JUDGMENT

Abdul Hamid Mohamad JCA:

This appeal arose from the decision of the High Court in Penang (Mohd. Raus J) dated 15 August 2000 dismissing the appellant's application to commit the respondent's directors, namely Khor Kok Boon and Mohd. Dzolkefli bin Jaafar Sedik and the respondent's General Manager Khor Kok Thye for contempt of court. The respondent in the originating summons in the High Court is the company, Monatech (M) Sdn. Bhd. We allowed the appeal with costs and remitted the case back to the High Court for sentencing.

We shall refer to the company as "respondent" and the three named persons as "the contemnors".

As can be seen from the statement pursuant to O. 52 r. 2(2) of the Rules of the High Court 1980(RHC 1980) filed by the appellant, the application was based on two grounds. First, for the act of specific contempt for breach of the mareva injunction granted on 24 August 1999. Secondly, on a more general conduct of the respondent throughout the proceedings in obstructing justice and abusing the process of the court.

The learned judge did appreciate this when he said:

... Thus it appears to me that for the purpose of this committal proceeding, plaintiff (Appellant - added) is relying on a specific act of contempt that is the mareva injunction granted on 24th August 1999 and the order of 8th December 1999 and on a more general act of contempt, that is the conduct of the defendant (Respondent - added) throughout the proceedings in obstructing justice, misleading the Court and abusing the due process of the Court.

Having said that the learned judge dealt with the matter under four separate headings:

(i) Contempt of the mareva injunction granted on 24 August 1999 and order of 8th December 1999.

(ii) Defendant (Respondent - added) is in contempt of Court for instituting proceedings which is frivolous and vexatious and an abuse of Court process.

iii) Defendant (Respondent - added) is in contempt of Court by obstructing and/or interfering with the due administration of justice and/or the course of justice under the cover of the Shah Alam Suit and the injunction order, the defendant had removed the subject matter of this case with a view to set the Court process to naught.

iv) Defendant (Respondent - added) is in contempt of Court by concealing and supressing fact with a view to mislead the Court.

The learned judge found the contemnors not liable for contempt under each of the four headings.

Under the first heading the learned judge was of the view that as on the day the mareva injunction was granted (24 August 1999) restraining the respondent from dealing or disposing the six units of the unencumbered building under Phase II, Pekan Kilang Lama, Kulim, all those units were no longer with the respondent. Therefore there could not be any act of contempt by the respondent against the said order.

We agree with him there.

Under the second heading, the learned judge found in favour of the respondent because, first, the High Court (Jeffrey Tan J) had already committed the respondent and Khor Kok Thye, one of the contemnors in this proceeding. This is what the learned judge says:

However, it must be noted that contempt proceeding was taken against the defendant and the General Manager Mr. Khor Kok Thye as well as their solicitors in relation to the Shah Alam Suit, by this Court. The defendant and Mr. Khor Kok Thye on 3rd September 1998 were found guilty of contempt of Court and were sentenced to RM10,000.00 fine each. Thus to me, the directors of the defendant and the General Manager cannot be subjected to another committal proceeding for contempt. To do so would be tantamount to double jeopardy.

Secondly, the learned judge doubted whether the contemnors can be committed for contempt for abuse of the process of the court as the Shah Alam Court was filed by the respondent on the advice of its solicitors.

Under the third heading, the learned judge held:

On the facts, I cannot hold that the defendant's (the company's - added) acti