Bukit Jalil Development Sdn Bhd v Geo Pancar Sdn Bhd (WA-24NCC(ARB)-15-05/2025)

The Defendant filed Enclosure 34 to seek committal orders against the 2 current directors of the Plaintiff, i.e. Monteiro Gerard Clair (“Monteiro”) and V Alan Decruz a/l Vincent Decruz (“V Alan”) and a former director of the Plaintiff, Wong Kit-Leong (“Wong”), for alleged interference with the administration of justice. Leave to commence these proceedings was granted on 3-7-2025. S/N W5nGIwjayEa2mjVVSEgh0w Procedural background

Enclosures 1 and 4 in this action are, respectively, the Originating Summons and an ex parte Notice of Application for a Fortuna injunction. They were filed in response to the Defendant’s statutory notice to wind up the Plaintiff pursuant to section 466(1)(a) of the Companies Act 2016 (“CA”) based on an unpaid Adjudication Decision dated 19-3-2025 in the Defendant’s favour (“AD”).

The statement pursuant to Order 52 Rule 3(2) of the Rules of Court 2012 (“RC”) sets out the following salient facts: a) On 19-3-2025, the Defendant obtained the AD that ordered the Plaintiff to pay it RM7,372,586.05; b) On 7-4-2025, the Defendant issued the statutory notice pursuant to section 466(1)(a) of the CA premised on the AD; c) On 5-5-2025 and 7-5-2025, the Plaintiff filed Enclosures 1 and 4 respectively. They were supported by affidavits affirmed by Wong on 5-5-2025 and filed as Enclosures 2 and 5. d) On 13-5-2025, the Defendant gave an undertaking to Court on the urgent return date for Enclosure 4, that it would not present a winding up petition pending the disposal of Enclosure 4; and e) On 27-5-2025, the Plaintiff’s solicitors wrote to inform the Defendant that the Plaintiff’s directors had declared the Plaintiff insolvent on 23-5-2025 and commenced a creditors’ voluntary winding up.

Based on the above sequence of events, the Defendant says that: a) Monteiro and V Alan had knowingly and wilfully instructed the filing of Enclosures 1 and 4 to delay the filing of a winding up petition and circumvent the compulsory winding up process; and b) Wong had knowingly and wilfully made false representations in the affidavits in Enclosures 2 and 5, i.e. (i) that he is a director of the Plaintiff when he had resigned on 10-3-2025 and (ii) about the solvency of the Plaintiff.

The Defendant contends that the actions of Monteiro and V Alan constituted an abuse of process and deliberate interference with the administration of justice that prejudiced the Defendant. The actions of Wong allegedly constitute a deliberate interference with the administration of justice that prejudiced the Defendant, as well as a breach of the RC, the Evidence Act 1950, and the Penal Code. Analysis and findings

It is settled law that in contempt of court proceedings, proof of the charge of contempt must be beyond reasonable doubt, i.e., to the standard required in a criminal case (Wee Choo Keong; Houng Hai Hong & Anor v MBf Holdings Bhd & Anor & 3 Other Appeals [1995] 4 CLJ 427). Procedural safeguards must also be strictly observed to ensure that an alleged contemnor is accorded due process (Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong & Ors [2012] 2 CLJ 849 (“Tan Sri Dato Dr Rozali”).

As to what constitutes contempt of Court, the Federal Court considered the law in Tan Sri Dato’ Dr Rozali. As a starting point, it is any conduct that tends to bring the authority and administration of law into disrespect or disregard, or to interfere with or prejudice parties, litigants or their witnesses during litigation. More specifically: “[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, (supra) 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 449. S/N W5nGIwjayEa2mjVVSEgh0w [27] This reclassification was adopted by the Court of Appeal in Jasa Keramat Sdn Bhd v. Monatech (M) Sdn Bhd [2001] 4 CLJ 549.” [Emphasis added]

This case concerns the alleged interference with the due administration of justice by Monteiro, V Alan and Wong by their actions through their invocation of the Court’s jurisdiction to grant a Fortuna injunction.

The Court first deals with the charge against Wong for his alleged false statements on affidavit. In evaluating this charge, the Court is guided by the decision of Vincent Ng in Edmund Ming Kwan v Extra Excel (Malaysia) Sdn Bhd & Ors (No. 2) [2007] 2 MLRH725; [2007] 7 MLJ 276; [2007] 9 CLJ 400 (“Edmund”), which also concerned an allegation that the alleged contemnor had wilfully and intentionally made false and misleading statements in affidavits filed in an oppression petition.

In dismissing the application for leave to commence committal proceedings in Edmund, Vincent Ng J set out the following factors to consider in deciding when an alleged false and misleading statement in an affidavit can ground contempt proceedings: “[4] On the question whether the statement was intended to be false and misleading (mens rea) and whether it was made with actual or inevitable intent S/N W5nGIwjayEa2mjVVSEgh0w or consequence of frustrating or obstructing the administration of justice, this court would have to:

firstly, look at the relationship between the alleged false statements and the issues to be decided in the main proceedings. (See Keeley v. Brooking [1979] 25 ALR 45); (ii) secondly, bear in mind that unlike the offence of perjury, contempt requires the actual or inevitable intent or consequence of frustrating or obstructing the administration of justice (see Jaginder Singh [1983] CLJ (Rep) 176 at 179, Coward v. Stapleton [1953] 90 CLR 573, Re Bride, Ex-parte Steward [1984] WB 455, R v. Christopher Charles Murfett [2004] VSC 160 and Halsburys Laws of England, 4th edn, vol 9(1) pp 242-243); (iii) thirdly, be mindful that a “mere falsity of evidence is not enough to justify a contempt charge” (see Yee Sang Metal [2002] HKCU 1255); and, (iv) fourthly, be slow to draw inferences from affidavits as to the bona fides or mala fides of the alleged contemnor (see In Re

Edmund was cited by the Court of Appeal in Woodsville Sdn Bhd v Tien Ik Enterprises Sdn Bhd & Ors & Another Appeal [2009] 3 MLRA 495. Although Edmund was not followed by the Court of Appeal in Shencourt Sdn Bhd v Wanfy (M) Sdn Bhd [2014] CLJU 1101 on the requirement for proof of the mens rea of the alleged contemnor, following Zainur Zakaria v PP [2001] 1 CLJ S/N W5nGIwjayEa2mjVVSEgh0w 455, it still provides a useful guide if the mens rea is properly understood to refer to the wilfulness in making the statement.

The correct questions to ask therefore are whether a statement on affidavit is false and misleading, and if so, whether it had the tendency, or was calculated, to interfere with the administration of justice even if that was not the intention (Murray Hiebert v. Chandra Sri Ram [1999] 4 CLJ 95). Recast this way, Edmund is still on point, and the second question depends on the relationship between the alleged false statements and the issues to be decided in the main proceedings, and whether the evidence was not merely false, but was knowingly and deliberately false.

The above is consistent with the observation that the contemptuous act must be sufficiently serious and sufficiently closely connected to the particular proceedings (Monatech (M) Sdn Bhd v Jasa Keramat Sdn Bhd [2002] 4 CLJ 401).

Wong’s status as director

The Defendant asserts that Wong affirmed Enclosures 2 and 5 (in support of Enclosures 1 and 4) in the stated capacity of “director” of the Plaintiff when he had resigned as a director with effect from 10-3-2025, even though the records filed with Suruhanjaya Syarikat Malaysia (“SSM”) were not updated until much later. The Defendant took issue with a discrepancy in the records of SSM after the update, which was back-dated to 10-3-2025. Wong was fined by SSM for the late filing of the update.

Ironically, the Defendant’s complaint is that Wong affirmed the affidavit in his stated capacity as a director when he had resigned. Wong’s explanation, however, was directed to explaining the delay in updating the Plaintiff’s records at SSM, and by implication, why he ought not to have affirmed the affidavits in the first place. In any case, Wong’s affirmation of the affidavits in his stated capacity of a director was a purely internal matter and, in the circumstances, could not be said to be false.

According to the definition of a “director” in s. 2 of the CA 2016, "director" includes “any person occupying the position of director of a corporation by whatever name called and includes a person in accordance with whose directions or instructions the majority of directors of a corporation are accustomed to act and an alternate or substitute director.”

In moving for committal on this basis, it was not proved by the Defendant that Wong was not a de facto director at the time. It may also well be true that Wong’s change of status had been back-dated and that he was still technically a director at the time. In any event, Monteiro and V Alan both affirmed that Wong remained a director until May 2025.

For the above reasons, this Court finds that the Defendant failed to prove the falsity of the averments in the affidavits in Enclosures 2 and 5. Wong’s capacity when he affirmed the affidavits also had no relationship to the issues to be decided in Enclosure 1 and cannot by any stretch be said to have been calculated to interfere with the administration of justice.

Solvency of the Plaintiff

The Defendant also contends that Wong has wilfully given false evidence in his affidavits about the solvency of the Plaintiff. In this regard, it is accepted that there is no express averment by Wong in Enclosures 2 or 5 that the Plaintiff is solvent or not insolvent. The false evidence on the Plaintiff’s solvency is, according to the Defendant, to be inferred from the following logic: a) that the fact of actual insolvency may be inferred by the temporal proximity between 5-5-2025 when the affidavits were affirmed, and the declaration of insolvency by the directors on 23-5-2025; and b) that Wong had implicitly denied the Plaintiff’s insolvency, or affirmed the Plaintiff’s solvency by his affidavits in support of a Fortuna injunction, the purpose of which was to restrain the Defendant from presenting a winding up petition against it on grounds of insolvency.

In response to this charge, Wong did not address the allegations against him or deny the assertions by Monteiro and V Alan on affidavit that all instructions about the filing of Enclosures 1 and 4 were handled by Wong. As the alleged contemnor, Wong may remain silent in a committal application as the burden of proving contempt of court beyond a reasonable doubt lies entirely on the party moving the court.

Having considered all the material before the Court, which was limited, this Court was unable, without more, to conclude beyond a reasonable doubt that Wong affirmed Enclosures 2 and 5 with the knowledge that the Plaintiff was insolvent. It is entirely plausible that the directors, perhaps Wong included, only came to appreciate the Plaintiff’s true financial standing and the futility of the Plaintiff’s legal stance after Enclosures 2 and 5 were affirmed.

It is trite that if there is any doubt, that doubt should be resolved in favour of Wong. Thus, even if it could be inferred that Enclosures 2 and 5 contain false evidence about the Plaintiff’s solvency, this Court was unable to find sufficient evidence of wilful intention on the part of Wong to elicit the suggested inferences.

The substance of Enclosures 2 and 5 affirmed by Wong was focused on establishing the Plaintiff’s case that there are bona fide disputes on the debt evidenced by the AD, rather than any direct address on the issue of the Plaintiff’s solvency. In fact, Wong expressly stated in his affidavits that the Plaintiff has unsatisfied charges and banking facilities and that it would suffer from cross-default clauses if a winding up petition is presented. Abuse of process

This part of the Judgment deals with the charge of contempt against Monteiro and V Alan for allegedly abusing the Court’s process by instructing the filing of Enclosures 1 and 4 to delay the S/N W5nGIwjayEa2mjVVSEgh0w filing of a winding up petition and avoid the compulsory winding up of the Plaintiff, thereby interfering with the administration of justice.

On the facts, V Alan said that he is named as a director but merely functions as a driver with no authority. Monteiro similarly affirmed that he had no involvement in the preparation and filing of Enclosure 1 and his own understanding is that it was left with Wong to restrain a winding up petition pending the arbitral challenge of the AD.

Although legal responsibility for the conduct of litigation lies with the Board of Directors of a company, that does not necessarily correspond with what actually occurred. According to Monteiro and V Alan, they delegated that authority to Wong and the facts supported this claim. There is doubt as to what Wong was asked to do and the overall intent of all the actors.

Ultimately however, the question is whether the mere filing of Enclosures 1 and 4 by a company faced with a statutory demand for winding up, is calculated to interfere with the administration of justice. This Court does not think so. The law of contempt must not be extended so far as to encompass conduct that is merely part of the ordinary cut and thrust of adversarial litigation.

Parties are entitled to advance every legitimate forensic advantage available to them, provided it is exercised within the confines of the law. Such conduct, without more, is adequately addressed through the Court's ordinary powers to assess credibility, determine costs, S/N W5nGIwjayEa2mjVVSEgh0w strike out unmeritorious claims or defences, or impose other procedural sanctions.

This Court further finds that no injustice was caused as the Defendant’s status as a creditor was unaffected by the Plaintiff’s decision to declare insolvency and commence a creditors’ voluntary winding up. A creditor has no inherent right to dictate or control the mode by which a company’s liquidation is conducted. This function is under the purview of the liquidators who are officers of the court and subject to the supervision of the court, regardless of the mode of winding up that brought them on board.

For the above reasons, Enclosure 34 is dismissed with costs of RM10,000.00 for Monteiro and V Alan collectively, and RM10,000.00 for Wong, all subject to allocatur. Bertarikh: 02 Julai 2026 ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR S/N W5nGIwjayEa2mjVVSEgh0w Peguam Untuk Plaintif: Brenda Rangithan Tetuan Mohanadass Partnership Untuk Defendan: Kamraj Nayagam (Maya Gayathri Devaruban bersamanya) Tetuan Mah-Kamariyah & Philip Koh Untuk Kontemnor Pertama dan Kedua Yang Didakwa: Christopher Foo Kah Foong (Maxine Lim Jia Xin bersamanya) Tetuan Juen, Jeat, Nic & Nair Untuk Kontemnor Ketiga Yang Didakwa: Ng Yee Tat (Lim Swee Foo bersamanya) Tetuan Kevin Kiran Ng &