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2021 MarsdenLR 895
HIGH COURT MALAYA SHAH ALAM
LOW WEE HOUNG – Appellant
Versus
ALPHARON MARKETING SDN BHD & ANOR – Respondent
[Originating Summons No: BA-24NCC-130-10-2018]
In committal proceedings, the applicant must prove contempt beyond reasonable doubt; the burden of proof and high standard of evidence are crucial.
Headnote:(A) Companies Act 2016 – Section 245 – Application for committal against the 2nd Defendant for non-compliance with a court order. The court found insufficient evidence of contempt as the Plaintiff failed to prove beyond reasonable doubt that the 2nd Defendant did not comply with the court's order regarding inspection of accounting records. (Paras 12, 13, 14)
(B) Committal Proceedings – The burden of proof lies on the applicant to prove compliance with rules and guilt of contempt beyond reasonable doubt, with the standard of proof being high. (Paras 12a, 12b)
(C) Compliance with Court Orders – The court emphasized that the defendant made every effort to comply and demonstrated no willful intent to disobey the order. (Paras 13, 14)
Facts of the case: The Plaintiff, a director of the 1st Defendant, alleged that the 2nd Defendant failed to provide access to documents as mandated by the court order from March 5, 2019.
Findings of Court: The Plaintiff failed to establish that the 2nd Defendant did not comply with the court order, leading to the dismissal of the Plaintiff's application.
Issues: Whether the Plaintiff proved the 2nd Defendant's non-compliance and contempt of court.
Ratio Decidendi: The need for strict compliance with evidentiary rules in committal proceedings was highlighted, with emphasis on the burden of proof residing with the Plaintiff.
Result: Application dismissed with costs.
JUDGMENT
Introduction
[1] This is the Plaintiff's application under O 52 of the Rules of 2012 for committal proceeding against the 2nd Defendant (Enclosure 22). In the Notice of Application, the Plaintiff is seeking for an order that the 2nd Defendant Low Wee Weng is to be committed to imprisonment and/or be compounded with fine for not complying the Court order dated on the 5th of March 2019.
Cause Papers
[2] The relevant cause papers pertaining to an application in encl 22 are as follows:
a) Plaintiff's Notice of Application dated on the 22nd of September 2020;
b) The 2nd Defendant's Affidavit in Reply affirmed on the 14th of October 2020 (Enclosure 24);
c) Plaintiff's Affidavit in Reply affirmed on the 22nd of October 2020 (Enclosure 25);
d) Notice of Appeal filed by the 2nd Defendant dated on the 6th of May 2020 (Enclosure 32);
e) Sealed Order for Encl 22 (Enclosure 31).
Brief Facts
[3] From the time of its corporation up until the present, the 1st Defendant has been managed entirely by the 2nd Defendant with minimal reference to the Plaintiff. Despite Plaintiff being the only other director in the 1st Defendant, the Plaintiff was never provided with any information about nor was the Plaintiff's consent sought for dealings carried out in the name of the 1st Defendant.
[4] Except for the year of 2009, 2010 and 2011, from 2002 up until the year of 2016, the 1st Defendant has been reporting net losses in its annual income statement. The estimated loss over the years of 202 to 2016 amounting to RM 346,913.00.
[5] As a director or shareholder of the 1st Defendant, the Plaintiff had independently conducted investigations into the financial dealings of the 1st Defendant and from these limited investigations the Plaintiff discovered several questionable dealings and directed his lawyers to write to the Defendants and various parties to get clarification on these transactions involving the 1st Defendant.
[6] In the Originating Summons, the Plaintiff made an application under s 245 of Companies Act 2016 for an inspection of accounts and company documents.
[7] By an Order dated on the 5th of March 2019, the Court, among others ordered the Defendants to allow the Plaintiff to inspect all accounting records of the 1st Defendant from year 2012 to year 2018 ("the said Order").
Legal Principles
[8] The definition of contempt of Court in general is defined in Oswald's Contempt of Court (3rd Ed) at p 6 :-
"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."
[9] The procedure to be complied with in an application for committal proceeding is laid down in O 52 r 3 of the Rules of 2012 where it provides: -
Application to Court (O 52 r 3)
"3. (1) No application to a Court for an order of committal against any person may be made unless leave to make such an application has been granted in accordance with this rule.
(2) An application for such leave must be made ex parte to the Court by a notice of application supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on."
[10] The Federal Court in the case of Tan Sri Dato' (Dr) Rozali Ismail & Ors v. Lim Pang Cheong @ George Lim & Ors, explained the power of the Court to punish for contempt where at page 467 it states: -
"[21] The jurisprudence for arming the Court with the power to punish a contempt is best expounded by Brown J in Re HE Kingdom v. SC Goho, [1948] 1 MLJ 17 as follows:
But the root principle on which this inherent power to punish for contempt is founded, the purpose for which it must be exercised, is not to vindicate the dignity of
