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2025 MarsdenLR 3494
HIGH COURT SABAH & SARAWAK SANDAKAN
BAHVEST RESOURCES BERHAD & ANOR – Appellant
Versus
DATUK LO FUI MING & ORS; LO FUI MING & ORS (PROPOSED CONTEMNORS) – Respondent
[Suit No: TWU-22NCvC-5-2/2024]
The court ruled that actions taken to prevent trespass do not constitute contempt, emphasizing the need for clear injunction terms and the standard of proof in contempt proceedings as beyond reasonable doubt.
Headnote:(A) Rules of Court 2012 - Order 52 - Committal proceedings for contempt of court - Application for committal order against directors of a company for breaching an injunction order - Court found no breach of the injunction order as the actions taken were to prevent trespass and not contemptuous - Standard of proof in contempt proceedings is beyond reasonable doubt. (Paras 10, 25, 48)
(B) Injunction Order - Clarity of terms - An injunction order must be clear and unambiguous to be enforceable by committal - The court held that the terms of the injunction did not cover actions taken on land not specified in the order. (Paras 29, 32)
Facts of the case:
The Plaintiffs sought a committal order against the Proposed Contemnors for breaching an injunction order that restrained the 4th Defendant from hindering the Plaintiffs' operations on a sub-lease land. The court examined whether the Proposed Contemnors had breached the injunction order. (Paras 1, 7, 17)
Findings of Court:
The court found that the Plaintiffs failed to prove beyond reasonable doubt that the Proposed Contemnors committed contemptuous acts as alleged. (Paras 48, 49)
Issues: The main issues were whether the Proposed Contemnors breached the injunction order and whether the Plaintiffs served the necessary notice to show cause. (Paras 20, 25)
Ratio Decidendi: The court ruled that the actions of the Proposed Contemnors were within their rights to prevent trespass and did not constitute a breach of the injunction order, emphasizing the need for clear terms in injunctions and the high standard of proof required in contempt proceedings. (Paras 32, 48)
Result: Application dismissed with costs of RM10,000.00 to be paid by the Plaintiffs to the Proposed Contemnors.
JUDGMENT
Introduction
[1] This is an inter-parte application by the Plaintiffs under Encl 12 seeking for a committal order against the 1st, 2nd, 4th, and 5th Proposed Contemnors only ("Proposed Contemnors") pursuant to O 52 r 4 of the Rules of 2012 (" ROC ") for committing a breach of the Injunction Order dated 4 December 2023.
[2] The 3rd Proposed Contemnor could not be located, and the cause papers were not served on him.
[3] Although the contemptuous acts appeared to be the acts of the 4th Defendant, contempt proceedings were taken against the Proposed Contemnors as they were at the material time, the directors of the 4th Defendant.
Background Facts
[4] On 23 December 2014, the 4th Defendant accepted an offer made by the Lands & Survey Department, Sabah to take a lease of 35 years over 1,000 hectares of land situated at Bukit Mantri, Tawau, Sabah for mining purposes ("Main Lease Land").
[5] By an agreement dated 1 October 2015, the 4th Defendant agreed to grant a sub-lease of 33 years to the 2nd Plaintiff on a portion of the Main Lease Land measuring 317.7 hectares only ("Sub-Lease Agreement").
[6] Prior to the Sub-lease Agreement, sometime around 18 September 2015, the 4th Defendant issued a Letter of Consent to the 2nd Plaintiff which allowed the 2nd Plaintiff to use the 150 acres of land adjacent to the intended sub-lease land for its mining operations ("lands covered by the Letter of Consent").
[7] Dispute arose between the parties and by an Inter-parte Injunction Order dated 4 December 2023 ("Injunction Order"), it was ordered, inter alia that:
"(a) that the 4th Defendant be restrained, either by itself or through its directors, associates, officers, servants, agents, nominees or anyone else, from taking any further steps in respect of the 4th Defendant's Demand dated 2 May 2023 and/or the purported Temporary Resolution between the 2nd Plaintiff and 4th Defendant, including requesting and/or receiving any payment until the disposal of this action,
(b) that the 4th Defendant be restrained, either by itself or through its directors, associates, officers, servants, agents, nominees or anyone else from hindering the operations of the 2nd Plaintiff including the 2nd Plaintiff's use and enjoyment of the land as provided for in the sub-lease agreement between the 4th Defendant and the 2nd Plaintiff dated 1 October 2015 and the use of the facilities built for the purpose of the 2nd Plaintiff's operations until the full disposal of this action; and
(c) that the costs of this application be made costs in cause.
[8] The Injunction Order also consisted a penal endorsement pursuant to O 45 r 7(4) of the ROC against the 4th Defendant and the Proposed Contemnors:
"PENAL NOTICE PURSUANT TO ORDER 45 RULE 7(4) OF THE RULES OF , 2012
If you, the within-named (1) Southsea Gold Sdn Bhd (Company No. 200801022153 (823472-d), (2) Datuk Lo Fui Ming (NRIC No. 560224-12-5175), (3) Ms Lo Choon Fung @ Michelle (NRIC No. 800528-12-5270), (4) Muhammad Haqeem Bin Eduine (NRIC No. 001107-12-0905), (5) Dato' Sri Ling How Ee (NRIC No. 851207-13-6059) and (6) Datuk Osman Bin Jamal @ Jamar (NRIC No. 570307-12-5495) disobey this Order, you will be liable to process of execution for the purpose of compelling you to obey the same."
[9] Leave to commence committal proceeding against the Proposed Contemnors was granted on 8 March 2024 and the Plaintiffs filed the inter-parte s application (Encl 12) to seek a committal order against the Proposed Contemnors.
The Law On Committal Proceedings
[10] Order 52, r 2 of the ROC gives the Court a discretion to make an order of committal. The provision reads:
Committal for contempt of Court
2. The Court may, on the application of any party to any cause or matter or on its own motion, make an order of committal in Form 107.
[11] In Tan Sri Dato' Dr Rozali Ismail & Ors v. Lim Pang Cheong & Ors; [2012] 2 CLJ 849; [2012] 2 AMR 429, the Federal Court (per Arifin Zakaria CJ) expounded the key principles when dealing
