Low Wee Houng v 1. Alpharon Marketing Sdn Bhd (BA-24NCC-52-03/2021)

This is the Plaintiff’s application under Order 52 of the Rules of Court 2012 for committal proceeding against the 2nd Defendant (Enclosure 22). In the Notice of Application, the Plaintiff is seeking for an order that the 2nd 30 Defendant Low Wee Weng is to be committed to imprisonment and/or be compounded with fine for not complying the Court order dated on the 5th of March 2019. 35 2

The relevant cause papers pertaining to an application in Enclosure 22 are as follows :- 5 a) Plaintiff’s Notice of Application dated on the 22nd of September 2020; b) The 2nd Defendant’s Affidavit in Reply affirmed on the 14th of October 2020 (Enclosure 24); 10 c) Plaintiff’s Affidavit in Reply affirmed on the 22nd of October 2020 (Enclosure 25); d) Notice of Appeal filed by the 2nd Defendant dated on the 6th of May 2020 (Enclosure 32); 15 e) Sealed Order for Enclosure 22 (Enclosure 31). BRIEF FACTS 20

From the time of its corporation up until the present, the 1st Defendant has been managed entirely by the 2nd Defendant with minimal reference to the Plaintiff. Despite Plaintiff being the only other director in the 1st Defendant, the Plaintiff was never provided with any information about nor was the 25 Plaintiff’s consent sought for dealings carried out in the name of the 1st Defendant.

Except for the year of 2009, 2010 and 2011, from 2002 up until the year of 2016, the 1st Defendant has been reporting net losses in its annual income 30 statement. The estimated loss over the years of 2002 to 2016 amounting to RM 346,913.00. 3

As a director or shareholder of the 1st Defendant, the Plaintiff had independently conducted investigations into the financial dealings of the 1st Defendant and from these limited investigations the Plaintiff discovered several questionable dealings and directed his lawyers to write to the Defendants and various parties to get clarification on these transactions 5 involving the 1st Defendant.

In the Originating Summons, the Plaintiff made an application under section 245 of Companies Act 2016 for an inspection of accounts and company documents.

By an Order dated on the 5th of March 2019, the Court, among others ordered the Defendants to allow the Plaintiff to inspect all accounting records of the 1st Defendant from year 2012 to year 2018 (“the said Order”). 15

The definition of contempt of Court in general is defined in Oswald’s Contempt of Court (3rd Ed) at page 6 :- 20 “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 litigation.” 25 4

The procedure to be complied with in an application for committal proceeding is laid down in Order 52 rule 3 of the Rules of Court 2012 where it provides: - Application to Court (O. 52, r. 3) “3. (1) No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.

An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.” 5

The Federal Court in the case of Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458 explained the power of the Court to punish for contempt where at page. 467 it states: - 10 “[21] The jurisprudence for arming the Court with the power to punish a contempt is best expounded by Brown J in Re HE Kingdom v SC Goho [1948] MLJ 17 as follows: But the root principle on which this inherent power to punish for contempt is founded, 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 5 interference with the administration of justice in the public interest. …. [29] It is settled law that committal proceedings is criminal in nature since it involves the liberty of the alleged contemnor. Premised upon that, the law has provided procedural safeguards in committal proceeding which requires strict compliance. In this regard, Cross J in Re B (JA) (An Infant) [1965] 1 Ch 1112 had this to say: Committal is a very serious matter. The Courts must proceed very carefully before they make an order to commit to prison; and rules have been laid down to secure that the alleged contemnor knows clearly what is being alleged against him and has every opportunity to meet the allegations. For example, it is provided that there must be personal service of the motion on him even though he appears by solicitors, and that the notice of motion must set out the grounds on which he is said to be in contempt; further, he must be served as well as with the motion, with the affidavits which constitute the evidence in support of it. It is clear that if safeguards such as these have not been observed in any particular case, then the process is defective even though in the particular case no harm may have been done. For example, if the notice has not been personally served the fact that the respondent knows all about it, and indeed attends the hearing of the motion, makes no difference. In the same way, as is shown by Taylor v Roe, if the notice of motion does not give the grounds of the alleged contempt or the affidavits are not served at the same time as the notice of motion, that is a fatal defect, even though the Defendants gets to know everything before the motion comes on, and indeed answers the affidavits. 6 When, however, one passes away from safeguards which are laid down in the interests of the contemnor and comes to consider mere verbal deficiencies in the documents in question - cases where the documents do not comply strictly with the rules, but it is impossible that in any conceivable case the contemnor could be in any way prejudiced by the defects - then it seems to me that there is no reason why the Courts should be any slower to waive such technical irregularities in a committal proceeding than they would in any other proceeding. (Emphasis added.)”.

Further, as enunciated in the case of Amanah Raya Bhd v Mesiniaga Bhd [2019] MLJU 1483, it is settled law that: - 5 a) The grounds for committal must be set out in sufficient detail within the four corners of the statement to enable the Respondent to appreciate the act of contempt that is alleged; b) The statement is to be supported by an affidavit verifying the facts in 10 the statement; c) The applicant must first obtain leave to commence committal proceedings; and 15 d) No other affidavits can be filed in the committal proceedings to supplement or cure any deficiencies in the statement at a later time.

Having perused all the affidavits filed by the Plaintiff and the 2nd Defendant and upon considering the submissions counsel for the Plaintiff and 2nd 7 Defendant, I find that the Plaintiff has failed to prove beyond reasonable doubt that the 2nd Defendant has failed to obey with the said Order.

The said Order is reproduced below:- 5 “(i) Defendan Pertama melalui Defendan Kedua, akauntan, juruaudit dan/atau mana-mana individu yang bertanggungjawab, membenarkan Plaintif dengan serta-merta, dan dalam apa-apa keadaan sekalipun dalam masa tidak lebih daripada 7 hari dari tarikh Perintah ini, memeriksa kesemua akaun dan/atau rekod perakaunan Defendan Pertama termasuk, tetapi tidak terhad kepada Penyata Untung Rugi, Ledger, Penyata Pendapatan dan/atau Akaun Pentadbiran (“Management Account”) Defendan Pertama bagi tahun-tahun kewangan 2012 hingga 2018;

(ii) Defendan Pertama melalui Defendan Kedua, akauntan, juruaudit dan/atau mana-mana individu yang bertanggungjawab, membenarkan Plaintif dengan serta-merta, dan dalam apa-apa keadaan sekalipun dalam masa tidak lebih daripada 30 hari dari tarikh Perintah ini, memeriksa kesemua imej-imej cek yang dikeluarkan oleh Defendan Pertama bagi tahun-tahun kewangan 2012 hingga 2018;

(iii) Defendan-Defendan dengan serta-merta, dan dalam apa-apa keadaan sekalipun dalam masa tidak lebih daripada 7 hari dari tarikh Perintah ini, membenarkan juruadit syarikat yang diluluskan (“approved company auditor”) menurut peruntukan seksyen 263 Akta Syarikat 2016, seperti yang dilantik oleh Plaintif, untuk memeriksa kesemua akaun dan/atau rekod perakaunan Defendan Pertama termasuk, tetapi tidak terhad kepada Penyata Untung Rugi, Ledger, Penyata Pendapatan dan/atau Akaun Pentadbiran 8 (“Management Account”) Defendan Pertama bagi tahun-tahun kewangan 2012 hingga 2018 dengan syarat akujanji bertulis diberi oleh juruaudit di atas bahawa segala maklumat yang diperoleh oleh juruaudit semasa pemeriksaan tidak boleh dizahirkan olehnya kecuali kepada Plaintif;

(iv) Plaintif diberi kebebasan untuk memohon kepadaMahkamah untuk perintah lanjutan berkenaan dengan perintah-perintah di perenggan-perenggan (i), (ii) dan (iii) di atas;

Tertakluk kepada fi alokatur kos sebanyak RM5,000.00 dibayar oleh Defendan defendan; dan

(vi) Faedah 5% setahun atas jumlah kos di atas dari 05.03.2019 hingga tarikh pembayaran penuh. Perintah Mahkamah tersebut, menurut Aturan 45 Kaedah 7 Kaedah-Kaedah Mahkamah 2012, diindors dengan Notis berikut: “Jika Defendan-Defendan abai mematuhi Perintah ini mengikut masa yang dihadkan dalamnya itu, kamu, LOW WEE HENG, seorang Pengarah bagi Defendan Pertama di atas, boleh dikenakan proses pelaksanaan bagi maksud memaksa kamu untuk mematuhi Perintah ini.” a) Thus, the burden lies on the Plaintiff to prove that the 2nd Defendant has failed to comply with the said Court Order. As in the case of Sivalingam a/l S. Ponniah & Ors v. Balakrishnan a/l S. Ponniah 5 & Ors [2003] 3 MLJ 353, Zulkefli Makinuddin J (later PCA as he was then) summarised the burden of proof required by an applicant, for an order of committal to be made against the proposed contemnor :- 9 “A committal proceeding is a criminal or quasi criminal proceeding. In the first instance, the first Plaintiff has to prove that he had complied with the stipulated rules and procedures. Having proved that, then the first Plaintiff has to prove that both the Defendants are guilty of the allegations or charges made against them. The burden of proof is proof beyond reasonable doubt and this burden is on the first Plaintiff, both as to the rules and procedures and as to the guilt alleged. Failure by the first Plaintiff to so prove either of the requirements is fatal to the first Plaintiff’s application.” (emphasis added) b) Further, it can be seen that the standard of proof required is high in an application for committal proceeding. 5 c) Based on the correspondences between the parties, the 2nd Defendant had made every effort to comply with the said Order. The primary documents, namely “Penyata Untung Rugi, Ledger, Penyata Pendapatan dan/atau Akaun Pentadbiran” ((“Management Account”) had been produced for the Plaintiff’s inspection at the 2nd 10 Defendant’s solicitor office. It had been pointed out to this Court by the 2nd Defendant’s counsel that as at 21st of November 2019, the 2nd Defendant had furnished the following documents to the Plaintiff for inspection :- 15 d) No. Dokumen-Dokumen STATEMENT OF ACCOUNT:-

Statement of Account from March 2012 until December 2012 2. Statement of Account from January 2013 until December 2013 10

Statement of Account from January 2014 until December 2014 4. Statement of Account from January 2015 until December 2015 5. Statement of Account from January 2016 until February 2016 6. Statement of Account from March 2016 until December 2016 7. Statement of Account from January 2017 until December 2017 8. Statement of Account from January 2018 until December 2018

Standard Ledger from 1-3-2017 to 28-2-2018 11. Standard Ledger from 1-3-2016 to 28-2-2017 PROFIT & LOSS STATEMENT, DIRECTOR’S REPORT & AUDIT

Director’s Report & Audit Financial Statement 29-2-2012 13. Profit & Loss Statement from 1/3/2012 to 28/2/2012 together with Director’s Report & Audit Financial Statement 28-2-2013 14. Profit & Loss Statement from 1/3/2013 to 28/2/2014 together with Director’s Report & Audit Financial Statement 28-2-2014 15. Profit & Loss Statement from 1/3/2014 to 28/2/2015 together with Director’s Report & Audit Financial Statement 28-2-2015 16. Profit & Loss Statement from 1/3/2015 to 29/2/2016 together with Director’s Report & Audit Financial Statement 29-2-2016 17. Profit & Loss Statement from 1/3/2016 to 29/2/2017 together with Balance Sheet As At 28-2-2017 18. Profit & Loss Statement from 1/3/2017 to 28/2/2018 together with Balance Sheet As At 28-2-2018 19. Profit & Loss Statement from 1/3/2018 to 31/12/2018 together with Balance Sheet As At 31-12-2018

RHB Bank’s cheques Nos: 213308, 213309, 213310, 213311, 213312, 213314, 213315, 213316, 213318, 213317, 213319, 213320, 213321, 213322, 213323, 213325, 661771, 213324, 61775, 11 61778, 661776, 661777, 61779, 661780, 661781, 661782, 661783, 661784, 661785 and 661786

Copies of UOB Bank’s Cheques from March 2012 until December 2012 22. Copies of UOB Bank’s Cheques from January 2013 until December 2013 23. Copies of UOB Bank’s Cheques from January 2014 until December 2014 24. Copies of UOB Bank’s Cheques from January 2015 until December 2015 25. Copies of UOB Bank’s Cheques from January 2016 until December 2016 26. Copies of UOB Bank’s Cheques from January 2017 until December 2017

RHB Bank’s Statement from 1/3/2012 until 31/12/2012 28. RHB Bank’s Statement from 1/1/2013 until 31/12/2013 29. RHB Bank’s Statement from 1/1/2014 until 31/12/2014 30. RHB Bank’s Statement from 1/1/2015 until 31/12/2015 31. RHB Bank’s Statement from 1/1/2016 until 29/2/2016

Debit Advice dated 20-11-2012 33. Debit Advice dated 14-4-2016 e) Thus, it could not be said that the 2nd Defendant has failed to comply with the said Court Order. What remains, is the additional documents sought by the Plaintiff in their subsequent letters dated 5 on the 15th of March 2019 and 6th of May 2019, in which, the 12 Defendant was unable to furnish the said additional documents for inspections as it was not in his possession. f) I am of the view, even if the 2nd Defendant had failed to provide the said additional documents, but the 2nd Defendant had shown that he 5 has made an effort to search for the said additional documents. On the 14th of January 2020, the 2nd Defendant’s solicitor had written a letter apologising to the Plaintiff for not being able to reply earlier and informed the Plaintiff that they could not find the said additional documents that the Plaintiff are seeking for. Further, this Court 10 observed that there is no evidence produced by the Plaintiff to show that the 2nd Defendant has actual possession of the said additional documents and that the 2nd Defendant had deliberately withheld the same. 15 g) Accordingly, it could not be said that the 2nd Defendant had wilfully breached the said Order. The conduct of the 2nd Defendant, to my mind not amounting to obstructing the administration of justice as per the Federal Court’s decision in the case of Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 20 MLJ 458 cited above.

In the present case, this Court finds that there is sufficient compliance of the said Order, such that there is no contempt committed by the 2nd Defendant.

In light of the aforesaid reasons, the Plaintiff’s application for committal against the 2nd Defendant is dismissed with the cost of RM 1,000.00. 30 13 Dated 11th of November 2021 signed (KHAIRIL AZMI BIN HAJI MOHAMAD HASBIE) Judicial Commissioner 5 High Court Shah Alam 10 For the Plaintiffs : Encik Selvarajah a/l Sivalingam together with Encik James Lopez (Tetuan Fernandez & Selvarajah) For the Defendants : Encik Danny Ng Yeong Chong 15 (Tetuan M.Y. Lim & Junaidah) CASE REFERENCE 20 1. Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458.

Amanah Raya Bhd v Mesiniaga Bhd [2019] MLJU 1483.

Sivalingam a/l S. Ponniah & Ors v. Balakrishnan a/l S. Ponniah & Ors [2003] 3 MLJ 353.

Dato' Seri Yusof bin Dato' Biji Sura @ Mohamad v BTM Timber Industries Sdn Bhd and Ohters [2009] MLJU 0574. 30

Order 52 of the Rules of Court 2012.