XXXX v XXXX (22IP-43-11/2013)

PAN ASIATIC TECHNOLOGIES SDN BHD [Company No.: 742846-D]

GOH CHU LEONG [NRIC No.: 640520-01-5835]

ABDUL KARIM BIN MOHD HANAPIAH [NRIC No.: 510725-10-5353]

DATUK SERI ALIES ANOR BIN ABDUL [NRIC No.: 550201-02-5519]! ! ! ! !!!!!… DEFENDANTS AND POWERSCAN COMPANY LIMITED ... THIRD PARTY GROUNDS OF JUDGMENT (Enclosure 148 – application for committal) 05/06/2026 17:13:21 22IP-43-11/2013 Kand. 222 S/N sYFcJyxTpE2iVrgaK86lCw 2! ! A. INTRODUCTION [1] This is the Plaintiff's application in Enclosure 148, by which the Plaintiff seeks orders for the committal of the First to Third Defendants for contempt of court. The gravamen of the complaint is that the Defendants, by their conduct have breached the injunctive orders granted by this Court in its Judgment dated 14 January 2015 (“Suit 43 Judgment"), and have thereby interfered with the due administration of justice. B. HISTORY OF PROCEEDINGS The Underlying Patent Dispute [2] The Plaintiff is one of the co-proprietors of Malaysian Patent No. MY- 142862-A (“862 Patent”) with the title “System for Image Inspection of Movable Object and Dodging Method”. The other co-proprietor of the 862 Patent is Tsinghua University. The invention in the 862 Patent concerns a cargo vehicle scanning system and a scanning method. [3] In November 2013, the Plaintiff commenced Suit No. 22IP-43- 11/2013 ("Suit 43") against the Defendants, alleging infringement of the 862 Patent through their dealings with two systems: the BT-Scan P/X Portal X-Ray Screening System ("the BT-Scan System") and the BPScan-M1 Portal X-Ray Screening System ("the BPScan System"). It was undisputed that these systems had been procured by the First Defendant from the Third Party, Powerscan Company Limited. S/N sYFcJyxTpE2iVrgaK86lCw 3! ! The Suit 43 Judgment and the Injunction [4] On 14 January 2015, judgement was entered by this Court in favour of the Plaintiff. This Court found, among other matters, that the First and Second Defendants had infringed the 862 Patent. The Suit 43 Judgment included an injunction. The relevant terms of the Suit 43 order reads as follows: “AND IT IS ORDERED AND DIRECTED that the 1st Defendant and the 2nd Defendant, whether jointly or severally and/ or acting by themselves, or through their directors, officers, employees, servants, agents or assigns or otherwise be restrained, and an injunction is hereby granted restraining them from: a) directly or indirectly using the BT-Scan P/X Portal X-Ray Screening System installed at the Customs, Immigration and Quarantine Complex in Bukit Chagar, Johor Bahru (as referred to in the Amended Statement of Claim as “the Infringing System”), the BPScan-M1 Portal X-Ray Screening System which form the subject matter of “Perjanjian Untuk Membekal, Menghantar, Menyedia Tapak, Memasang, Menguji, Menyerah, Melatih dan Menyelenggara Empat (4) Unit Mesin Pengimbas BPSCAN-M1 Portal X-Ray Screening System Untuk Jabatan Kastam Diraja Malaysia” dated 30 April 2014 (as referred to in the Amended Statement of Claim as “the Additional Infringing System”) and/ or any other systems or devices claimed in Malaysian Patent No. MY-142862-A in such a way as to infringe the said patent; S/N sYFcJyxTpE2iVrgaK86lCw 4! ! b) making, procuring the manufacture of, importing, exporting, distributing, marketing, offering for sale, selling, using, installing, maintaining, servicing and/ or howsoever dealing with in any form whatsoever, the Infringing System, the Additional Infringing System and/ or any other systems or devices that may infringe Malaysian Patent No. MY-142862-A; c) authorising, permitting, causing and/or enabling others to make, procure the manufacture of, import, export, market, offer for sale, sell, use, install, maintain, service and/or howsoever deal with in any form whatsoever, the Infringing System, the Additional Infringing System, and/ or any other systems or devices that may infringe Malaysian Patent No. MY-142862-A;” [5] The Suit 43 Judgment was duly served on the directors of the First Defendant, including the Second Defendant, on 5 March 2015. It bore a penal notice. The Development of the BBScan System [6] Following the Suit 43 Judgment, the First Defendant ceased procuring scanning machines from Powerscan. However, the First Defendant did not cease its commercial activities in this field. Instead, it developed, together with its related company, Billion Prima Sdn Bhd ("BPSB") a new vehicle scanning system known as the BBScan System. S/N sYFcJyxTpE2iVrgaK86lCw 5! ! [7] The Defendants maintained that they obtained professional advice to the effect that the BBScan System did not infringe the 862 Patent. BPSB is said to have obtained a patent in respect of an early version of the system in October 2014. The system underwent further adjustments before reaching its final form. Suit 50 and the Declaration of Non-Infringement [8] Conscious, no doubt, of the litigation history between the parties, the First Defendant and BPSB commenced a fresh action vide Kuala Lumpur High Court Suit No. 22IP-50-09/2015 ("Suit 50") seeking a declaration of non-infringement under section 62 of the Patents Act 1983 in respect of the BBScan System. [9] The Plaintiff and Tsinghua University responded by filing a counterclaim, alleging that the BBScan System infringed the 862 Patent. The Suit 50 Judgment [10] On 12 February 2019, my learned brother Wong Kian Kheong JC (as His Lordship then was) delivered his judgment in Suit 50. His Lordship found, among other matters, that the First Defendant had indeed infringed the 862 Patent through its dealings with the BBScan System. The declaration of non-infringement was refused, and the counterclaim was allowed. [11] It is material to note that during the trial of Suit 50, three expert witnesses testified and according to the Defendants the BBScan S/N sYFcJyxTpE2iVrgaK86lCw 6! ! System did not infringe the 862 Patent. Notwithstanding that evidence, His Lordship found otherwise. The Appeals [12] The First Defendant appealed the Suit 43 Judgment. The Court of Appeal dismissed that appeal. Leave to appeal to the Federal Court was refused. [13] The Suit 50 Judgment was likewise appealed. The Court of Appeal upheld the findings. Leave to appeal to the Federal Court was again refused. The Present Committal Application [14] On 20 March 2019, the Plaintiff filed an application for leave to commence committal proceedings. On 1 April 2019, this Court granted leave, being satisfied that a prima facie case of contempt had been established. The committal proceedings were thereafter held in abeyance pending the outcome of the appeals. [15] With the appeals now exhausted, the matter has come on for determination. My Findings [16] It is axiomatic that contempt proceedings are quasi-criminal in nature. As the Court of Appeal observed in CIMB Bank Bhd & Anor v Tan Hoo Eng [2024] 1 MLJ 936, the standard of proof required, S/N sYFcJyxTpE2iVrgaK86lCw 7! ! whether the contempt be styled "civil" or "criminal" is proof beyond reasonable doubt. In the case of CIMB Bank Bhd & Anor, the Court of Appeal made the following observations: “[37] In England, the general approach has been that a criminal contempt is an act which so threatens the administration of justice that requires punishment whereas by contrast, a civil contempt involves disobedience of a court order. However, O 52 of the Rules of the High Court 1980 (‘the RHC’) is inapplicable for contempt in criminal proceedings where the contempt is in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court (see O 52 r 1(2)(a)(ii) of the RHC). One thing is clear, be it civil or criminal contempt, the standard of proof required in either type is the same, which is beyond reasonable doubt. [17] Contempt of court may take many forms. As the Federal Court held in Monatech (M) Sdn Bhd v Jasa Keramat Sdn Bhd [2002] 4 MLJ 241, the categories of contempt are never closed. Any conduct that brings the authority of the law into disrespect, or that interferes with the due administration of justice, may constitute contempt. The Federal Court in Monatech (M) Sdn Bhd 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: 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. S/N sYFcJyxTpE2iVrgaK86lCw 8! ! What therefore is contempt of court, 'is interference with the due administration of justice' — per Nicholls LJ at p 923 of Attorney-General v Hislop & Anor [1991] 1 All ER 911 (CA). In view of the generality of the phrase 'interference with the due administration of justice', we are of the view that the categories of contempt are never closed. To that extent we respectfully endorse the statement made by Low Hop Bing J, in Chandra Sri Ram v Murray Hiebert [1997] 3 MLJ 240 at 270 : The circumstances and categories of facts which may arise and which may constitute contempt of court, in a particular case, are never closed. This is the same position as in the case of negligence in which the scope for development is limitless. Contempt of court may arise from any act or form whatsoever, ranging from libel or slander emanating from any contemptuous utterance, news item, report or article, to an act of disobedience to a court order or a failure to comply with a procedural requirement established by law. Any of these acts, in varying degrees, affects the administration of justice or may impede the fair trial of sub judice matters, civil or criminal, for the time being pending in any court. The particular matrix of the individual case is of paramount importance in determining whether a particular circumstance attracts the application of the law of contempt. Hence, a positive perception of the facts is a prerequisite in deciding whether or not there is any contravention necessitating the invocation of the law of contempt.” [Underlined Emphasis Added] S/N sYFcJyxTpE2iVrgaK86lCw 9! ! [18] In the case of Murray Hiebert v. Chandra Sri Ram [1999] 4 MLJ 321, the Court of Appeal observed that it is not necessary to prove actual interference with the administration of justice, a likelihood will suffice. [19] It is also trite that a breach of an injunctive order is tantamount to contempt, as was observed by the Federal Court in the case of TO Thomas v Asia Fishing Industry Pte Ltd [1977] 1 MLJ 151: “It was argued that that case was concerned with a perpetual injunction. A person against whom an injunction has been awarded and who disregards it, is liable to be dealt with for contempt whatever the nature of the injunction may be and whether it is mandatory or restraining in its form, and whether it be made ex parte upon hearing both sides or be interim or perpetual. With respect, the learned judge was right to find appellant guilty of contempt in aiding or abetting Chai and his wife to disobey “the court order”. [Underlined Emphasis Added] [20] In determining whether a person is guilty of contempt of court for breaching an injunctive order, the High Court decision in Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441 has established that an applicant in committal proceedings must prove, beyond all reasonable doubt, that the alleged contemnor had been notified of the terms of the restraining order or judgment. S/N sYFcJyxTpE2iVrgaK86lCw 10! ! [21] In the present case, the Plaintiff's complaint is twofold:

That the Defendants have breached the terms of the

That by so doing, they have interfered with the due administration of justice. [22] The Plaintiff's case, in essence, is straightforward. It submits:

The Injunction prohibited the Defendants from dealing with "any other systems or devices" that infringe the 862 Patent.

The BBScan System infringes the 862 Patent. This has been definitively established by the Suit 50 Judgment, which has been upheld on appeal all the way to the Federal Court.

It follows that the Defendants dealings with the BBScan System constituted a breach of the Injunction.

That breach has been proved beyond reasonable doubt, because the findings in Suit 50 are now final and binding. [23] A pivotal issue that arises for determination now concerns the precise mental element, if any, that must be established in order to mount a finding of contempt of court arising from the breach of a court order. S/N sYFcJyxTpE2iVrgaK86lCw 11! ! [24] Learned counsel for the Defendant had advanced the submission that the Plaintiff bears the burden of proving mens rea as an essential ingredient of contempt. It was contended that the Plaintiff must establish, to the requisite standard of proof, that the breach in question was wilful, deliberate, and accompanied by mala fide intentions—that is to say, intentions directed at defeating, obstructing, or otherwise interfering with the due administration of justice. Based on this view, it is the Defendants submission that the absence of such a subjective and culpable state of mind would be fatal to the Plaintiff's application, regardless of whether the impugned acts or omissions objectively constituted a breach of the order in question. [25] In support of this submission, learned counsel placed considerable reliance on the case of J&M Power Sdn. Bhd. v J&M Power Resources Sdn. Bhd. [2012] MLJU 640. In that case, the Court emphasised that allegations of contempt must not only be proved beyond reasonable doubt, but that the requisite state of mind of the alleged contemnor must also be established. The Court held that the applicant must prove that the alleged contemnor acted deliberately and with mala fide intention to defeat, obstruct, or interfere with the administration of justice. These are mandatory requirements which must be satisfied to the criminal standard of proof. The Court in J&M Power held as follows: Not only must these allegations be proved on a standard of beyond reasonable doubt, the state of mind of the proposed contemnors must also be proved. The Petitioner must prove that the proposed contemnors were deliberate in the several respects alleged and, that they possessed mala fides intentions to defeat, obstruct or interfere with S/N sYFcJyxTpE2iVrgaK86lCw 12! ! the administration of justice in the manner as alleged. These are mandatory requisites to be satisfied on that standard of beyond reasonable doubt. These requisites were reminded by the Federal Court in 7.0. Thomas v Asia Fishing Industry Pte Ltd, page 154- "Another point raised is that in a contempt case it must be proved that appellant had a guilty mind - in the sense that he deliberately aided and abetted another to disobey a court order. These principles have not been disturbed in the recent decision of Tan Sri Dato' Dr. Rozali Ismail & Ors v Lim Peng Cheng & Ors [2012] 2 CLJ 849. On the contrary, the Federal Court confirmed the principles just set out above. At page 861, the Federal Court recognised that "Committal is a very serious matter" and that "It is settled law that the committal proceeding is criminal in nature since it involves the liberty of the alleged contemnor. Premised upon that, the law has provided procedural safeguards in committal proceeding which requires strict compliance." [26] Learned counsel further drew the Court’s attention to the decision of the Court of Appeal in Uthayakumar a/l Ponnusamy v Abdul Wahab bin Abdul Kassim (Pengarah Penjara Kajang) & Ors [2016] 6 MLJ 670. In that case, the Court of Appeal held that mere non-compliance with administrative directions issued by the Court would not, without more, amount to contempt. The applicant must still demonstrate that such non-compliance caused prejudice and was accompanied by a mala fide intention to defeat, obstruct, or interfere with the administration of justice. The Court of Appeal stated as follows: S/N sYFcJyxTpE2iVrgaK86lCw 13! ! [29] … The appellant has not shown how the non-compliance with the administrative directives made by the court has prejudiced the appellant’s appeal before the learned High Court judge in the sense that the non-compliance tantamount to mala fide intention to defeat, obstruct or interfere with the administration of justice. In J&M Power Sdn Bhd v J&M Power Resources Sdn Bhd [2012] MLJU 640, the court had said that the applicant must prove these ingredients and it is mandatory that the requisites be satisfied on the standard of beyond reasonable doubt (see also TO Thomas v Asia Fishing Industry Pte Ltd [1977] 1 MLJ 151). Applying this principle, we cannot see how the non-compliance of the administrative order issued by the court to the respondents could deny the appellant the justice in his appeal before the High Court one way or the other. [27] In addition, learned counsel for Defendants placed reliance on the Singaporean decision of!!VFV v. VFU [2021] 5 SLR 1428, which held that "in determining whether the alleged offender's conduct amounts to contempt of court, we have to see what the order required the alleged offender to do, and then to see whether the alleged offender had the necessary mental culpability, namely, that the conduct was intentional and the alleged offender knew the facts that made such a conduct a breach of the order." [28] The Plaintiff, by contrast, has taken a fundamentally different position in that no such subjective element forms part of the ingredients of contempt by breach of a court order. The Plaintiff contended that it is sufficient, for the purposes of establishing contempt, to demonstrate that the Alleged Contemnors in fact committed the prohibited act or failed to perform the mandated act, as the case may be. The intention with which such act or omission S/N sYFcJyxTpE2iVrgaK86lCw 14! ! occurred, or indeed the absence of any such intention, is said to be wholly immaterial to the inquiry. [29] I have considered this issue, and in my considered view, in determining whether a person has breached a court order, the court does not embark upon an inquiry into the motive underlying the disobedience. The relevant question, rather, is whether the person bound by the order has, by act or by omission, intentionally done (or intentionally failed to do) that which the order required to be done or prohibited from being done. [30] This principle was lucidly articulated by Jeffrey Tan J (as His Lordship then was) in,!Tam Lye Chian v Seah Heng Lye [1999] 8 CLJ 614 where His Lordship observed: "The motive for disobedience is irrelevant for the purpose of establishing a case of contempt... But the breach must be proved beyond all reasonable doubt... In most cases, this will mean that the offender will have been shown to have deliberately or wilfully disobeyed the court order." [31] This passage, in my respectful view, makes plain that while motive is irrelevant to the contempt inquiry, the breach itself must nonetheless be shown to be deliberate or wilful. The question that naturally arises is: what precisely does this requirement entail? [32] In my judgment, the requirement bears the following meaning. The alleged contemnor must have known what the order required to be done or prohibited from being done, and must have intentionally performed the act, or intentionally omitted to perform the act, that S/N sYFcJyxTpE2iVrgaK86lCw 15! ! constituted the breach. Put differently, the act or omission must have been voluntary in character, rather than accidental, inadvertent, or the result of circumstances beyond the control of the alleged contemnor. [33] However, I emphasise that this qualification is of critical importance as it is not necessary for the alleged contemnor to have known that the act or omission in question constituted a breach of the order. Still less is it necessary to demonstrate that the contemnor acted with the subjective intention of defying the authority of the court or interfering with the administration of justice. The mental element required is confined to the intentional doing of the act, and does not extend to any subjective appreciation of its legal consequences or any malevolent purpose. [34] This understanding of the law finds clear support in the decision of the Court of Appeal in,! Lokman Noor bin Adam v Public Prosecutor and another appeal [2023] 1 MLJ 705 where the appellate court expressly held that a person may be guilty of contempt notwithstanding the absence of a guilty mind. The Court of Appeal stated: ! “[40] Generally, the burden is always on the prosecution to prove beyond reasonable doubt not only the actus reus of an accused person, that is the accused had committed the wrongful act, but also his mens rea, that is his guilty mind. However, there are exceptions in which a person may be guilty of an offence although he had no guilty mind. Contempt of court is one of those. Lord Denning MR in Butterworth’s case at p 331 had observed that: S/N sYFcJyxTpE2iVrgaK86lCw 16! ! … Much of the argument to the contrary was based on R v Odhams Press Ltd Ex p A-G, which established, it was said, that the test of criminal contempt was objective and not subjective. I do not like those obscurantist expressions ‘objective’ and ‘subjective’. As the argument developed, it seemed to go something like this: In considering whether a man has been guilty of contempt of court, one does not look at his knowledge or intention, but only at what he did. If his action was calculated to interfere with the course of justice that is enough, irrespective of his state of mind at the time. … Butterworth’s case has been referred to by the Malaysian courts and in Malaysia it has been established that the state of the accused mind, that is, whether it must be proved that the accused has intended to interfere with the course of justice, is irrelevant and all that is required to be proved is that the accused committed the requisite act…” [Underlined Emphasis Added] [35] I respectfully adopt the above statement of principle. The question to be posed by the court is not whether the alleged contemnor intended to commit contempt, but rather whether the alleged contemnor intentionally performed the act which, when assessed objectively, constituted a breach of the court's order. [36] This principle finds further reinforcement in the decision of the High Court in,!Dong Yang Elevator (M) Sdn Bhd v MXC Elevator Sdn Bhd & Ors [2023] 8 MLJ 488 where the court held that the intention S/N sYFcJyxTpE2iVrgaK86lCw 17! ! of the proposed contemnor in disobeying the court order is immaterial. The court reasoned as follows: “[31] Therefore, in deciding whether a proposed contemnor had disobeyed an order of court, the question for determination is whether the proposed contemnor had by his/her action or omission had intentionally defied and/or disobeyed the court order. It is immaterial what the proposed contemnor’s intention was in disobeying the court order. As Lee Hun Hoe (Borneo) CJ held delivering the judgment of the Federal Court’s judgment in TO Thomas v Asia Fishing Industry Pte Ltd [1977] 1 MLJ 151; [1977] 1 LNS 126 (FC), ‘intention is of no consequence in the matter of contempt by disobedience” [37] I have given careful and anxious consideration to the submissions advanced by learned counsel for the Defendants on this point. Having undertaken a close examination of the authorities relied upon, I am driven to the conclusion that those cases do not, upon proper analysis, support the position for which the Defendants contend. [38] In the first place, with respect to J&M Power, a careful reading of the judgment reveals that the High Court in that case was discussing the need to prove intention specifically in the context of interference with the administration of justice and not in the context of non-compliance with, or breach of, a court order. These are distinct categories of contempt, and the principles applicable to one do not necessarily translate to the other. S/N sYFcJyxTpE2iVrgaK86lCw 18! ! [39] A further and equally important distinguishing factor is that, in J&M Power, the Court ultimately found on the facts that there was "no refusal or default in compliance, be it wilful or otherwise." It follows that any pronouncement on the question of intention did not form part of the ratio decidendi of that decision. The decision, properly understood, does not concern compliance with the terms of a court order at all, and the observations relied upon by the Defendants regarded as, at best, obiter dicta. [40] For precisely the same reason, the decision in Uthayakumar a/l Ponnusamy, which merely affirmed the principles articulated in J&M Power, is likewise irrelevant to the present case and may be distinguished. [41] A further distinguishing point, which in my view is of considerable significance, is that in Uthayakumar the respondent in that case had not breached a court order at all; rather, the alleged non-compliance related to an administrative directive issued by the court. The Court of Appeal itself was at pains to highlight this distinction at paragraph [28] of its judgment, where it observed that "non-compliance with an administrative directive" stands on a fundamentally different footing from the disobedience of a substantive court order. An administrative directive, by its very nature, does not carry with it the same coercive force, nor does it engage the same considerations of judicial authority, as a formal order of the court made in the exercise of the court's adjudicative function. The ingredients required to establish contempt arising from the disregard of an administrative directive cannot, therefore, be uncritically transposed to cases involving the breach of a S/N sYFcJyxTpE2iVrgaK86lCw 19! ! substantive court order. To do so would be to conflate two conceptually distinct categories of contempt and to misapply the relevant legal principles. [42] As for the Singaporean decision in VFV, I am of the view that the formulation adopted in VFV, namely, that the alleged offender must have had "the necessary mental culpability" in the sense that "the conduct was intentional and the alleged offender knew the facts that made such a conduct a breach of the order"—is, on closer examination, not materially inconsistent with the principle I have already articulated. [43] The requirement that the conduct be "intentional" and that the alleged offender "knew the facts" giving rise to the breach is essentially a requirement that the act or omission be voluntary and informed, rather than accidental or inadvertent. It does not, properly understood, require proof of any subjective intention to defy the court or to interfere with the administration of justice. To the extent that the Defendants seek to extract from VFV a broader requirement of mala fide intent, that submission, in my respectful view, reads into the decision more than its language can fairly bear. [44] In sum I find that the Defendants’ contentions on the knowledge of breach by the contemnors are wholly immaterial and irrelevant. In this regard, I am inclined to agree with the views expressed by the Court of Appeal in Jasa Keramat Sdn Bhd v. Monatech (M) Sdn Bhd [2001] 4 MLJ 577 which made it clear, in no uncertain terms, that the mens rea of the contemnor is not an ingredient to be proved in contempt proceedings (affirmed by the Federal Court). It is S/N sYFcJyxTpE2iVrgaK86lCw 20! ! sufficient to adjudicate whether the act complained of is inherently likely to interfere with the administration of justice. [45] This position has been reaffirmed by the Federal Court in PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian International Arbitration Centre, intervener) [2019] 4 MLJ 747 where it was held that it is not necessary to prove an intention to undermine the administration of justice – it is only necessary to prove that the publication of the impugned article was intentional. The Federal Court opined that: “[67] In essence we concur that adopting a mens rea test which requires the prosecution to prove an intention to interfere with the administration of justice needs proof of the subjective intention of the alleged contemnor to so interfere. This is difficult to establish because it entails an inquiry into the inner workings of the alleged contemnor’s mind.” [46] Drawing the threads together, based on the authorities citied above, the current proposition may be summarised in the following terms: a) The Plaintiff bears the burden of proving the breach of the court order to the criminal standard, namely, beyond reasonable doubt. b) The breach must be shown to be deliberate or wilful, in the limited sense that the alleged contemnor must have known of the terms of the order and must have intentionally performed S/N sYFcJyxTpE2iVrgaK86lCw 21! ! the act, or intentionally omitted to perform the act, which constituted the breach. c) It is not necessary for the Plaintiff to prove that the alleged contemnor harboured any subjective intention to defy the court, to obstruct the administration of justice, or to act with mala fides. The absence of such an intention does not afford a defence to contempt by breach of a court order. d) Motive, in the ordinary sense of that word, is irrelevant to the contempt inquiry. The court is concerned with what was done (or not done), and not with why it was done. [47] It is against this settled legal framework that I now turn to consider whether the conduct of the Defendants in the present case constitutes contempt of the court's order. [48] The Defendants do not dispute that the Suit 50 Judgment found the BBScan System to infringe the 862 Patent. Nor do they dispute that the Injunction, properly construed, would prohibit dealings with such a system. [49] Their case, rather, is that they did not know and could not reasonably have known that the BBScan System would be found to infringe. They point to the following:

They obtained professional advice that the BBScan System did not infringe. S/N sYFcJyxTpE2iVrgaK86lCw 22! !

BPSB obtained a patent for an early version of the system.

Conscious of the litigation history, they proactively commenced Suit 50 to seek a declaration of non-infringement.

At the trial of Suit 50, three expert witnesses testified that the BBScan System did not infringe. [50] The Defendants submitted that these facts demonstrate that they held a genuine and reasonable belief that the BBScan System fell outside the scope of the Injunction. In such circumstances, they say, no finding of contempt can be made. [51] The more difficult question is whether the Defendants knew, or ought to have known, that the BBScan System would infringe the 862 Patent, such that their dealings with it constituted an intentional breach of the Injunction. [52] I have considered the submissions advanced by the Defendants. I accept that they obtained professional advice. I accept that they commenced Suit 50 in good faith, seeking judicial clarification. I accept that expert evidence was called at trial to the effect that the BBScan System did not infringe. [53] However, I do not accept that these facts absolve the Defendants of liability for contempt. A person who breaches a court order cannot escape liability for contempt merely by showing that he acted on legal advice. The question is not whether the contemnor thought he S/N sYFcJyxTpE2iVrgaK86lCw 23! ! was complying with the order, but whether he did comply with it. To hold otherwise would be to render injunctions toothless. Any party subject to an injunction could simply obtain an opinion, however unreasonable, to the effect that his proposed conduct would not breach the order, and then proceed with impunity. [54] The law does not countenance such an approach. As the High Court observed in Dong Yang Elevator (M) Sdn Bhd v MXC Elevator Sdn Bhd & Ors [2023] 8 MLJ 488: "In deciding whether a proposed contemnor had disobeyed an order of court, the question for determination is whether the proposed contemnor had by his/her action or omission had intentionally defied and/or disobeyed the court order. It is immaterial what the proposed contemnor's intention was in disobeying the court order." [55] I respectfully adopt the above statement. The Defendants submitted that their proactive commencement of Suit 50 demonstrates not only that they were mindful of the Injunction, but that they intended to obey it. [56] I do not accept this submission. The commencement of Suit 50 may well demonstrate that the Defendants were aware of the risk that the BBScan System might infringe, and that they sought judicial clarification. But it does not demonstrate compliance with the Injunction. [57] On the contrary, the evidence shows that the Defendants developed, marketed, sold, and installed the BBScan System before S/N sYFcJyxTpE2iVrgaK86lCw 24! ! obtaining the declaration of non-infringement they sought. Indeed, the contracts for the supply of the BBScan System to the Royal Malaysian Customs Department were entered into in 2014 and 2015 which is well before the trial of Suit 50, and long before any judicial determination that the system did not infringe. [58] In the present case, it is not in dispute that, upon service, the Defendants knew of or were aware of the injunctive orders prohibiting them from dealing with any infringing cargo scanning system. Therefore, whether or not the Defendants were intentional in disobeying the Suit 43 Judgment is immaterial. What is material is the Defendants’ intention to deal with the BBScan System. The Defendants were deliberate in their infringing actions in the BBScan System. [59] The Injunction was expressed in clear and unequivocal terms. It prohibited the Defendants from dealing with "any other systems or devices" that infringe the 862 Patent. It did not require that the Defendants first be found, in separate proceedings, to have infringed. The prohibition was prospective and absolute. [60] The Defendants were therefore on notice from the moment the Suit 43 Judgment was served that they were prohibited from engaging in any conduct that would, objectively, constitute infringement of the 862 Patent. [61] The Defendants, in effect, proceeded at their own risk. They chose to engage in conduct that might breach the Injunction. That is not compliance. The fact that expert evidence was called and that the S/N sYFcJyxTpE2iVrgaK86lCw 25! ! evidence was to a particular effect does not alter the objective fact that the Court in Suit 50 found otherwise. The trial judge, having heard and considered all the evidence, concluded that the BBScan System did infringe the 862 Patent. That finding was upheld on appeal. [62] The question in these proceedings is not whether the Defendants belief was reasonable ex ante. The question is whether they have, objectively, breached the Injunction. The answer to that question is clear: they have. [63] For the reasons set out above, I am satisfied beyond reasonable doubt that:

The Injunction prohibited the Defendants from dealing with any systems or devices that infringe the 862 Patent.

The BBScan System infringes the 862 Patent.

The Defendants intentionally engaged in conduct, namely, the development, marketing, sale, and installation of the BBScan System that fell within the scope of the prohibition contained in the Injunction.

By so doing, the Defendants have breached the Injunction. [64] I accordingly find the Defendants guilty of contempt of court by reason of their breach of the Injunction. S/N sYFcJyxTpE2iVrgaK86lCw 26! ! C. MY FINDINGS ON SENTENCE [65] The Plaintiff proposed the following sentences:

That the First Defendant, Pan Asiatic Technologies Sdn Bhd, be fined RM500,000.00, with an additional six (6) months' imprisonment of its directors in the event of default;

That the Second Defendant, Goh Chu Leong, be sentenced to fifteen (15) days' imprisonment;

That the Third Defendant, Abdul Karim bin Mohd Hanapiah, be sentenced to seven (7) days' imprisonment; and

That the Defendants be jointly and severally liable to pay costs on an indemnity basis in the sum of RM113,077.00. [66] The Defendants, for their part, submitted that this was a case where the imposition of a fine would be fair and proportionate, and that no custodial sentence was warranted. [67] It is well-established that the court possesses a wide discretion in sentencing a contemnor. There is no prescribed maximum or minimum sentence for contempt of court. The primary consideration is the public interest. As Rohana Yusuf PCA observed, delivering the majority judgment of the Federal Court in Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652: S/N sYFcJyxTpE2iVrgaK86lCw 27! ! "[152] In our view an appropriate sentence serves public interest in two ways. It may deter others from the temptation to commit such crime where the punishment is negligible, or it may deter that particular criminal from repeating the same crime. Not only regarding each crime, but in regard to each criminal the court always has the right and duty to decide whether to be lenient or severe." [68] The Federal Court in the same decision further emphasised that in sentencing for contempt, the court must have regard to the facts and context of each case, and that the categories of relevant factors are not closed (at [149]). [69] The punishment for contempt of court may take the form of imprisonment, a fine, or a severe reprimand. As the Court observed in IJM Corporation Bhd v Harta Kumpulan Sdn Bhd (No. 2) [2008] 8 CLJ 308: "[64] The punishment for contempt of court could either be imprisonment, a fine or a severe reprimand. The punishment must be commensurate with the nature of the breach or in other words the degree of culpability. A breach that can be classified as open defiance of the court's authority, as Sir John Donaldson pointed out in Howitt Transport's case, must attract greater penalty as opposed to a contemnor who genuinely unconditionally tried to comply with the order, though was unsuccessful." [70] It is also a settled principle that committing a contemnor to prison must be a punishment of last resort, and that imposing a fine is the S/N sYFcJyxTpE2iVrgaK86lCw 28! ! usual punishment (see Q&M Dental Group (Singapore) Ltd v Dr Hong An Liang & Ors [2018] MLJU 1981, at [184]). [71] As to the factors to be considered in arriving at an appropriate sentence, I find it useful to refer to the checklist outlined by the English High Court in JSC BTA Bank v Roman Vladimirovich Solodchenko & Ors [2010] EWHC 2843 (Ch), which was cited with approval by See Mee Chun J (as Her Ladyship then was) in Q & M Dental Group & Ors v Dr Hong An Liang & Ors [2019] MLJU 994:

Whether the claimant is prejudiced by virtue of the contempt and whether the prejudice is capable of remedy;

The extent to which the contemnor has acted under pressure;

Whether the breach of the order was deliberate or unintentional;

The degree of culpability;

Whether the contemnor was placed in breach by reason of the conduct of others;

Whether the contemnor appreciated the seriousness of the breach;

Whether the contemnor has cooperated, and if so, at what stage and to what extent; S/N sYFcJyxTpE2iVrgaK86lCw 29! !

Whether the contemnor has admitted his contempt and has entered the equivalent of a guilty plea; and if so, what if any, reduction should be applied to the appropriate sentence;

Whether the contemnor has made a sincere apology for his contempt;

The contemnor's previous character and antecedents; and

Any personal mitigation advanced on his behalf. [72] I shall apply these factors, together with the broader principles outlined in the Mkini decision, to the facts of the present case. Aggravating Factors [73] Having considered the submissions of both parties, I am of the view that there are several aggravating factors which weigh heavily in the present case.

The Breach Was Deliberate [74] I have already found, in my decision on liability, that the Defendants deliberately engaged in conduct which breached the injunctive order in the Suit 43 Judgment. This is not a case of inadvertent or accidental non-compliance. The First Defendant, under the direction of its directors, the Second and Third Defendants, developed and S/N sYFcJyxTpE2iVrgaK86lCw 30! ! commercially deployed the BBScan System in full knowledge of the existence and terms of the Injunction. [75] The deliberate nature of the breach is further underscored by the findings of Wong Kian Kheong JC (as His Lordship then was) in the Suit 50 Judgment (Billion Prima Sdn Bhd & Anor v Nuctech Company Limited & Anor [2019] 1 LNS 1006), where His Lordship found at [81]: "After the High Court's Decision (2 Suits), the Plaintiffs came up with BBScan System (2nd Version). I find as a fact that BBScan (2nd Version) constitutes an unlawful circumvention of the High Court's Decision (2 Suits). This is because no expert evidence has been adduced by the Plaintiffs to show that BBScan (2nd Version) has been designed and developed based on known technology which is independent of '862 Patent."

Concealment of the True Capabilities of the BBScan System [76] Of particular concern is the finding by Wong Kian Kheong JC that, during a court-ordered site inspection of the BBScan System, the First Defendant concealed the true capabilities of the system from the opposing party's expert witness. Specifically, the expert was denied access to the image analysis room, was denied access to the pull-down menu for the Betatron Device which would have shown the energy level and pulse counts, and the BBScan System was not operating "normally" during the inspection. [77] This conduct strongly suggests that the Defendants were not merely negligent or mistaken in their belief that the BBScan System did not S/N sYFcJyxTpE2iVrgaK86lCw 31! ! infringe the 862 Patent. Rather, they were aware or at the very least had reason to believe that the BBScan System possessed infringing capabilities and took active steps to conceal this from the court's process. Such conduct demonstrates a consciousness of wrongdoing and an appreciation of the seriousness of the breach. It is inimical to the open and transparent conduct of litigation and strikes at the very heart of the administration of justice.

The Nature and Duration of the Breach [78] The breach of the Injunction was not a one-off or isolated incident. The First Defendant developed, manufactured, installed, and commercially deployed the BBScan System over a sustained period. This was a calculated commercial venture, undertaken in the shadow of the Injunction, and continued until the Suit 50 Judgment compelled cessation. The sustained and commercial nature of the breach elevates the gravity of the contempt.

The Need for Deterrence [79] The public interest demands that court orders be respected and obeyed. An injunction is the command of the court, not a suggestion or an invitation to negotiate alternative arrangements. Where a party subject to an injunction develops what is, in substance, a system that infringes the very patent that the injunction was designed to protect, and does so under the guise of having created a "new" and "non-infringing" system, a firm sentencing response is required to deter others who may be tempted to adopt a similar course. S/N sYFcJyxTpE2iVrgaK86lCw 32! ! Mitigating Factors [80] I turn now to the mitigating factors advanced by the Defendants.

First-Time Offenders [81] The Defendants submitted that they have no prior convictions for contempt or any similar offence, and that they are first-time offenders. I accept this as a relevant mitigating factor. The Court of Appeal in Attorney General & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 206 took into account the fact that the commission of the offence was "the first in point of time" in imposing a fine rather than a custodial sentence.

Reliance on Professional Advice [82] The Defendants maintain that they obtained professional advice to the effect that the BBScan System did not infringe the 862 Patent. Furthermore, three independent expert witnesses testified at the trial of Suit 50 that the BBScan System was non-infringing. The Defendants submitted that, at all material times, they honestly and reasonably believed that the BBScan System did not infringe the 862 Patent and that they were complying with the terms of the Injunction. [83] I accept that the Defendants did obtain professional advice and that expert evidence was adduced in Suit 50 in support of their position. However, I must weigh this factor against the finding that the Defendants concealed the true capabilities of the BBScan System S/N sYFcJyxTpE2iVrgaK86lCw 33! ! during the site inspection in Suit 50, which considerably diminishes the force of their contention that they genuinely believed the BBScan System to be non-infringing.

Proactive Commencement of Suit 50 [84] The Defendants point to the fact that, in order to obtain commercial certainty, the First Defendant together with Billion Prima Sdn Bhd proactively commenced Suit 50 seeking a declaration of non-infringement under section 62 of the Patents Act 1983. This, they submit, demonstrates good faith and a desire to act within the law. [85] I acknowledge this factor. The commencement of Suit 50 does suggest that the Defendants were not entirely heedless of their legal obligations.

Compliance with the Suit 50 Judgment [86] The Defendants submitted that they complied with the orders of the High Court in Suit 50 and ceased all business activities in relation to the BBScan System following that judgment. I accept this as a mitigating factor. It demonstrates that, once the court ruled definitively against them, the Defendants did not persist in their defiance.

Apologies Tendered [87] The Defendants submitted that they have demonstrated remorse by tendering unreserved and unconditional apologies to the Court. I S/N sYFcJyxTpE2iVrgaK86lCw 34! ! take note of these apologies. However, I must assess the sincerity and weight to be attached to them in the context of the Defendants' overall conduct. The apologies were tendered at the sentencing stage, after the finding of contempt had been made. While any expression of remorse is to be welcomed, it carries less weight where it comes only after a contested hearing in which liability was vigorously denied.

Remedy Available to the Plaintiff [88] The Defendants submitted that this is not a case where the Plaintiff has suffered irreparable prejudice, as the Suit 50 Judgment allowed the Plaintiff's counterclaim for patent infringement and granted, inter alia, an assessment of damages. I accept that the availability of a damages remedy is a relevant consideration. However, it does not extinguish the gravity of the contempt. The purpose of sentencing for contempt is not solely to compensate the aggrieved party but also to vindicate the authority of the court and to uphold the rule of law.

Gravity/degree of contemptuous act [89] Learned counsel for the Defendants submitted that when there is failure to comply with a Court order, the Courts are cognisant of the fact that there are various degrees of non-compliance. In Howitt Transport Ltd & Anor v. Transport and General Workers' Union National Industrial Relations Court [1973] 1 CR 1, Sir John Donaldson explained the various degrees of defiance or non-compliance of a court order. S/N sYFcJyxTpE2iVrgaK86lCw 35! ! "Non-compliance with a court order can have a wide range of qualities. It may, at the top end of the scale, consist of a flat defiance of the court's authority. Going, down the scale, it may not amount to flat defiance, but rather to a passive ignoring of the court's order. Going down the scale still further, it may amount to a half-hearted or, perhaps, colourable attempt to comply with the court's order. And, at the bottom end of the scale, there may have been a genuine, whole-hearted use of the best endeavours to comply with the order, which nevertheless has been unsuccessful. In each case there is a breach of the court's order. In each case, to use the technicalities of the law there is a "contempt of court". But the quality of the non-compliance varies over an enormous range. The penalties which will be imposed by this court for contempt will equally vary over an enormous range and will reflect the quality of the non-compliance. They will, in fact, reflect faithfully the court's view of the seriousness of the conduct of the person to whom the order was addressed." [90] Learned counsel in her plea for a sentence of fine be imposed against the Defendants highlighted that the punishment for contempt of court could either be imprisonment, a fine or a severe reprimand. The punishment must commensurate with the nature of the breach or in other words the degree of culpability. A breach that can be classified as open defiance of the court's authority, as Sir John Donaldson pointed out in Howitt Transport's case, must attract greater penalty as opposed to a contemnor who genuinely unconditionally tried to comply with the order, though was unsuccessful. S/N sYFcJyxTpE2iVrgaK86lCw 36! ! [91] I have carefully weighed all the aggravating and mitigating factors set out above. In arriving at the appropriate sentence, I bear in mind the following overarching principles:

The punishment must be commensurate with the nature and gravity of the breach;

The sentence must serve the twin purposes of punishment and deterrence;

Imprisonment is a punishment of last resort, to be reserved for cases of the most serious contempt; and

A fine is the usual punishment where the contempt, though serious, does not amount to open and contumacious defiance of the court's authority. The First Contemnor, Pan Asiatic Technologies Sdn Bhd [92] The First Contemnor is a corporate entity and cannot be imprisoned. The appropriate sentence is therefore a fine. Taking into account the deliberate nature of the breach, the sustained commercial exploitation of the BBScan System in contravention of the Injunction, the concealment of the true capabilities of the system during the site inspection, and the need for deterrence, I am of the view that a substantial fine is warranted. [93] However, I also take into account the mitigating factors: that this is a first offence; that professional advice was obtained; that Suit 50 S/N sYFcJyxTpE2iVrgaK86lCw 37! ! was proactively commenced; and that the First Contemnor ceased its activities following the Suit 50 Judgment. [94] Balancing these considerations, I impose a fine of RM500,000.00 on the First Contemnor, to be paid within 30 days. In the event of default in payment, the directors of the First Contemnor, namely the Second and Third Contemnors shall be committed to prison for a period of six (6) months each. The Second Contemnor, Goh Chu Leong [95] The Second Contemnor was a director of the First Contemnor and played a direct and instrumental role in the development and commercialisation of the BBScan System. He was the individual primarily responsible for the corporate decisions that led to the breach of the Injunction. His degree of culpability is commensurately higher than that of the Third Contemnor. [96] The Plaintiff seeks a custodial sentence of fifteen (15) days. I have given anxious consideration to whether a custodial sentence is necessary in the circumstances. While the breach was deliberate and sustained, I am mindful of the mitigating factors: the Second Contemnor is a first-time offender; professional advice was obtained; the Contemnors ceased their infringing activities after the Suit 50 Judgment; and apologies have been tendered. [97] On balance, having regard to the totality of the circumstances and the principle that imprisonment is a measure of last resort, I am persuaded that a custodial sentence, albeit a brief one, is not S/N sYFcJyxTpE2iVrgaK86lCw 38! ! warranted in respect of the Second Contemnor. On that premise, I am imposing a fine of RM 50,000 against the Second Contemnor, to be paid within 30 days. In default of payment, he shall be committed to prison for a period of 14 days. The Third Contemnor, Abdul Karim bin Mohd Hanapiah [98] The Third Contemnor was also a director of the First Contemnor. However, the evidence suggests that his role in the day-to-day management and decision-making was less direct than that of the Second Contemnor. [99] Taking into account the same mitigating factors as those applicable to the Second Contemnor, I am of the view that a fine is the appropriate sentence for the Third Contemnor. [100] I impose a fine of RM50,000.00 on the Third Contemnor. In the event of default in payment within thirty (30) days, the Third Contemnor shall be committed to prison for a period of fourteen (14) days. [101] Both parties have made submissions on costs. The Plaintiff seeks costs on an indemnity basis in the sum of RM113,077.00. The Contemnors submit that costs of RM7,500.00 would be more than adequate. [102] It is a well-established principle that costs follow the event. The Plaintiff has succeeded in the committal proceedings, and is entitled to its costs. As to the basis of assessment, committal proceedings are quasi-criminal in nature and are brought to vindicate the S/N sYFcJyxTpE2iVrgaK86lCw 39! ! authority of the court. The successful applicant ought not to be out of pocket in bringing such proceedings. [103] I order that the Contemnors shall pay the Plaintiff's costs of the committal proceedings, fixed in the sum of RM70,000.00, to be borne jointly and severally by the First to Third Contemnors on an indemnity basis. [104] I am satisfied beyond reasonable doubt and I accordingly find the First to the Third Contemnor guilty of contempt of Court by reason of the breach of the injunction. The sentences and orders imposed are as follows:

The First Contemnor, Pan Asiatic Technologies Sdn Bhd: A fine of RM500,000.00, to be paid within thirty (30) days from the date of this order. In default of payment, the Second and Third Contemnors shall each be committed to prison for six

months.

The Second Contemnor, Goh Chu Leong: A fine of RM50,000.00, to be paid within thirty (30) days from the date of this order. In default of payment, the Second Contemnor shall be committed to prison for fourteen (14) days.

The Third Contemnor, Abdul Karim bin Mohd Hanapiah: A fine of RM50,000.00, to be paid within thirty (30) days from the date of this order. In default of payment, the Third Contemnor shall be committed to prison for fourteen (14) days. S/N sYFcJyxTpE2iVrgaK86lCw 40! !

The First to Third Contemnors shall pay the Plaintiff's costs of the committal proceedings, jointly and severally, fixed in the sum of RM70,000.00 on an indemnity basis. Dated this day of 29th May 2026. -Sgd-EDWIN PARAMJOTHY MICHAEL MUNIANDY JUDICIAL COMMISSIONER COMMERCIAL DIVISION (NCC 7) HIGH COURT OF MALAYA KUALA LUMPUR Counsel: For the Plaintiff : Joshua Teoh Beni Chris together with Gooi Yang Shuh and Valerie Chung Shu En (Messrs. Skrine) For the Defendants : Chew Kherk Ying and Raymond Tan (Messrs. Wong & Partners) S/N sYFcJyxTpE2iVrgaK86lCw