Abdul Malik Ishak J:

Introduction

This was an application by the applicant - M Cheng Construction Sdn Bhd, to commit both the respondents to prison or to be fined in accordance with and in pursuance to O. 52 of the Rules of the High Court 1980("RHC") for failure on their part to comply with the consent order dated 3 May 2001 as well as the order dated 6 June 2001. That application of the applicant can be seen in encl. 24 captioned as originating motion and it sought for the following prayers as phrased and framed in the Malay language:

(i) Responden-responden dikomitkan ke penjara dan atau didenda menurut Aturan 52 Kaedah-kaedah Mahkamah Tinggi 1980 kerana melanggar Perintah Persetujuan bertarikh 3 haribulan Mei 2001 dan Perintah bertarikh 6 haribulan Jun, 2001;

(ii) Bahawa arahan yang perlu dan berbangkit diberikan; (dan)

(iii) Kos permohonan ini.

And the English language translation may be stated as follows:

(i) That the respondents be committed to prison and/or fined under Order 52 of the Rules of the High Court, 1980 for non-compliance with the consent order dated May 3, 2001 and the order dated June 6, 2001;

(ii) That any further consequential direction that is necessary be given; (and)

(iii) Costs of this application.

Pure and simple, encl. 24 sought to commit both the respondents to prison or even to have them fined for their disobedience to the consent order dated 3 May 2001 as well as to the order dated 6 June 2001. It too sought for other consequential reliefs which this court deems it necessary as well as costs of the application in encl. 24.

To The Heart Of The Matter

On the date of the hearing of encl. 24, the first respondent by the name of Hasman bin Jalil was present in open court and he was represented by Mr Gurmit Singh. The second respondent by the name of Mohamad Noh Bin Md Yunan was also present in open court and he was unrepresented. The applicant was represented by Mr KF Lim.

The hearing of encl. 24 would certainly be an interesting affair. Committal proceedings are, by their very nature, exciting and intricate. But the court must exercise great care before ordering committal for civil contempt. It is a power that must be exercised sparingly (Gay v. Hancock[1887] 56 LT 726; Wilson v. Raffalovich[1881] 7 QBD 553 at 561, CA; and Marshall v. Marshall[1966] 110 Sol Jo 112, CA) and, I may add, judiciously. The court will move cautiously and will only punish disobedience to an order of the court, or for non-compliance with an undertaking once the court is satisfied that the terms of the order or the undertaking are very clear and unambiguous (Iberian Trust Ltd v. Founders Trust and Investment Co Ltd[1932] 2 KB 87; and PA Thomas & Co v. Mould[1968] 2 QB 913, [1968] 1 All ER 963). The court too must be satisfied that a copy of the order has been served on the contemnor. As a general rule, there is a necessity for personal service. It must be noted that no order of court that requires a person to do or abstain from doing any act may be enforced unless a copy of that order has been served personally on the same person who is required to do or abstain from doing the act in question. And, it is also clear that in a case where the order requires a person to do an act the copy of that order must be served on that person before the expiration of the time within which he was required to do the act in question. Personal service would therefore be of prime importance to the court. The court must also be satisfied that the breach of the order or the undertaking has been proved beyond reasonable doubt (Re Bramblevale Ltd[1970] Ch 128, [1969] 3 All ER 1062, CA; Knight v. Clifton[1971] Ch 700, [1971] 2 All ER 378, CA; W Watson & Sons Ltd v. Garbe[1962] 106 Sol Jo 631; and Churchman v. Joint Shop Stewards' Committee of Workers of the Port of London[1972] 3 All ER 603, [1972] 1 WLR 1094, CA).

But, unfortunately, on the day of the hearing of encl. 24, Mr KF Lim for the applicant sprung a surprise. He applied orally to w