Raub Mining & Development Company Sdn. Bhd. v OOI XI FANG (WA-24NCvC-926-03/2024)

OOI XI FANG [Identity Card No.: 910226-08-5418]

Dato' Sri Andrew Kam Tai [ Identity Card No.: 620202-10-6039] … AGGRIEVED PARTIES ALLEGED

[1] There is always a lot of colours in the cases involving these parties. The Applicant had obtained leave from this Court on 22.4.2024 to begin 30/12/2024 15:44:56 WA-24NCvC-926-03/2024 Kand. 113 contempt proceedings against the two alleged contemnors (PC1 and PC2 respectively). The Applicant then filed Enclosure 11 which is the application to move this Court for committal of the PC1 and PC2. [2] Instead of responding to Enclosure 11 for the committal proceedings, PC1 filed her application to set aside this Court’s order granting the said leave to the Applicant (Enclosure 13) on 23.5.2024. PC2 followed suit filing his application for the same on 12.6.2024 (Enclosure 17). [3] When the case first came before this Court on 5.8.2024, this Court directed for parties’ submissions for Enclosure 11 to be filed by 26.8.2024. This Court further directed that their respective replies to the submissions for Enclosure 11 were to be filed by 17.9.2024 and fixed the hearing for Enclosure 11 on 29.10.2024. As for Enclosure 13 and 17, they would be heard as all the preliminary objections since they were to set aside this Court’s Order that granted the leave to commence the committal proceedings when hearing Enclosure 11. [4] That was the directive of this Court. PC1 and PC2 filed an appeal at the Court of Appeal against this Court’s said directive. They had also sought for a stay of proceedings before this Court from the Court of Appeal until their appeal against this Court’s directive was heard. [5] On 29.10.2024 at the hearing for the committal proceedings (Enclosure 11), this Court was informed that the day before, which was on 28.10.2024, the Court of Appeal had dismissed their application for a stay of proceedings before this Court. However, there was a consequential order that ruled Enclosure 13 and Enclosure 17 ought to be heard before Enclosure 11. In the event those applications were dismissed, this Court can proceed to hear Enclosure 11. Parties were given the liberty to appeal against this Court’s decision(s). [6] In effect, the consequential order is the same as this Court’s said directive except for the term ‘preliminary objections’ regarding PC1 and PC2’s respective applications. The sequence of hearing was exactly as the same as this Court’s directive. [7] This Court then invited counsel for PC1 and PC2 to submit on Enclosure 13 and Enclosure 17 but instead, he took 17 minutes of this Court’s time lamenting that the Applicant had refused to sign the draft Court of Appeal’s order. He complained that the Applicant had struck out the drafted words that stated parties were at liberty to appeal. It was submitted that the Court of Appeal gave 3 orders:

Enclosure 13 and Enclosure 17 are to be disposed of first before hearing Enclosure 11;

Any aggrieved party are at liberty to file appeal against this Court’s decision(s);

Subsequently, this Court can hear Enclosure 11 if it decides to do so. [8] Counsel for PC1 and PC2 took the position was that the Court of Appeal had pre-ordered a stay of proceedings in this Court should it not agree to Enclosure 13 and Enclosure 17. His understanding was that if this Court was not in favour of Enclosure 13 and Enclosure 17, then there would be an appeal which must be disposed of before the hearing of Enclosure 11 should the Court of Appeal dismisses their appeals. [9] This Court viewed that that was not how the Court of Appeal meant from the wordings of its consequential order. The words ‘Subsequently this Court may hear Enclosure 11 if it decides to do so’ are not dependent on any appeal whatsoever lodged by PC1 or PC2. If it was then surely the Court of Appeal would have ordered a stay to ensure Enclosure 11 could only proceed after the determination of the appeal(s) (if any) of Enclosure 13 and Enclosure 17. The Court of Appeal did not order or direct so in its consequential order. [10] There was a display of pugnacious and personal attack on the part of the counsel for PC2 and PC1 (the latter had engaged him to represent her) on the Applicant and its learned counsel which was wholly unnecessary. He had asked this Court to order the learned counsel for the Applicant to sign the draft order by the Court of Appeal that included the liberty to file appeal as the second order. The latter displayed graciousness after nearly 16 minutes of listening to the combative arguments, by indicating agreement to do so, though he stated that interpretations differed. This Court observed that such stance taken by the counsel for PC1 and PC2 at the hearing of their own applications was absolutely unwarranted. The Leave for Committal Proceedings [11] Before the assessment of Enclosure 13 and Enclosure 17, iterated here is the Applicant’s application for leave to commence committal proceedings against PC1 and PC2. Against PC1, the basis cited for the committal to prison or fined, are the following:

Instructing and causing PC2 to file a misleading and deceptive ex-parte application in Kuala Lumpur High Court Execution No. WA-37G-249-10/2023 (Execution 249) on 2.10.2023 for a garnishee nisi order and his affidavit-in-support allegedly falsely claiming that the sum of RM10,000.000 awarded in Kuala Lumpur High Court Suit No. WA-22NCvC-24-01/2021 vide order dated 28.6.2023 against the Applicant as costs and allocator fee (total of RM10,400.00) was due and owing to him when he knew or ought to have known that no such sum was in fact due and owing by the Applicant at all material times;

Affirming the said affidavit-in-support in Execution 249 for allegedly intending to use it to mislead and deceive the court into granting the ex-parte order to show cause in respect of the Applicant’s bank accounts;

Instructing and causing PC2 to use that application and affidavit-in-support of Execution 249 to mislead and deceive the court into granting the ex-parte order to show cause dated 11.10.2023 in respect of the Applicant’s bank accounts with Public Bank Berhad and Public Islamic Bank Berhad (the Garnishee Banks) for the claim of RM10,400.00;

Instructing and causing PC2 to allegedly abuse the court process by crafting, applying for and obtaining the said ex- parte order to show cause dated 11.10.2023 which would have the effect of freezing the entire bank accounts of the Applicants and/or attaching all moneys in the Applicant’s bank accounts at the Garnishee Banks when PC1 as a qualified legal practitioner knew and/or ought to have known that no judgment sum was owing by the Applicant, or even if there was then only a total sum of RM10,400.00 should be earmarked by the Garnishee Banks;

Abused the process of the court by attempting to use and weaponize the said ex-parte order to show cause dated 11.10.2023 to freeze the entire bank accounts of the Applicant and attach all moneys in the Applicant’s when as a legal practitioner PC1 knew and/ought to have known that no judgment sum was owing by the Applicant, or even if there was then only a total sum of RM10,400.00 should be earmarked by the Garnishee Banks;

Instructing and causing PC2 to falsely, wrongly and without any basis or reason include the Applicant as one of the judgment debtors on the intitulement of the cause papers filed in Kuala Lumpur High Court Execution No. WA-37G-236- 09/2023 (Execution 236) for a garnishee nisi order against Tan Sri Dato’ Kam Woon Wah, which was an execution proceeding totally unrelated to the Applicant, and then circulated the cause papers of Execution 236 that included the ex-parte show cause dated 20.9.2023 in Execution 236, to the Garnishee Banks with the object to mislead them into believing that the Applicant had been ridden with judgment debts and prejudicing them against the Applicant, and thereby to abuse the process of the court and/or the absolute privilege attaching to court proceedings as a vehicle for libel against Applicant by which PC1 has undermined, interfered with and/or brought disrepute to the integrity of the judicial process and the due administration of justice. [12] The basis for the leave for committal proceedings against PC2 was for her several acts of alleged contempt which were advising, aiding, and abetting her client PC1 for the acts stated above. [13] This Court had granted leave as applied by the Applicant. Even though it was presented to this Court by way of originating summons (OS) not in the same court as the three proceedings that concerned the subject matter of this application, this Court was persuaded to apply the reasoning in Hisham, Sobri & Kadir (suing as a firm) v Lim Chau Seng & Anor [1987] 2 MLJ 387; [1987] CLJ Rep 782; [1987] 1 MLRH 268. This Court is a court of competent jurisdiction and has the power to try and punish any contempt of itself. [14] At the leave stage, this Court found that the Applicant had established the necessary prima facie test. The 2 charges in relation to false claim that concerned Execution 249 was in relation to costs awarded in an interlocutory application. The court had refused to make an order for the costs to be paid forthwith and Suit 24 has yet to be concluded as at the date of the ex-parte hearing for leave on 22.4.2024. Thus, it cannot be said that the sum of RM10,400.00 had become due and payable. (See Order 59 Rule 7 Rules of Court 2012 (RoC), the Court of Appeal’s case of Hai Yue Yin v Public Feedmill (M) Sdn Bhd [1997] 3 MLJ 730; [1997] 4 CLJ 555; [1997] 1 MLRA 633). [15] Glaringly in this case, both PC1 and PC2 are advocate and solicitors, and officers of this Court. So, they are well aware of the RoC and case laws. The Applicant’s solicitors had furthermore informed them vide a letter dated 16.8.2023 in Suit 24 that the costs are only payable at the end of the proceedings. [16] The Applicant’s said letter had also intimated to the PC1 vide PC2 that Execution 24 was without basis, wrongful, malicious and an abuse of court process. Yet, they had proceeded with Suit 24. [17] At all material times, PC2 owes and continue to owe the Applicant costs of RM150,000 as awarded by the court on 14.8.2023 in Kuala Lumpur High Court Originating Summons No. WA-24NCC-396-07/2-23 (OS 396). The court had ordered PC2 to pay that sum within 14 days from the date of the order – which was on or before 28.8.2023. Still, PC2 had refused and/or failed to do so. So, factually he owes the Applicant more that the latter can be said owe him (even that it was not due and payable as of the date of the ex-parte hearing for leave). [18] PC1 was fully aware of the factual matrix and she was the solicitor who had represented PC2 in OS 396. [19] The learned counsel for the Applicant put forth the proposition on the law of contempt in relation to putting forward a false or dishonest claim as set out in Arlidge, Eady & Smith on Contempt, 5th Edition. Highlighted was the principle that litigants whether represented or not, ought not to mislead the court and in this case both proposed contemnors are no stranger to the practice of law. [20] There are 2 charges for abusing and weaponizing the garnishee proceedings. The effect of freezing the entire bank accounts of the Applicant and/or attaching all monies in the Applicant’s bank accounts with the Garnishee Banks was a sore and live concern. The sum of RM10,400.00 which was not yet due and payable. Even if it was, it should be earmarked but not to freeze the Applicants entire bank accounts. Order 49 Rule 1(2) RoC was cited which required the show cause be in Form 97 that attached only the amount that would meet the said judgment debt. The Court of Appeal had laid down the principle that the garnishee order must be precise in the accounts to be attached in Bumiputra Commerce Bank Bhd v Top-A Classic Sdn Bhd [2008] 5 CLJ 737. [21] The information before this Court is that PC2 was a former director and shareholder of the Application and was at all material times fully aware that the Applicant’s bank account number at one of the Garnishee Banks is 3180567924. However, he together with PC1’s aid, had attempted to attach all the moneys in all the Applicant’s accounts for the execution for an order for costs of an interlocutory application in the sum of RM10,400.00 which is yet to be due and owing. See Supreme Court case of Cheah Cheng Hoc v Public Prosecutor [1986] 1 MLJ 299; [1985] 1 MLRA 353 on the court’s power to punish as contempt of any misuse of the court’s process. [22] There are also 2 charges for abusing absolute privilege as a vehicle of libel. Prima facie at the stage of leave, this Court was satisfied that the unnecessary and wrongful inclusion of the Applicant’s name as one of the judgment debtors for the cause papers served on the Garnishee Banks will on the surface lower the Applicant’s reputation in their eyes. Yet no suit for defamation can be filed against PC1 and PC2 because of the protection of absolute privilege for statements made in the court proceedings as held by the Court of Appeal in Kinta Riverfront Hotel & Suites Sdn Bhd v Chang Yoke Kee & Anor [2023] 1 MLJ 84; [2023] 2 MLRA 136. [23] It was the Applicant’s submissions that PC1 and PC2 who knew fully well that the Applicant was not a judgment debtor and contemptuously served the papers to defame the Applicant. The contemptuous conduct of PC1 and PC2 to use Execution 236 to defame the Applicant was with the full knowledge that they will be able to escape tortious liability by relying on the defence of absolute privilege. Arlidge, Eady & Smith on Contempt, 4th Edition para 11-69 and Gaskell & Chambers Limited v Hudson Dodsworth and Company [1965] KB 595 at p 603 were cited. [24] In granting leave to commence committal proceedings against PC1 and PC2 by the Applicant, this Court was guided by the Court of Appeal’s decisions in Teo Cheng Hua v Ker Min Choo & Ors [2015] 5 MLJ 365; [2015] 6 MLRA 87 and Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [2001] 4 MLJ 577; [2001] 1 MLRA 602. This Court was satisfied that prima facie that the conduct of PC1 and PC2 have undermined, interfered with and/or brought disrepute to the integrity of the judicial process and the due administration of justice, and they have thereby committed contempt of court on a prima facie basis. Enclosure 13 and Enclosure 17 [25] PC2’s counsel submitted for PC1 though she was present and at the bar table at the hearing of these two applications. PC2 had only submitted an additional fact in reply to the Applicant’s claim that there was no full and frank disclosure on her part in relations to another High Court proceeding before Justice Ahmad Fairuz’ court. But, that was a separate proceedings which was still on-going in that court when arguments were heard by this Court. Additionally, in that case the order for garnishee proceedings was set aside and PC1 and/or PC2 had not appealed against the decision of the court. [26] PC1 and PC2 claimed that the order for leave to being committal proceedings by the Applicant was improperly obtained and did not meet the legal threshold. The first point was the fact that the Applicant had filed the leave application in this Court despite the fact that there was nothing before this Court in relation to any of the matters being the subject matter of the proposed committal proceedings. There are 3 charges from 3 separate proceedings in 3 different courts, none of which was ever before this Court. It was submitted that the application of leave filed in this Court was improper and fatal. [27] Order 52 Rule 3(2) RoC was cited. They contended that the Applicant did not abide the mandatory requirement of filing a ‘notice of application’ but instead an OS. Their argument was that as it was made ex-parte, this Court did not have the benefit to hear their explanation of the Applicant’s alleged erroneous understanding of the mandatory requirement of Order 52 Rule 3 RoC and the fact that there are serious disputes as to facts as presented and interpreted by the Applicant which cannot be made through an OS as the latter involves an originating matter that does not involve a serious dispute of facts. [28] Counsel for PC1 and PC2 referred to AG v Mohd Kassim (No 2) [2020] MLRHU 1737 that cited the Federal Court’s decision in Tan Sri Dato (Dr) Rozali Ismail & Ors v Lim Pang Cheong & Ors [2012] 2 MLRA 717; [2012] 3 MLJ 458; [2012] 2 CLJ 849; [2012] 2 AMR 429. It was mandated that leave must first be obtained, even ex-parte, before committal proceedings are commenced. Strict compliance is required and the standard of proof for contempt is beyond reasonable doubt. [29] In arguing that the prima facie test for leave was never met, PC1 and PC2 stated that it meant that there must be a factual basis for the allegations or charges, and that they must be able to stand on its own or is plausible without the benefit of any rebuttal. [30] This Court heard repeatedly that pursuing costs awarded in an interlocutory matter prior to the completion of the entire suit could not be a contemptuous act. Neither can it be said so for adhering to the court order of Execution 249 or following the Learned Registrar’s directions to file with the correct intitulement according to PC1 and PC2. [31] PC adopted PC1’s submissions that the said court order of 28.6.2023 in Suit 24 did not state that the enforcement of costs can only be made at the end of trial and that it did not provide for a positive or negative act that would attract penal ramifications. The Deputy Registrar’s decision in Regal Elite Letrik Sdn Bhd Lwn Country Garden Danga Bay Sdn Bhd (CIMB Bank Bhd, garnishee) [2023] MLJU 1215; [2023] MLRHU 795 was referred to in their submissions that it did not amount to interfering with the administration of justice. The counsel for PC1 and PC2 argued that it was the business of lawyers to seek costs – ‘cari makan’ were the words used. [32] To set aside the leave granted by this Court, PC1 and PC2’s slightly bellicose argument rested on the wordings of the order that stated the whole of the debt owed – ‘ADALAH DIPERINTAHKAN BAHAWA segala hutang kena dibayar atau terakru kena dibayar daripada Garnisi-Garnisi ..’. The counsel for PC1 and PC2 stated that the dramatic language the Applicant employed in the charges or allegations claiming that there was fraud and intention to mislead did not fulfil the prima facie test for leave. The counsel for PC1 and PC2 argued that the test for leave was beyond reasonable doubt and the only thing that was beyond reasonable doubt was the language employed in the allegations by the Applicant. Dismissal of Enclosure 13 and Enclosure 17 [33] This Court was not persuaded with the arguments of PC1 and PC2. For leave to be granted, the legal threshold for granting leave to commence committal proceedings is one of prima facie. Justice Wong Kian Kheong had written extensively in Tan Kang Ho v Mao Sheng Marketing (M) Sdn Bhd & Ors [2015] 4 CLJ 113; [2015] MLRHU 83 at the High Court. This Court is in agreement with his views regarding leave requirement to commence committal proceedings. In the absence of any Malaysian case which explains the meaning of ‘prima facie’ case and the standard of proof for the leave requirement, the purpose of the leave requirement is to ensure that there is no abuse of the committal procedure. Therefore the leave requirement is to act a sieve to ensure that there is prima facie basis for committal application. [34] At p126 of Tan Kang Ho (supra), it was ruled that: “(a) a prima facie case of contempt of court is satisfied if:

The statement and verifying affidavit show that the respondent in question has committed a specie of contempt of court, for example, the respondent has:

Breached an injunction or court order;

Breached an undertaking to court;

Scandalised the court;

Interfered with the due administration of justice or perverted the course of justice in relation to pending proceedings; and

Published or disseminated publication which interferes with the course of justice in pending proceedings, namely sub judice publication or sub judice dissemination of publication.

(ii) the contents of the verifying affidavit should not be inherently improbable; and

the Court should keep an open mind and not make any finding of fact as an application for leave to commence committal proceedings is made on an ex parte basis (without hearing the respondent) and the respondent may still raise a reasonable doubt at the end of the committal proceedings – Wee Choo Keong, at p22.” [35] For the leave granted, it was because this Court was satisfied that prima facie there were acts by PC1 and PC2 that were contemptuous disclosed in the Applicant’s affidavit-in-support, and that the contents of the said affidavit-in-support were not inherently improbable. Moreover, there was no need to prove prima facie on each and every charge, one is sufficient for leave to be rightly granted. [36] This Court further opined that the Applicant was at liberty to file the said application for leave in this Court although the subject matters were decided by 3 other courts. It was not right for PC1 and PC2 to contend that ‘the court’ with regards to committal proceedings must be the very same court as the subject matter of the committal proceedings. This Court has concurrent jurisdiction with those courts that meted out orders that formed the subject matter of these proceedings. No offence was taken that the leave application was filed in this Court – the High Court of Malaya – the same concurrent jurisdiction where Suit 249, Suit 236 and OS 396 were respectively heard. Hisham Sobri & Kadir (supra) applied; this Court was competent and empowered to try and punish any contempt of itself. [37] As to the costs of RM10,400.00 it could not be any clearer that the court did not order for the payment forthwith. It had stated in the order that the request for the same was not allowed. This Court found that the counsel for PC1 and PC2’s argument that enforcing order for costs as ‘cari makan’ wrong and unacceptable. [38] This was not a question of set-off whereby PC2 claimed that the Applicant owed him RM10,400.00 but he owed the Applicant RM150,000.00 which was more that the claim he has against the Applicant. PC2’s act to file and obtain the garnishee order and freeze all of the Applicant’s bank accounts at the Garnishee Banks, prima facie is contemptuous in light of his refusal and failure to pay what he already owed to the Applicant. There was modification on the part of PC1 and PC2 of Form 97 by omitting to clearly state the actual amount they claim the Applicant owed. Prima facie, at the leave stage, it did seem that the PC1 and PC2 had weaponize the court order to freeze all of the Applicant’s bank accounts at the Garnishee Banks instead of just earmarking the RM10,400.00. [39] This Court accepts the position of the Applicant pertaining the intitulement. The Applicant was the defendant in that suit which later the suit against it was struck out. He was not the judgment debtor and it was wrong to state so and circulate the order to the Garnishee Banks. [40] This Court has yet to make a finding whether there was factually contempt on the part of PC1 and PC2. This, the Applicant must satisfy this Court beyond reasonable doubt at the hearing of Enclosure 11. At the stage of the leave granted by this Court, it cannot be said at all that there was no prima facie case of a specie of contempt. [41] Both parties informed this Court that there are numerous other committal proceedings they had lodged against each other. It was not this Court’s desire to be involved in underlying emotional grudges of the family dispute but this Court will deliberate and determine an application for leave before it. In this case, leave was properly and rightfully given. Enclosure 13 and Enclosure 17 were dismissed. [42] Costs of RM10,000 was ordered to be paid by PC1 and PC2 respectively to the Applicant. For the costs of Enclosure 13 and Enclosure, payment must be made by PC1 and PC2 within 14 days of the date of the order on 29.10.2024. That meant, for the sake of clarity, PC1 and PC2 must each pay the Applicant RM10,000.00 by 12.11.2024. [43] This Court then instructed for the oral arguments of Enclosure 11. Counsel for PC1 and PC2 was quick to apply orally for a stay of Enclosure 11 pending their filing of appeal to the Court of Appeal. This Court advised to file a formal application. The counsel countered that the nugatory aspect was dominant. This Court granted the counsel time to file the formal application for a stay which this Court would hear. Nevertheless, this Court proceeded to hear Enclosure 11. After all, there were no special circumstances that they could orally demonstrate at that point to move this Court for a stay of Enclosure 11. [44] In fact, the Court of Appeal a day before on 28.10.2024 had decided to dismiss their application/appeal for a stay of proceedings for Enclosure 11. [45] In any event, this Court had also granted parties the liberty to re-submit their respective arguments pertaining to the setting aside the leave order application, for Enclosure 11 should they wish to do so. [46] Salient points in the written submissions for Enclosure 11 were highlighted to this Court. Upon hearing the oral arguments for Enclosure 11, given its gravity, this Court reserved its decision on 6.12.2024. That date was rescheduled to 20.1.2025 given the counsels’ schedules. DATED 19 DECEMBER 2024 ROZ MAWAR ROZAIN JUDGE HIGH COURT OF MALAYA KUALA LUMPUR For the Applicant: Wong Yee Chue and Hannah Yeoh Yi Han and Ong Wand Yew T/n Y.C Wong For the 1st Aggrieved: Ooi Xi Fang T/n Xi Fang & Lau For the 2nd Aggrieved: Manmohan Kang and Nazirah Azyan Nazari T/n Kang & Kang