LIM Yen Lu v Unity Realty Sdn Bhd (WA-12ANCvC-230-09/2019)

The following grounds contains my reason for dismissing the $SSHOODQW¶V DSSOLFDtion to impose penal sanction against the Respondent for failing to comply with the orders of this Court.

The high court has allowed leave to institute contempt proceedings against the Respondent.

7KH$SSHOODQW¶VJULHYDQFHOLHVRQWKHDOOHJDWLRn that the Respondent had disclosed the following statement in a Memorandum that was allegedly published online on 4.4.2020. The Appellant contends that this infringes the terms of the Consent Order dated 8.2.2020.

For ease of reference I reproduce the relevant terms of the Consent Order and the Memorandum dated 4-4-2020 ³0HPRUDQGXP´ referred to by the Appellant.

Consent Order ....

Memorandum

I note that the facts as disclosed in the affidavits filed by parties indicate the following:-

(I) The Respondent had issued the aforesaid Memorandum on 4-4-2020 allegedly for the internal consumption of the company.

The said Memorandum was then uploaded to a website known as yesdig.com.

The Appellant contends that the Respondent had failed to take all reasonable steps to release the said Memorandum to the public and as a result, the Respondent had failed to comply with the terms of the Consent Order.

She further contends that the Memorandum invites third parties to read her earlier written apology and as a result, the said action constitutes a republication of the written apology contrary to the terms of the Consent Order.

Therefore, the Appellant argues that this republication constitutes a contemptuous act that justifies punishment against the Respondent.

It is trite that the standard of proof required for this Court to impose committal proceedings against a party is that the applicant must prove that the Respondent had committed the alleged contemptuous act beyond reasonable doubt. Please refer to Tan Sri Dato Dr. Rozali Ismail & ors v Lim Pang Cheong & ors [2012] 2 MLRA 717 and the recent decision of the Federal Court in Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & anor [2021] 3 CLJ 603.

The burden of proof lies on the Appellant who is the applicant in this contempt proceedings.

The Federal Court in Peguam Negara Malaysia v Mkini Dotcom (supra) also held that any Court that deals with contempt proceedings must proceed cautiously before making a finding of guilt.

I also refer to the decision of the Federal Court in T O Thomas v Asia Fishing Industry Pte Ltd [1977] 1 LNS 125, where Lee Hun Hoe CJ (Borneo) held:- ³:LOIXOO\ GLVREH\LQJ DQ RUGHU RI WKH FRXUW FRQVWLWXWHG FRQWHPSW 7KLV 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 Cane Co. (No 2) [1897] WN 7. On the question of guilty mind reference may be made as to what was said by Palles CB in Rex v. Dolan [1907] 2 IR 260. As to the law applicable to the case, there is no doubt. Actual intention to prejudice is immaterial. I wholly deny that the law of this court has been that absence of an actual intention to prejudice is to excuse the party from being adjudged guilty of contempt of court, if the court arrives at the conclusion which I have arrived at, that there is a real danger that it will affect the trial, or that absence of intention is to excuse the party from punishment. Such a circumstance as that ought, no doubt to be taken into consideration in considering the nature of the punishment to be awarded, as, for instance, whether it should be imprisonment." This statement of the law was approved in Regina v. Odhams Press Ltd [1957] 1 QB 73; [1956] 3 All ER 494 also relying on Roach v. Garvan, [1742] 2 Ark 469. Ex parte Jones. [1806] 13 Ves 237. Intention is of no consequence in the matter of contempt by disobedience to a court order: A-G v. Walthamstow Urban District Council; [1895] 11 TLR 533. Stancomb v. Trowbridge Urban District Council [1910] 2 Ch.

In particular, Donovan LJ expressed his view clearly in Re A-G's Application, A-G v. Butterworth [1963] 1 QB 696 in these words: -

I conceive the position, however, to be this. Regina v. Odham's Press Ltd [1957] 1 QB 73 ex parte A - G [1956] 3 All ER 494 makes it clear that an intention to interfere with the proper administration of justice is not an essential ingredient of the offence of contempt of court. It is enough if the action complained of is inherently likely VRWRLQWHUIHUH´

I also refer to the decision of Hasnah Mohammed Hashim J (as her Ladyship then was) in Pyramid Saimira Theatre Chain (M) Sdn Bhd v Kumpulan Pawagam Iswaria Sdn Bhd [2011]1 LNS 1186

Another important case that this Court must take note of is the recent decision of the Federal Court in Goldern Star & ors v Ling Peek Hoe & ors [2021] 3 CLJ 443, where the Court found that the conduct not only of the client but also of the advocate and solicitor that continued to disregard and disrespect the order of the Federal Court constitute contumacious and disrespectful conduct justifying contempt proceedings being taken against the respondents.

Therefore, guided by the above-referred jurisprudence, I find that the Appellants must show to this Court that the Respondent had wilfully, deliberately disobeyed, or disregarded the order of the Court by issuing the Memorandum that had made reference to the $SSHOODQW¶V DSRORJ\. The Appellant must also show that the Respondent was also responsible for the leak of the said Memorandum on yesdig.com as alleged.

I am also of the opinion that the above cases also indicate that for the Appellant to be successful she must show beyond reasonable doubt that there was alleged publication or republication of the written apology by the Respondent. It must be shown that this was not objectively casual, accidental, or unintentional and that the Respondent had wilfully and deliberately disobeyed the order. See the judgment of S Nantha Balan J (as he then was) in Tan Sri Datuk Nadraja Ratnam v Murali Subramaniam [2017] 1 LNS

C. Decision of this Court

$V,KDYHDOOXGHGHDUOLHUWKH$SSHOODQW¶VJURXQGVIRULQVWLWXWLQJ contempt proceedings against the Respondent are as follows: -

(I) That the Memorandum contains a reference to the apology issued by the Appellant to the Respondent that was earlier published in China Press on 25.5.2020;

That this Memorandum was subsequently published on yesdig.com.

To the Appellant the Memorandum and its subsequent publication on yesdig.com, constitute fresh publication of her written apology.

It is common ground for both litigants that the republication of the said apology is prohibited under the terms of the Consent Order and as such should attract penal sanction by this Court. However, they differ on whether the said Memorandum infringes the order and the effect of the leak of the said document on yesdig.com.

To VXSSRUWKLVFOLHQW¶VFDVH tKH$SSHOODQW¶VFRXQVHOUHIers to the letters dated 19.11.2018 issued (dated wrongly) between solicitors when the said Memorandum and its subsequent republication was brought to the attention of the 5HVSRQGHQW¶V solicitors.

The Appellant believes that the contents of the letters indicate unequivocally that the Respondent admits the failure to comply with the terms of the Consent Order and the republication of the apology by the Appellant.

The Respondent on the other hand contends that the Memorandum was only an internal document and does not contravene the said order. It also contends that it was unaware of the said republication, it did not authorise the uploading of the said Memorandum on yesdig.com and did intimate in its letter to the $SSHOODQW¶V VROLFLWRUV WKDW WKH 5Hspondent will take all steps to stop the said leakage and did warn its agents and employees not to do so.

Having considered the affidavits, documents exhibited therein and the submissions by the litigants, I am of the opinion that the Appellant has not shown that the Respondent had committed any act that could be considered in contravention of the Court order and therefore it is not guilty of contempt.

Firstly, when I consider the said order, I find that the Consent order prevents the publication of the written apology externally to third parties. The order does not prevent the sharing of the terms of the Consent Order internally with members of the company internally.

Therefore, I do not find that the mere fact that the Respondent had prepared a Memorandum to inform its employees and / or agents of the outcome of the said suit and the terms of the Consent order, does not on its own prove there is any disregard or contemptuous conduct justifying penalising the Respondent.

I agree that the Respondent had explained that the Memorandum was only shared internally and was not issued to the public at large. This is consistent in the letter dated 19.11.2018 issued by its solicitors after it was informed that the said Memorandum was shared on yesdig.com.

7KH5HVSRQGHQW¶VVROLFLWRUVKDGDSRORJLVHGIRUWKHVDLGOHDNDJHRI the Memorandum and have assured the Appellant that it did not intend to contravene the terms of the Consent Order and did not allow any of its employees or agents to share the same. The Respondent has also assured the Appellant that it will take steps to ensure that the said Memorandum is not shared subsequently. The evidence indicates objectively that there is no intention on the part of the Appellant to disregard the order.

I appreciate the Appellant¶V DUJXPHQWV that there was a republication of the apology as there was a reference to the same in the said Memorandum. Her counsel contends that the cases on republication in a claim relating to libel should be utilised by this Court.

However, I do not believe that the principles of republication apply to the facts at hand. In this case, as I said earlier, the Memorandum was issued internally within the company. Therefore, even if they were to be considered republication, this will not contravene the terms of the order as it was only republished internally.

Secondly, even if I were to acceGHWRWKH$SSHOODQW¶VDUJuments and agree that the release of the memorandum on yesdig.com constitutes republication, there is no evidence that the release of the memorandum was undertaken by the company. The Appellant did not produce any evidence that the company had intentionally disregarded the order and on its own volution released the same on yesdig.com.

To support its claim, the Appellant had produced a Whats App image of the Memorandum on yesdig.com that was shared with her. She did not produce the identity of the person who had shared the said information with her. This is crucial, as the Appellant must show beyond reasonable doubt that this leak is attributed to the Respondent and it is not objectively casual, accidental, or unintentional.

Given the explanation provided by the Respondent, I do not find any objective evidence to link the said leak to it. The Respondent did indicate that it will not contravene the order and will inform its employees and agents that they are not to republish the said apology to any third party. D. Decision

In the circumstances, I find that the Appellant has failed to discharge the onus to prove the allegation against the Respondent beyond reasonable doubt. I find that the Respondent did not wilfully and deliberately disobey the order of the Court and is not guilty of contempt as alleged by the Appellant. Costs of RM 5,000.00 subject to allocator to be paid by the Applicant to the Respondent. Dated 15th December 2021 'DWR¶,QGHUD0RKG$ULHI(PUDQELQ$ULILQ Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 Daljit Singh (Counsel for the Applicant) Messrs. Daljit Singh Partnership Advocates and Solicitors Fong Foong Lan (Counsel for the Respondent) Messrs. Rajinder & Goh (Kuala Lumpur) Advocates and Solicitor.