1. ) Poh Chee Leng v 1. ) Cheah Siew Huen (BA-22NCvC-7-01/2020)

POH CHEE LENG

TAN SIEW HUEY (NRIC NO.: 730504-10-5354)

CHEAH SIEW HUEN

KONG TING FONG

LIM MENG SOON

LAM KWOK SEONG (NRIC NO.: 570103-01-5921) (an advocate and solicitor practicing under the name and 05/08/2025 14:44:42

5.

SEPANG DISTRICT LAND ADMINISTRATOR (BY ORIGINAL ACTION) AND BETWEEN KONG TING FONG (NRIC NO.: 620929-12-5417)

POH CHEE LENG

TAN SIEW HUEY

CHEAH SIEW HUEN (NRIC NO.: 500806-07-5097) ...DEFENDANTS IN THE COUNTERCLAIM (BY COUNTERCLAIM)

The present application is one brought by the 2nd Defendant the Applicant for leave to commit the 1st Plaintiff for contempt, pursuant to Order 52 Rules of Court 2012. Background facts

The Plaintiffs suit against all the Defendants are premised on various causes of action. As the details are not relevant in relation to the present application, suffice for me to state in brief that their claim is premised upon fraud, breach of agreement, breach of fiduciary duty and breach of statutory duty against all the Defendants.

The trial commenced on 17.4.2024. At the time of filing this application, the 1st Plaintiff had completed his testimony after several days of cross-examination by the defence counsels. The 2nd Plaintiff was due to give evidence on the next date for continued hearing on 28.5.2025.

As is not uncommon with trials, some dates were vacated for various reasons. The Applicant claims that the postponements were largely due to reasons attributed to the 1st Plaintiff. These reasons form the crux of the application for leave.

The relevant cause papers filed are as follows:

Notice of Application for exparte leave;

(ii) Statement filed pursuant to O. 52 r 3; and

(iii) Affidavit in support affirmed by Kong Ting Fong. Analysis Governing principles

I shall start by stating the relevant principles governing contempt proceedings.

Contempt has been given judicial definition in decided cases, and in this regard, reference is made to that enunciated by Federal Court in Tan Sri Dato' (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] where it was held: [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. 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. [27] This reclassification was adopted by the Court of Appeal in Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [2001] 4 MLJ 577 (CA).

Notwithstanding the classification of the categories upon which contempt may arise, the factual situation giving rise to contempt varies and are not exhaustive. In Chandra Sri Ram v Murray Hiebert [1997] 3 MLJ 240 at 270 (Court of Appeal), Justice Low Hop Bing held: The circumstances and categories of facts which may arise and which may constitute contempt of court, in a particular case, are never closed. This is the same position as in the case of negligence in which the scope for development is limitless. Contempt of court may arise from any act or form whatsoever, ranging from libel or slander emanating from any contemptuous utterance, news item, report or article, to an act of disobedience to a court order or a failure to comply with a procedural requirement established by law. Any of these acts, in varying degrees, affects the administration of justice or may impede the fair trial of sub judice matters, civil or criminal, for the time being pending in any court.

From the judicial pronouncements above, it is clear that whether an act amounts to an interference with the due administration of justice or the course of justice and therefore contempt, depends on the circumstances of each case.

It is also settled law that committal proceeding is criminal in nature since it involves the liberty of the alleged contemnor. (See: Tan Sri Dato' (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458, In re Bramblevale Ltd [1970] 1 Ch 128). Ex parte leave application

In view of the consequences, the law provides for procedural safeguards in committal proceedings, of which require strict adherence to. (See: Dewan Perniagaan Melayu Malaysia Negeri Johor v Menteri Besar Johor & Ors [2016] 7 MLJ 1).

These procedural requirements are housed in Order 52 of the Rules of Court 2012, as set out below: Application to Court (Order 52 r 3) 3(1) No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.

An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

The rules therefore mandate that an application for a committal order must precede with leave of the court. Whilst the rules make no mention of how the requirement as to leave is to be satisfied, there are sufficient judicial pronouncements on the matter. It is now trite law that the applicant must establish a prima facie case of contempt for leave to be satisfied.

I am guided by the case of Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal [1993] 2 MLJ 217, Abdul Hamid Omar LP, delivering the judgment of the Supreme Court, stated as follows: In the appeals before us, leave to issue committal proceedings has been granted. This means that the learned High Court judge has accepted that there was a prima facie case for contempt against the appellants. It may well be that on the hearing of the motion proper, the appellants will be acquitted of any charge of contempt. (See also: Eagle & Pagoda BrandTeck AunMedical Factory & Others [2003] 7 CLJ 81, Foo Khoon Long v Foo Khoon Wong [2009]

The satisfaction of the prima facie case and the applicable standard to be applied was enunciated by Justice Nazlan JC (as he then was), in Dewan Perniagaan Melayu Malaysia Negeri Johor v Menteri Besar Johor & Ors (supra) where he held: Accordingly, it is my view that the proposition in law that can be distilled from the foregoing authorities is that given the nature of the leave application which is on the basis of ex parte, the applicant would only need to establish a prima facie case of contempt on a balance of probabilities, focusing on the evaluation of the O 52 statement (to determine there is contempt, and that the grounds are not inherently improbable).

Bearing in mind the applicable principles, it leaves me now to consider the application for leave. Grounds relied on for leave

The grounds contained in the Statement filed sets out the conduct of the 1st Plaintiff which the Applicant contends, constitute an interference with the due administration of justice. The facts in the Statement may be summarized as follows:

the 1st Plaintiff was responsible for multiple delays throughout the course of the proceedings. The trial had been adjourned principally for reasons contributed to by the 1st Plaintiff. Amongst others, in 2021, the case was adjourned for mediation as requested by the 1st Plaintiff. However, mediation was not successful. The solicitors for the Plaintiffs subsequently discharged themselves, leading to another adjournment. Yet on another occasion, the new solicitors, Messrs Hafarizam Wan Aisha Mubarak Messrs HWAM requested for an adjournment as the 1st Plaintiff had been declared a bankrupt and they needed to obtain sanction from the Director of Insolvency to act for him. After representing the 1st Plaintiff for several days of the trial whilst he was cross-examined by the defence, Messrs HWAM discharged themselves and the date for continued hearing had to again, be adjourned. His present solicitors was then appointed; and

(ii) the 1st Plaintiff had submitted 3 false medical certificates with the deliberate intention of procuring an adjournment and thereby obstructing the orderly progression of the trial. This fact was mentioned by the 1st counsel at a case management fixed by this court on 27.2.2025 when he first appeared upon being engaged. He stated that the medical certificates were obtained at the behest of the 1st the former was not prepared for trial.

The Applicant contends that the cumulative effect of the 1st conduct in causing the numerous adjournments is a direct affront to the dignity of the court and had interfered with the due administration of justice. Decision of this court

The Applicant appears to have overlooked the fact that the adjournment requests were made to the court, which had duly considered the requests and eventually granted the adjournments. The decision to grant those adjournments was made in the exercise of judicial discretion.

The discretion of the court in granting an adjournment was dealt with by Hashim Yeop Sani FJ in Lee Ah Tee v Ong Tiow Pheng & Ors [1984] 1 MLJ 107 where he held: The discretion of the Judge to allow or refuse an application for adjournment was a subject dealt with in depth by the Court of Appeal in Dick v Piller [1943] 1 All ER 627. We agree to and adopt the following principles as regards the discretion in allowing or refusing an adjournment:

Whether or not a party should be granted an adjournment is wholly at the discretion of the Judge. He would exercise the discretion solely upon his view of the facts.

Prima facie this discretion is unfettered.

The question to ask in any particular case is whether on the facts there are adequate or sufficient reasons to refuse the adjournment.

Although an appellate court has power to interfere with the Judge's decision in regard to the granting of an adjournment, it would refrain from doing so unless it appears that such discretion has been exercised in a way which tended to show that all necessary matters were not taken into consideration or the decision was otherwise arbitrarily made.

An appellate court ought to be very slow to interfere with the exercise of the discretion. But if it appears that the result of the order made below would be to defeat the rights of the parties altogether or that there would be an injustice to one or the other of the parties then the appellate court has power and indeed a duty to review the exercise of the discretion. [emphasis added] (See also: Harold Shaw v Wong Phila Mae [1990] 1 MLJ & Anort [1988] 2 CLJ 749).

The principle to be distilled from the above cases is that the grant of adjournment is a judicial act, which the court exercises according to the facts and circumstances of the case. If the facts warrant the grant of adjournment, then it will do so. The discretion of the court is unfettered.

The Applicant complains of being inconvenienced from the adjournments. I am of the view that any costs incurred consequential upon such adjournments and the resulting can be ultimately taken care of by an order for costs at the conclusion of the case.

With regard to the medical certificates allegedly obtained under false pretences for the purpose of securing an adjournment, the Applicant has premised this application on what was informed by the 1st proceedings in chambers.

I would be circumspect to attribute the truth of these statements to the 1st Plaintiff, much less to accept them as a basis for a contempt application. They were hearsay statements which the Applicant ought not to be relying on. As contempt proceedings entail serious consequences, the facts constituting the grounds for the application must be accurate, certain and credible. The statements made by the 1st counsel, purportedly told to him by the 1st Plaintiff, had not been subject to verification. In any event, the medical certificates were accepted on the occasions the adjournments were granted. There is no reason to re-visit the genuineness of the medical certificates.

I am therefore of the view that the circumstances relied on by the Applicant do not fall within what would be considered as interfering with the due administration of justice for which contempt proceedings would lie. In the circumstances, a prima facie case for leave had not been demonstrated, on a balance of probabilities.

Consequently, the application in enclosure 176 is dismissed. I make no order as to costs. Dated 4th August 2025 -sgd-ALICE LOKE YEE CHING JUDGE HIGH COURT IN MALAYA AT SHAH ALAM NEGERI SELANGOR Counsel for the Plaintiffs: Mr. Aaron Pang Kok Kang (Messrs. Aaron Pang & Co.) Counsel for the 1st Defendant: Mr. S Kanaga Sundran (Ms. Nicole Ng Peng Ying) (Messrs Raja Seelan & Associates) Counsel for the 2nd Defendant: Mr. Balan Nair (Ms. Danielle Devinna Dickman) (Messrs Lavania & Balan Chambers) Counsel for the 3rd Defendant: Mr. Saranjit Singh (Ms. Siti Sarah binti Ikmal Hisham) (Messrs Saranjit Singh) Counsel for the 4th Defendant: Ms. Jane Pragasam (Mr. Thirunavakarasu & Ms. Nur Email Nabila binti Nor Hisham) (Messrs Ho-Noecker & Pragasam) Counsel for the 5th & 6th Defendants: ALA Ms. Mary Phoon Keat Mee (Pejabat Penasihat Undang-Undang