(A) REQUIREMENT FOR PRIMA FACIE CASE [20] S/N pCjANgYbzkWoPolw4CRc2g My review of the relevant case law authorities suggests that it should by now be considered settled law that leave to file committal proceedings will be granted if a prima facie case of contempt can be established. In 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.... [emphasis added] [21] In Dato’ Oon Ah Baa & Ors v Eagle & Pagoda Brand Teck Aun Medical Factory & Ors [2003] 7 CLJ 81 the High Court made the following observation:- In other words, the test required to be met before leave is granted is that the applicant must satisfy that there is a prima facie case of contempt (see Ngu Yen v Canada (Minister of Citizenship And Immigration) [1996] FCJ No 1478 (TD) (QL). [emphasis added] [22] The following passage in a decision of the High Court in Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441 is no less instructive:- At the time when the court S/N pCjANgYbzkWoPolw4CRc2g had granted leave on 11 June 2007, it is pertinent to observe that there was only a prima facie case of contempt which was based on an ex parte application. In other words, it is merely a vetting process on an ex parte basis to consider if there was a prima facie [case] of contempt and the court did not go into the merits... [emphasis added] [9] In a more recent case of Elite Agriculture Sdn Bhd v Hajemi Bin Din dan satu Lagi [2022] 8 MLJ 778, the court emphasized that evidence must establish a sufficient basis for contempt before granting leave for committal proceedings, and that procedural safeguards are essential in contempt cases. The assessment of a prima facie case in this context involves examining whether credible evidence indicates that the respondents’ conduct, if unrebutted, would warrant a conviction for contempt; this does not equate to a criminal standard of proof but still requires sufficient initial evidence Prima facie case for contempt 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 S/N pCjANgYbzkWoPolw4CRc2g appellants will be acquitted of any charge of contempt. However, for purposes of the present appeals, the allegations of contempt are supported by the order for leave. In Instituto Bancario San Paolo Di Torina SPA, there appears to have only been an allegation of contempt without any more. Here, there is a finding of prima facie contempt which cannot be ignored. In this context, we are more inclined to accept the view expressed by Young J in Young v Jackman [1986] 7 NSWLR 97 where he said: Accordingly, it would seem from 1820 onwards that the rule that a person will not be heard when he is guilty of contempt extended as well to the case where a party was considered to be in contempt, that is, where his contempt had prima facie been demonstrated to the court or alternatively when he had confessed the facts which were the subject of a charge of contempt. (Emphasis added.) We have carefully read the appeal records and especially references made therein to the conduct of the appellants in general and the conduct of the third appellant in particular. This conduct relates to the manner in which the allegations of contempt arose. From the records, we are satisfied that the learned judge had ample S/N pCjANgYbzkWoPolw4CRc2g material before him to exercise his discretion in the manner in which he did. [10] Committal proceedings are generally ex-parte in nature, relying solely on the petitioner’s documentation and affidavits, necessitating careful scrutiny of the evidence to determine whether it reasonably supports a prima facie case. The legal framework recognises that a contempt of court is a quasi-criminal offence, and procedural rules must be strictly followed to safeguard the liberty of the accused. A fundamental safeguard has already embodied in Order 52 rule 3 of the Rules of Court 2012 (ROC). [11] Even though Order 52 does not elaborate on the test to be applied when granting leave but Order 52 rule 3(2) specifies two documents to support a leave application. The first is a statement describing amongst others, the alleged contemnor, and the grounds on which he is alleged to be in contempt. The second is an affidavit verifying the facts relied on. [12] The Plaintiff in this case argues, that the Defendant had shown a total disrespect to the Court Order, to which the Defendant’s Counsel himself had considered and had apologized. The alleged inadvertent and/or mistaken belief and/or mens rea need not be proven in order for the Court to grant leave for committal against the Proposed Contemnor. S/N pCjANgYbzkWoPolw4CRc2g [13] The Plaintiff relied on the Federal Court case of T.O. Thomas v Asia Fishing Industry Pte. Ltd. [1977] 1 MLJ 151 whereby His Lordship Lee Hun Hoe CJ (Borneo) (as he then was) opined that: “…“The court order” has never been discharged. There is no question of the undertaking suspending “the court order”. An order even irregularly obtained cannot be treated as a nullity, but must be implicitly obeyed, until by proper application it is discharged. This view is supported by authority. In dealing with the contention that the original order had been erroneously grantedin Fennings v Humphrey (1841) 4 Beav 1; 49 ER 237 Lord Langdale M.R. said: — “It is clear, that a party who is served with an order may be guilty of contempt for disobedience, in a case in which the order ought not to have been made. He is not to determine for himself, but ought to come to the court for relief, if advised that the order is invalid...” [14] Based on the above case laws, this court would like to adapt a more well balanced rational before considering granting leave for this committal application, namely: - I. The protection of the parties from unwarranted allegations; II. For the courts to filter out cases lacking in sufficient evidence on merits; and S/N pCjANgYbzkWoPolw4CRc2g III. To ensure contempt proceedings are initiated only when there is credible basis to maintain procedural integrity. [15] Even on the limited and preliminary material before this Court, the leave application filed by the Plaintiff has not established a prima facie case that the proposed contemnor deliberately and willfully disobeyed an order of the Court beyond reasonable doubt. The documentary record, only discloses a procedural history of withdrawal and a replacement of the winding‑ up petition, communications between both counsels and the fact that the Defendant took steps to discontinue the said petitions filed unintentionally. [16] According to the prior communication between the parties, the Defendant had obtained the Plaintiff's consent before withdrawing the first petition and had written to inform them of intentions to file a new petition if the plaintiff was not agreeable. The defendant emphasized that they did not advertise Suit 737 or not serve it on the insolvency department and it was merely filed to replace the previous one. [17] The counsel for the Defendants further explained that, to his understanding, the order only prevented advertising, not filing of petitions and further went on to state that this was an oversight and not an attempt to disregard the courts order to intentionally cause contempt. Where there are immediate remedial steps taken S/N pCjANgYbzkWoPolw4CRc2g and explanations consistent with inadvertence or bona fide mistake, this Court is reluctant to deprive an individual of liberty absent proof beyond reasonable doubt of deliberate defiance. [18] After considering all material facts and issues before this Court. I find that the Plaintiff has not established sufficient basis for a contempt before leave can be granted. Since the Defendant’s solicitors took early steps to discontinue the winding‑ up petition once the procedural irregularity was identified and communicated, the intention was to uphold the court’s authority. [19] Accordingly, the application for leave to commence committal proceedings against the Defendant is dismissed with costs of RM3,000. 09 JANUARY 2026 SHOBA DORAI RAJAH Judicial Commissioner Kuala Lumpur High Court (Commercial Division) S/N pCjANgYbzkWoPolw4CRc2g Counsel: For the Plaintiff: Ganesh Perumal (Shasha Aquliah and Siti Aisyah) with him (Messrs Ganesh & Co. (Kuala Lumpur)) For the Defendants: K C Wan (K C Wan & Co. (Kuala Lumpur)) S/N pCjANgYbzkWoPolw4CRc2g