JUDGMENT

Lee Hun Hoe (Borneo) CJ:

This is an appeal against the decision of the learned judge in finding appellant, an advocate, guilty of contempt of court by aiding and abetting Chai Tze Foh and his wife, Ha Siow Chan to commit breaches of a court order dated 30 May 1975 ("the court order").

In granting "the court order" the learned judge relied on the sworn affidavits filed by respondent. Although East Malaysia Sea Products Co. ("the Co") which carried on business at Lot 4479 Sungai Priok, Kuching, Sarawak had four partners only Chai and his wife were registered as partners under the Business Names Register in Sarawak. On 1 September 1973 "the Co" sold their business lock, stock and barrel to respondent ("The Singapore Co") at an agreed price which was duly paid (see agreements at pages 91 and 100). However, due to administrative and other delays the agreements could not effectively be carried out. So, on 24 June 1974 the respondent and "the Co" and Chai entered into an operation agreement whereby Chai was appointed an executive to run the business of "the Co" (see operation agreement at page 36). On 4 September 1974 in pursuance of the agreement "the Co" acting through Chai executed a transfer of Lot 4479 in favour of East Asia Industry Sdn. Bhd. ("the Malaysian Co"), a nominee of "the Singapore Co" (See Memorandum of Transfer at pages 71 and 72). Thereafter, Chai and his wife refused to cooperate with respondent. They refused to act in accordance with the terms of the operation agreement, particularly cl 14 which provides that "In the event that this operation agreement and at request of AFI (Asia Fishing Industry Pte Ltd) hereafter Executive shall remove its name from the Registry of Business Names/Companies as executive Agent and Trustee of the said business. As a result the business of "the Co" had been brought to a standstill. No goods could be shipped or exported. Their action had caused tremendous loss to respondent. Since they alone could operate the bank account of "the Co" and apply for export permits, by their action, they could cause irreparable loss to respondent. Also, the respondent's vessel had been delayed in Kuching unnecessarily. Further under the pretext of negotiating for an out of court settlement, they had dismissed all the staff of "the Co" on 28 May 1975. Their action could jeopardise the cold room of the factory where processed prawns were being stored prior to export. On 29 May 1975 they deliberately locked E Kanaoka, director of respondent and also the staff out of the factory site. Since then Chai and his wife had been in actual occupation and possession of the premises until 17 July 1975.

By a Notice of Motion dated 24 May 1975 respondent applied ex parte for an injunction which was granted on 30 May 1975 restraining Chai, his wife and their servants or agents from:-

(a) disposing of or removing any property or assets of the firm of East Malaysia Sea Products Co. until the trial of this action or further order;

(b) interfering with the respondent's use and enjoyment of the said firm's factory premises at Lot 4479 s. 16, Kuching Town Land District, Sungai Priok, Kuching.

On 28 June 1975 Chai and his wife through their solicitors took out a notice of motion to set aside the injunction. On 16 July 1975 the learned judge dismissed the application to set aside the injunction. On 31 October 1975 this court dismissed their appeal thereby confirming the decision of the learned judge.

One further matter relating to the undertaking should be mentioned. On 20 June 1975 as an objection was raised against Patrick Tan acting for respondent the learned judge adjourned the hearing of a motion to commit Chai and his wife for contempt to 23 June 1975. The record of proceedings shows that after Chai and his wife gave an undertaking to continue operating the factory until further notice of the court, the learned judge stated as follows:-

In view of the protest made by counsel on behalf of the first defenda