintenance for the first child of the marriage expired on 11.4.2012. Thus, for these reasons coupled with PW’s erroneous use of PH’s annual income in 2012 to calculate the arrears in maintenance, PW has failed to prove beyond reasonable doubt PH’s alleged contempt and the accuracy of the amount of arrears in maintenance said to be due. [21] Another point that needs to be taken into account is that PW herself is in breach of the orders in the Decree Nisi. Pursuant to the order in paragraph (g) of the Decree Nisi, PH had transferred his half share in all the three properties to PW detailed therein. However, PW in breach of paragraph (h) of the Decree Nisi failed to pay her share of the outstanding loan to Maybank in respect of the shop lot in Pandan Perdana that was jointly owned by her and PH. As a result of PW’s failure to settle her share of the loan, Maybank had instituted proceedings against PH for recovery of the debt due on the Pandan Perdana shop lot and had obtained judgment against PH in the sum of RM100,621.99. In September 2018, Maybank served a bankruptcy notice on PH for the judgment sum. [22] More fundamentally, in breach of paragraphs (b) and (c) of the Decree Nisi, PW had denied PH access to both children of the marriage since the grant of the Decree Nisi in 2006. [23] The Decree Nisi is an Order of Court. Both PW and PH had consented to the terms ordered in the Decree Nisi. It is rather rich for PW who chose to disregard and not comply with the Decree Nisi to seek an order of this Court to commit PH to prison for his non-compliance. By failing to comply with the orders in the Decree Nisi, PW is herself prima facie in contempt of an order of Court. It is trite that a person who is in S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 11 contempt of a Court order, has no right to seek an order of the Court until he has purged the contempt. In Wee Choo Keong v. MBf Holdings Bhd & Anor and Another Appeal [1993] 3 CLJ 210, SC, Abdul Hamid Omar LP said: “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. It has not been seriously disputed and indeed we find that it is also an established general rule of law that a party in contempt cannot be heard further in the same proceedings for his own benefit unless and until he has purged his contempt. ……………….. Where the litigant shows himself to have little or no regard to an order issued against him, then he has to an extent, forfeited his right to be heard or at least, postponed that right until he has suitably purged his contempt.” [Emphasis added] FINDINGS [24] The law stipulates that committal orders can only be made where

all the requirements of law and procedure are strictly complied with; and (ii) the act of contempt allegedly committed by the alleged contemnor is proven beyond a reasonable doubt. [25] In this instant case, for all the reasons discussed above, PW had failed to strictly comply with the law and procedural requirements in Order 52 of the ROC, which by law is fatal for any application for a committal order. She had also failed to prove beyond reasonable doubt PH’s alleged contempt and the amount of arrears in maintenance stated in her S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 12 Contempt Statement as being due from PH.

[26] Accordingly, for these reasons, PW’s application to commit PH to prison is dismissed. [27] There is no order as to costs. Dated: 9 November 2020 -SGD-FAIZAH JAMALUDIN JUDGE HIGH COURT OF MALAYA AT KUALA LUMPUR S8-33-1093-2006 (Committal Application) Pan Kok Fai v Tsen Chee Fong 13 COUNSELS: For the Petitioner Wife: Mr. Chen Yu Szen Messrs. Anton & Chen 67-2 Petaling Utama Avenue Jalan PJS 1/50, Taman Petaling Utama 46150 Petaling Jaya, Selangor For the Petitioner Husband: Ms. H.B. Chuah Messrs Tan Chuah Shuaib & Co 39-2 Jalan Tanjung SD13/1 Bandar Sri Damansara 52200 Kuala Lumpur