Low Peck LIM v Ng Kong Ling (11A-56-09/2014)

This is an appeal by the Appellant (Defendant) against the Magistrate’s decision in granting leave order and committal order pursuant to contempt proceedings filed by Respondent (Plaintiff).

The Magistrate allowed the Respondent’s application for committal order and sentenced the Appellant to a one day jail.

In this judgment, the parties are referred to as they were at the Magistrate’s Court. Having perused the Appeal Record, the written submissions of counsels and I have heard the oral submissions of both counsels, I dismiss the appeal with costs and affirmed the Magistrate’s decision.

The brief facts as elucidated based on the Appeal Record, the written submissions of both counsels and the written judgment of the Session Judge,are as follows (chronology at pages 262-263 of Supplementary Appeal Record):

The Plaintiff resides at No. 26, Lorong Lumut, Off Jalan Landasan, Bukit Kuda, 41300 Klang, Selangor Darul Ehsan. 3

The Defendant resides at No. 6, Jalan USJ 5/1K, UEP Subang, 47610 Subang Jaya, Selangor Darul Ehsan.

The Plaintiff claimed that, upon request of the Defendant, the Plaintiff loaned RM16,000.00 where the Defendant agreed to repay the Plaintiff without interest, on 16.10.1999. There was a further request by the Defendant where the Plaintiff further granted the Defendant a loan of RM5,000.00 where the Defendant agreed to repay the Plaintiff without interest on 27.7.2000. The Plaintiff’s claim against the Defendant was for the loan repayment in the sum of RM21,000.00.

The Magistrate’s Court on 16.4.2010 ordered that the Plaintiff’s claim of RM21,000.00 be allowed with interests at 8% per annum from 16.4.2010 until full settlement and costs of RM2,989.00. The Plaintiff then executed the judgment by way of writ of seizure and sales, fixed on 23.4.2012.

On 20.4.2012, the Defendant filed an application for Stay of execution of judgment and in addition, to revoke Plaintiff’s writ of seizure and sales, with the affidavit in support of 20.4.2012 stating among others that although the Plaintiff had been given the Judgment against the Defendant, both parties had consented to settle out of court and therefore Plaintiff is estopped to file any execution against the Defendant (Defendant’s Notice of Application, paragraph (a) at page 12 of the Appellant’s Record of Appeal). The Defendant also stated that on Plaintiff’s request, the Defendant agreed to a global 4 settlement where both parties are required to withdraw their claims including Plaintiff’s claim before this Court (Defendant’s Notice of Application, paragraph (c), at page 12 of Appellant’s Record of Appeal).

On 22.4.2012, the Plaintiff filed an affidavit to oppose the Defendant’s application for Stay and denied that there was a settlement as stated in Defendant’s Affidavit’s paragraph 3 (page 18 of Appellant’s Record of Appeal).

The Defendant’s application for Stay was dismissed by the Magistrate on 24.4.2012. The Plaintiff stated that there is no appeal filed on the decision of the Magistrate by the Defendant. The Defendant on the other hand stated that the Plaintiff only filed his application for leave that the Plaintiff’s Statement and Affidavit in Support of 3.10.2012, where there was a 6 months delay after Defendant’s application to Stay execution, had been disposed of by the Magistrate.

On 27.6.2012, the Plaintiff’s lawyer issued a show-cause letter to the Defendant alleging he had filed false affidavit to support his Stay application as there was no ongoing settlement as alleged by the Defendant in his Affidavit (pages 229-230 of Supplementary Appeal Record). The Defendant claimed that the Defendant replied to the said letter denying filing false affidavit. 5

On 16.10.2012, the Plaintiff filed an ex parte application for leave order, to issue committal order against the Defendant for allegedly filing false affidavit to support his Stay application (pages 189-194 of Supplementary Appeal Record).

The Magistrate granted leave order to allow Plaintiff to file application for committal order against the Defendant on 4.2.2013 through an ex parte application (pages 71-72 of Appeal Record). The Plaintiff than filed an application for committal order against the Defendant under Enclosure 120 on 15.2.2013 and the Defendant immediately filed an application to set aside the leave order, under Enclosure 121.

On 3.7.2013, the Magistrate dismissed the Defendant’s Affidavit ToOppose leave order and refused to hear Enclosure 121 on the ground that it is similar to the Defendant’s Affidavit To Oppose leave order. The Magistrate allowed the Plaintiff’s Enclosure 120.

The Defendant claimed that the Defendant filed a personal Affidavit to apologise to the Magistrate’s Court. The Defendant filed the notice of appeal to the Shah Alam High Court and filed for a Stay at the Magistrate’s Court on 10.7.2013 which was allowed for all committal proceedings pending disposal of appeal at the Shah Alam High Court.

The notice of appeal of 10.7.2013 was dismissed by Justice Mohamad Zabidin bin Mohd Diah on 20.6.2014 (civil appeal no. 6 12A-108-07/2013). After the appeal by Defendant of 10.7.2013 was dismissed by Shah Alam High Court on 20.6.2014, the Magistrate fixed a date for sentencing and mitigation scheduled on 15.8.2014 where the Defendant was present with two counsels and the Defendant as sentenced one day jail (page 246 of Supplementary Appeal Record).

The Defendant filed a Notice of Appeal to the Court of Appeal against the Shah Alam High Court’s decision without leave which was later withdrawn by the Defendant.

The Magistrate dismissed the Defendant’s application under Enclosure 121. After the date for one day jail of 15.8.2014, the Defendant again filed for Stay application at the Magistrate’s Court awaiting Notice of Appeal before this Court and the Stay application was dismissed on 30.1.2015 where the Magistrate rendered it as academic.

The Defendant filed the notice of appeal at the Shah Alam High Court one 26.8.2014 to appeal to both decisions of the Magistrate’s Court given on 3.7.2013 and 15.8.2014. Defendant’s case Preliminary Objections [5] The learned counsel for the Defendant advanced several grounds for the appeal (pages 255 – 261 of Supplementary Record of Appeal of Appellant). Briefly, the Defendant’s counsel submitted that the Plaintiff’s 7 application for contempt proceedings against the Defendant was done in bad faith, that the Defendant’s Affidavit in Support cannot by any objective standard be regarded as false Affidavit and the three documents, Penyataan Affidavit and Ex Parte Application in supporting contempt proceedings were all tainted with false claim. [6] The counsel for the Defendant submitted that the Plaintiff had relied on the Defendant’s Affidavit in support for a Stay affirmed on 20/4/2012 as a basis for his contempt action against the Defendant, without stating clearly which paragraphs he was relying on, to support his claim that the Defendant’s Affidavit is a false Affidavit. It is submitted that the Plaintiff merely referred to paragraph 6 to claim that the Defendant’s Affidavit in Support is a false Affidavit without providing proper particulars or evidence to substantiate his allegation and therefore Plaintiff’s bare and bland statement failed to comply with Order 52 rules 3(2) Rules of Court 2012which required the applicant/Plaintiff to state grounds for committal sought. The Defendant’s counsel submitted that the Defendant had by legal notice denied filing false affidavit. [7] The Defendant’s counsel relied on the case of Bok Chek Thou v Low Swee Boon [1998] 5 CLJ 16in submitting that the Plaintiff’s malicious conduct amount to a practice of deception on the Court and deliberately misled the Magistrate’s Court into believing that the Affidavit in Support of the Defendant was indeed false. [8] The Defendant’s counsel averred that the Plaintiff’s statement and Affidavit are defective as they failed to comply withOrder 52rule 3 of Rules 8 of Court 2012 (ROC 2012)and relied on the authorities of Sykt Mohamed v Mahindapal Singh Joginder Singh [1991] 4 CLJ (Rep) 16; Folin & Brothers v Wong Boon Sun [2010] 4 CLJ 64 and S Balakrishnan v Ketua Polis Negara [2012] 1 CLJ 534. [9] The Defendant’s counsel submitted that the Defendant had through his lawyer’s letter of 19.7.2012 expressly denied filing false statement, referring to paragraph 2(c) and paragraph 4 of the said letter where the Defendant had vigorously objected to Plaintiff or Plaintiff’s lawyer’s malicious allegation. [10] It is submitted that the obnoxious and dishonest conduct of the Plaintiff had misled the Magistrate’s Court to grant leave order and committal order and caused grave injustice to the Defendant. The Defendant’s counsel submitted that this Court can invoke section 32 – section 34 of the Court Judicature Act to set aside the leave order and committal order. Fresh evidence [11] It was brought to the Court’s attention that fresh evidence was filed as Third Supplementary Record of Appeal where the Defendant was charged based on the same Affidavit at the Magistrate’s Criminal Court and the Defendant was acquitted at the end of the prosecution’s case. It was also highlighted that the Magistrate called to testify had admitted in evidence that the Plaintiff suffered no losses as a result of the Stay application and the bailiff was not obstructed from carrying out his job. The counsel for the Defendant averred that the third party, one Jamaluddin Sukar who 9 furnished settlement information to Defendant was called to give evidence for the Deputy Public Prosecutor and submitted that this Court should accept the decision of the Magistrate’s Criminal Court under section 197 of Penal Code without calling for defence. Third Party information [12] The Defendant’s counsel averred that the Defendant had declared to the Court that his information or belief of global settlement with Plaintiff was based on a third party information and not of his own. The Defendant’s counsel submitted that the Magistrate had erred for failing to make finding of fact that the statement of global settlement was truly false: Edmund Ming Kwan v Extra Excel (M) Sdn Bhd [2007] 7 MLJ 276; Tan Boon Lee v Tan Boon Huat [2014] 9 CLJ 717. Delay in filing contempt proceedings by Plaintiff [13] The Defendant’s counsel submitted that there was a delay on the Plaintiff’s part in filing contempt proceedings. It is submitted that the Defendant’s application for Stay was dismissed on 22.4.2012 and on 27.6.2012, the Plaintiff issued a show cause letter to the Defendant. It is submitted that the Plaintiff only filed his papers on 3.10.2012 and his application for leave was on 16.10.2012, therefore there was a delay of 6 months without proper and acceptable explanation by Plaintiff. Other grounds [14] Briefly, the Defendant’s counsel submitted that the Magistrate erred when she failed to consider the relevant statute or rule that would only allow her to impose a fine of RM150 if a case of contempt had been 10 established beyond reasonable doubt, instead of RM2,500.00 for dismissing Enclosure 121 and allowed Enclosure 120 with another costs of RM2,500. [15] The Defendant’s counsel also submitted that the Magistrate erred for not taking into account the apology and mitigation submitted by the Defendant and failed to give proper weight to the mitigation. Plaintiff’s case Preliminary objections [16] The learned counsel for the Plaintiff submitted that the Defendant’s notice of appeal of 22.8.2014 was filed out of time, that is more than one year from Magistrate’s judgment of 3.7.2013 which means the Defendant’s notice of appeal of 22.8.2014 is defective. It is submitted that all orders, judgments and decree are to be appealed with Notice of Appeal within 14 days from date of judgment following Order 55 rule 2 of ROC 2012 and the authority Raja Kumar Andy &Ors v Namgayee Alagan & Anor [2009] 5 CLJ 189is referred. [17] The counsel for the Plaintiff highlighted this Court the grounds of appeal by the Defendant and the Memorandum of Appeal and where the Magistrate had clearly laid out her grounds and finds that the Plaintiff’s claims are sufficient for Defendant to file its Defence. [18] It is submitted that based on the Memorandum of Appeal, the Defendant’s grounds are the same as in the appeal case number 12A-108- 11 07/2013 and averred that the Defendant is estopped to submit its grounds for this appeal asthey had become res judicata: Hertecon JV SdnBhd& Anor v Hartela Contractors Ltd [1996] 2 MLJ 57; Asia Commercial Finance (M) Sdn Bhd v Kawal Teliti Sdn Bhd [1995] 3 MLJ 189; Thoday v Thoday [1964] and Chemfert Sdn Bhd & Anor v Lim Hua [2010] 5 MLJ 228. [19] The Plaintiff’s counsel submitted that the Plaintiff did not state that the Defendant did not deny the false claim. The Magistrate had made a finding of fact that the Defendant’s application to set aside Enclosure 120, the merits and same issues were touched for Enclosure 121 where the Defendant himself had specifically applied for Enclosure 120 which is a substantial application to be dismissed by the Magistrate Court. Therefore the merits of Enclosure 120 were considered by the Magistrate and the Defendant must accept her decision. In addition, it is submitted that the Magistrate had stated in her written judgment that the Plaintiff had proven a prima facie case that the Defendant had made false claims. [20] The Plaintiff’s counsel averred that the Magistrate had considered Defendant’s mitigation as stated in her judgment at page 137 paragraph 8(b) where the Magistrate took note of the Defendant apology and had been in the legal practice for 29 years. It is submitted that the Defendant was not sent to the actual jail for the one day but instead the Defendant was in court on that day. It is submitted that it is not wrong for the Magistrate to impose a jail term of one day. 12 [21] The Plaintiff’s counsel submitted that the Plaintiff’s claim was proved beyond reasonable doubt where the Plaintiff highlighted the paragraphs of the Defendant’s Affidavit and further submitted that the Plaintiff was never involved in any settlement with the Defendant and/or his agent. Further to that, the Plaintiff’s counsel averred that there was no supporting proof that the Defendant’s claim as in his Affidavit are believed to be true. [22] The Plaintiff’s counsel submitted the authority on committal of proceedings and the principle that the intention of the contemnor is not required, following the Federal Court case of Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [2001] 4 MLJ 577. [23] It is submitted that the Defendant was given the opportunity to reply or explained based on the show cause letter of 27.6.2012 but through the Defendant’s solicitor’s letter of 19.7.2012, there was no respond to the matter about one Jamaludin Sukar. The Plaintiff’s counsel submitted that the Defendant only mentioned the individual Jamaludin Sukar as his agent in his affidavit to set aside the leave order dated 4.2.2013 but no affidavit was filed by Jamaludin Sukar during the committal proceeding. No ordinate delay [24] The Plaintiff’s counsel submitted that there was no inordinate delay in filing the committal proceedings where it was pointed out before this Court that the duration between the Defendant’s reply to the show cause letter and the application for leave order was only about three months and it cannot be argued that there was extensive delay on the Plaintiff’s part. 13 Fresh evidence [25] It is submitted that the criminal case and the committal proceedings at the civil court which is the subject matter of this appeal are two different actions based on the forum, provisions or the law and trial involving different evidence. It is further averred that the decision in the criminal court does not bind the decision in the committal proceedings. APPEAL [26] I started off with the logistic issue and the discovery of the missing page of the Session Judge’s Ground of Judgment filed as Supplementary Appeal Record and reminded both counsels of their duty to assist the Court following the Federal Court case of Pacific Forest Industries Sdn Bhd & Anor v Lin Wen-Chih & Anor [2009] 6 MLJ 293. [27] Briefly, in an appeal matter from the lower court, the appellate court is mindful that it would be slow to disturb the finding of fact of the lower court unless the lower court was plainly wrong in fact and law which require the appellate court to intervene. There are a number of authorities that can be referred to, suffice to mention here the Federal Court case of GanYook Chin v Lee Ing Chin [2005] 2 MLJ 1. [28] Based on the chronology of events, the Defendant had filed the notice of appeal at the Shah Alam High Court on 26.8.2014 to appeal on both decisions of the Magistrate’s Court given on 3.7.2013 and 15.8.2014. Upon careful perusal of the Appeal Record, this Court finds that the appeal against the Magistrate’s order on 3.7.2013 which allowed Plaintiff’s 14 Enclosure 120, was filed out of time by the Defendant where more than one year has passed from the 14 days deadline stipulated under Order 55 rule 2 of ROC 2012. [29] The language of Order 55 rule 2of ROC 2012 is clearly mandatory where the provisions must be strictly complied and where no explanation for non-compliance is forthcoming, the appeal notice constitutes a fundamental irregularity which is not curable under Order 1A and 2 of ROC 2012. In view thereof, the appeal should be dismissed. [30] Moving on to the merits, firstly, the suit was brought by the Plaintiff who bears the burden of proof following section 101 of Evidence Act 1950 and the Federal Court case of Letchumana Chettiar Alagappan @ L Allagappan (as executor to SL Alameloo Achi alias Sona Lena Alamelo Acho, deceased) & Anor v Secure Plantataion Sdn Bhd [2017] 4 MLJ 697. Upon careful reading of the affidavits of both parties, the fact that the Defendant admitted that there is a settlement, this Court viewed such statement as an admission of an existence of debt owing to the Plaintiff by the Defendant: section 17 of Evidence Act 1950. The Plaintiff had discharged its burden to proof and the onus to rebut shifts to the Defendant. [31] The Plaintiff under Order 52 rule 3 of ROC 2012 had applied for leave made ex-parte by notice of application supported by statement and an affidavit verifying the facts relied from Defendant (pages 36-43 of Appeal Record), for an order of committal. The counsel for the Defendant averred that the Magistrate had erred in law and fact by failing to 15 appreciate that in contempt proceedings, that it is the paramount duty of the Plaintiff to prove contempt beyond reasonable doubt, and that it is not necessary for the Defendant to prove that the Defendant did not commit the alleged contempt raised by the Plaintiff. [32] Secondly, on the issue of contempt, this Court rely on the definition of contempt of court which has been defined by the Federal Court as, 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 willingness during the litigation: Tan Sri Dato (Dr) Rozali Ismail &Ors v Lim Pang Cheong &Ors [2012] 2 CLJ 849, Federal Court, followed in Dharshini Ganeson v DoraisingamThambyrajah [2014] 1 LNS 61as attributed by Defendant’s counsel. [33] This Court rely on the principle that mens rea is not a strict requirement in contempt proceedings following the Federal Court case of Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [2001] 4 AMR 4241. In Jasa Keramat (supra) case, it was also held that misleading the court is also contempt and the case Cheah Cheng Hock v PP [1986] 1 CLJ 169, Supreme Court was referred where an advocate and solicitor was found guilty of contempt for concealing a document effecting the credibility of a witness in a civil suit. [34] Upon careful reading the Defendant’s Affidavit for Stay application of 20.4.2012 applied to the Magistrate’s Court on 23 April 2012 for the decision of 16.4.2010, the Defendant expressly stated that there was a global settlement for the judgement and the Plaintiff is estopped from 16 executing the judgment (page 11 of Appeal Record). At paragraph 3 of the Notice of Application, it is stated, “3) Secara tambahan, Writ Perlaksanaan yang dikeluarkan oleh Plaintif terhadap Defendan baru-baru ini di mana perlaksanaan ditetapkan pada 23/4/2012 dibatalkan dan/atau Belif diarahkan tidak menghadiri perlaksanaan pada 23/4/2012 atau tarikh yang lain atas alasan terdapat penyelesaian global di antara Plaintif dan Defendan, dan Plaintif diestop daripada melaksanakan Penghakiman tersebut terhadap Defendan. ….. ….. Alasan permohonan oleh Defendan di sini disokong oleh Afidavit Low Peck Lim yang diikrarkan ……. a) Walaupun Plaintif telah memperolehi Penghakiman terhadap Defendan, kedua-dua pihak telah bersetuju mencapai penyelesaian diluar Mahkamah baru-baru ini… b) …. c) Atas permintaan Plaintif, Defendan telah bersetuju kepada suatu global settlement di mana di bawah penyelesaian tersebut kedua-dua pihak dikehendaki menarik balik tuntutan masing-masing, termasuk Penghakiman Plaintif di Mahkamah disini. 17 d) Penyelesaian tersebut tidak boleh dinafikan oleh Plaintif maka, Writ Perlaksanaan yang dikeluarkan terhadap Defendan adalah melanggari syarat penyelesaian global tersebut di mana ia harus di larang dan dibatalkan oleh Mahkamah kerana ia merupakan penyalahgunaan proses Mahkamah….” [35] The supporting affidavit of the Defendant (pages 14 – 16 of Appellant’s Appeal Record) which is the claimed false affidavit by the Plaintiff, reflected the statements as in the Notice of Application of the Defendant particularly at paragraphs 3(a), 4, 5, 6,7 and 9. Paragraph 8 stated that, “8) Penyelesaian tersebut disaksikan oleh pihak ketiga, maka adalah mala fide dan suatu penyalah gunaan proses Mahkamah bagi Plaintif atau peguamnya sengaja meneruskan dengan writ perlaksanaan disini terhadap saya. Plaintif diestop daripada tindakan tersebut yang melanggar syarat penyelesaian yang dicapai.” [36] Based on the ordinary language of the Defendant’s Notice of application and Affidavit, it is clearly stated that there is a settlement between the Plaintiff and the Defendant, leading the Magistrate’s Court to revoke the execution of the writ, otherwise it would be an abuse of the court process. The Plaintiff filed an Objection Affidavit dated 22.4.2012 (pages 17 – 22 of Appeal Record) strongly objecting to paragraph 3 of the Defendant’s Affidavit, denying that there was any settlement that took place between the Plaintiff and the Defendant and denied of any agent for settlement. 18 [37] It is clearly stated in the Plaintiff’s Statement for committal proceedings (pages 30 – 43 of Appellant’s Appeal Record) highlighting the Defendant’s Affidavit at paragraph 6, all the statements made which are based on the Defendant’s Affidavit and the Plaintiff had expressed objection to the statement made by the Defendant. The Plaintiff’s Affidavit in Support had also mentioned the show cause letter of the Plaintiff’s solicitor (dated 27.6.2012, page 229 of Appellant’s Supplementary Appeal Record) requesting the Defendant to explain,and upon this Court’s careful perusal, finds that the Defendant’s solicitor’s letter of 19.7.2012 (page 232 of Appellant’s Supplementary Appeal Record) did not specifically reply to the allegation of settlement which was made by the Defendant. [38] This Court agreed with the Magistrate’s ground that the Plaintiff’s claim had been proven beyond reasonable doubt that the Defendant had contempt where the Defendant failed to produce evidence on the Plaintiff’s and Defendant’s agents, the meeting purportedly to be held for the global settlement and the terms and conditions of the settlement. In addition, the evidence given by Jamaludin Sukar at the Magistrate’s Criminal Court contradict with the Defendant’s affidavit (pages 95, 101 - 114 of Appellant’s Supplementary Appeal Record (3), Jamaludin Sukar’s testimony). [39] Based on the facts and evidence before this Court, this Court holds the view that it is not necessary to prove affirmatively that there has been an actual interference with the administration. It is sufficient based on the Defendant’s affidavit, which narrates the reasons for the dismissal of the Writ of Execution, proves to show that “it is likely or it tends in any way to 19 interfere with the proper administration of justice” following the Court of Appeal case of Murray Hiebert v Chandra Sri Ram [1999] 4 MLJ 321. [40] For the purpose of completeness, this Court is also of the view that the grounds pleaded by the Defendant had been heard in another suit before this Court which renders the Defendant’s appeal as res judicataand the Defendant is estopped from re-litigating. Following the definition by ‘The Law Lexicon’, P Ramanatha Aiyar, 2nd Edition Reprint, 2010, at pages 656-657, estoppel may be invoked in order to prevent a party from re-litigating against a counter party, an issue, be it fact or law after the same had been previously contested or decided in an earlier litigation between the same parties. To put it simply, the issue in question must have been litigated between the parties and the issue was material to the decision of the court: Carl Zeiss Stifung v Rayner & Keeler (N0.2) (1967) 1 AC 853. [41] I therefore do not see that the Magistrate was wrong in law in granting the leave order and committal order against the Defendant that warrants this Court’s intervention. In light of the above reasons, I dismiss the appeal with costs. Dated: 31 May 2018 (ZALITA BINTI ZAIDAN) Judicial Commissioner Shah Alam High Court 20 COUNSEL FOR THE APPELLANT DATO’ SHUKRI MOHAMMAD MELISSA SHUKRI D. M. RAO Messrs D.M. Rao & Company Advocates & Solicitors No. 18-2A, Jalan Suria Setapak Taman Suria Setapak 53000 Kuala Lumpur Ref: [DM/NKL&LPL] Tel: 03-4021 0798 Fax: 03-4024 8627 / 4021 0798 COUNSEL FOR THE RESPONDENT SHAMSHUL BIN JAMIL Messrs Presgrave & Matthews Advocates & Solicitors No. 2, Lebuh Pantai 10300 Pulau Pinang