Blueprint Planning International Sdn Bhd v Ng Wern Ping (BA-22NCvC-116-03/2020)

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1 IN THE HIGH COURT OF MALAYA IN SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA CIVIL NO.: BA-22NCVC-116-03/2020 _________________________________________________________

Lampiran

Lampran 101.” Enclosure 101 was dismissed by this Court on 16.4.2021. 14. On 20.4.2021 and 30.4.2021, the Applicants’ solicitors issued letters to the 1st and 2nd Contemnors’ solicitors, giving the 2nd Notice and 3rd Notice to the 1st and 2nd Contemnors to comply with the Mandatory Injunction Order. The Applicants also requested for a copy of the letter(s) to Bank Negara Malaysia upon issuance of the same. The 1st and 2nd Contemnors did not respond to these letters. 6 15. On 30.4.2021 the Plaintiffs filed an application in the Court of Appeal for an ad interim stay of the High Court’s Order dated 25.2.2021 pending the outcome of the stay application in the pending appeal. 16. On 7.5.2021, a sealed copy of Injunction Order was served directly on the 1st and 2nd Contemnors (not their solicitors). Notice was also given to the 1st and 2nd Contemnors to comply with the Injunction Order (“4th Notice”). (pages 118 - 124 of Enclosure 161). 17. On 7.5.2021, a sealed copy of Injunction Order was personally served on the 3rd and 4th Contemnors. Notice was also given to the 3rd and 4th Contemnors to cause the 1st and 2nd Contemnors to comply with the Injunction Order (“5th Notice”) (pages 125 - 131 of Enclosure 161). 18. The Court of Appeal on 28.5.2021 granted an ad interim stay of the Injunction Order pending hearing of the stay application which was originally scheduled for hearing on 21.7.2021 (paragraph 26 of Enclosure 160 and pages 185 - 192 of Enclosure 161). The hearing of the stay application at the Court of Appeal was subsequently re-scheduled to September 2021. 19. On 16.6.2021 the Defendants filed this ex parte application (Enclosure 159) for leave to commence committal proceedings against the four (4) Directors of the Plaintiffs for non-compliance with the High Court Order dated 25.2.2021. 20. At the date and time set for the hearing of this ex parte application, the Plaintiff’s solicitors had filed their written submission and 7 authorities in opposition and the Plaintiffs’ counsel appeared and asked to be heard. In response to the Defendants’ argument that the Plaintiffs’ counsel should not be heard at the Defendants’ ex parte application, this Court ruled that in an ex parte application, if the other affected parties attend court they should not be shut out by the court; instead, the court will treat it as an opposed ex parte application to be heard on the cause papers filed up to this stage. THE DEFENDANTS/APPLICANTS’ SUBMISSIONS 21. Citing the Court of Appeal’s decision in Mukhriz Mahathir v Datuk Seri Mohd Najib bin Tun Hj Abdul Razak (suggested contemnor) & Anor [2018] 3 MLJ 715 the Defendants submitted that the law is trite that the Applicants must satisfy the court that there is a prima facie case of contempt to obtain leave to commence committal proceedings. 22. The Defendants contended that based on the decided cases of Syarikat Perumahan Pegawai Kerajaan Sdn Bhd v Sri Komakmur Sdn Bhd (No 2) [1998] 5 MLJ 756; Wee Choo Keong v MBF Holdings Sdn Bhd & Anor and Another Appeal [1995] 3 MLJ 549 the 14 days period to comply with the Mandatory Injunction Order started to run on 9.3.2021 upon service of the sealed order on the solicitors of the 1st and 2nd Contemnors. 23. It is the Defendants’ contention that the Contemnors have nevertheless breached the Mandatory Injunction Order with reference to Supreme Court's decision in Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal [1993] 2 MLJ 217, that:- 8 "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" Also TO Thomas v Asia Fishing Industry Pte Ltd [1977] 1 MLJ 151 (pages 152 I (right) to 153 D (left) (F.C.) held that even an order irregularly obtained cannot be treated as a nullity, but must be implicitly obeyed until discharged by a proper application. 24. According to the Defendants, the Mandatory Injunction Order demands compliance within 14 days and the last day to comply with the Mandatory Injunction Order was on 29.4.2021. A sealed copy of the Mandatory Injunction Order was served on the 1st and 2nd Contemnors’ solicitors on 9.3.2021. The Mandatory Injunction Order was stayed from 10.3.2021 to 16.4.2021 by the ad interim stay order of this Court pending hearing of 1st and 2nd Contemnors’ application to stay the execution of the Mandatory Injunction Order (“Enclosure 101”) on 16.4.2021 (page 110 of Encl 161). Enclosure 101 was dismissed on 16.4.2021 (pages 111-112 of Encl 161). 25. It is argued by the Defendants that there was no stay whatsoever by any Courts from the period of 16.4.2021 until 28.5.2021. 26. The Defendants submitted that the blatant and flagrant disobedience of the Injunction Order by the 1st and 2nd Contemnors 9 was frowned upon by the Federal Court in Golden Star & Ors v Ling Peek Hoe & Ors [2021] 2 MLJ 259. It undermines public confidence in the Judiciary and administration of justice, which forms the very foundation of our legal system (PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian International Arbitration Centre, intervener) [2019] 4 MLJ 747 (pages 97 – 137 of ABOA). According to the Defendants, on the same vein, the contemnors in Golden Star refused to comply with a mandatory injunction issued by the High Court and endorsed on appeal. In the words of Hasnah Hashim FCJ (page 94 of ABOA at paragraph 63): “It is apparent to us that the respondents have unabashedly refused to comply with the High Court order affirmed and reinstated by this court. The non-compliance of a court order, and in this case an injunction, is a serious matter. Such behaviour to our mind, showcased total disregard and disrespect of the order granted by the Federal Court which tantamount to clear contempt of this court’s order.” 27. It was also submitted by the Defendants that where a corporation is guilty of contempt, the directors who caused, permitted or contributed to the contempt of the corporation, are also guilty of contempt (see Order 52 Rule 6A of the Rules of Court 2012; Datuk Hong Kim Sui v Tiu Shi Kian & Anor [1985] 1 MLJ 145; Datuk Hong Kim Sui v Tiu Shi Kian & Anor [1987] 1 MLJ 345. In the Federal Court’s decision of Datuk Hong Kim Sui v Tiu Shi Kian & Anor [1985] 1 MLJ 145, the director was found guilty of contempt of Court for his omission of not taking any step to cause the comply to comply with the injunction order, having knowledge of the said 10 injunction order. 28. The Defendants submitted that nonetheless, the 3rd and 4th Contemnors are guilty of contempt of court for having caused, permitted and/or contributed to the 1st and 2nd Contemnors’ breach of the Mandatory Injunction Order, despite having knowledge of the Mandatory Injunction Order. (See Datuk Hong Kim Sui v Tiu Shi Kian & Anor [1985] 1 MLJ 145 at page 157 B – D (right); Datuk Hong Kim Sui v Tiu Shi Kian & Anor [1987] 1 MLJ 345. PLAINTIFFS/RESPONDENTS’ SUBMISSIONS 29. The Plaintiffs referred to Sugesan Transport Pvt. Ltd., Rep. By its Director, Kanthibai Rajendra Sheth, No. 7c, Second Canal Road, Gandhi Road, Adayar, Chennai-600 020 Versus E.C Bose and Company Private Limited and Others [2019] 8 MLH 449. 30. The following passage of the Indian Supreme Court judgment in Dr Sajad Majid v Dr. Syed Zahoor Ahmed and Another 1989 SCC Online J&K 31: LNIND 1989 JNK 3 was cited in extensor by the Plaintiffs in opposition to this ex parte leave application:- “8. It is not disputed before us that SLP against the Court direction has been filed before the Supreme Court. It is also not disputed that no stay has been obtained against the implementation of the order but all the same the Court direction has been kept in abeyance by the respondent simply under the pretext of pendency of appeal before the apex Court against the Court order. There is no doubt that appeal against a judgment from one forum to another forum 11 may be available under the Statute, the question is: Whether this provision even if availed by a party without obtaining a stay from the appellate Court will ipso facto keep the implementation of the order in abeyance? The proposition put forth by Mr. Khan, CGA appears to us misconstruing the provision of appeal and period of limitation. Non-compliance of the order during the pendency of appeal without stay order appears to us an attempt by a party to support his intention of not complying the Court direction. The initiation of contempt proceedings for noncompliance of an order, in our opinion, will forestall only after service of stay order on the party provided, firstly, a certain period for compliance has been specified and within that period no contempt proceedings will lie. Secondly, when after the service of order the party has obtained stay from the appellate forum. Thirdly, on motion by the party time is granted by the Court for execution of the order which passed the same. No other circumstances apparently can be made available to a party against whom the order has been passed to sleep over the execution of the order or flout its execution. Mere pendency of appeal before the appellate Court against the order will not absolve the party not to comply the order and if he so does, it will be on his own risk without any legal justification and the provisions of appeal even if availed without any stay, will expose the party to contempt proceedings, for non-compliance and pendency of such appeal will not protect him from facing the proceedings of non-compliance of the order. Once a relief has been granted by a Court not modified or varied by such Court or its execution staved by appellate Court, its compliance is warranted from the date the party against whom it is passed or from the date he acquires knowledge of the said order. This observation 12 will dispose the argument of Mr. Khan having submitted that no time limit is specified in the order of implementation. We, therefore, make it clear that a party against whom order has been passed by the Court, having knowledge of the same or the order being served on him, cannot take refuge of limitation period for preferring an appeal for noncompliance of the order or even if the appeal has been filed but no stay has been obtained against the order, contempt proceedings will be entertained against such party for non-compliance. However, it is the discretion of the Court finally, while holding the defaulting party guilty, to pass appropriate orders looking to the gravity of the matter and conduct of such party, but in no case rebate of non-compliance of the Court order will be made available merely an appeal without stay is pending. We are further supported in our view by the observations made by their Lordships of the Allahabad High Court, in 1978 Crl LJ 789, in these words: “It is the duty of each and every person who is a party in a proceeding before a Court to comply with the orders of the Court and if he has any grievance against the order he is free to file appeal or to make application before that Court for modification or discharge of the same, but unless that order is stayed, varied or modified the party concerned has no justification to flout the order of the Court. Thus, a mere filing of the appeal under Article 136 of the Constitution before the Supreme Court against any order of the High Court cannot be a justification for disobedience or non-compliance of the orders of the High Court. Of course the position would be different if the Supreme Court takes cognizance of appeal and passes any positive order of stay.” [emphasis added] 13 31. Continued the Defendants in their submissions, to the same effect are the observations made by their Lordships of Himachal Pradesh High Court, in 1985 Crl LJ 1030 having observed as under (at p. 1033): “Mere preferment of an appeal does not automatically operate as a stay of the decision under appeal and till an application for stay is moved and granted by the appellate Court, or, in the alternative, the Court which rendered the decision is moved and grants an interim stay of the decision pending the preferment of an appeal and grant of stay by the appellate Court, the decision continues to be operative. Indeed, non-compliance with the decision on the mere ground that an appeal is contemplated to be preferred or is actually preferred, and that, therefore, the matter is sub-judice, may amount to contempt of Court punishable under the Contempt of Courts Act, 1971.” 32. In our present case the Plaintiffs submit that as the ad interim stay was granted by the Court of Appeal, the Mandatory Injunction Order was not operative on the date when this leave application was filed by the Defendants. The Plaintiffs further argue that the last day for compliance with the mandatory injunction order was 30.4.2021 and by that date the Defendants had filed the Appeal Records in the Court of Appeal together with a Certificate of Urgency for an application for ad interim stay. FINDINGS AND DECISON OF THIS COURT 33. When the Mandatory Injunction Order was stayed by this Court until 16.4.2021 by the ad interim stay order of this Court pending hearing 14 of 1st and 2nd Contemnors’ application to stay the execution of the Mandatory Injunction Order (“Enclosure 101”) on 16.4.2021 (page 110 of Enclosure 161), this Court has impliedly extended the time for compliance with the Mandatory Injunction Order until 16.4.2021, the date of disposal of the Enclosure 101. As such, no contempt proceeding can be mounted against the Defendants or their Directors for events which occurred prior to 16.4.2021. 34. With the ad interim stay granted by this Court, the Defendants had 14 days from 16.4.2021 to comply with the Mandatory Injunction Order. 35. The 14 days period from 16.4.2021 would end on 30.4.2021. 36. The Court of Appeal on 28.5.2021 granted an ad interim stay of the Injunction Order pending hearing of the stay application which was originally scheduled for hearing on 21.7.2021 (paragraph 26 of Encl. 160 and pages 185 - 192 of Encl. 161). The hearing of the stay application at the Court of Appeal was subsequently re-scheduled to September 2021. 37. However, the Defendants did not file any application for ex parte leave for commencement of committal proceedings during the period between 30.4.2021 and 28.5.2021. By the time the Defendants filed this ex parte leave application for commencement of committal proceedings on 16.6.2021, the operation of the Mandatory Injunction Order was already stayed by the ad interim stay order of the Court of Appeal. As at the date of hearing and 15 decision of this ex parte leave application, the Court of Appeal’s ad interim stay was still in force. 38. In the absence of any contrary Malaysian decided authority cited by the Defendants, this Court finds that the decision of the Indian Supreme Court in Dr Sajad Majid v Dr. Syed Zahoor Ahmed and Another is of great persuasive force and weight in our present case. The effects of the Indian Supreme Court decision in Dr Sajad Majid v Dr. Syed Zahoor Ahmed and Another include the legal principle that where a stay order has been granted by an appellate court, the subject order of the trial court ceases to be operative as long as the appellate court’s stay order is in force. 39. This Court has also considered the following provisions of the Rules of Court 2012 (“ROC 2012”) regarding contempt proceedings: 2. Committal for contempt of Court (O. 52, r. 2) The Court may, on the application of any party to any cause or matter or on its own motion, make an order of committal in Form 107. Form No. 107 ORDER OF COMMITTAL (O. 52, r. 2) (Title as in action) Upon application this day made unto this Court by counsel for the plaintiff and upon reading the affidavit of ........................ filed the ................ day of......., 20............... of service on the defendant ........................... of a copy of the order of the Court dated the .............. day of ..........., 20 ........ and of notice of this application: And it appearing to the satisfaction of the Court that the defendant 16 .......................... has been guilty of contempt of court in (state the contempt): It is ordered that for his said contempt the defendant do stand committed to prison to be there imprisoned (until further order). (It is further ordered that this order shall not be executed if the defendant .......................... complies with the following terms, namely, ......................). O. 52 r.2A: (2) Where a Judge is satisfied that a contempt has been committed in the face of the Court, the Judge may order the contemnor to appear before him on the same day at the time fixed by the Court for the purpose of purging his contempt. (3) Where such person has purged his contempt by tendering his unreserved apology to the Court and the Judge considers the contempt to be not of a serious nature, the Judge may excuse such person and no further action shall be taken against him. (4) Where such person declines or refuses to purge his contempt, then the Judge shall sentence him. Enforcement of judgments or orders Enforcement of judgment to do or abstain from doing an act (O. 45, r. 5) 5. (1) Where— (a) 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 17 (b) 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. (2) Where a judgment or order requires a person to do an act within a time therein specified and an order is subsequently made under rule 6 requiring the act to be done within some other time, references in paragraph (1) to a judgment or order shall be construed as references to the order made under rule 6. Judgment or order requiring act to be done: 6. Order fixing time for doing it (O. 45, r. 6) (1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, rule 5, have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time as may be specified therein. Matters occurring after judgment: Stay of execution (O. 45, r. 11) 11. Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on 18 the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks fit. 40. From the abovementioned provisions of the ROC 2012 the following principles can be gleaned: (1) Committal proceedings to enforce a judgment or order in a civil suit is regarded as one of the modes of enforcement of judgment or order requiring an act to be done: O.52 r.5(1)(b)(A); (2) A judgment or order requiring an act to be done can be stayed by a subsequent order of the same court or an appellate court, similar to a stay of monetary judgment or order for payment of money: O.52 r.11; (3) The ROC 2012 does not make any difference between the effect of a stay of monetary judgment or order and a stay of a judgment or order requiring an act to be done – in the stay of both types of judgments or orders, the act required (be it the act of paying money or the act of doing something else) was suspended by the stay order and becomes non-operative as long as the stay is in effect; and (4) In contempt proceedings, the contemnors even if found guilty are given a statutory opportunity to purge their contempt, either by apology to the Court (in case of contempt in the face of the Court) or by doing the act required by the order of the 19 Court (in case of contempt in the form of non-compliance with an order requiring an act to be done) as mitigation: O.52 r.2A(3) and O. 52 r.2 read with Form 107. 41. In the premises, the Indian Supreme Court decision in Dr Sajad Majid v Dr. Syed Zahoor Ahmed and Another (which held inter alia to the effect that where a stay order has been granted by an appellate court, the subject order of the trial court ceases to be operative as long as the appellate court’s stay order is in force) is consistent with the principles gleaned from the provisions of the ROC 2012 as stated above. 42. In the premises, this Court has held that as at the date of the Defendants’ filing of the ex parte application for leave for contempt and as at the date of the hearing and decision of the ex parte application for leave, the Court of Appeal’s ad interim stay had the effect of staying the operation of the Mandatory Injunction Order and at these material times the Mandatory Injunction Order was non-operative and therefore there was no legal basis for the ex parte leave for commencing contempt proceeding to be granted as at these material dates. 43. This Court has also noted that if the committal proceeding were to proceed while the ad interim stay is still in force and a contemnor is compelled to obey the Mandatory Injunction Order in order to purge the contempt (if any is so found), it would contravene the intent and purpose of the appellate court’s ad interim stay as well as wrongly deprive the Plaintiffs and their Directors of the benefit of the ad 20 interim stay granted by the appellate court. That would not be correct in principle. 44. In making the decision to dismiss the Defendants’ ex parte application for leave to commence committal proceeding on 7.7.2021, this Court has only decided on the procedural ground as stated in paragraphs 41 and 42 above while leaving open for decision at some future time, after the appellate court’s stay has lapsed and at a time when there was nothing to suspend or stop the operation of the Mandatory Injunction Order, the question of whether or not there was in fact contempt committed by the Plaintiffs in the circumstances of the case. As such, this Court has not made any decision on the merits or demerits of the respective parties’ arguments on questions pertaining to whether or not there any contempt committed in the circumstances of the present case. CONCLUSION 45. In conclusion, this Court on 7.7.2021 dismissed the Defendants’ ex parte leave application in Enclosure 159 on the specific procedural ground as explained above and ordered that the parties bear their respective costs of the application. Dated this : 11th August 2021. 21 Signed ….............................................................. TEE GEOK HOCK JUDICIAL COMMISIONER HIGH COURT OF MALAYA AT SHAH ALAM (NCVC 10) To the parties’ solicitors: 1. For The Plaintiffs : Thulasi a/p Ramadass Messrs Thulasi Ramadass (Shah Alam) 2. For The Defendants : Wong Zhi Khung Messrs Michael Chow