Mohd. Azmi SCJ:

This is an application of Mr. Arthur Lee Meng Kwang (hereinafter referred to as "the advocate") for an order to set aside firstly, the ex parte order of this Court dated 4 July 1985 granting Faber Merlin Malaysia Bhd. and two others (hereinafter referred to as "the complainants") leave to commence committal proceeding for contempt under O. 52 r. 2 RHC read with r. 4 RSC 1980, and also secondly, the notice of motion filed on 16 July 1985 pursuant to the said leave, vide Supreme Court Civil Application No. 7/85.

Various objections have been raised by Mr. Humfrey Ball, Counsel for the advocate which may conveniently be classified under two headings, viz. procedural and substantive.

On procedural objections, the following are the summary of the alleged principal defects:

(1) The motion does not state that it has been issued pursuant to leave granted on 4 July 1985.

(2) No statement was before the Court on the date when leave was granted.

(3) The original documents in the ex parte application including the affidavit in support were not served on the advocate.

(4) The leave has lapsed under O. 52 r. 3(2) RHC.

(5) There was non-observance of r. 71(3) RSC 1980.

On substantive objections, the three defects alleged are:

(1) The complainants have no locus standi.

(2) There was an adjudication on 4 July 1985 and the order granting leave was a nullity for the reasons set out in the affidavit.

(3) The charge has not been sufficiently particularised.

Before dealing with these objections we think the following statement of principle in the judgment of Cross J In re B. (JA) (An Infant) [1965] 1 Ch 1112 is relevant for the purpose of this case:

Committal is a very serious matter. The courts must proceed very carefully before they make an order to commit to prison; and rules have been laid down to secure that the alleged contemnor knows clearly what is being alleged against him and has every opportunity to meet the allegations. For example, it is provided that there must be personal service of the motion on him even though he appears by solicitors, and that the notice of motion must set out the grounds on which he is said to be in contempt; further, he must be served as well as with the motion, with the affidavits which constitute the evidence in support of it.

It is clear that if safeguards such as these have not been observed in any particular case, then the process is defective even though in the particular case no harm may have been done. For example, if the notice has not been personally served the fact that the respondent knows all about it, and indeed attends the hearing of the motion, makes no difference. In the same way, as is shown by Taylor v. Roe, if the notice of motion does not give the grounds of the alleged contempt or the affidavits are not served at the same time as the notice of motion, that is a fatal defect, even though the defendant gets to know everything before the motion comes on, and indeed answers the affidavits.

When, however, one passes away from safeguards which are laid down in the interests of the contemnor and comes to consider mere verbal deficiencies in the documents in question - cases where the documents do not comply strictly with the rules, but it is impossible that in any conceivable case the contemnor could be in any way prejudiced by the defects - then it seems to me that there is no reason why the courts should be any slower to waive such technical irregularities in a committal proceeding than they would be in any other proceeding.

There is therefore a distinction in principle between cases where there have been non-observance of some safeguards laid down in O. 52 RHC in the interest of the alleged contemnor, and a mere technical irregularity. Whilst the former is fatal, the latter is not. In our opinion, that is the correct principle to be applied in all contempt proceedings under O. 52 RHC, which, it must be noted, is distinct from summary contempt procedure which is normally