Kok Lai Sim v Tan Cheng Hong & Sons (AA-24NCC-6-06/2022)

TAN CHENG HONG & SONS [No. Pendaftaran: 198903060491 (IP0050874-A)] (sebagai rakan kongsi “Tan Cheng Hong & Sons”)

TAN TIAM HOCK [No. KP (Baru): 560209-08-5697] (sebagai rakan kongsi “Tan Cheng Hong & Sons”)

TAN TIAM SEIW [No. KP (Baru): 570413-08-5082] (sebagai rakan kongsi “Tan Cheng Hong & Sons”)

FOO LEE LEE [No. KP (Baru): 580825-08-5597] (sebagai rakan kongsi “Tan Cheng Hong & Sons”)

WONG MEI KIM [No. KP (Baru): 710217-08-5516] (sebagai rakan kongsi “Tan Cheng Hong & Sons”) … DEFENDANTS GROUNDS OF JUDGMENT S/N Nfvt7b4u6EC7QyaHyxhcfw INTRODUCTION [1] This is an application by the Plaintiff to initiate committal proceedings against the Defendants for their alleged failure and/or refusal to adhere to the Consent Order dated 14.11.2022 ("Enclosure 21"). BACKGROUND FACTS [2] The Plaintiff's case commenced with a letter dated 9.5.2022 issued by the Plaintiff to the Defendants, requesting documents. This was followed by the Defendant’s reply letter dated 24.5.2022. [3] Subsequently, legal correspondence ensued, wherein the Plaintiff's solicitors sent a letter requesting the documents on 27.5.2022 to the Defendants. Another letter from the Plaintiff's solicitors, dated 6.6.2022, followed. In response, the Defendants' solicitors replied via their letter dated 10.6.2022. These exchanges mark the initial stages of the case between the parties before the filing of the Originating Summons AA- 24NCC-6-06/2022 commenced. [4] Essentially, the Defendants has no dispute in respect of the Plaintiff's claim for document inspection, except concerning the issue of costs to which the Defendant contended that they should not be responsible for bearing these costs. [5] Consequently, the Defendants have agreed to cooperate and enter into the Consent Order dated 14.11.2022. S/N Nfvt7b4u6EC7QyaHyxhcfw [6] In the Defendants' subsequent correspondences following the entry of the Consent Order, they expressed the need for additional time to complete the compilation of documents. [7] Paragraph 41 of the Affidavit of Tan Tiam Hock dated 14.7.2022 asserts that many documents were damaged by white ants or termites. However, it was stated that documents from 2015 to 2021 were readily available and in the possession of the Defendants. Regarding documents for the year 2022, they were still being compiled and would be ready after 15.9.2022. [8] On 21.12.2022, only partial portions of the required documents were provided to the Plaintiff in a soft copy format. Subsequently, Court-appointed auditors visited the business premises between 3.1.2023 and 6.1.2023, as permitted under the terms of the Consent Order. [9] Subsequently, in a letter dated 12.1.2023, a list of documents requested by the auditors during their inspection of the business premises was provided. This letter also included a Microsoft Excel Checklist, which comprehensively covers various documents from the years 2015 to 2022. [10] Thereafter, the Defendants requested several postponements, which the Plaintiff permitted. However, on 1.3.2023, the Plaintiff claimed that the Defendants only provided a portion of the requested documents listed in the Microsoft Excel Checklist, in hardcopy format. Upon examination of the documents by the Plaintiff, it was discovered that many S/N Nfvt7b4u6EC7QyaHyxhcfw were incomplete. Consequently, in response, the Plaintiff's solicitors addressed the Defendants' solicitors via a letter dated 23.3.2023, highlighting that the documents remained incomplete despite the numerous extensions granted. The letter emphasized that failure to produce the requested documents would compel the Plaintiff to assert their legal rights. [11] The following table outlines the key events in chronological order for a clearer understanding of the case's progression:- Date Chronology of Events 09/05/2022 Plaintiff sends letter to Defendants requesting documents, records, and accounts 24/05/2022 Defendants reply to Plaintiff's letter 27/05/2022 Plaintiff's solicitors issued letter to Defendants requesting documents, records and accounts. 10/06/2022 Defendants' solicitors reply to Plaintiff's solicitors June 2022 The Originating summons filed by the Plaintiff’s solicitors 14/07/2022 Affidavit of Tan Tiam Hock states documents damaged by pests; documents from 2015 to 2021 available. 14/11/2022 Consent Order entered into by both parties 24/11/2022 The Plaintiff's solicitor submitted pages 1, 3, and 5 of the Consent Order via email to the Defendants’ solicitor 02/12/2022 The Plaintiff’s solicitor issued letter to the Defendants’ solicitor informing, amongst other things, that the The plaintiff intends to conduct an inspection at the Business Premise and that the Defendants to provide soft copies of all Partnership Business’ documents and accounts between 2015 until 30.6.2022 within 14 days from the date of the said letter. S/N Nfvt7b4u6EC7QyaHyxhcfw Date Chronology of Events 05/12/2022 The Defendants solicitors replied vide a letter stating that the auditors can enter the business premises on 19/12/2022. One of the conditions was that the Plaintiffs daughter Tan Lee Lee should not be allowed to enter. The Defendants also state that they do not possess soft copies and only have hard copy versions of the partnership documents. 13/12/2022 The Defendants' solicitors via a phone call had informed that they require until 21/12/2022 for their records to be given in a softcopy version. To this, the Plaintiff agreed to the postponement. Due to the change in dates in receiving the softcopy documents, the Auditors' inspection date was changed to 03/01/2023. 16/12/2022 The 1st Defendant complied with the Plaintiff's request by providing the requested business documents in soft copies which was in their possession, in the form of a pen drive. These documents were successfully couriered to the Plaintiff's solicitor on 19.12.2022. 21/12/2022 The Plaintiff received the documents and accounting records in softcopy form. 03/01/2023 Court-appointed auditors visit business premises 06/01/2023 Conclusion of auditors' visit 12/01/2023 The appointed Auditor had informed that more documents or additional documents are to be sought from the Defendants. An official letter was written by the Plaintiffs solicitors to the Defendants' solicitors enclosing a list of documents given in a Microsoft Excel list prepared by the Auditors. 14/01/2023 The Defendants' solicitors responded via letter, requesting additional time to compile and gather the documents listed in the letter dated 12/01/2023. This extension was sought due to the voluminous nature of the documents and the proximity to the Chinese New Year 2023. 16/01/2023 The Plaintiff’s solicitors replied with a letter stating that the extension S/N Nfvt7b4u6EC7QyaHyxhcfw Date Chronology of Events requested by the Defendant is agreed, another subject was raised in which the Plaintiff also required the receipts and documents regarding things sold to the recycling company. 03/02/2023 The Plaintiff's solicitors had written to the Defendants requesting the draft P Forms (Borang P) for the partnership for the year 2021. 13/02/2023 The Defendants again requested for an extension of time until 28/02/2023 to prepare the documents required in line with the list of documents in the Microsoft Excel list and/or the Additional Documents. 14/02/2023 The Defendants' solicitor contacted the Plaintiff's solicitor to request a slight extension of time. The Defendants needs more time because the 1st Defendant lacks staff or administrative clerks to review each financial document individually and make photocopies. 27/02/2023 The 1st Defendant has furnished additional documents within its possession to the Plaintiff's solicitor via courier on 27/02/2023. These documents were successfully received by the Plaintiff's attorney on 28/02/2023. 01/03/2023 Defendants provide some requested documents in hard copy. 23/03/2023 Plaintiff's solicitors notify Defendants' solicitors of incomplete documents and gave the Defendants a period of 14 days from the date of letter to furnish Plaintiff with the relevant documents. 13/04/2023 The Plaintiff filed a new suit to appoint an auditor to conduct further document inspection through the Originating Summons No. AA-24NCC-7-04/2023. 17/04/2023 The Defendants had provided more documents required as per the Microsoft Excel List prepared by the Auditors and/or the Additional documents. This was in line with the Plaintiff's letters dated 12/01/2023, 16/01/2023, 03/02/2023, and 23/03/2023. S/N Nfvt7b4u6EC7QyaHyxhcfw Date Chronology of Events However, the Plaintiff's solicitor refused to sign the acknowledgment of receipt for the documents, as they intend to conduct further review of the documents. 17/05/2023 The Ex-parte Notice of Application for leave to commence commital proceedings was filed [12] The Plaintiff highlighted further instances of contempt by the Defendants, including a scenario where the Book of receipts indicated that records were accessible but too voluminous to photocopy. Specifically, the notation "Available" but "unable to Photostat due to the high volume" was documented. It was the Plaintiff’s submission that these written notes substantiate the existence of documents and accounts intended for submission. However, the Defendants had failed and/or refused to produce these documents due to their extensive volume. COURT’S FINDINGS [13] Before delving into the issue of contempt as alleged against the Defendants, it is prudent to initially address the preliminary issue raised by the Defendants in opposition to Enclosure 21. [14] The Defendants contended that the Plaintiff’s application for committal proceedings is flawed due to significant and fatal procedural non-compliance as follows:-

The Plaintiff’s failure to personally serve the Consent Order on the Defendant before initiating the committal proceedings; and

(ii) The absence of endorsement of the penal notice on the Consent Order.

Failure to personally serve the Consent Order [15] On the issue of service of consent judgment, O. 45 r. 5 of the Rules of Court 2012 ("ROC 2012") stipulates that in instances where an individual contravenes a judgment or order mandating them to refrain from a particular action, enforcement of said judgment or order can be pursued through an order for committal, subject to the court's authorization. [16] Additionally, for such a judgment or order to be enforceable, it must be personally served on the individual obligated to comply or refrain from the specified action, as outlined in Order 45 r. 7(2) of ROC 2012. [17] However, the aforementioned rule is subject to an exception delineated in O. 45 r. 7(6) of ROC 2012 which reads as follows:- “(6) An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that, pending such service, the person against whom or against whose property it is sought to enforce the order has had notice thereof either:

by being present when the order was made; or

by being notified of the terms of the order, whether by telephone, telegram or otherwise.” [18] Alluding to a recent Court of Appeal ruling in the case of Saraswathy Kandasami v. Datuk Saravanan Murugan & Another Appeal [2022] 2 CLJ 2022 wherein the Court, addressing the applicability of O. 45 r. 7(6) of ROC 2012, rendered the following determination:- “[28] The application of O. 45 r. 7(6) of ROC 2012 was considered by Justice Azahar Mohamed (now CJM) in the case of Visiber Sdn Bhd v. Tan Meng Them & Ors [2009] CLJU 963; [2009] 1 LNS 963 where His Lordship held: It is equally important to note that the order in this matter is prohibitory in nature in that it restrained the Defendants from carrying out the infringing acts. In my view, pursuant to Order 45 rule 7(6) of the RHC, the order may be enforced by way of committal notwithstanding that it has not been served personally on all the Defendants. Nevertheless, there is this very important qualification to be made. The order can only be enforced if all the Defendants have had notice thereof by being notified of each of the terms of the order. This must be emphasized. (emphasis added) S/N Nfvt7b4u6EC7QyaHyxhcfw [29] The same position was taken by the Supreme Court in Puah Bee Hong & Anor v. Pentadbir Tanah Daerah Wilayah Persekutuan Kuala Lumpur & Anor (Robert Teo Keng Tuan, Intervener) & Another Case [1994] 2 CLJ 705, where the court held that service of the relevant court order was not essential and all that was required was for the proposed contemnor to have notice of the order that was said to have been breached. [30] Added to that, the Federal Court in T O Thomas v. Asia Fishing Industry Pte Ltd [1977] CLJU 126; [1977] 1 LNS 126 held that if the contemnor has knowledge of the terms of the court order though it had not been served, the court has the discretion to dispense with the requirement of personal service. This discretion is provided for under O. 52 r. 4(4) of the ROC 2012. [31] Therefore, the issue here is whether the appellants have knowledge of the terms of the consent judgment.” [19] From the referenced cases and findings, it is clear that although personal service of a court order is generally required for enforcement under O. 45 r. 7(6) of ROC 2012, however, under certain circumstances, enforcement may proceed if the contemnor is adequately notified of the S/N Nfvt7b4u6EC7QyaHyxhcfw terms of the order, whether through formal service or other means, and if the court exercises its discretion accordingly. [16] Considering the circumstances presented, it is my considered opinion that the failure to effectuate service of the consent judgment did not prove fatal to the Plaintiff's committal proceeding against the Defendants. This determination arises from the fact that the Defendants possessed knowledge of the contents of the Consent Judgment, given that it was mutually entered into by both parties, with the Defendants themselves being cognizant of its terms. [17] Furthermore, the Defendants' awareness of the contents of the Consent Judgment was substantiated by their actions. This was evident from the Defendants’ conduct in allowing the court-appointed auditors from Deloitte Advisory Sdn Bhd to carry out their responsibilities at the business premises from 3.1.203 to 6.1.2023. Furthermore, such awareness was reaffirmed by the Defendants' solicitor's letter dated 14.1.2023 wherein the Defendants provided assurance of compliance with the Consent Order dated 21.11.2022. [18] In the premise, the failure to carry out personal service of the consent judgment did not render the Plaintiff's committal proceeding against the Defendants invalid. This conclusion is based on the Defendants' familiarity with the terms of the consent judgment, demonstrated by their actions reflecting such knowledge. Therefore, any assertion by the Defendants that the contempt proceedings were misconceived due to the absence of service of the consent judgment lacks merit.

(ii) Absence of Penal Notice [19] O.45 r.7(4) of ROC 2012 unequivocally mandates the endorsement of a notice on copies of orders served to individuals or corporations apprising recipients of the repercussions for non-compliance with the order. [20] The pertinent rules of the Court explicitly authorize the Court to waive the requirement of a penal notice, as delineated under O.45 r.7(6) of ROC 2012. This rule outlines two scenarios where such dispensation may occur: (i) if the individual was present when the order was made, and

(ii) if the individual has been informed of the order's terms through various means such as telephone, telegram, or any other channel. The paramount objective is to ensure that the individual against whom enforcement is sought possesses sufficient notice of the order's terms. [21] Furthermore, Order 45 rule 7(7) of ROC 2012 explicitly vests the Court with discretion to dispense with service of the order or judgment altogether if deemed just by the Court. [22] On this matter, reference was made by this court to the case of Class One Video Distributors Sdn Bhd & Anor v. Chanan Singh Sher Singh & Anor [1997] 3 CLJ 694 at pp. 700-702; [1997] 5 MLJ 209, where Haidar J (later CJ (Malaya)) articulated the following at 215-216: “In this case, though the order was not personally served on the second defendant, I am satisfied that the second defendant - having had the benefits of S/N Nfvt7b4u6EC7QyaHyxhcfw counsel's advice - is deemed to know of the terms of the order. In any event, the second defendant did not deny that he had knowledge of the terms of the order. The word 'otherwise' in r. 7(6) would be wide enough to cover this situation. In the circumstances, the conditions under r. 7(6) would have been satisfied though the order did not contain the penal notice required under r. 7(4). Though the service of the copy of the order had not been 'effected in accordance' with r. 7 - as I said earlier - the second defendant had full knowledge of the terms of the order and the order was for the second defendant to abstain from doing certain acts. In other words, the court has a discretion to enforce the order if the court was satisfied that the second defendant had notice of the order in one of the ways specified in sub-paras (a) and (b) of para. of O. 45 r. 7 of the RC. I am so satisfied. In the circumstances I am of the view that, following Allport Alfred James, which cited with approval the English case of Sofroniou, the defect in not complying with the indorsement of the penal notice is not fatal so long as the second defendant had knowledge of the terms of the order. It has been brought to my attention recently the English Court of Appeal case of Nicholls v. Nicholls (1977) 147 NLJ 61, where the court reviewed the previous authorities on the subject of procedural irregularities either in the application to commit or in the committal order. Under S/N Nfvt7b4u6EC7QyaHyxhcfw the caption 'The Result of the Appeal', the Court of Appeal provided guidance for future cases as follows:

As committal orders involve the liberty of the subject, it is particularly important that the relevant rules are duly complied with. It remains the responsibility of the judge when signing the committal order to ensure that it is properly drawn and that it adequately particularises the breaches which have been proved and for which the sentence has been imposed.

As long as the contemnor had a fair trial and the order has been made on valid grounds, the existence of a defect either in the application to commit or in the committal order served will not result in the order being set aside except insofar as the interests of justice require this to be done.

Interests of justice will not require an order to be set aside where there is no prejudice caused as a result of errors in the application to commit or in the order to commit. When necessary the order can be amended.

When considering whether to set aside the order, the court should have regard to the S/N Nfvt7b4u6EC7QyaHyxhcfw interests of any other party and the need to uphold the reputation of the justice system.

If there has been a procedural irregularity or some other defect in the conduct of the proceedings which has occasioned injustice, the court will consider exercising its power to order a new trial unless there are circumstances which indicate that it would not be just to do so. In the circumstances, on the facts of this case the court, in my opinion, can and should rightly invoke its powers under r 7(6) and I do so accordingly. The defect in the order - that is, the failure to indorse the penal notice therein - is not fatally flawed. As I said earlier, the second defendant knew or is deemed to have known of the terms of the order and hence no prejudice is thereby caused to him for such irregularity.” [23] In the seminal case of TO Thomas v. Asia Fishing Industry Pte Ltd [1977] CLJU 126; [1977] 1 LNS 126; [1977] 1 MLJ 151, the Federal Court said: - “In the matter of contempt arising out of disobedience to an order of injunction of court the test is to ask whether defendant knows of it. It need not be necessary that he should be served. Thus in United S/N Nfvt7b4u6EC7QyaHyxhcfw Telephone Co v. Dale [1884] 25 ChD 778 786 Pearson J. said:- "In no case will the court [not] enforce obedience to its injunction by means of a committal to prison, simply upon the ground that the order has not been served, when it appears beyond all doubt or dispute that the defendant is aware that the injunction has been granted, and that it is the intention of the plaintiff to enforce it." Key J. in Avery v. Andrew [1879] 13 ChD 110 119 expressed the same view but in stronger words:- "What is the necessity for serving an order upon a defendant, if he knows perfectly well without that service what it is which he is bound to obey?” [24] Drawing guidance from the aforementioned authorities and grounded upon the findings articulated above, it is irrefutable that the Defendants were fully cognizant of the terms delineated in the Consent Judgment throughout the relevant periods. Neither the Defendants nor their learned counsel contest this fact in the present proceedings. [25] Consequently, it is my considered opinion that the absence of a penal notice in the present case does not impede the Plaintiffs' committal proceeding, given the Defendants' comprehensive awareness, and understanding of the terms enshrined in the Consent Order. S/N Nfvt7b4u6EC7QyaHyxhcfw THE LAW ON COMMITTAL [26] In determining the issue of contempt, it is imperative that the Court first be satisfied that there is a prima facie case for contempt against a contemnor. [27] The legal principles of law pertaining to contempt of court were elucidated in the Supreme Court decision of Wee Choo Keong v. MBf Holdings Bhd & Anor and Another Appeal [1993] 3 CLJ 210; [1993] 2 MLJ 222 as expounded by Abdul Hamid Omar (LP) (as he then was) at page 212 (CLJ); page 220 (MLJ) as follows:- “Obedience to court order 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.” [28] It is trite law that the burden rests on the Plaintiff to demonstrate beyond a reasonable doubt that the Defendants sought to be committed have wilfully disobeyed the court's order. Regarding the law of contempt, reference was made to the prominent Federal Court case of Tan Sri Dato'(Dr) Rozali Ismail & Ors v. Lim Pang Cheong & Ors [2012] 2 CLJ S/N Nfvt7b4u6EC7QyaHyxhcfw 849 wherein Arifin Zakaria CJ (as His Lordship then was), speaking for the majority, articulated the following:- “[20] In dealing with the application to set aside the leave for committal proceedings, it is necessary for us to consider the law of contempt. A good starting point would be the definition of contempt of court itself. Oswald's Contempt of Court (3rd Ed), at p. gives a general definition of contempt of court as follows: To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during the litigation. [21] The jurisprudence for arming the court with the power to punish a contempt is best expounded by Brown J in Re H E Kingdon v. S C Goho [1947] 1 LNS 87 as follows: But the root principle on which this inherent power to punish for contempt is founded, and the purpose for which it must be exercised, is not to vindicate the dignity of the individual judge or other judicial officer of a court or even of the court itself, but to prevent an undue S/N Nfvt7b4u6EC7QyaHyxhcfw interference with the administration of justice in the public interest. [22] Hence, the power to punish a contempt is not derived merely from statute nor truly from common law but instead flows from the very concept of a court of law. (See Borrie & Lowe's The Law of Contempt, 3rd edn., at p. 465; and Master Jacob [1970] 23 Current Legal Problems 23). [23] Article 126 of the Federal Constitution empowers the Federal Court, the Court of Appeal and the High Courts to punish any contempt of itself. This is repeated in s. 13 of the Courts of Judicature Act 1964. However since the RFC has no procedural provisions on committal, therefore, by virtue of r. 3 of the RFC, the procedure under O. 52 of the RHC may be adopted. Thus, an applicant can bring contempt proceedings viaO. of the RHC without having to go through the Criminal Procedure Code or the Penal Code even if the relief sought is imprisonment. [24] Contempt of court has traditionally been classified as being either criminal or civil. In England, the general approach has been that a criminal contempt is an act which so threatens the administration of justice that requires punishment whereas by contrast, a civil contempt involves S/N Nfvt7b4u6EC7QyaHyxhcfw disobedience of a court order. However, O. 52 of the RHC is inapplicable for contempt in criminal proceedings where the contempt is in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court (see O. 52 r. 1(2)(a)(ii) of the RHC ). 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.” [29] In determining the issue of contempt, the Court must gauge the entire facts and circumstances of the case to determine if there was in fact wilful disobedience on the part of the Defendants in failing to comply with the said Court Orders. In T.O. Thomas v. Asia Fishing Industry Pte. Ltd. [1977] 1 LNS 126; [1977] 1 MLJ 151 Lee Hun Hoe CJ (Borneo) at p.155 said: “Wilfully, disobeying an order of the court constituted contempt. This commonly consists in a party's doing otherwise than he is enjoined to do, or not doing what he is commanded or required to do by the process, order or decree of the court: Miller v. Knox [1838] 4 Bing NC 574. The contempt must be wilful. An order of court must have been contumaciously disregarded. It is no good if it is casual, accidental and unintentional. Fairclough & Sons v. Manchester Ship Canal Co (No 2) [1897] WN 7.” S/N Nfvt7b4u6EC7QyaHyxhcfw [30] In determining the issue of wilful disobedience, reference was made by this court to the case of Chandra Sri Ram v. Murray Hiebert [1997] 3 CLJ SUPP 518; [1997] 3 MLJ 240 where Low Hop Bing J had held as follows:- “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. The particular matrix of the individual case is of paramount importance in determining whether a particular circumstance attracts the application of the law of contempt. Hence, a positive perception of the facts is a prerequisite in deciding whether or not there is any contravention necessitating the invocation of the law of contempt.” S/N Nfvt7b4u6EC7QyaHyxhcfw [31] In Tam Lye Chian v. Seah Heng Lye [1999] 8 CLJ 614, Jeffrey Tan J (as he then was) at p.622 said: “The motive for disobedience is irrelevant for the purpose of establishing a case of contempt R v. Poplar Borough Council (No. 2) [1922] 1 KB 95 2 103). But the breach must be proved beyond all reasonable doubt (Re; Bramblevale Ltd [1970] Ch 128). "In most cases, this will mean that the offender will have been shown to have deliberately or wilfully disobeyed the court order" (Borrie & Lowe, ibid p. 558). "Although contempt may be committed in the absence of willful disobedience, committal… will not be ordered unless the contempt involves a degree of fault or misconduct" (Halsbury's ibid para. 53).” [32] Bearing the above principles in mind and returning to the facts of the present case, it was an agreed fact that the Plaintiff had granted authorization for the appointed auditors to enter the business premises for document inspection from 3.1.2023 to 6.1.2023. [33] The Plaintiff asserts that the Defendants are endeavouring to obstruct the Plaintiff's genuine efforts to uncover unexplained spending and misappropriation of funds by denying access to the necessary Partnership documents and accounts. S/N Nfvt7b4u6EC7QyaHyxhcfw [34] It bears emphasis that according to the Consent Order, the Defendant is solely obligated to furnish documents within their possession. Additionally, the terms of the order explicitly specify that if the documents are not in the possession of the Defendants, they are only mandated to communicate such circumstances in writing. [35] Clearly, the Defendants are under no obligation to provide documents they claim not to possess. The terms of the Consent Order clearly delineate that the Defendant's responsibility is confined to furnishing documents within their possession. Hence, the Defendants are solely obligated to provide documents within their possession, and they are not compelled to procure documents they do not possess. [36] The Plaintiff further declined to acknowledge receipt and accept documents personally served on her on 17.4.2023 on the grounds that they were highly questionable. The Plaintiff contended that blindly accepting such documents would pose a risk, as there is a possibility that the received documents could be concocted, doctored, or tampered with. [37] Having carefully considered the arguments and evidence presented by both parties, it is my conclusion that the Plaintiff’s concerns regarding document authenticity lack substantial merit to justify committal proceedings against the Defendants. The Plaintiff had on her own volition and without reasonable grounds deemed the documents delivered on 17.4.2023 as highly questionable. [38] The Defendants has demonstrated a bona fide endeavour to comply with document requests and address any concerns raised by the Plaintiff. S/N Nfvt7b4u6EC7QyaHyxhcfw [39] In the circumstances, the Defendants cannot be deemed to have breached the said Consent Order, particularly when it is the Plaintiff herself who refused to accept the documents as provided. [40] Furthermore, Plaintiff asserts that the Defendants had deliberately withhold documents and account by failing and/or neglecting to reproduce copies of the book of receipts. However, evidence presented elucidates that the defendants did, in fact, render these documents available and accessible by clearly noting them as "AVAILABLE" and "THE WHOLE RECEIPTS BOOKS IN BOX DURING YOUR INSPECTIONS". This delineation confirms the availability of the documents notwithstanding the Defendants' inability to produce photocopies of them. [41] This evidences that although photocopies were not furnished, the originals were accessible for inspection. Consequently, it can be inferred that the defendants did not intentionally withhold the documents, as they were made available for inspection by the Plaintiff. The same opportunity was extended to the Plaintiff's auditor; however, the auditor lacked the opportunity or means to photocopy the documents. [42] The Defendants' adherence to the terms of the Consent Order, as stipulated, supports the conclusion that they have not breached their obligations. The accessibility of the documents for inspection, despite the absence of photocopies, underscores the Defendants' willingness to cooperate within the confines of the Consent Order. S/N Nfvt7b4u6EC7QyaHyxhcfw [43] Based on the comprehensive evidence presented before this court, it is my considered opinion that the Defendants have unequivocally made material documents readily available for the Plaintiff's inspection. This raises reasonable doubt as to whether the Defendant had wilfully breached the terms of the Consent Order. Consequently, such reasonable doubt warrants the dismissal of the Plaintiff's claim (see the case of Tan Kang Ho v. Mao Sheng Marketing (M) Sdn Bhd [2015] 4 CLJ 113). [44] Regarding the Plaintiff's allegations of oppression and illegal drawings made by the Defendants without her consent, this court finds these claims entirely irrelevant to Enclosure 21, which pertains to a committal proceeding. [45] In fact, these allegations suggest that the Defendants have adhered to the Consent Order by granting the Plaintiff access to potentially incriminating documents. [46] In light of these considerations, proceeding with committal proceedings based on questionable allegations would risk prejudicing the defendant and undermining the principles of fairness and justice. Therefore, it is my ruling that the plaintiff's request for committal proceedings against the defendant is denied. S/N Nfvt7b4u6EC7QyaHyxhcfw CONCLUSION [46] It is thus my conclusive findings that the Plaintiff’s Enclosure 21 is bereft of any merits. Accordingly, I hereby dismiss the Plaintiff’s Enclosure 21 with costs of RM12,000.00 to be paid by Plaintiff to the Defendants. Dated: 17.04.2024 -signed- (ABDUL WAHAB BIN MOHAMED) JUDGE HIGH COURT OF MALAYA IPOH, PERAK S/N Nfvt7b4u6EC7QyaHyxhcfw Pihak-pihak Tetuan Chambers of Koon bagi pihak Perayu Peguamcara & Peguambela No. 3, Jalan PJU 1A/27D Ara Damansara, Petaling Jaya 47301 Selangor Tel:

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