Teck Huat (K.L) Company Sdn Bhd v Chern Yie Trading Sdn. Bhd. (WA-22IP-38-07/2023)

This is the Plaintiff's Notice of Application vide Enclosure 57, in which the Plaintiff seeks consequential and/or ancillary orders pursuant to Order 92 Rule 4 of the Rules of Court 2012 ("ROC 2012") to give effect to Paragraph 5 of the Judgment of this Court dated 31.10.2023 ("the Judgment").

This Application is essentially aimed at compelling the Defendant to publish, in the form prepared and approved by the Plaintiff, a notice of apology in the national editions of The Star, Berita Harian, Guang S/N gst5TuROEugruxACwz0g Ming Daily and Sin Chew Daily, in accordance with Paragraph 5 of the Judgment.

Having considered the arguments of both parties, I allowed the Plaintiff's Application in Enclosure 57. I now state the reasons for my decision.

On 26.07.2023, the Plaintiff commenced this action against the Defendant based upon the following causes of action:

(a) infringement of the Plaintiff's registered trademark;

(b) passing off; and

(c) the tort of unlawful interference with the Plaintiff's trade.

By a Notice of Application dated 15.08.2023, the Plaintiff applied for summary judgment on the basis that the Defendant had no bona fide defence on the merits.

On 31.10.2023, this Court allowed the Plaintiff's application and entered summary judgment against the Defendant. Paragraph 5 of the Judgment provides as follows: "Suatu perintah untuk mengarah Defendan supaya mengiklan dalam edisi nasional surat khabar tempatan 'the Star' dalam Bahasa Inggeris, 'Berita Harian' dalam S/N gst5TuROEugruxACwz0g Bahasa Malaysia dan 'Guang Ming Daily' dan 'Sin Chew Daily' kedua-duanya dalam Bahasa Cina, suatu notis permohonan maaf yang akan diluluskan oleh Plaintif, bagi tindakan-tindakan pelanggarannya terhadap Cap Dagangan Berdaftar Plaintif dan/atau pengelirupaan dalam tempoh 14 hari dari tarikh Penghakiman ini." [Emphasis Mine]

It is significant that the Judgment has neither been appealed against nor set aside. It stands as a final and binding judgment of this Court.

On or about 04.09.2024, the Plaintiff prepared a draft notice of apology and forwarded the same to the Defendant for publication. The draft was prepared in conformity with Paragraph 5 of the Judgment and contained, inter alia, an expression of regret and apology by the Defendant for its infringement of the Plaintiff's registered trademark, passing off, and unlawful interference with the Plaintiff's trade.

On or about 11.09.2024, this Court gave directions to the parties in relation to the draft notice of apology prepared by the Plaintiff. In compliance with the said directions, the Plaintiff agreed, without prejudice to its rights, to the deletion of the phrase "Following a raid and seizure by the enforcement division of the Ministry of Domestic Trade and Cost of Living".

The Plaintiff averred that notwithstanding the Plaintiff's accommodation, the Defendant continued to raise objections and S/N gst5TuROEugruxACwz0g refused to publish the notice of apology. Correspondence ensued between the parties' solicitors, culminating in the Defendant's persistent refusal to comply with Paragraph 5 of the Judgment.

More than eighteen (18) months having elapsed since the Judgment without compliance by the Defendant, the Plaintiff filed Enclosure 57 seeking consequential orders to give effect to Paragraph 5 of the Judgment.

The Plaintiff submitted that:

(a) Enclosure 57 is a proper application for consequential and/or ancillary orders to give effect to Paragraph 5 of the Judgment;

(b) The Court retains inherent jurisdiction under Order 92 Rule 4 of the ROC 2012 to make such consequential orders;

(c) Paragraph 5 of the Judgment expressly provides that the notice of apology shall be one "yang akan diluluskan oleh Plaintif" (which is to be approved by the Plaintiff) and accordingly the Defendant has no entitlement to dictate the content of the said notice;

(d) The Defendant has, by its persistent non-compliance for more than eighteen months, occasioned grave injustice to the Plaintiff which warrants the intervention of this Court; and S/N gst5TuROEugruxACwz0g

(e) The Defendant's complaints regarding the logo, colour, size, format, contact details and supposed "embellishments" are belated objections raised for the first time in the affidavit in reply to Enclosure 57, and were never raised previously when the draft was first circulated.

The Defendant, in resisting the Application, contended that:

(a) The Plaintiff's draft goes beyond what was ordered in Paragraph 5 of the Judgment and amounts to an impermissible "embellishment";

(b) The Court is functus officio and cannot enlarge the substantive content of the Judgment;

(c) Order 92 Rule 4 of the ROC 2012 cannot be invoked as a substitute for enforcement procedures available under the Rules, relying on Permodalan MBF Sdn Bhd v Tan Sri Datuk Seri Hamzah Abu Samah & Ors [1988] 1 MLJ 178;

(d) The draft contains a reference to one Tan Tiam Yee, who is not a party to the action;

(e) The draft retains the "raid and seizure" phrase notwithstanding the Plaintiff's agreement to its deletion;

(f) Court orders must be clear and unambiguous, citing Ting Chuen Peng v Yap Kiam @ Yap Sin Tian; and S/N gst5TuROEugruxACwz0g

(g) The visual elements (logo, colour, half-page size, Sunday edition), the liability statement, the public exhortation and the contact particulars are not necessary to give effect to Paragraph 5. D. ISSUES FOR DETERMINATION

The principal issues falling for determination are:

(i) Whether this Court has jurisdiction under Order 92 Rule 4 of the ROC 2012 to grant consequential or ancillary orders to give effect to Paragraph 5 of the Judgment;

Order 92 Rule 4 of the ROC 2012 provides: "For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as S/N gst5TuROEugruxACwz0g may be necessary to prevent injustice or to prevent an abuse of the process of the Court."

The inherent jurisdiction of the Court is a residual and necessary power, enabling the Court to ensure that substantive justice between the parties is served and that its orders are given effect.

The Federal Court in Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 12 MLJ 237 authoritatively settled the position on consequential orders. Her Ladyship Tan Sri Datuk Nallini Pathmanathan FCJ held: “[19] Where is this jurisdiction to amend or supplement the original sealed order found? It is found in the inherent jurisdiction of the courts. The superior courts possess a residual inherent jurisdiction to, inter alia, clarify the terms of an order and to make ancillary orders primarily to give effect to the decision or judgment handed down. It is a necessary jurisdiction to enable a court to ensure that substantive justice between the parties is served, so as to give effect to its primary decision, through the dispensing of procedural justice. [20] That the court has the jurisdiction to dispense ancillary or supplemental orders to augment or substitute the original relief or remedy so as to give effect to the intent and purpose of its original decision is not in doubt. The doctrine of functus officio does not encroach upon that jurisdiction. … [26] The case is authority for the proposition that even where an order of the court has been perfected and does not contain any mention of liberty to apply, it is open to the party to make an application so as to give effect to the intention of the final order. S/N gst5TuROEugruxACwz0g [66] The High Court was fully entitled to make the consequential order as the doctrine of functus officio does not take away the inherent power of court to make consequential orders. We are fortified in our conclusion by, inter alia, the cases of Yap Kian @ Yap Sin Tian v Poh Chin Chuan @ Ors [2016] 7 MLJ 805 and CCI Technology Sdn Bhd & Ors v Pernec Ebiz Sdn Bhd [2016] 2 CLJ 379…” [Underlined Emphasis Added]

Similarly, in Ong Mei Lean & Anor v Loh Sim Seng [2022] MLJU 3315, the learned Mohd Firuz Jaffril J (as His Lordship then was) reiterated that the Court possesses inherent jurisdiction to make consequential or ancillary orders to give efficacy to its earlier orders, citing with approval Phuah Beng Chooi @ Koh Kim Kee (P) & Ors v Koh Heng Jin @ Koh Heng Leng & Ors [2007] 2 MLJ 458. It was held in Ong Mei Lean as follows: “[19] In the case of Phuan Beng Chooi @ Koh Kim Kee (P) & Ors v Koh Heng Jin @ Koh Heng Leng & Ors [2007] 2 MLJ 458 (“Phuah Beng Chooi”), the High Court made certain consequential orders in order to give efficacy to the consent order. [20] In the words of His Lordship Abdul Malik Ishak H (as he then was) in Phuah Beng Chooi (supra): “I am acutely aware, that under it inherent jurisdiction, this court can at any stage of the proceedings, even after judgement, vary modify or even extend its own order so as to express its intention and meaning correctly in order to ensure that the purposes of justice are not defeated (Thynne v Thynne (1955) P 272, and Pearlman (Veneers) SA (Pty) v Bernhard Bartels [1954] 1 WLR 1457, ; [1954] 3 ALL E.r 659.).” S/N gst5TuROEugruxACwz0g [21] In addition, Order 92 Rule 4 of the Rules of Court 2012 provides as follows:

“Inherent powers of the Court (O.92, r.4) For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [22] Based on the authorities above, it is crystal clear that that Court had inherent jurisdiction to make ancillary order as prayed for by the Plaintiffs. [Underlined Emphasis Added]

The clear principle that emerges is this: the doctrine of functus officio does not preclude the Court from making consequential or ancillary orders the purpose of which is to give effect to the original judgment. What the doctrine does prohibit is the reopening of, or substantive variation to, the merits of the original decision.

Paragraph 5 of the Judgment is plain on its face. It directs the Defendant to publish a notice of apology in four named newspapers. Critically, the notice is one "yang akan diluluskan oleh Plaintif" — that is to say, a notice the content of which is to be approved by the Plaintiff.

The plain and ordinary meaning of those words is that the Plaintiff has been given, by judicial fiat, the right to settle the contents of the notice of apology. The Defendant is obliged to publish what the S/N gst5TuROEugruxACwz0g Plaintiff approves. The Defendant has no right of veto over the substance of the notice.

This Court observes that the Defendant did not appeal against Paragraph 5 of the Judgment. Having allowed the Judgment to become final, the Defendant cannot now be heard to complain about a term that confers approval rights upon the Plaintiff.

The chronology demonstrates clearly that:

(a) The Judgment was entered on 31.10.2023;

(b) The Plaintiff prepared a draft notice on or about 04.09.2024;

(c) The Plaintiff, in good faith and at the direction of this Court, agreed to delete the "raid and seizure" phrase without prejudice to its rights;

(d) Notwithstanding this concession, the Defendant continued to raise new objections; and

(e) To date over two years from the date of the Judgment the Defendant has not published any notice of apology.

The Defendant's conduct, in this Court's view, reflects a calculated strategy of delay and obstruction. The various grounds of objection raised by the Defendant are not, in substance, attempts to comply with the Judgment but rather attempts to defeat it. S/N gst5TuROEugruxACwz0g

As the Plaintiff correctly observed, such non-compliance could properly have founded committal proceedings. The Plaintiff has, however, opted for a more measured course seeking consequential orders so that the Judgment may be given effect without resort to coercive sanctions. That restraint is to be commended, not penalised.

The Defendant's principal argument is that the inclusion of the Plaintiff's logo, colour specifications, half-page size, Sunday publication, contact particulars and a statement of liability, amounts to an enlargement of Paragraph 5.

This Court is unable to accept that submission. I note that Paragraph 5 expressly delegates the content of the notice to the Plaintiff's approval. The Court has, by the Judgment itself, recognised that practical details of the notice would have to be worked out post-judgment. A notice of apology must, of necessity, contain content. To contend that the Plaintiff cannot specify content is to render Paragraph 5 a dead letter.

In my considered view I also find that the references to the Defendant's liability for trademark infringement, passing off and unlawful interference are not "new admissions" of fact or law. They are statements of matters already adjudicated upon by this Court at the summary judgment stage. The purpose of a notice of apology is precisely to acknowledge the wrongdoing for which liability has been determined. To object to such acknowledgement is, in effect, to seek to relitigate a closed issue. S/N gst5TuROEugruxACwz0g

I find that the matters complained of (logo, colour, half-page size, Sunday publication) are practical incidents of newspaper publication. They do not enlarge the substance of the Judgment but rather merely give it practical efficacy. A notice published in microscopic black-and-white print in an obscure section of a weekday newspaper would render the order nugatory.

I note as well that the Defendant's objections to the logo, colour and certain phrases were not raised in the Defendant's earlier correspondence and emerged only in response to Enclosure 57. A party is, of course, entitled to take points; but the timing of these objections speaks to their good faith.

With regard to the phrase "raid and seizure," the Plaintiff has made its position abundantly clear, both in its correspondence with the Defendant and in its formal submissions before this Court. Specifically, the Plaintiff has consistently maintained that its consent to the deletion of the said phrase was given strictly on a without prejudice basis. In other words, the Plaintiff's agreement to remove the phrase from the draft apology notice was never intended to constitute a waiver, concession, or abandonment of any of its substantive rights, claims, or remedies in this action.

The Plaintiff reserved all such rights in full, and its conduct in agreeing to the deletion should not be construed in any manner that prejudices its position in these proceedings. Accordingly, no adverse inference can or should be drawn from the Plaintiff's willingness to accommodate the deletion of the phrase, as this was done purely in S/N gst5TuROEugruxACwz0g the spirit of facilitating resolution and not as an admission on the merits.

The Defendant has further raised an objection to the draft apology notice on the basis that it contains a reference to one Tan Tiam Yee, who is not a named party to the present action. The Court has carefully considered this objection and finds it to be without merit. It is undisputed that Tan Tiam Yee is the deponent of the affidavits filed on behalf of the Defendant in these proceedings. Moreover, on the Defendant's own pleadings and as expressly stated in the affidavits filed in support of the Defendant's case, Tan Tiam Yee is shown to be closely and intimately connected with the Defendant company, holding a position of significance within its corporate structure.

It is important to highlight here that his name does not appear on the apology notice in his personal capacity; rather, he is referenced solely in his representative capacity, that is, as a person acting on behalf of the Defendant company. The inclusion of his name therefore serves a legitimate and proper purpose, namely to identify the individual through whom the Defendant has spoken and acted in these proceedings. For these reasons, the Defendant's objection on this point is misplaced and is hereby rejected.

I now move on to the authorities relied upon by the Defendant. The Defendant's reliance on Permodalan MBF Sdn Bhd v Tan Sri Datuk Seri Hamzah Abu Samah & Ors [1988] 1 MLJ 178 for the proposition that inherent jurisdiction will not be invoked where the Rules provide adequate remedy, is with respect, misplaced. S/N gst5TuROEugruxACwz0g

The Plaintiff is not seeking to bypass any specific procedure under the ROC 2012. Enforcement by way of committal is one option but is by no means the only or necessarily the most appropriate remedy. The Plaintiff seeks, properly, an order that clarifies the form of the notice so that compliance may follow. That is precisely the kind of consequential relief contemplated by Stone World and Ong Mei Lean.

The Defendant's reliance upon Ting Chuen Peng v Yap Kiam @ Yap Sin Tian (supra) for the proposition that court orders must be clear and unambiguous, and that any ambiguity must be resolved in favour of the alleged contemnor is misconceived in the present context.

Ting Chuen Peng is a committal authority. The strict canons of construction applicable to committal proceedings do not govern an application for consequential orders. As the Plaintiff correctly observed, if the Defendant truly considered Paragraph 5 to be clear, the proper course was to comply with it, not to resist it by raising objections of ambiguity.

Having considered the totality of the matter, this Court is satisfied that:

(a) Paragraph 5 of the Judgment is clear and confers upon the Plaintiff the right to settle the content of the notice of apology;

(b) The Defendant has, for an unconscionably long period, refused or failed to comply with that Paragraph; S/N gst5TuROEugruxACwz0g

(c) The Defendant's objections are largely unmeritorious and, in some respects, contradictory;

(d) Genuine injustice has been occasioned to the Plaintiff by the Defendant's recalcitrance;

(e) The relief sought in Enclosure 57 is properly characterised as consequential or ancillary in nature, designed to give effect to Paragraph 5 of the Judgment; and

(f) The doctrine of functus officio does not bar the grant of such relief, as authoritatively confirmed by the Federal Court in Stone World.

Order 92 Rule 4 of the ROC 2012 is precisely engineered for the present situation: to prevent injustice and to prevent an abuse of the process of the Court. To deny the Plaintiff relief would be to reward the Defendant's persistent disobedience and to render Paragraph 5 of the Judgment ineffectual.

For the reasons set out above, this Court is satisfied that the Plaintiff has made out a clear case for the grant of consequential orders under Order 92 Rule 4 of the ROC 2012. Enclosure 57 is allowed with costs of RM 2000. S/N gst5TuROEugruxACwz0g Dated this day of 28th May 2026. -sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR Counsel: For the Plaintiff : Lim Jing Jie (Messrs Lim Sen Teng & Partners) For the Defendant : Naveen Singh Sidhu a/l Manjit Singh (Messrs Sidhu & Co) S/N gst5TuROEugruxACwz0g