Mforce Bike Holdings Sdn. Bhd v Nur Atikah Binti Azwar (WA-23CY-21-05/2024)

Enclosure 75, seeks for the following orders- Kebenaran diberikan kepada Defendan untuk memfailkan Notis Permohonan bagi mendapatkan suatu Perintah Pengkomitan terhadap Asri bin Ahmad (No K/P: 720730-01-5163) (“Permohonan

Penyampaian kertas-kertas kausa berikut iaitu: a) Notis Permohonan berkenaan Permohonan Kebenaran Memulakan Prosiding Pengkomitan; b) Penyataan dan Alasan yang dibuat menurut Aturan 52 kaedah 3 Kaedah-Kaedah Mahkamah 2012; c) Afidavit Menentusahkan Pernyataan dan Alasan berkenaan Permohonan Kebenaran Memulakan Prosiding Pengkomitan; dan d) Perintah berkenaan Permohonan Kebenaran Memulakan Prosiding Pengkomitan secara kediri ke atas Asri bin Ahmad (No K/P: 720730-01-5163) di dalam tempoh masa 14 hari dari tarikh Perintah berkenaan Permohonan Kebenaran Memulakan Prosiding Pengkomitan dibuat dan dimeterai.

Notis Permohonan di bawah Aturan 52 kaedah 4(2) KKM 2012 berkenaan Perintah Pengkomitan ke atas Asri bin Ahmad (No K/P: 720730-01-5163) hendaklah difailkan di dalam tempoh 14 hari selepas Perintah berkenaan Permohonan Kebenaran Memulakan Prosiding Pengkomitan dibuat dan dibenarkan.

Kos dalam kausa.

Kebenaran untuk memohon. Lain-lain Perintah dan/atau relif lanjutan yang difikirkan suai manfaat oleh Mahkamah Yang Mulia ini. BRIEF FACTS [2] The Plaintiff operates a business in manufacturing, distributing, and selling motorcycles and motorcycle spare parts under various brands, including “SYM.” [3] The Defendant is an individual and Malaysian citizen who has address of service at 23 Jalan Ara SD 7/4F Bandar Sri Damansara, 52200 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. [4] Earlier in 2024, the Plaintiff launched a new SYM motorcycle named “Husky-150” which has quickly become highly sought after by bikers and riders in Malaysia, resulting in a waiting list. [5] On 25.04.2024, the Defendant posted a 4-minute and 13-second video on TikTok reviewing the Plaintiff’s motorcycle, the Husky - 150. The video contended to have defamatory review and remarks as “KENAPA JANGAN BELI HUSKY-150”. [6] Therefore, the Plaintiff filed a claim on 10.05.2024 to seek mandatory injunctions and damages against the Defendant. As per filing date, the Plaintiff claimed that the amount of likes had increased to 46.9 thousand, 1,696 thousand of comments, 3,740 thousand of bookmark and 3,006 thousand of share and/or repost. [7] Subsequently, on 10.05.2024, the Plaintiff filed a Notice of Application in Enclosure 3, seeking an injunction order. In support of the said application, the Plaintiff filed Affidavit in Support (AIS) in Enclosure 4. The AIS affirmed by the Plaintiff’s representative, Asri bin Ahmad (Asri) on 10.05.2024 before the Commissioner for Oaths, Mohamed Fathil bin Badaruddin (CFO) in Shah Alam. [8] The Plaintiff later filed a Supplemental Affidavit (Enclosure 6). The Affidavit was also affirmed by Asri on 10.05.2024 before the same CFO in Shah Alam. [9] However, Enclosure 6 was only filed on Monday, 13.05.2025 at approximately 4:11 p.m. [10] Defendant raised a preliminary objection whereby the deponent, Asri was stated to reside in Pulau Pinang, yet both the AIS and Enclosure 6 were affirmed in Shah Alam. The Defendant argued this was illogical and raised doubts about the affidavit's authenticity. [11] In addition, the Defendant contended that there was a material discrepancy in the intitulement of Enclosure 6. At the time of affirmation which was on Friday 10.05.2024, the case number is yet to be generated as the document was only processed by Court on 13.05.2024. Nevertheless, the case number was reflected in the intitulement of the Enclosure 6 and its certificate of verifying exhibit. Hence, Enclosure 6 is backdated due to the case number is not yet exist on the date it was affirmed on 10.05.2025. [12] Following these objections, the Defendant filed Enclosure 75 on the following grounds-i. The case number has yet to produce on the day of filing which was 10.5.2025; ii. The Supplemental Affidavit is backdated due to the case number is not yet exist on 10.5.2025; iii. The Plaintiff’s Deponent did not attend before the Commissioner of Oath to sign the affidavit; iv. The signature of the Deponent on the Affidavit and Commissioner of Oath’s Registration Book is not the same; and iv. The Identification Number on the Commissioner of Oath’s Registration Book have identically different. Parties’ contentions [13] To support this application, Defendant submitted that the word “shall” in Order 41 Rule 1(7) ROC 2012 connotes a mandatory compliance. Enclosure 6 which was dated on 10.05.2024 but filed on 13.05.2024, contains a case number that did not exist at the time of affirmation. This suggests that Asri did not sign Enclosure 6 on 10.05.2024 before the CFO and appears to have been backdated. As such, if the affidavits were not affirmed before the CFO or are backdated, they are essentially devoid of any legal effect. [14] Upon inquiry, Asri attendance was confirmed. However, later verification by Unit Pesuruhjaya Sumpah (UPJS) revealed a signature mismatch in the attendance book against the known signature of the deponent. Furthermore, incorrect identity card (IC) number recorded as (761013-06-5177) instead of (720730-01-5163). Hence, this is in breach of Rule 11(2)(d) of the Commissioner for Oaths Rules 2018. [15] In furtherance, the Plaintiff's failure to comply with the proper procedures constitutes a clear act of contempt of Court as it reflects an utter disrespect for the rule of law and the processes that ensure fairness in legal proceedings. [16] The Plaintiff denies the allegation and confirms that the case number has been generated on 10.05.2024 when the suit was filed. Enclosure 6 was temporarily blocked from filing because the Writ of Summons had not yet been processed. This procedural delay explains why the intitulement already contains the case number, as it has been generated but yet to be registered in the system. [17] As for the discrepancy in the IC number found in the CFO registration book, the Plaintiff submits that it was a clerical error. On the first attendance, the correct IC number (720730-01-5163) registered matched with the affidavit. However, on the second entry, the number was wrongly recorded as 761013-06-5177. The wrong IC number resembles another prior deponent and could have been mistakenly transposed. The Defendant’s observation on this matter is not conclusive to proof the breach of Rule 11(2)(d) of the Commissioner for Oaths Rules 2018 and merely speculative. [18] Thus, the mere accusation and speculation by the Defendant are not sufficient since the threshold in contempt proceedings is high which is beyond reasonable doubt. [19] The allegations made by the Defendant are on speculation basis; and The Defendant failed in providing concrete evidence that the Plaintiff’s Deponent was not attending before the Commissioner of Oaths. ANALYSIS AND FINDINGS Laws on Committal [20] Article 126 of the Federal Constitution provides the power of this Court to deal with punishment on contempt-

“Power to punish for contempt The Federal Court, the Court of Appeal or a High Court shall have power to punish any contempt of itself.”. [21] This provision is further reiterated in section 13 of the Courts of Judicature Act 1964 (Act 91). [22] Before an order for committal is allowed, the applicant must first apply for leave of the Court. It is trite law that the burden of establishing a prima facie case of contempt at the leave stage, is on the applicant and in this case is the Defendant (see Tan Sri Dato' Kam Woon Wah v. Dato' Sri Andrew Kam Tai Yeow & Anor [2024] CLJU 2236; [2024] MLJU 2725; [2024] MLRHU 1144 ; Mukhriz Mahathir v. Datuk Seri Mohd Najib Tun Haji Abdul Razak & Anor [2019] 2 MLRA 64; [2018] 3 MLJ 715; [2018] 6 CLJ 573, Tan Kang Ho v. Mao Sheng Marketing (M) Sdn Bhd & Ors [2015] MLRHU 83; [2015] 4 CLJ 113; [2015] 5 AMR 146 and Dewan Perniagaan Melayu Malaysia Negeri Johor v. Menteri Besar Johor & Ors [2016] 2 MLRH 31; [2016] 7 MLJ 1; [2016] 1 CLJ 52). [23] In Poh Chee Leng & Anor v. Cheah Siew Huen & Ors (Encl 176) [2025] MLRHU 1620, the Court held- “[11] In view of the consequences, the law provides for procedural safeguards in committal proceedings, of which require strict adherence to. (See: Dewan Perniagaan Melayu Malaysia Negeri Johor v. Menteri Besar Johor & Ors [2016] 2 MLRH 31; [2016] 7 MLJ 1; [2016] 1 CLJ 52). [12] These procedural requirements are housed in O 52 of the Rules of Court 2012, as set out below: "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." [13] The rules therefore mandate that an application for a committal order must precede with leave of the court. Whilst the rules make no mention of how the requirement as to leave is to be satisfied, there are sufficient judicial pronouncements on the matter. It is now trite law that the applicant must establish a prima facie case of contempt for leave to be satisfied. [14] I am guided by the case of Wee Choo Keong v. MBf Holdings Bhd & Anor And Another Appeal [1993] 1 MLRA 260; [1993] 1 MLRA 782; [1993] 2 MLJ 217; [1993] 3 CLJ 210; [1993] 2 AMR 1205, 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." (See also: Dato' Oon Ah Baa & Ors v. Eagle & Pagoda Brand Teck Aun Medical Factory & Ors [2003] 3 MLRH 13; [2003] 7 CLJ 81, Foo Khoon Long v. Foo Khoon Wong [2009] 10 MLRH 677; [2009] 9 MLJ 441). [15] The satisfaction of the prima facie case and the applicable standard to be applied was enunciated by Justice Nazlan JC (as he then was), in Dewan Perniagaan Melayu Malaysia Negeri Johor v. Menteri Besar Johor & Ors (supra) where he held: "Accordingly, it is my view that the proposition in law that can be distilled from the foregoing authorities is that given the nature of the leave application which is on the basis of ex parte, the applicant would only need to establish a prima facie case of contempt on a balance of probabilities, focusing on the evaluation of the O 52 statement (to determine there is contempt, and that the grounds are not inherently improbable)." [24] Likewise, in Tan Sri Dato' Kam Woon Wah v. Dato' Sri Andrew Kam Tai Yeow & Anor [2024] CLJU 2236; [2024] MLJU 2725; [2024] MLRHU 1144, the Court held- “[21] Such prima facie case must be established through the supporting statement filed pursuant to O 52 r 3 of the Rules of Court 2012 verified by an affidavit. The test is that of sufficient particularity, namely, such statement must contain sufficient particulars to satisfy the Court that the alleged contemnor has committed a specie of contempt of court and the contents of the verifying affidavit should not be inherently improbable. There is also a duty on the part of the applicant to make full and frank disclosure (See: Tan Kang Ho v. Mao Sheng Marketing (M) Sdn Bhd & Ors [2015] MLRHU 83; [2015] 4 CLJ 113 and Dewan Perniagaan Melayu Malaysia Negeri Johor v. Menteri Besar Johor & Ors [2016] 2 MLRH 31; [2016] 7 MLJ 1; [2016] 1 CLJ 52)”. [25] Further, in the case of Steel Hawk Engineering Sdn Bhd & Anor v. Sundereswaran a/l Raja Manickam & Ors (Sundereswaran a/l Raja Manickam, proposed contemnor) [2022] MLJU 490; [2022] 1 LNS 577, the court held- “[19] In a contempt proceeding, being quasi-criminal, what is required is in appraising the totality of the evidence adduced by parties, a judicial determination must be made as to the sufficiency of the probative materials adduced to support the allegations of contempt against the proposed contemnor. The evidential burden of beyond a reasonable doubt imposed by the law must be met before the proposed contemnor can be found to have contumaciously disobeyed the injunctive order issued by the Court. It is trite that:

The burden on the plaintiffs cannot be discharged by proof of facts on implications or speculations (see Segar Restu (M) Sdn Bhd (supra)). Any argument based merely on the implication of certain facts finds no place in contempt proceedings (see E & E Equipment Sdn Bhd case (supra)); and

Any doubt raised on the allegations of contempt, the benefit of the said doubt must be given in favour of the respondent. Where there is more than one inference drawn from the facts, the inference favourable to the accused should be adopted (see Foo Khoon Long (supra)).” [26] Also, in Ahmad Rubil bin Ahmad & Ors v. Minda Muhibah Sdn Bhd & Anor (Terminal Bersepadu Gombak Sdn Bhd & Ors, third parties) [2023] MLJU 2605; [2024] 2 CLJ 73, the Court held- “I had, among other things, observed and considered the foregoing paragraphs [8] Ds Submissions and [9] Ps Submissions. It is my considered judgment that the Ps, unfortunately, failed to adduce the required convincing evidence in totality to tilt the scale of proof to establish their claim. What is before me from the Ps side are speculative materials leading to a suggestion that it was possible. That does not satisfy the required burden by law. The weight of evidence does not support such a conclusion. The Ps witnesses, including the experts in their respective fields, could not satisfactorily nail the issue to establish guilt on the Ds’ part. It opens the door for more speculations as to what had happened. Speculative evidence to suggest fault is never good evidence in law. I cannot rest a definitive finding on it. … See Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors and Other Appeals [2003] 1 MLJ 567, CA. Definitive proof of fault and liability on cogent evidence for determination is unavailable. No matter how forceful, passionate and overreaching the arguments and assertions by the Ps may be, sans compelling proof, it is reduced to speculation at best, and the Court will not act on speculation, no matter how sympathetic the Court may be to the Ps’ cause and plight.

11.3.4The Federal Court in Guan Soon Tin Mining Co v Wong Fook Kum (supra), it held that there was no positive proof, but only a possibility. Consequently, it cannot amount to a greater weight of evidence to which fault and liability can be attached. … It is my judgment that, taking the facts in their totality, I am constrained to find that the Ps claim is wanting in compelling proof to attach liability on the Ds for the deluge that occurred and the resulting damage to the Ps’ houses. There is no evidence in the circumstances to attach liability to the Ds. What has been presented are conjectures and “maybe” instead of convincing evidence. It leaves substantial room for speculation. The Court cannot act on speculation but only on proven facts.

12.2.4 I cannot in good conscience attach liability on the Ds grounded on speculative evidence, no matter how assertive the arguments may be. I also believe that the third party(s) should have been cited as parties to this suit to explore the facts and evidence more comprehensively and compellingly to nail the guilty party, if any, with certainty and not speculatively. But then again, that is for the Ps to decide. It’s only my observation.” [27] Thus, this Court is of the considered view that the accusation and speculation by the Defendant are not sufficient. The allegations made by the Defendant are on speculation basis; and the Defendant failed in providing solid evidence that the Plaintiff’s deponent was not attending before the Commissioner for Oaths. [28] Therefore, this Court is satisfied that the Defendant has failed to show a prima facie contempt of court on the part of the alleged contemnor. CONCLUSION [29] Based on the above deliberations, this Court dismissed Enclosure 75 with costs. Dated: 28 August 2025 -SGD- (SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court NCVC 1 Kuala Lumpur COUNSELS For the Plaintiff : Mohd Iskandar bin Ismail & Muhammad Faris bin Muhamad Fazly Tetuan Basharuddin Iskandar For the Defendant : ZH Lim dan Aisya Anwar