Ng Kae Jeng v Invenpro (M) Sdn Bhd (WA-24NCC-337-07/2024)

(M) Sdn Bhd [No. Pendaftaran: 20050109441 (701559-X)] Dan Dalam Perkara mengenai Memorandum dan Artikel Syarikat bertarikh 20.6.2005 Dan Dalam Perkara mengenai Seksyen-Seksyen 57, 58, 198, 199, 200, 206, 212, 218, 236, 316, 322, 346 dan/atau 602 Akta Syarikat 2016 Dan Dalam Perkara mengenai Aturan 88 Kaedah 2 Kaedah-Kaedah Mahkamah 2012 S/N 9zO8pcBcR02HTz8Phqk9eg NG KAE JENG (No. K/P: 740704-14-5499) …PLAINTIF DAN

INVENPRO (M) SDN BHD [No. Pendaftaran: 200501019441 (701559-X)

LIANG KIEN HUI (No. K/P: 770515-04-5787)

KAMARUL BAHRIN BIN ABDULLAH (No. K/P: 600101-08-5939) …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT (Enclosure 64 & Enclosure 71)

The Plaintiff seeks committal orders against Liang Kien Hui (“D2”) and Kamarul Bahrin bin Abdullah (“D3”) in Enclosure 64. D2 and D3 are, respectively, the director and company secretary of Invenpro (M) Sdn Bhd (“Company”). They are charged with allegedly giving false evidence under oath, misleading the Court, and abusing the Court's process. S/N 9zO8pcBcR02HTz8Phqk9eg

The Plaintiff had filed this Originating Summons (“OS”) after a Notification of Change of Directors, Managers and Secretaries under Section 58 of the Companies Act 2016 (“Notification”) was lodged with the Companies Commission of Malaysia (“CCM”) by D3. The change reflected his alleged resignation as a director and the appointment of D3 as the new Company Secretary on 10-7-

2024.

As the Plaintiff contends that he neither resigned nor had any knowledge of the appointment of D3, he filed this OS against D2 and D3 for various declarations and consequential relief, principally a declaration that his removal as a director was null and void, and an order for his reinstatement. The OS was also framed as an oppression action under section 346 of the Companies Act 2016 as the Plaintiff is also a shareholder of the Company.

On 7-3-2025, the Court allowed the OS. For reasons which will be apparent, CCM intervened in the proceedings to clarify that it merely processed the Notification to reflect the information in its records in the ordinary course of events when such documents are lodged, and conducted no review or verification of its content.

On 3-3-2026, this Court allowed the Plaintiff’s application for leave to commence these committal proceedings. S/N 9zO8pcBcR02HTz8Phqk9eg Analysis and findings

Based on the Statement filed pursuant to Order 52 Rule 3(2) of the Rules of Court 2012, the charges against D2 and D3 are that they wilfully:

gave false evidence under oath;

misled the Court about the truth concerning his removal as a director on 10-7-2024; and

abused the Court’s process. According to the Plaintiff, they had thereby affected the integrity of the proceedings, interfered with the administration of justice and were in contempt of court.

D2 and D3 denied the charge and applied to set aside the Order granting leave on the same substantive denial in Enclosure 71. They also raised 2 preliminary questions, namely, that no notice to show cause was issued before the Plaintiff commenced contempt proceedings and there was an unexplained delay in commencing the proceedings. Preliminary questions

The issue of whether a notice to show cause is a pre-condition to be satisfied before commencing committal proceedings was settled by the Federal Court in Tan Poh Lee v Tan Boon Thien [2022] 2 CLJ 179 and need not be further discussed. This Court is bound S/N 9zO8pcBcR02HTz8Phqk9eg and rejects the submission by D2 and D3 that the decision is per incuriam and wrong.

On the issue of delay, D2 and D3 relied on Malaysian Bar v Tan Sri Dato’ Abdul Hamid Omar [1989] 1 MLRA 194 [SC] which held that an allegation of contempt should be pursued within a reasonable promptitude and delays must be explained. See also Tiger Powerhitz Sdn Bhd v Guinness Anchor Marketing Sdn Bhd [2002] MLRH 45 and Celcom (Malaysia) Bhd & Anor v Tan Sri Dato’ Tajudin Ramli & Ors and Anor [2017] 7 CLJ 488.

In this case, the alleged false statements on affidavit were made in Enclosure 7, which was affirmed and filed on 16-8-2024 and in Enclosure 13, which was affirmed and filed on 13-9-2024. The written Grounds of Judgment of the High Court was issued on 12- 6-2025, and the ex-parte application for leave to commence committal proceedings was filed on 7-1-2026.

The Plaintiff explained that they had been prompted by the grounds of judgment of the High Court issued on 12-6-2025 concerning the averments made by D2 and D3 to implicate CCM on affidavit about the matters in question. Further, they say that they were dealing with applications for stay of execution pending appeal immediately following the decision of the High Court on the OS on 7-3-2025.

This Court finds that there was indeed a period of 16 or 17 months that lapsed between the alleged false evidence given on affidavit and the initiation of contempt of court proceedings. However, in a charge of giving false affidavit evidence in proceedings based on S/N 9zO8pcBcR02HTz8Phqk9eg contested affidavits, the relevant period of alleged delay can only appropriately start after the High Court gave judgment on 7-3-2025 and in this case, after the High Court expressed its views on the case advanced by D2 and D3 in relation to those alleged false affidavits.

Delay is a discretionary factor and as such, this Court accepts the Plaintiff’s explanation and does not find the period of 6 months or so before the filing of the leave application to commence contempt of court proceedings to be inordinate or fatal to this application. Contempt of court

It is settled law that in contempt of court proceedings, proof of the charge of contempt must be beyond reasonable doubt, i.e., to the standard required in a criminal case (Wee Choo Keong; Houng Hai Hong & Anor v MBf Holdings Bhd & Anor & 3 Other Appeals [1995] 4 CLJ 427).

The crux of the contempt of court application in this case is the allegation that D2 gave false evidence on behalf of himself and D3 in (i) paragraphs 6, 14-15 and 19 of their Affidavit dated 16-8-2024 (Enclosure 7); and (ii) in paragraph 9 of their Affidavit dated 13-9- 2024 (Enclosure 13). In response to the allegation that D2 and D3 had misrepresented his removal in lodging the Notification, D2 essentially said the following under oath: S/N 9zO8pcBcR02HTz8Phqk9eg “Plaintif tidak disingkirkan atau dipecat tetapi pihak SSM telah mengambil tindakan. Defendan-Defendan tidak mempunyai kuasa untuk menyingkirkan atau memecat Plaintif.” (“Statement”). D2 and D3 maintained this despite CCM’s clarification of its role.

The Plaintiff contended the Statement is false and misleading, warranting a finding of contempt of court.

In their substantive response to the charge of contempt of court, D2 and D3 contended that: a) there is no falsity in their Statement that “CCM had taken action” because CCM had indeed taken action on their databases to reflect the changes in the Notification and the Plaintiff’s cessation was classified by CCM as a “resignation” on 10-7-2024 and not a removal; b) even if there is falsity, there was no subjective intent to interfere and no actual interference with the administration of justice as the Statement did not affect the outcome of this case; and c) the law affords D2 and D3 immunity as they are “witnesses” when giving evidence on affidavit. S/N 9zO8pcBcR02HTz8Phqk9eg

False evidence

As a matter of law, D2 and D3 argued that this Court cannot find contempt of court without direct evidence of the Statement's falsity, and that no inferences may be drawn as to what they meant. D2 and D3 argued that the Statement is literally true. It was suggested that there is, in any case, some doubt as CCM classified the cessation of the Plaintiff’s office on 10-7-2024 as a “resignation” rather than a removal.

In principle, this Court does not agree with the proposition that contempt of court cannot be founded on inferences based on circumstantial evidence. It is trite that circumstantial evidence can be enough to convict a person criminally (Pathmanabhan Nalliannen v PP & Other appeals [2017] 4 CLJ 137). Of course, where the evidence is entirely circumstantial, the Court should also be slow to draw inferences, and should only do so if the facts relied on are not reasonably capable of any other explanation.

In this case, while there is no doubt that D3 lodged the Notification, D2 did not admit or deny that he instructed D3 to lodge the Notification. Read fairly and in context, the Statement was not a genuine answer to the allegation. Rather, it carefully avoided the real issue, namely whether D2 and D3 were responsible for instructing, preparing and lodging the Notification. There was no other reasonable explanation for the change reflected in the CCM databases other than that D3 was instructed by D2 to lodge the Notification. S/N 9zO8pcBcR02HTz8Phqk9eg

The Statement was more than a non-answer. It sought to portray CCM as the operative actor in the Plaintiff’s removal while omitting the antecedent acts of instruction, preparation and lodgement that produced the change in CCM’s records. This can be inferred because there was already in evidence, a letter from solicitors of D2 and D3 dated 5-8-2024, in which D2 and D3 said the following when confronted about the Notification: “In addition, the removal of Ng Kae Jeng as a director was done and performed by the Companies Commission of Malaysia (CCM). Our client has no such power to remove your Client.” [Emphasis added]

By the Statement, D2 and D3 were seeking to distance themselves and plant the seed of doubt to implicate CCM in the Plaintiff’s removal as a director of the Company. D2 and D3 maintained this stance even though the High Court had quite clearly found that they had indeed wrongly removed him: “[49] The coordinated actions of the Second and Third Defendants – including the appointment of the Third Defendant as company secretary without board approval, the immediate change of the registered address to the Third Defendant’s office, the purported removal of the Plaintiff as director, and the denial of access to the Plaintiff’s company S/N 9zO8pcBcR02HTz8Phqk9eg email – demonstrate a pattern of conduct aimed at excluding the Plaintiff from the management of the First Defendant.” As the Court of Appeal has dismissed the appeal by D2 and D3 on 20-5-2026, this Court is entitled to proceed on the basis of those findings.

Considering this evidence, it was unsurprising that the averments under oath made by D2 and D3 in opposing the Originating Summons, invited the High Court’s concern: “[19] The Defendants’ assertion that “SSM has taken action” is particularly troubling in light of CCM’s clarification.”

In the circumstances, this Court finds that in opposing the OS, D2 and D3 had wilfully and deliberately crafted the Statement as it appeared under oath, to distance themselves and implicate CCM in the Plaintiff’s removal as a director of the Company. That is the only reasonable inference and it is substantively false and misleading. It is classic prevarication i.e. a deliberate evasion of the truth.

Interference with justice

On this point, D2 and D3 argued that there was ultimately no proof of subjective intent to interfere with, nor any actual interference with the administration of justice because the Court responded S/N 9zO8pcBcR02HTz8Phqk9eg appropriately in rejecting their averments and finding for the Plaintiff in the Originating Summons.

In support of the aforesaid submission, this Court was referred to the decision of Vincent Ng in Edmund Ming Kwan v Extra Excel (Malaysia) Sdn Bhd & Ors (No. 2) [2007] 2 MLRH 725; [2007] 7 MLJ 276; [2007] 9 CLJ 400 (“Edmund”). Edmund also concerned an allegation that the alleged contemnor had wilfully and intentionally made false and misleading statements in affidavits filed in an oppression petition.

In dismissing the application for leave to commence committal proceedings in Edmund, Vincent Ng J set out the following factors to consider in deciding when an alleged false and misleading statement in an affidavit can ground contempt proceedings: “[4] On the question whether the statement was intended to be false and misleading (mens rea) and whether it was made with actual or inevitable intent or consequence of frustrating or obstructing the administration of justice, this court would have to:

firstly, look at the relationship between the alleged false statements and the issues to be decided in the main proceedings. (See Keeley v. Brooking [1979] 25 ALR 45); (ii) secondly, bear in mind that unlike the offence of perjury, contempt requires the actual or inevitable intent or consequence of frustrating or obstructing the S/N 9zO8pcBcR02HTz8Phqk9eg administration of justice (see Jaginder Singh [1983] CLJ (Rep) 176 at 179, Coward v. Stapleton [1953] 90 CLR 573, Re Bride, Ex-parte Steward [1984] WB 455, R v. Christopher Charles Murfett [2004] VSC 160 and Halsburys Laws of England, 4th edn, vol 9(1) pp 242-243); (iii) thirdly, be mindful that a “mere falsity of evidence is not enough to justify a contempt charge” (see Yee Sang Metal [2002] HKCU 1255); and, (iv) fourthly, be slow to draw inferences from affidavits as to the bona fides or mala fides of the alleged contemnor (see In Re

Edmund was cited by the Court of Appeal in Woodsville Sdn Bhd v Tien Ik Enterprises Sdn Bhd & Ors & Another Appeal [2009] 3 MLRA 495, but it was not followed by the Court of Appeal in Shencourt Sdn Bhd v Wanfy (M) Sdn Bhd [2014] CLJU 1101 on the requirement for proof of the mens rea of the alleged contemnor, following Zainur Zakaria v PP [2001] 1 CLJ 455. The issue is whether there must be actual or inevitable intent or consequence of frustrating or obstructing the administration of justice.

Based on cases involving publication contempt, the law is settled that there is no requirement to prove intention (Murray Hiebert v. Chandra Sri Ram [1999] 4 CLJ 65). This Court takes the view that while the publication contempt is a different species of interference with the administration of justice from false evidence contempt, neither require affirmative proof that there had been an actual interference with the administration of justice by reason of S/N 9zO8pcBcR02HTz8Phqk9eg offending statements. It is enough if it is likely or tends in any way to interfere with the proper administration of justice.

In Plastech Industries System Sdn Bhd v. N & C Resources Sdn Bhd & Ors [2015] 7 CLJ 252 the first, second, and fourth defendants were found guilty of contempt of court for interfering with the due administration of justice by lying on oath in affidavits during earlier compliance proceedings, in which they falsely claimed full compliance with the judgment and complete disclosure of all relevant documents to the plaintiff. The Court cited Murray Hiebert v. Chandra Sri Ram [1999] 4 CLJ 65; [1999] 4 MLJ 321, where the Court of Appeal held that: “To constitute contempt of court, it is not necessary to prove affirmatively that there had been an actual interference with the administration of justice by reason of offending statements. It is enough if it is likely or it tends in any way to interfere with the proper administration of justice...”

In fact, the above is not only true in publication contempt but generally true. Reference must also be made to the case of Monatech (M) Sdn Bhd v. Jasa Keramat Sdn Bhd [2002] 4 CLJ 401; [2002] 4 MLJ 241 where the Federal Court held as follows: “Following the principle, Oswald's Contempt of Court (3rd Ed) provides a good guide to a general definition of contempt of court, thus: S/N 9zO8pcBcR02HTz8Phqk9eg 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.”

The term that is often used is that an act is “calculated to” obstruct or interfere with the administration of justice and this is a term of art that is interpreted as an objective test to mean “likely to” or “having the tendency to.” The offence of contempt of court is aimed at protecting the integrity of judicial proceedings, so the focus is on the effect or risk the conduct creates and not the subjective state of mind of the contemnor.

Thus, this Court rules that as long as it is proved that a false and misleading statement has been wilfully and deliberately made under oath and the statement concerns a material issue before the Court, it is unnecessary to further prove that the alleged contemnor subjectively intended to obstruct or interfere with the administration of justice, or that the statement in fact succeeded in doing so. Just as a statement published in breach of the sub judice rule is capable of interfering with the administration of justice by its objective tendency to do so, a deliberately false and misleading statement on oath concerning a material issue before the Court is likewise capable fo interfering with the administration of justice if assumed to be true. To require proof of actual obstruction would mean that liability depended not on the inherent tendency of the conduct, but S/N 9zO8pcBcR02HTz8Phqk9eg on whether the attempted deception happened to succeed. The law cannot sensibly draw such a distinction.

Thus, in evaluating the charge of giving false evidence, the correct questions to ask are: a) whether a statement on affidavit is false and misleading; b) whether it was made wilfully and intentionally; and c) whether it is likely to, or has a tendency to, obstruct or interfere with the administration of justice.

Per Edmund, whether a statement had the tendency to frustrate or obstruct the administration of justice, depends on the relationship between the alleged false statements and the issues to be decided in the main proceedings and the non-trivial nature of the falsity. This is also consistent with the general observation that the contemptuous act must be sufficiently serious and closely connected to the particular proceedings (Monatech (M) Sdn Bhd v Jasa Keramat Sdn Bhd [2002] 4 CLJ 401).

In this case, the Statement struck at the heart of the subject matter of the Originating Summons namely whether D2 and D3 had wrongfully removed the Plaintiff as a director of the Company. The Court finds D2's conduct to be a calculated attempt to mislead the Court even though the attempt ultimately failed. S/N 9zO8pcBcR02HTz8Phqk9eg

The evidence leaves no room for doubt that D2 was the progenitor of the Plaintiff’s removal and that D3 acted on D2’s instructions. It is not D2’s case that D3 acted on a frolic of his own nor was it D3’s case that he was simply following instructions. Both D2 and D3 committed to the stance they took to evade and point their finger at CCM. This Court has already found the Statement to be substantively false and misleading because CCM was clearly not the progenitor of the Plaintiff’s removal.

This was not an innocent misunderstanding, nor an exercise in imprecise language. It was a deliberate effort to obscure the truth and to divert attention from his own conduct. Such conduct strikes at the integrity of judicial proceedings, which depend fundamentally upon parties giving truthful evidence under oath. A litigant who seeks to manipulate language in order to conceal material facts from the Court demonstrates a manifest disregard for the duty of candour owed to the Court. The Court therefore finds that D2 knowingly attempted to mislead the Court and is satisfied that his conduct constitutes contempt of court.

This Court is unimpressed by the attempt at semantic contrivance with the Statement. This Court is equally unimpressed by the attempt to evade the allegation that they swore a false affidavit through a play on words and carefully crafted distinctions devoid of any substantive difference. This case supports a finding that the Statement was calculated to obstruct or frustrate the administration of justice warranting summary committal for contempt. S/N 9zO8pcBcR02HTz8Phqk9eg

Witness immunity

Finally, D2 and D3 relied on Ng Wai Pin v. Ong Yew Teik & Other Appeals [2025] 7 CLJ 859 (“Ng Wai Pin”) to argue that under common law, witnesses have absolute immunity from liability in civil action in respect of oral and written evidence in judicial proceedings. Accordingly, so they say, the Statement made in judicial proceedings as witness evidence is immune from contempt of court proceedings.

The common law doctrine of absolute witness immunity — protecting parties and witnesses from civil liability for evidence given in judicial proceedings — is recognised in Malaysia. It covers oral and written statements, even if untrue or malicious, and extends to acts done from the inception of proceedings, including pleadings and preparatory documents. The short answer to the contention advanced by D2 and D3 is that the civil proceedings discussed above do not encompass contempt of court proceedings. As observed by the Federal Court in Ng Wai Pin: “[110] Given the authorities regarding witness immunity, it is our view that the High Court was correct in determining that the D1-D5 is entitled to rely on witness immunity or privilege. Whilst the rule is absolute in core immunity, there may be exceptions depending on the context and the specifics. It does not preclude prosecution for perjury, perverting the course of justice or for contempt of court, liability for malicious S/N 9zO8pcBcR02HTz8Phqk9eg prosecution or misfeasance in public office (see Jones v. Kaney). As the pleadings in the present appeals stand, nothing turns on the exceptions.” [Emphasis added]

This Court will further emphasise that not every false statement on oath constitutes contempt of court. False evidence may amount to perjury without amounting to contempt. Contempt arises only where the deliberate falsity is sufficiently connected with pending proceedings and is calculated, in the objective sense, to interfere with or prejudice the administration of justice.

The Court is bound to view with particular concern a litigant who, rather than forthrightly admitting error, elects to persist on artifices of language in the hope of escaping accountability. D2 and D3 persisted in advancing technical formulations in an apparent attempt to avoid the consequences of their conduct whilst maintaining the appearance of truthfulness. Such conduct is an aggravating factor. It demonstrates not a momentary lapse of judgment, but a continuing and conscious refusal to accept responsibility for conduct that has already been found to be misleading. S/N 9zO8pcBcR02HTz8Phqk9eg

Far from mitigating the contempt, D2's persistence and insincere belated and perfunctory apology through counsel if the Court finds contempt, serves only to underscore the deliberate nature of the actions and their disregard for the integrity of these proceedings.

In Arab-Malaysian Prima Realty Sdn. Bhd. v Sri Kelangkota-Rakan Engineering JV Sdn. Bhd. & Ors. [2000] 2 CLJ 632, Low Hop Bing J (as he then was) held [at 635]:- “It is evident to me that her conduct throughout the whole of the committal proceedings reflected a conduct constituting unmitigated repentance and was indeed an affront to the authority of the court. Further, in my view, an apology to be effective must be given immediately in the 3rd defendant’s affidavits filed for the hearing of the substantive notice of motion in order to show - her remorse or repentance at the earliest opportunity, and not as an afterthought, subsequent to a finding of guilt and conviction against her.”

For all of the above reasons, this Court allows Enclosure 64 and dismisses Enclosure 71. D2 and D3 are sentenced to a fine of RM30,000.00 each, failing which they are to be committed to prison for 3 days each. Costs of RM10,000.00 are awarded for each of the applications amounting to RM20,000.00 in global costs. S/N 9zO8pcBcR02HTz8Phqk9eg

This Court also grants the oral application by D2 and D3 for a temporary stay of the sentence pending the filing of an appeal to the Court of Appeal. Bertarikh: 10 Julai 2026 . ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA KUALA LUMPUR Peguam Untuk Plaintif: Kong Kai Yan Tetuan HL Lee & Co Untuk Defendan-Defendan: Kok Pok Chin, Ng Pau Chze Tetuan PC Kok & Co S/N 9zO8pcBcR02HTz8Phqk9eg