VT Singham J

This is an application by notice of motion dated 14 June 2007 (encl 47) by Foo Khoon Long, the plaintiff, to issue an order:

(a)That Foo Khoon Wong be committed to prison for his contempt of court for refusing to comply with the ex parte injunction dated 7 May 2007. (encl 9)

(b)That Foo Loke Kong and Foo Khoon Loong be committed to prison for their contempt of court for aiding and abetting Foo Khoon Wong whereby the action has caused and/or to facilitate the breach and/or refusal to comply with the said ex-parte injunction dated 7 May 2007 whereby their action has resulted in an unlawful interference with the administration of justice.

(c)That all the three (3) contemnors be ordered to pay the costs occasioned by this application to the plaintiff and any order made herein be borne by the respondents.

For the purpose of his notice of motion (encl 47), the plaintiff and the alleged contemnors will be referred to as ‘the applicant’ and ‘the first, second and third respondents’ respectively.

The notice of motion is supported by an affidavit (encl 47A) affirmed by the applicant and the statement (encl 24) which was filed as required byO 52 r 2(2) of the Rules of the High Court 1980. The respondents have contested this notice of motion and have filed their affidavits in reply.

In order to arrive at a just decision in this committal proceeding against the respondents which is of a quasi criminal in nature, it is important to refer to some of the salient facts, circumstances and background of this case, which are relevant for the purpose of this committal proceedings and, briefly are as follows:

(a)The plaintiff has filed the above mentioned civil suit (encl 1) in this court on 3 May 2007 against the first respondent as the defendant, being the executor and trustee of the estate of Chen Choi Thai, deceased and, inter alia, has alleged against the first respondent briefly, as follows:

(i)Maladministration; fraud and breach of trust in respect of the assets of the deceased, Chen Choi Thai, who is the mother of both the applicant and the respondent.

(ii)The deceased Chen Choi Thai, had owned 244,760 unit of shares (the said shares in Foo Holding Sdn Bhd).

(iii)The said shares have not been distributed to the beneficiaries of the estate of Chen Choi Thai which included the applicant.

(iv)Until the date of the EGM which was held on 7 May 2007 (the subject matter of this committal proceedings), the said shares were held by the first respondent as the executor and trustee and was registered in that capacity on 3 May 2007.

(v)Prior to 6 April 2007 that is the date of the notice of Foo Holdings Sdn Bhd shareholders’ extraordinary general meeting (EGM) to be held on 7 May 2007 at 10.30am, the said shares were held in the name of the estate of Chen Choi Thai, the deceased herself. The transmission into the name of the first respondent as executor and trustee on 3 May 2007 was sudden and was intended to allow the first respondent to use the said shares to vote in the EGM on 7 May 2007 against the proposal to remove one Dr Foo Loke Kong as a director as proposed by the applicant.

(vi)The said shares were held on trust for the beneficiaries as stated in the last will and testimony of the said deceased dated 21 June 1988.

(vii)Accordingly, the applicant had applied by an ex parte injunction to restrain the first respondent from using the said shares of the estate of Chen Choi Thai to vote at the EGM which this court had on 7 May 2007 granted admittedly at 11am.

On 11 June 2007 this court having found that there was a prima facie case made out against the respondents to answer the charge as framed for contempt of court had granted leave ex parte to commence the committal proceedings. Pursuant to the said order of granting leave, this notice of motion was filed on 14 June 2007 by the applicant to issue an order, that is to say, the respondents who are now the alleged contemnors be committed to prison for contempt of court which has resulted from the alle