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2021 MarsdenLR 1461
HIGH COURT SABAH & SARAWAK KUCHING
TIONG YEU MING – Appellant
Versus
TING HIE SING – Respondent
[Divorce Petition No: KCH-33-155/10-2018]
A Respondent can be held in contempt of court for not complying with the terms set out in a Consent Order, with a high standard of proof required to establish willful non-compliance.
Headnote:(A) Rules of 2012 – Order 52 r 3 and Order 45 r 7(2)(A) – Committal proceedings for contempt – Low standard of proof required to establish contempt of court – The Respondent was found guilty of breaching terms set in Consent Order regarding maintenance of children and withdrawing funds unlawfully (Paras 2, 5, 15).
(B) Consent Order – Breach leading to contempt proceedings – Respondent failed to adhere to agreement and failed to provide valid reasons for the breach, leading to committal to civil prison for 14 days (Paras 15).
Facts of the case: The Petitioner sought committal proceedings against the Respondent due to non-compliance with a Consent Order regarding child maintenance. The Petitioner accused the Respondent of breaching financial obligations set in the order, which included child maintenance and management of jointly held assets (Paras 4, 12).
Findings of Court: The Court found the Respondent guilty of contempt for failing to comply with the Consent Order and determined that the payment of maintenance for the children must be prioritized (Para 15).
Issues: The main issues included the validity of service of the contempt notice and whether the Respondent willfully breached the Consent Order (Paras 4, 11).
Ratio Decidendi: The Court reiterated that the burden of proof is on the applicant to show beyond reasonable doubt that the Respondent had willfully disobeyed the court's order. Non-compliance must be addressed stringently due to the implications of contempt (Paras 6, 11).
Result: The Respondent is to be committed to civil prison for a period of 14 days or until the terms of the Consent Order are fulfilled (Para 15).
JUDGMENT
[1] This is an application made by the Petitioner to commence committal proceedings against the Respondent, Ting Hie Sing.
[2] The grounds of the application are as follows:
(i) Pursuant to the Order dated 11 September 2020, the Petitioner had been granted leave pursuant to O 52 r 3 of the Rules of 2012 to commence committal proceedings against the Respondent, Ting Hie Sing;
(ii) There are prima facie case for contempt against the Respondent that the Respondent had breached Items 8, 11 and 12 of the Decree Nisi (by way of consent) dated 12 April 2019.
[3] The Petitioner and Respondent were lawfully married at Persatuan Foochow Sibu on the 26 April 1999. Vide a Decree Nisi made by way of Consent Order dated the 12 April 2019 (hereinafter referred to as "the Consent Order"), the marriage was dissolved pursuant to the terms and conditions agreed by parties during mediation.
[4] Amongst the agreed terms in the Consent Order were:
"(i) That the said marriage be dissolved;
(ii) That the Petitioner and the Respondent shall have joint care, custody and control of the children of the family namely:
a) PETER TING TIEW HIENG (WN.KP. 011227-13-0285)
b) NICHOLAS TING TIEW LEONG (WN.KP. 030606-13-1337)
c) GEOFFREY TING TIEW SIONG (WN.KP. 091221-13-0017)
(hereinafter referred to as the "said Children").
(iii) That the said Children shall stay with the Wife Petitioner at the residence at Lot No 17 (Survey Lot 10853) erected on Parent Lot 690 Block 16 Kuching Central Land District;
(iv) That the Wife Petitioner shall duly inform and/or update the Husband Respondent of the movement or the activities of the said Children such as school outings, illness, tuition classes and further studies by way of phone calls or text messages or e-mail to ensure that the Respondent continue to be involved in the upbringing of the said Children;
(v) That the Wife Petitioner should consult the Husband Respondent on important decisions such as education and healthcare of the said Children;
(vi) That the said Children is to be allowed to visit the Husband Respondent and stay over at the Husband Respondent's residence at least once a month for a few days;
(vii) That the Husband Respondent shall be responsible for the post secondary/tertiary education's costs and expenses incurred by the said Children;
(viii) That the Husband Respondent is to pay maintenance for the Children in the sum of RM6,000.00 per month until the last child completed his first tertiary education;
(viiii) That the Wife Petitioner to withdraw the monies available in the accounts stated below and are to be paid to the Husband Respondent through his solicitors and the Husband Respondent through his solicitors shall use the said monies to pay off the remaining overdrafts and loans also stated below:
Malayan Banking Berhad
A) Fixed Deposit: 261248817052 (RM310,000.00)
B) Fixed Deposit: 211243009923 (RM300,000.00)
C) Fixed Deposit: 211234043655 (RM300,000.00)
D) Current Account: 511234010700 (RM3,526.79)
E) Current Account: 511234100804 (-RM502,582.22)
F) Current Account: 511234113655 (-RM862.39)
G) Investment Master Foreign Currency Account: 711234000270 (RM51.41)
H) Loan Account: 411234014340 (RM364,898.20),
I) 411234800525 (RM646,476.60)
J) 411234800532 (RM400,955.60)
K) Wealth Unit Trust Account: 0000001819173 (RM1,050,144.63)
Public Bank Berhad
L) 3117687927: Available Balance (-RM301.21); Current Balance (-RM180,051.21)
M) 3170409716: Available Balance (RM5,868.75); Current Balance (RM5,868.75)
N) 3590151427: Available Balance (RM1.86); Current Balance (RM1.86)
O) 4018291903: Available Balance (RM1,661.45); Current Balance (RM4,681.45)
(x) The Bank Rakyat fixed deposit account which has been withdrawn by the Wife Petitioner with an estimated total sum of about RM500,000.00 out of which an amount of RM200,000.00 is to be used to pay off the overdraft in Public Bank Berhad as stated in item (viiii) (L) and the balance of RM300,000.00 more or less to be given to the Wife Petitioner.
(xi) The Husband Respo
