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2022 MarsdenLR 319
FEDERAL COURT PUTRAJAYA
TENGKU DATO KAMAL IBNI SIR SULTAN ABU BAKAR & ORS – Appellant
Versus
BURSA MALAYSIA SECURITIES BHD – Respondent
[Civil Appeal No: 02(f)-122-10-2017(W)]
Monetary judgments can be enforced via contempt proceedings depending on the nature of the order, affirming the court's regulatory authority under the CMSA.
Headnote:(A) Capital Markets and Services Act 2007 – Section 360 – Bankruptcy Act 1967 – Section 8(1) – The court addresses the legal questions regarding contempt proceedings for non-compliance with a monetary judgment related to the CMSA. The defendants failed to restore money to Cepatwawasan as ordered, leading to contempt. The court reaffirmed the validity of the CMSA orders and determined that contempt proceedings were appropriate despite defendants' claims about jurisdiction. (Paras 1, 33-80)
Facts of the case: The defendants caused unauthorized payments within a subsidiary, leading to regulatory breaches upheld by the plaintiff, Bursa Malaysia Berhad. They were in contempt for not restoring the funds as ordered by the High Court and the Court of Appeal.
Findings of Court: The court found that the defendants did not comply with previous orders, concluding that the penalties imposed were appropriate and reasonable.
Issues: Whether contempt can be enforced for non-compliance with a money judgment; whether leave was needed for proceedings against a bankrupt.
Ratio Decidendi: The court held that the CMSA Order is not a typical debt demanding performance but a regulatory enforcement measure. Non-compliance with such orders can result in contempt. Consequently, actions taken were valid under the relevant statutes.
Result: Appeal dismissed with costs.
JUDGMENT
Introduction
[1] This is the unanimous decision of this court. On 16 October 2017, this court allowed the application for leave to appeal to the appellants/defendants, based on the following Questions of law:
(i) Where there is non-compliance of an order for the refund of monies which is a money judgment and not a judgment requiring the performance of an act, whether a court can find that there is contempt for the said non-compliance?;
(ii) where proceedings are commenced for orders under s 360 Capital Markets and Services Act 2007 ("CMSA") against a bankrupt, whether the plaintiff is obliged to obtain leave pursuant to s 8(1), Bankruptcy Act 1967 (BA); and
(iii) where committal proceedings are commenced to enforce an order made under s 360 CMSA, against a bankrupt whether the applicant is obliged to obtain leave pursuant to s 8(1), Bankruptcy Act 1967 .
Background
[2] In this judgment, we will refer to the parties, as they appear in the High court, namely, the appellants as the defendants and the respondent as the plaintiff.
[3] The first, second and fourth defendants (referred to as D1, D2 and D4 respectively) were the former directors of Cepatwawasan Group Berhad ("Cepatwawasan"), a company listed on the Main Board of Bursa Malaysia Berhad.
[4] The plaintiff is Bursa Malaysia Berhad which is a stock exchange licensed under the Capital Markets and Services Act 2007 (CMSA).
[5] The defendants had caused Prolific Yield Sdn Bhd, a wholly owned subsidiary of Cepatwawasan to make payments of RM16 million to a company called Opti Temasek Sdn Bhd and one individual by the name of Sheikh Abdul Rahim. Such payments were found to be in violation of s 16.11 (a) of the Listing Requirements of the plaintiff. As a result, on 12 July 2005 the plaintiff issued a show cause to the defendants. Subsequently, on 13 October 2005 the plaintiff's Listing Committee made a finding that the defendants had breached the Listing Requirements and imposed penalties against the defendants under s 360(1)(c)(i), (A) and (K) of the CMSA.
[6] The defendants appealed to the Appeal Committee of the plaintiff against the decision of the Listing Committee, raising, inter alia, allegations of sub-judice due to a pending suit in Kuala Lumpur Civil Suit No: D3-22-1168-2004 (Suit 1168). Suit 1168 is elaborated in para 21 of this judgment.
[7] On 12 June 2006, the Appeal Committee dismissed the defendants' appeal.
[8] On 14 June 2006, the defendants filed a Judicial Review Application at the Kuala Lumpur High court vide Judicial Review Application No: R125-2006 challenging the decision of the Appeal Committee.
[9] On 18 January 2010 the Kuala Lumpur High court dismissed the Judicial Review Application with costs. The defendants appealed to the court of Appeal against the said decision.
[10] On 19 March 2013, the court of Appeal dismissed the appeal. There was no application for leave to appeal filed in the Federal court.
Section 360 CMSA Order
[11] On 26 May 2010 the plaintiff filed an Originating Summons No: D24NCC-168-2010 (OS 168) at the Kuala Lumpur High court to enforce the penalties imposed by the Listing Committee on 13 October 2005 (which was later affirmed by the Appeal Committee). On 28 December 2010 the High court allowed the OS 168 with costs. The order in the OS 168 are as follows:
(i) that within 30 days of the High court Order, D1 and D2 jointly and severally, restore to Cepatwawasan the RM13 million paid to Opti Temasek Sdn Bhd; and
(ii) that within 30 days of the High court Order, the defendants, jointly and severally, restore to Cepatwawasan the RM3 million paid to Sheikh Abdul Rahim.
(Hereinafter referred to as "s 360 CMSA Order")
[12] The defendants (including D3) appealed to the court of Appeal against the decision of the High court on the s 360 CMSA Order. On 16 December 2012 the court of Appeal upheld the s 360 CMSA Order ("court of Appeal Order dated 16 December 2012"), save for the variation that all the payments and acts stated in
