Peguam Negara v Ooi Woon Chee (02(f)-11-2011(W))

Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 1 IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 02(f)-11-2011(W) _______________________________________________ BETWEEN ATTORNEY GENERAL OF MALAYSIA .. APPLICANT AND

1. DATO’ SEE TEOW CHUAN

2. SEE TEOW KOON

3. SEE TEOW GEOK

4. TEO GUAN HUR

5. SEOW LUAN ENG

6. KHOR GET KIM

7. SEE SIEW TIN

8. SEE SIEW KHIM

9. LIEW CHOON LUM

10. SEE CHIN LAM

11. SEE SIOK HONG

12. SEE SIOK KIM

13. SEE TEOW CHUAN HOLDINGS SDN BHD

14. ESTET OF SEAH AH KEOH @ SEAH YEO

15. SEE TEOW GUAN

16. SEE TIAU KEE

17. SEE SIEW CHOO

18. SEE TIAU KIONG

19. SEE TEOW LIEW

20. SEE TIEW WAH

21. SALLY SEE SIEW LIAN

22. DORIS SEE SIEW LIAN

23. SEE SIEW WAN

24. SEE SIEW HUA

25. LIM AH ENG

26. FOO KIM FONG

27. LIM YOKE CHOO .. RESPONDENTS Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 2 (In the matter Civil Appeal No. W-02-2041-2009 in the Court of Appeal Malaysia _____________________________________________ Between

1. DATO’ SEE TEOW CHUAN

2. SEE TEOW KOON

3. SEE TEOW GEOK

4. TEO GUAN HUR

5. SEOW LUAN ENG

6. KHOR GET KIM

7. SEE SIEW TIN

8. SEE SIEW KHIM

9. LIEW CHOON LUM

10. SEE CHIN LAM

11. SEE SIOK HONG

12. SEE SIOK KIM

13. SEE TEOW CHUAN HOLDINGS SDN BHD

14. ESTET OF SEAH AH KEOH @ SEAH YEO .. Appellants And

1. OOI WOON CHEE

2. NG KIM TUCK

3. KIAN JOON HOLDINGS SDN BHD

4. SEE TEOW GUAN

5. SEE TIAW KEE

6. SEE TIAU KIONG

7. SEE TEOW LIEW

8. SEE TIEW WAH

9. LIM AH ENG

10. FOO KIM FONG

11. SALLY SEE SIEW LIAN

12. SEE SIEW CHOO

13. SEE SIEW WAN

14. LIM YOKE CHOO

15. CAN-ONE INTERNATIONAL SDN BHD (NO. SYARIKAT: 729929-K)

16. GOLD POMELO SDN BHD (NO. SYARIKAT: 838451-H) .. Respondents) Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 3 CORUM SURIYADI HALIM OMAR, FCJ ABU SAMAH NORDIN, FCJ RAMLY ALI, FCJ AZAHAR MOHAMED, FCJ BALIA YUSOF HAJI WAHI, FCJ JUDGMENT OF THE COURT

1. On 30.1.1996, by consent, the High Court ordered that Kian Joo Holdings Sdn Bhd (the Company) be wound up pursuant to section 218(f) and (i) of the Companies Act 1965.

2. At the same time, one Abdul Jabbar bin Abdul Majid and Ng Kim Tuck from KPMG Peat Marwick were appointed as the joint and several liquidators of the Company. On 2.10.2007, one Ooi Woon Chee from the same firm was appointed as one of the liquidators to replace Abdul Jabbar bin Abdul Majid.

3. At the meeting of contributories on 10.7.2008, the majority contributories (representing 52% in value of the Company’s equity) were in favour of selling of the entire shares of the Company, while the remaining contributories (being minority contributories holding 48% in value of the equity) preferred distribution of the shares in specie. Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 4

4. On 23.2.2009, the liquidators entered into a conditional shares sale agreement for the sale of 146,131,500 shares in question to Can-One International Sdn Bhd. The contributories opposed the transaction and had rebuked the liquidators for their acts in breach of fiduciary duties, conflict of interest as well as fraud in regard to the tender process for the sale of the shares.

5. The majority contributories, represented by their solicitors, Messrs V.K. Lingam & Co., filed an application to the High Court, against the liquidators for leave to proceed with legal proceedings for alleged misconduct in the tender of the Company’s assets and eventual award to Can-One International Sdn Bhd for the sale of the shares. On 25.9.2009, the High Court dismissed their application.

6. Being dissatisfied with the dismissal of their application by the High Court, the majority contributories appealed to the Court of Appeal against the decision. On 26.4.2010, the appeal was allowed by the Court of Appeal, whereupon the High Court’s decision was set aside.

7. The liquidators then filed a motion for leave to appeal to the Federal Court against the decision of the Court of Appeal. Leave was granted on 21.2.2011. On 5.1.2012, the Federal Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 5 Court allowed the liquidators appeal with costs. All orders made by the Court of Appeal were set aside and consequently all orders made by the High Court were restored. The Federal Court also awarded a sum of RM300,000.00 (as against the majority contributories) to the liquidators as costs.

8. Subsequently, all the contributories filed an application to the Federal Court to review its judgment dated 5.1.2012 claiming that the Federal Court’s grounds of judgment revealed plagiarism and substantially a reproduction, without any attribution to the liquidators’ written submission dated 4.7.2011. The solicitors for the majority contributories, Messrs. V.K. Lingam, filed the review application on the ground of plagiarism. On behalf of the minority contributories, Messrs. Nayagam & Partners also filed a similar application using a similar ground.

9. On 22.5.2013, the review application was dismissed by the Federal Court. The Federal Court was of the view that the adoption of the counsel’s submissions as the court’s grounds of judgment in itself did not constitute sufficient ground for the court to review and set aside its earlier decision. The Federal Court also held: Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 6 “(iii) The court accepted that the respondents did not allege actual bias on the part of the panel of judges who decided the appeals concerned but merely one of apparent bias.

(iv) However, having analysed the judgment in question the court did not find sufficient evidence proving apparent bias.”

10.

Pursuant to the decision of the Federal Court in the review application, the liquidators initiated contempt proceedings against all the majority and minority contributories (inclusive of their two lawyers, V.K. Lingam and Thisinayagam a/l A. Somasundram) alleging, inter alia, that the relevant affidavits in support of the said review application affirmed by them on advice of the lawyers contained statements which were in contempt of the Federal Court which would scandalize the Federal Court and subvert the administration of justice. The contempt proceedings papers were filed at the Federal Court on 29.2.2012 and on 3.4.2012 leave was granted.

11. On 7.8.2014, the liquidators, who initially initiated the contempt proceedings against all the contributories, sought leave to withdraw from the proceedings. The application to withdraw was allowed. Later, the Attorney General’s Chambers applied and was allowed to be substituted as the applicant in the contempt proceedings. Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 7

12. On 21.11.2016, after being postponed for a number of times for various reasons, all the contributories (excluding 3 of the minority contributories who were not in court on that day) and the lawyer, Thisinayagam a/l A. Somasundram, conceded to the contempt charges against them. The lawyer V.K. Lingam was not present in court on that day.

13. With the concession made in their affidavits as well as by learned counsel in open court, the Federal Court proceeded to hear their pleas in mitigation. As for sentence, the court then ordered all the contributories who were present in court to pay fine of RM100,000.00 each (in default 8 months imprisonment). The lawyer, Thisinayagam a/l A. Somasundram, was ordered to pay a fine of RM150,000.00, in default one year imprisonment. As the three minority contributories and the lawyer V.K. Lingam, were not present in court on that day, the action against them were postponed thus giving them the opportunity to be present and be heard in court. The three other minority contributories were See Siew Hua (Siew Hua), Lim Ah Eng (Ah Eng) and Doris See Siew Lian (Doris).

14. The matter come up again in open court on 26.9.2017. Again, all the three minority contributories as well as V.K. Lingam were not present in court. However, learned counsel Dato’ David Gurupatham and Tan Shin Lam appeared on behalf Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 8 of the minority contributories. They informed the court that, Siew Hua had unfortunately lost her battle with cancer and had passed away on 18.8.2017. A death certificate was tendered in court. Learned counsel them requested that the case against her be discontinued and struck out, which the court allowed.

15. As for Ah Eng, she was unable to attend court due to poor health, illness and incapacity. She is eighty eight (88) years old and is suffering from kidney failure. She has been on hemodialysis treatment for quite some time and is presently wheelchair bound. In her affidavit, she averred amongst others that she offered her unreserved, unconditional and unqualified apology to the court for being disrespectful. She also averred that she was advised by her solicitors in dealing with the matter and as a lay person, she had acted on that advice.

16. As regards Doris, she a pensioner and has been residing in England for years. In paragraph 18 of the affidavit, she averred that she is incapacitated by old age and unable to travel. She also averred that in dealing with the matter she was advised by her solicitors and as a lay person likewise, she had acted on that advice. Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 9

17. Learned counsel Dato’ David Gurupatham prayed, on behalf of both Ah Eng and Doris that their personal attendance in court be dispensed with and the matter against them be dealt with in absentia. He also prayed that both of them be discharged and/or let off with a warning. Learned counsel informed the court that both of them are not asserting their right; infact they have waived their right to be present in court and are prepared to be sentenced in absentia.

18. Learned counsel also submitted that the court has unlimited jurisdiction to deal with the matter which includes the power to impose sentence in absentia, and the court ought to take into consideration the very special facts and mitigating points (as stated in the affidavits as highlighted above) in imposing an appropriate sentence on them.

19. Learned Senior Federal Counsel supported the application, citing the case of JSC BTA Bank v. Solodchenka [2011] EWHC 2163 (Ch.) as an authority to support the exercise of discretion by the court on the matter.

20. The issue before us is whether this Court has the power to proceed with the trial of the contempt proceedings and to impose sentence against both the contemnors (Ah Eng and Doris) who, as affirmed in their affidavits and through their Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 10 counsel in open court, had offered their unreserved, unconditional and unqualified apology and had waived their right to be present in court and were prepared to be sentenced in absentia.

21. We are reminded that contempt proceedings are quasi – criminal in nature. Thus, generally the court should avoid making a committal order without giving the contemnor a chance to be present in court to answer the charge against her and to raise any plea of mitigation before passing sentence on her. The House of Lords in Phonographic Performance Ltd. v. Inch [2002] All ER (D) 253 expressed the view that in criminal cases, where the defendant is absent, and the court has the discretion to proceed with the trial, but it is a discretion to be exercised with great caution and with close regard to the overall fairness of the proceedings. The trial conducted in the absence of the contemnor must be fair as circumstances permit and lead to a just outcome (see also: R v. Jones [2003] 1 AC 1).

22. By analogy, the above position can and should apply for contempt proceedings, as in the present case before us. The court can exercise its discretion to proceed with the contempt proceedings against both the contemnors in the present case in their absence especially when their own Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 11 counsel had informed the court about their request that their presence in court be dispensed with and that he has full instruction to proceed with the matter as requested.

23. The decision of the English High Court in JSC BTA Bank v. Solodchenko and Others (No. 2) [2011] 1 WLR 906 supports the above proposition. In that case, the court had proceeded to hear committal proceedings in absentia on the basis that the defendant, in that case, has instructed his solicitors and leading counsel to represent him in court.

24. In Chung Onn v. Chan Ah Kaw & Anor [1996] MLJU 206 and Indira Gandhi v. Muthu Patmanathan a/l Krishnan (anyone having and control over Prasana Diksa) [2015] 7 MLJ 153, our High Courts proceeded with the contempt proceedings as the alleged contemnors had persistently failed to attend court on the dates fixed for trial though duly served with the contempt papers.

25. In Re Ellison (A Bankrupt); Hicken (as Trustee in Bankruptcy of Ellison) v. Ellison [2016] EWHC 2791 (Ch), Warren J. proceeded with the contempt proceedings against an alleged contemnor who was out of the country and was not present in court for the trial. In that case, the learned judge considered the following considerations, namely-Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 12

26. In another case, Sanchez v. Oboz [2015] EWHC 611 (Fam), the trial to determine whether an act of contempt had been committed by an alleged contemnor, the court proceeded with the trial and sentenced him to 12 months imprisonment. In that case, the court found that the alleged contemnor, who had remained in Poland, had been properly served with the notice of the proceeding; had been afforded adequate notice of the application and had offered no explanation for his absence. The court concluded that it was fair and just to proceed with the trial in his absence. Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 13

27. Based on the above authorities, we agree with both learned counsel and learned Senior Federal Counsel, that this Court has the power to proceed with the trial to determine their guilt of contempt as charged and consequently to proceed sentencing them. Both the contemnors had in their affidavits and through their counsel in open court voluntarily requested for such course of action. They knew the nature and consequence of their request. Such course of action did not cause any prejudice to both of them. Based on the mitigating factors and circumstances of the case, as narrated above, we are satisfied that this is an appropriate case for this Court to accede to their request and to impose the appropriate sentence against them.

28. As for sentence, learned counsel for both the contemnors in their mitigation repeated the same facts as narrated above for our consideration. Learned counsel prayed that “this court to be magnanimous and compassionate and to discharge them and/or let them off with a warning.” Learned counsel also stressed that Ah Eng, now 88 years old, is suffering from kidney failure and is presently wheelchair bound and is on hemodialysis treatment thrice a week. In her affidavit, she affirmed that she has extreme anguish, anxiety and mental torture since the leave to issue contempt was made on 3.4.2012. Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 14

29. The other contemnors, Doris, is also in her 80’s. In her affidavit, she affirmed that she is incapacitated, of old age pensioner and has been residing in England for years. She also affirmed that she has extreme anguish, anxiety and mental torture since the leave to issue contempt was made on 3.4.2012. Both of them stated that they were advised by their solicitors and as lay persons, acted on the advice in preparing the legal documentations for the purpose of the review action. They had admitted guilt before this court and expressed remorse and put forward their unqualified and unreserved apology. Learned Senior Federal Counsel indicated that both the contemnors in the present case can be found guilty of the charge and should be sentenced to a fine of RM100,000.00 in default eight months imprisonment.

30. We took note that there were twenty (20) other contemnors in this contempt proceedings (comprising of the majority and minority contributories) who had earlier conceded to the contempt charges against them, admitted their guilt and expressed their unreserved apology and remorse to this Court without putting up a defence. Many of them were also of advanced age and unwell. With that concession which was accepted by this Court, they were sentenced to a fine of RM100,000.00 in default eight months imprisonment against each of them. The lawyer, Thisinayagam a/l A Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 15 Somasundraman was fined RM150,000.00 in default one year imprisonment.

31. In passing the above sentence on them, this Court (in a judgment written by Suriyadi Halim Omar, FCJ) had expressed the following views- “The saving grace for the respondents was the concession made by the learned Senior Federal Counsel that she was not pressing for a custodial sentence though did suggest fining them. This was not unreasonable bearing in mind that many of the respondents were of advanced age and unwell. Regardless, despite the profuse apology, and the respondents’ medical condition, the gravity of the offence is not lessened.” “It is undeniable that the allegations made against the Federal Court is very serious and has besmirched the good name of the judiciary as a whole. They have subverted the course of the administration of justice and undermined the public confidence in the judiciary, ridicule, scandalized and offend the dignity, integrity and impartiality of the Judiciary. We hold the view that the above sentence is adequate and sufficiently reflects that seriousness of the offence committed by them against the court. As said earlier, as most of them are of advanced age and unwell, to imprison them might be too excessive a sentence.” Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 16

32. We adopt the same view and consideration in dealing with the two contemnors (Ah Eng and Doris) presently before us. We therefore, held that the appropriate sentence against both of them, was a fine of RM100,000.00 in default eight (8) months imprisonment each. We ordered accordingly. Dated this 26th September 2017. sgd RAMLY HJ ALI FEDERAL COURT JUDGE MALAYSIA For the Appellant Dato’ Amarjeet Singh - Senior Federal Counsel Alice Loke Yee Ching - Senior Federal Counsel Shaiful Nizam Shahrin - Federal Counsel (Attorney General’s Chambers) For the 2 Contempnors Dato’ David Gurupatham (with him, Tan Shin Lau). Peguam Negara Malaysia V Dato’ See Teow Chuan & 27 lagi 17 (Messrs. David Gurupatham & Koay) Cases Referred to:

1. JSC BTA Bank v. Solodchenka [2011] EWHC 2163 (Ch.)

2. Phonographic Performance Ltd. v. Inch [2002] All ER (D) 253 3. R v. Jones [2003] 1 AC 1)

4. Chung Onn v. Chan Ah Kaw & Anor [1996] MLJU 206 5. Indira Gandhi v. Muthu Patmanathan a/l Krishnan (anyone having and control over Prasana Diksa) [2015] 7 MLJ 153 6. Sanchez v. Oboz [2015] EWHC 611 (Fam)