PA-24NCC-10-03/2021

The Plaintiff asserts that Madam Yew has failed or refused to comply with the November 2021 Order. The Plaintiff, as such, seeks the leave of Court to commence committal proceedings against Madam Yew.

Should this Court give leave to the Plaintiff? THE PERTINENT FACTS AND PROCEEDINGS [4] Madam Yew is the Plaintiff’s director.

The November 2021 Order orders Madam Yew to produce, within 14 days of the Order, documents that relate to the Plaintiff’s income tax for the 2015 to 2019 years of assessment, as well as the company ledgers, accounts books, bank account statements and the like.

The Plaintiff issued a notice dated 15.6.2022 to Madam Yew to demand that she complies with the terms of the November 2021 Order. Madam Yew did not perform her obligations under the November 2021 Order.

The Plaintiff then resorts to filing this Application for leave to commence a committal proceeding against Madam Yew to compel her to comply with the November 2021 Order, on pain of committal. The Plaintiff Page 3 of 9 asserts that for disobeying the November 2021 Order, Madam Yew is in contempt of Court and should be committed to prison. THE NEED FOR THE LEAVE OF COURT [8] Before the Plaintiff launches committal proceedings against Madam Yew, the Plaintiff requires the leave of Court: Order 52 Rule 3(1) of the Rules Of Court 2012 (ROC)

Order 52 Rule 3(1) provides that—

Order 52 Committal Application to Court (O. 52 r. 3)

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. [10] The Application before me is the Plaintiff’s Application for leave to commence committal proceeding against Madam Yew. WAS THE NOVEMBER 2021 ORDER SERVED ON MADAM YEW? [11] Committal proceedings in civil suits are quasi-criminal in nature and effect. In civil proceedings, a party is seeking to commit the opposite party to prison for contempt of court, for disobeying or not complying with a Court Order, as if that party has offended a penal statute under criminal law. [12] The first issue that I am to consider is whether the November 2021 Order was effectively served on Madam Yew. Page 4 of 9 [13] Order 45 Rule 5 and Rule 7 of the ROC provide that in order to enforce the November 2021 Order, the Plaintiff must first serve it personally on Madam Yew. [14] This was how the Plaintiff served the November 2021 Order on Madam Yew. The Plaintiff’s process server attempted to serve the November 2021 Order on Madam Yew at her residence, twice. But the process serve could not serve it on her. [15] On the first attempt, the process server was told that Madam Yew was not there. On the second attempt, the process server was not allowed to go into the condominium complex to serve the Order. [16] So, the Plaintiff made a third attempt at Court. On 29.6.2022, parties had a hearing in Court. The Plaintiff’s process server found Madam Yew in the Court building to effect service of the November 2021 Order. [17] The process server affirmed an Affidavit Of Service (Enclosure 42) that asserted that—

he handed the November 2021 Order to Madam Yew;

she read the Order but when she was asked to acknowledge the service of the Order, she refused to;

she instructed her solicitor: Cheah Sin Chin of Messrs. Azwar & Associates to acknowledge the service on her behalf. Page 5 of 9 [18] When I referred to the Affidavit Of Service, and the exhibited cover letter, issued for the purpose of serving the November 2021 Order on Madam Yew, I could read the following quite legible writings—

“Cheah”;

“Azwar Associates”;

“29/6/22”; and

a 10-digit NRIC number. [19] The requirement for the service of the November 2021 Order is a matter of due process and a matter of fairness to Madam Yew. The November 2021 Order should be served on Madam Yew because she is entitled to know the terms of her obligation that are set out in the Order. In other words, she should know what she is obligated to do, before she can be said to have disobeyed the Order and be punished for it. [20] In any event, I had no reason to doubt the veracity of the Plaintiff’s process server’s affidavit evidence. And so I conclude that the November 2021 Order was effectively served on Madam Yew on that day: 29.6.2022. DID MADAM YEW KNOW THE TERMS OF THE NOVEMBER 2021 ORDER? [21] When I consider whether Madam Yew knew the terms of the November 2021 Order, I find that when the November 2021 Order was granted in favour of the Plaintiff, Madam Yew was represented by her solicitors: Messrs. Azwar & Associates. [22] Madam Yew appealed to the Court Of Appeal against the November 2021 Order. Her solicitors must have informed her about the terms of the Page 6 of 9 November 2021 Order, and advised her about her position on Appeal. She instructed them to mount an Appeal. [23] The Court Of Appeal dismissed her Appeal in August 2022. Her solicitors must have informed her about the Court Of Appeal’s decision dismissing her Appeal against the November 2021 Order, and advised her about her chances of appealing further to the Federal Court. The Plaintiff’s counsel informs me that Madam Yew has since instructed her solicitors to file an Application for leave to appeal further to the Federal Court. She has filed the Application for leave to appeal. [24] I therefore find that Madam Yew indeed knows about the terms of the November 2021 Order. DOES THE PLAINTIFF HAVE A PRIMA FACIE CASE FOR COMMITTAL? [25] The Plaintiff should only be granted leave to commence committal proceedings against Madam Yew if the Plaintiff can show a prima facie case for contempt against Madam Yew that justifies giving leave. [26] On the requirement of a prima facie case for contempt, I am guided by, and can do no better than to refer to the analysis of Justice Mohd Nazlan JC (later JCA) in Dewan Perniagaan Melayu Malaysia Negeri Johor v Menteri Besar Johor & Ors [2016] 7 MLJ 1 (HC); [2016] 1 CLJ 52; [2017] 4 AMR 434. [27] Justice Mohd Nazlan in Dewan Perniagaan Melayu Malaysia Negeri Johor (supra) says this— Requirement for prima facie case Page 7 of 9 [20] My review of the relevant case law authorities suggests that it should by now be considered settled law that leave to file committal proceedings will be granted if a prima facie case of contempt can be established. In the case of Wee Choo Keong v MBf Holdings Bhd & Anor and another appeal [1993] 2 MLJ 217, 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 … (Emphasis added.) [21] In Dato’ Oon Ah Baa @ Boon Pak Leong & Others v Eagle & Pagoda Brand Teck Aun Medical Factory & Others [2003] MLJU 291; [2003] 7 CLJ 81 the High Court made the following observation: In other words, the test required to be met before leave is granted is that the applicant must satisfy that there is a prima facie case of contempt (see Ngu Yen v Canada (Minister of Citizenship And Immigration) [1996] FCJ No 1478 (TD) (QL). (Emphasis added.) The following passage in a decision of the High Court in Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441 is no less instructive: At the time when the court had granted leave on 11 June 2007, it is pertinent to observe that there was only a prima facie case of contempt which was based on an ex parte application. In other words, it is merely a vetting process on an ex parte basis to consider if there was a prima facie (case) of contempt and the court did not go into the merits … (Emphasis added.) [emphasis added] Page 8 of 9 [28] I find that the Plaintiff has shown that there is a prima facie case for contempt against Madam Yew, for these reasons—

at first impression or prima facie, and on the balance of probabilities, but without considering refutational evidence from Madam Yew—the November 2021 Order was served on Madam Yew and she knew the terms of the November 2021 Order;

the terms of the November 2021 Order are sufficiently clear and unambiguous, and yet the evidence presented for this Application for leave demonstrates that Madam Yew did not perform her obligations as required by the November 2021 Order;

the Plaintiff’s Application for leave to commence committal proceedings does not appear to me to be frivolous, or to constitute an abuse of the process of the Court. CONCLUSION [29] The Plaintiff applies orally to amend the terms of a prayer in its Application for leave to commence committal proceedings. I grant the oral application to amend. [30] And for the reasons alluded to earlier, I allow the Plaintiff’s Application for leave to institute committal proceedings against Madam Yew, with costs of RM2K to follow the event of the eventual committal proceeding. Page 9 of 9 Dated: 2 February 2023 Signed KENNETH ST JAMES Judicial Commissioner High Court of Penang Counsel/Solicitors For the Plaintiff-Applicant: Suhairi bin Abdul Karim [Messrs. Suhairi & Faizal Law Office Kedah] Statutes referred to:

Rules Of Court 2012 - O 52 R 3(1), O 45 R 5 & O 45 R 7. Cases referred to:

Dewan Perniagaan Melayu Malaysia Negeri Johor v Menteri Besar Johor & Ors [2016] 7 MLJ 1 (HC); [2016] 1 CLJ 52; [2017]