Dato' Sri Andrew Kam Tai Yeow

v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 1

DATO' SRI ANDREW KAM TAI YEOW

v.
TAN SRI DATO' KAM WOON WAH & ORS (ENCLS 320, 323,
325 & 328)

High Court Malaya, Kuala Lumpur

Ahmad Kamal Md Shahid J
[Suit No: WA-22NCC-352-09/2017]
30 July 2020

Case(s) referred to:

Attorney General v. British Broadcasting Corporation [1980] 3 All ER 161 (refd)
Mohd Ezri Saad v. Tan Sri Dato' Sri Khafid Abu Bakar (Pengerusi Lembaga
Tatatertib Polis Diraja Malaysia, Bukit Aman) & Ors [2018] MLRHU 1331;
[2018] 8 AMR 799 (refd)
Peguam Negara Malaysia v. MKini Dotcom Sdn Bhd & Ketua Editor,
MalaysiaKini [2020] 5 MLRA 186; [2020] 7 CLJ 173 (refd)
Re Kumaraendran, An Advocate & Solicitor [1975] 1 MLRH 252; [1975] 2 MLJ
45 (refd)
Summit Holdings Ltd & Another v. Business Software Alliance [1999] 2 SLR (R)
592 (refd)
Tan Boon Thien & Anor v. Tan Poh Lee & Ors [2019] MLRAU 446; [2020] 3
CLJ 28 (refd)
Tang Hak Ju v. Pengarah Tanah Dan Galian Pulau Pinang & Ors [2016] MLRHU
953; [2017] 2 CLJ 345 (refd)
Uthayakumar Ponnusamy v. Abdul Wahab Abdul Kassim (Pengarah Penjara
Kajang) & Ors [2020] 2 MLRA 472; [2019] 1 MLJ 592; [2020] 1 CLJ 82; [2019] 8
AMR 663 (refd)

Legislation referred to:

Courts of Judicature Act 1964, s 13
Federal Constitution, art 126
Rules Of Court 2012, O 1A, O 2, O 52 r 2A, O 52 r 2B

Counsel:
For the plaintiff/applicant: Mathew Thomas Philip (Nicholas Navaron Chula
with him); M/s Thomas Philip
For the proposed contemnor: 1st defendant (Chew Tee Beng and Tai Swe Chong)
(Enclosure 320 and 323): Dato' Seri Gopal Sri Ram (YC Wong, David Yii Hee
Kiet and Yarmeen Soh Sha Nisse with him); M/s YC Wong
For the proposed contemnor: Edward Kam Tai Keong and Linda Kam Thai Eng
(Enclosure 325 and 328): Dato' Lim Choon Khim (Chin Yan Len with him); M/s
Chooi Saw & Lim

[Ordered accordingly.]
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
pg 2 & 328) [2020] MLRHU 866

Case Progression:
High Court: [2018] MLRHU 1579
High Court: [2018] MLRHU 1187
High Court: [2018] MLRHU 956
High Court: [2017] MLRHU 1498

JUDGMENT

Ahmad Kamal Md Shahid J:

Introduction

[1] There are four (4) applications (encl 320, 323, 325 and 328) filed by the
Proposed Contemnors to set aside the ex parte orders dated 12 December 2019
granting leave to the Plaintiff/Applicant to commence committal proceedings
against the Proposed Contemnors.

Background Facts

[2] On 12 December 2019, the Plaintiff/Applicant had obtained an ex parte

order (encl 313) granting leave to the Plaintiff/Applicant to commence
committal proceedings against the followings Proposed Contemnors:

a. Tan Sri Dato' Kam Woon Wah as the director of the Second
Defendant;

b. Chew Tee Beng as the director of the Second and Third Defendant;

c. Tai Swe Chong as the director of the Third Defendant;

d. Linda Kam Thai Eng as the director of the Second and Third
Defendant; and

e. Edward Kam Tai Keong as the directors of the Second and the
Third Defendant.

[3] On the same day, the Plaintiff/Applicant had also obtained another an ex
parte order (encl 314) granting leave to the Plaintiff/Applicant to commence
committal proceedings against Tan Sri Dato' Kam Woon Wah as the director
of the Eighth Defendant.

[4] The Plaintiff/Applicant's applications for leave to commence committal

proceedings (encl 297 and encl 300) are based on the ground that the Proposed
Contemnors had disobeyed the interim injunction order dated 29 March 2018
(interim injunction order) which restrains the Defendants from removing the
Plaintiff/Applicant as a director of the Second to Eleventh Defendants.

[5] It is the Plaintiff/Applicant's contentions that all the Proposed Contemnors

had breached the interim injunction order by refusing to recognise the
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 3

Plaintiff/Applicant as a director and by taking the position that the Plaintiff/

Applicant has retired as a director of the Second to Eleventh Defendants.

[6] Upon being served with the relevant cause papers, the Proposed
Contemnors then filed the following applications:

a. The Proposed Contemnors Tan Sri Dato' Kam Woon Wah filed
Notice of Application dated 8 January 2020 (encl 320) to set aside encl
314;

b. The Proposed Contemnors Tan Sri Dato' Kam Woon Wah, Chew
Tee Beng and Tai Swe Chong filed Notice of Application dated 8
January 2020 (encl 323) to set aside encl 313;

c. The Proposed Contemnors Edward Kam Tai Keong filed Notice of

Application dated 13 January 2020 (encl 325) to set aside encl 313;
and

d. The Proposed Contemnors Linda Kam Thai Eng filed Notice of

Application dated 13 January 2020 (encl 328) to set aside encl 313.

Parties Submissions

[7] Based on the Proposed Contemnors applications and written submissions,

the Proposed Contemnors had raised four main grounds to set aside encl 313
and encl 314 and it can be summarized as follows:

a. Non-compliance with O 52 r 2B of the Rules of Court 2012 (ROC

2012);

b. Non-disclosure/suppression of material facts in the

Plaintiff/Applicant's ex-parte application for leave (encl 297 and encl
300);

c. Inordinate delay in filing encl 297 and encl 300; and

d. Encl 297 and encl 300 were filed due to a collateral purpose and
constitute an abuse of the court's process.

[8] However, during the course of oral submissions, parties had confined its
submissions to two issues which are non-compliance with O 52 r 2B of the
ROC 2012 and non-disclosure/suppression of material facts in filing encl 297
and encl 300.

A. Non-Compliance With Order 52 Rule 2B Of The ROC 2012

[9] It is the contentions of the Proposed Contemnors that encl 313 and encl
314 ought to be set aside ex debito justitiae due to the failure of the
Plantiff/Applicant to issue the notice to show cause under O 52 r 2B of the
ROC 2012 prior to the filing of encl 297 and encl 300.
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
pg 4 & 328) [2020] MLRHU 866

[10] The Proposed Contemnors then support its contention by relying among
others on the Court of Appeal cases of Tan Boon Thien & Anor v. Tan Poh Lee
& Ors [2019] MLRAU 446; [2020] 3 CLJ 28 and Uthayakumar Ponnusamy v.
Abdul Wahab Abdul Kassim (Pengarah Penjara Kajang) & Ors [2020] 2 MLRA
472; [2019] 1 MLJ 592; [2020] 1 CLJ 82; [2019] 8 AMR 663.

[11] The Plaintiff/Applicant disagreed with the Proposed Contemnors'

contentions and argued that the Plaintiff/Applicant is not required to issue a
show cause notice before filing of encl 297 and encl 300 as the acts and
conducts of the Proposed Contemnors are acts of contempt in the face of court
as regulated under O 52 r 2A(1) of the ROC 2012. The Plaintiff/ Applicant
then support its contention by relying among others on the Federal Court case
of Peguam Negara Malaysia v. MKini Dotcom Sdn Bhd & Ketua Editor,
MalaysiaKini [2020] 5 MLRA 186; [2020] 7 CLJ 173 and a High Court case of
Tang Hak Ju v. Pengarah Tanah Dan Galian Pulau Pinang & Ors [2016]
MLRHU 953; [2017] 2 CLJ 345.

[12] The Plaintiff/Applicant contended that the alleged contempt is a

contempt in the face of the court due to the following reasons:

i. The issuance of Letters dated 28 May 2019 and 29 October 2019 as

well as the commencement of Originating Summons No WA-24NCC-
574-10/2019 (OS 574) were done whilst the proceedings in this suit is
still pending before this court;

ii. the commencement of OS 574 occurred in this court; and/or

iii. The issuance of Letters dated 28 May 2019 and 29 October 2019 as
well as the commencement of OS 574 are in breach of a court order ie
the Interim Injunction Order.

[13] The Plaintiff/Applicant further submitted that the non-issuance of a show

cause notice to the Proposed Contemnors is not fatal to encl 297 and encl 300
as it does not cause prejudice to the Proposed Contemnors and are therefore
mere technical irregularities.

[14] In reply to the Plaintiff/Applicant's contentions above, the Proposed

Contemnors contended that the alleged contempt is not contempt in the face
of the court for the following reasons:

i. The alleged breach of the interim injunction order is not physical

interruption or a scandalising of the court;

ii. This present case is not a case which it is necessary for immediate
action to be taken by the court in dealing with the contempt as this
case could be dealt with based on affidavits of evidence adduced by
the parties; and

iii. This present case is not a case where this court is invited to exercise
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 5

its power of summary judgment, i.e. to punish a man on the spot

which the relevant procedure is provided by O 52 r 2A of the ROC
2012.

[15] The Proposed Contemnors then relied among others on the cases of Re
Kumaraendran, An Advocate & Solicitor [1975] 1 MLRH 252; [1975] 2 MLJ
45; Summit Holdings Ltd & Another v. Business Software Alliance [1999] 2 SLR
(R) 592 and Attorney General v. British Broadcasting Corporation [1980] 3 All
ER 161 to support its contentions.

[16] Due to the above reasons, it is the Proposed Contemnors' contentions that
the issuance of the notice to show cause under O 52 r 2B of the ROC 2012
prior to the filing of encl 297 and encl 300 is mandatory.

B. Non-Disclosure/Suppression Of Material Facts In Filing Enclosures 297

And 300

[17] It is the contention of the Proposed Contemnors that the Plaintiff/

Applicant failed to disclose the content of a letter dated 31 October 2019 to
court where the said letter had given notice to the Plaintiff/Applicant solicitor
that if the Plaintiff/Applicant is moving the court for leave to file commital
proceedings, they want to be heard on the same.

[18] It is also the contention of the Proposed Contemnors that the Plaintiff/
Applicant failed to disclose to the court that the Proposed Contemnors had
obtained leave to commence commital proceedings against inter alia the
Plaintiff/Applicant in Originating Summons No WA-24NCC-609-11/2019
(OS 609) for purportedly intimidating potential witness and obstructing the
administration of justice.

[19] In response to the Proposed Contemnors' contentions, the Plaintiff/

Applicant contended that the content of the said letter had been disclosed to
court as it has been exhibited in exhibit A-10 of encl 299 and exhibit A-11 of
encl 301.

[20] The Plaintiff/Applicant also contended that they have disclosed to the
court that the Proposed Contemnors had obtained leave to commence
commital proceedings in OS 609 against inter alia the Plaintiff/Applicant on
the hearing of encl 297 and encl 300.

C. Inordinate Delay In Filing Enclosures 297 And 300

[21] It is the contention of the Proposed Contemnors that there is an

inordinate delay in the Plaintiff/Applicant applications as the leave to
commence commital proceedings were only filed on 21 November 2019 and
29 November 2019 which is more than a year after being aware of the
companies' position in respect of the Plaintiff/Applicant's directorship since
April 2018.

[22] In response to the Proposed Contemnors' contentions, the Plaintiff/

 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
pg 6 & 328) [2020] MLRHU 866

Applicant contended that there is no delay in the Plaintiff/Applicant's

applications as there has been continuous committal acts and conduct on the
part of the Proposed Contemnors in October 2019.

D. Enclosures 297 And 300 Were Filed Due To A Collateral Purpose And
Constitute An Abuse Of The Court's Process

[23] It is the contention of the Proposed Contemnors that encl 297 and encl
300 were filed due to a collateral attack on the filing of OS 574 and OS 609
respectively and a further intimidation of a party litigants and potential
witnesses therein. Thus, encl 297 and encl 300 constitute an abuse of the
court's process.

[24] In response to the Proposed Contemnors' contentions, the Plaintiff/

Applicant denied that the filing of encl 297 and encl 300 constitute an abuse of
the court's process and contended that the acts and conduct of the Proposed
Contemnors particularly in procuring OS 574 and OS 609 are an abuse of the
process of court.

Findings Of The Court

[25] Based on the analysis of the parties' applications and submissions, the
court has identified the following issues to be considered by this court:

a. Whether there is a non-compliance with O 52 r 2B of the ROC 2012

by the Plaintiff/Applicant;

b. Whether there is a non-disclosure/suppression of material facts in

filing encl 297 and encl 300;

c. Whether inordinate delay in filing encl 297 and encl 300; and

d. Whether encl 297 and encl 300 were filed due to a collateral
purpose and constitute an abuse of the court's process.

Whether There Is A Non-Compliance With Order 52 Rule 2B Of The ROC

2012 By The Plaintiff/Applicant

[26] In this present case, it is not disputed that the Plaintiff/Applicant had not
issue or serve notice to show cause under O 52 r 2B of the ROC 2012 prior to
the filing of encl 297 and encl 300 to the Proposed Contemnors.

[27] However, before this court could determine the issue of non-compliance
with O 52 r 2B of the ROC 2012, the court must first determine whether this
case constitutes a contempt committed in the face of the Court or a contempt
committed in other cases of contempt of Court as the procedure to commence
contempt proceedings is vary depending on the nature or type of the contempt.

[28] Before this court goes in depth on this issue, the court must first observe
the relevant provisions on the power to initiate any contempt proceedings as
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 7

stated in art 126 of the Federal Constitution (FC) and is similarly stated under
s 13 of the Courts of Judicature Act 1964 (CJA).

[29] Article 126 of the FC and s 13 of the CJA reads as follows:

Article 126. Power to punish for contempt

The Federal Court, the Court of Appeal or a High Court shall have
power to punish any contempt of itself.

13. Contempt

The Federal Court, the Court of Appeal and the High Court shall have
power to punish any contempt of itself.

[30] The court then observe the procedural requirements to commence a

contempt proceedings as provided in O 52 of the ROC 2012 which reads as
follows:

52. Committal

1 ..........

2. Committal for contempt of Court (O 52 r 2)

The Court may, on the application of any party to any cause or matter
or on its own motion, make an order of committal in Form 107.

2A. Contempt committed in the face of the Court (O 52 r 2A)

(1) If a contempt is committed in the face of the Court, it shall not be

necessary to serve a formal notice to show cause, but the Court shall
ensure that the person alleged to be in contempt understands the
nature of the offence alleged against him and has the opportunity to be
heard in his own defence, and the Court shall make a proper record of
the proceedings.

(2) Where a Judge is satisfied that a contempt has been committed in

the face of the Court, the Judge may order the contemnor to appear
before him on the same day at the time fixed by the Court for the
purpose of purging his contempt.

(3) Where such person has purged his contempt by tendering his
unreserved apology to the Court and the Judge considers the contempt
to be not of a serious nature, the Judge may excuse such person and
no further action shall be taken against him.

2B. Other cases of contempt (O 52 r 2B)

In all other cases of contempt of Court, a formal notice to show cause

 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
pg 8 & 328) [2020] MLRHU 866

why he should not be committed to the prison or fined shall be served

personally.

3. Application to Court (O 52 r 3)

(1) No application to a Court for an order of committal

against any person may be made unless leave to make such an
application has been granted in accordance with this rule.

(2) An application for such leave must be made ex parte to the

Court by a notice of application supported by a statement
setting out the name and description of the applicant, the
name, description and address of the person sought to be
committed and the grounds on which his committal is sought,
and by an affidavit, to be filed before the application is made,
verifying the facts relied on.

[Emphasis Added]

[31] Based on O 52 of the ROC 2012 above, it is clear that there are two types
of contempts and the procedure to commence contempt proceedings is differ,
depending on the type of the contempt. If the act of contempt is commited in
the face of the court, r 2A is applicable and if the contempt is committed in
other cases of contempt of Court, then r 2B is applicable.

[32] Hence, it is important for this court to determine first the type, nature and
category of contempt committed before determine its relevant procedure.

[33] In this present case, it is vital to note that encls 297 and 300 emanate from
a breach of court order ie interim injunction order. Thus, the issue before this
court is whether a breach of court order constitutes a contempt committed in
the face of the Court or a contempt committed in other cases of contempt of
Court.

[34] In deciding this matter, this court has made several references to the Court
of Appeal cases where the cases clearly explain that the act of breach of court
order falls under a contempt committed in other cases of contempt of Court as
provided under O 52 r 2B of the ROC 2012.

[35] This can be seen in the Court of Appeal case of Tan Boon Thien (supra) as
follows:

[12] The filing of the Singapore HSBC suit came to the knowledge of
the first respondent. To the respondents, the filing of the Singapore
HSBC suit and especially the prayer sought in the injunction
application by the first appellant was a clear breach of the stay order
and also an interference with the due administration of justice. The
first respondent then filed an ex parte application in encl 61 for leave to
issue contempt proceedings against the first appellant under O 52 r 2
of the Rules of Court 2012 (ROC 2012).
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 9

[13] On 25 July 2019, this court heard the application for leave (encl
61). On being satisfied that the first respondent had made out a prima
facie case against the first appellant, this court granted leave to the first
respondent (the leave order).

[14] By encl 81, the first appellant applied to set aside the leave order.

..........

[22] It is clear that based on O 52, there are two different sets of
procedure to commence contempt proceedings depending on the
nature or category of contempt in issue: r 2A is where the act of
contempt is in the face of the court; and r 2B which deals with other
forms of contempt. The case before us falls under the second category.

[Emphasis Added]

[36] Another can be seen in the Court of Appeal case of Uthayakumar (supra)
as follows:

[20] In Dr Leela Ratos & Ors v. Anthony Ratos Domingos Rotas & Ors
[No 3] [1996] 1 MLRH 323; [1996] 3 MLJ 167; [1997] 1 CLJ Supp
115; [1996] 3 AMR 3879 the High Court had alluded to these two
categories of contempt in the following terms:

[3] Contempt of Court may be classified either as (1) criminal

contempt consisting of words or acts obstructing or tending to
obstruct or interfere with the administration of justice, or (2)
contempt in procedure, otherwise known as civil contempt,
consisting of disobedience to the judgments, orders or other
process of the Court, and involving a private injury and
criminal contempt is an offence punishable by imprisonment
or a fine or by an order to give security for good behaviour.

[21] In Miller v. Miller, 652 SE 2d 754 - SC: Court of Appeals 2007,

the Court of Appeals of South Carolina had in very clear terms
explained the difference in classification between civil and criminal
contempt, and it would be apposite to quote the relevant passage from
that decision, as it is highly persuasive and relevant to the issue at
hand:

The determination of whether contempt is civil or criminal

depends on the underlying purpose of the contempt ruling. In
Floyd v. Floyd, we provided a comprehensive review of the
differences between civil and criminal contempt:

The major factor in determining whether a contempt is civil or

criminal is the purpose for which the power is exercised,
including the nature of the relief and the purpose for which the
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
pg 10 & 328) [2020] MLRHU 866

sentence is imposed. The purpose of civil contempt is to

coerce the defendant to do the thing required by the order for
the benefit of the complainant.

The primary purposes of criminal contempt are to preserve the

court's authority and to punish for disobedience of its orders.
If it is for civil contempt the punishment is remedial, and for
the benefit of the complainant. But if it is for criminal
contempt the sentence is punitive, to vindicate the authority of
the court.

Hence, the Court of Appeals of South Carolina had differentiated the

two categories of contempt by determining the underlying purpose of
the contempt ruling. If the purpose of the contempt ruling is remedial,
ie, for the benefit of the complainant, then it is civil. And if it is to
preserve the court's authority and keep pure the administration of
justice, then it is criminal. The basis of this dichotomy is discussed in
some depth in an earlier academic article-Distinction Between Civil and
Criminal Contempt-Donner etal v. Calvert Distillers Corp, 12 Md L Rev
2 4 1 ( 1 9 5 1 ) ( A v a i l a b l e a t :
"http://digitalcommons.law.unnaryland.edu/mlr/vol12 /iss3/6).

..........

[25] In terms of the applicable procedure, contempt proceedings can

be divided into three distinct categories, namely:

(i) Court cited - for contempt in the face of the court or

scandalising the court, where the procedure is summary in
nature. The court taking cognisance of the contempt
committed can proceed summarily to deal with the matter.
See PP v. Seeralan Suppiah [1985] 1 MLRA 138; [1985] 2 MLJ
30; [1985] CLJ (Rep) 250 SC; Cheah Cheng Hoc v. PP [1985] 1
MLRA 353; [1986] 1 MLJ 299; [1986] CLJ (Rep) 84 SC; Re
Zainur Zakaria [1999] 1 MLRH 776; [1999] 2 MLJ 577; [1999]
3 CLJ 696. Though this form of contempt is termed as
criminal contempt, the procedure to be followed is not found
in the Criminal Procedure Code, for it is not criminal
proceeding in the traditional sense. The procedure is in fact
spelt out in O 52 r 2A (1) of the Rules Of Court 2012, that
reads:

..........

As can be appreciated, the procedure for contempt in the face of the

court, when initiated by the court, though summary in nature, is far
removed from the summary criminal proceedings under the Criminal
Procedure Code.
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 11

(ii) Attorney General initiated - for contempt in the face of the court or
for scandalising the court with the aim of protecting the dignity and
integrity of the judicial institution. Further, the Attorney General may
also institute proceedings for contempt not committed in the face of
the court. The Attorney General may do so even where he nor the
Government were parties to the proceedings. In Arthur Lee Meng
Kwang v. Faber Merlin (M) Bhd & Ors [1986] 1 MLRA 159; [1986] 2
MLJ 193; [1986] CLJ (Rep) 58 SC, Mohamed Azmi SO said:

When the contempt is not committed in the face of the Court,

as is the case alleged here, it is equally important that the
dignity and integrity of the Court be protected and preserved,
and in such cases the contempt proceedings may be initiated
by motion either by the Attorney-General or any private party
who has sufficient interest in the matter, or even by the Court
itself, although in practice it seems unjust to expect the Court
to protect itself by being both complainant and judge, save in
the unlikely event of the Attorney-General or the appropriate
private party declining to act.

In such instances, how does the Attorney General or the

appropriate party having sufficient interest in the matter move
the court for an order of committal for contempt. It is clear
from the pronouncement of the Supreme Court in Arthur Lee
Meng Kuang that the proper procedure is by way of motion
under O 52 of the Rules of the High Court 1980, which is in
parimateria with the present O 52 of the Rules of Court 2012.

This was confirmed by the Federal Court in the recent case of

PCP Construction Sdn Bhd v. Leap Modulation Sdn Bhd; Asian
International Arbitration Centre (Intervener) [2019] 3 MLRA
429; [2019] 4 MLJ 747; [2019] 6 CLJ 1 FC, where the
Attorney General sought an order for committal against a
solicitor for contempt of court, more particularly for
scandalising the court. The Attorney General made the
application in accordance with the procedure spelt out in O 52
of the Rules of Court 2012. The Federal Court granted ex parte
leave to the Attorney General pursuant to O 52 r 3 of the
Rules of Court 2012. Following which, the substantive motion
for committal was heard by the Federal Court and the
proceedings were done in accordance with the requirements
under O 52 of the Rules of Court 2012. Though this category
of contempt may be termed as criminal contempt, the
proceedings were nevertheless done in accordance with O 52
of the Rules of Court 2012. The Federal Court reiterated that:

[48] Although Parliament has not enacted specific law on

contempt of court, the jurisdiction and power to deal with
contempt is encapsulated in art 126 of the Federal
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
pg 12 & 328) [2020] MLRHU 866

Constitution, s 13 of the Courts of Judicature Act (CJA) 1964

as well as O 52 of the Rules of Court 2012.

(iii) Party initiated - there are two instances where any party with
sufficient interest in the subject matter may initiate contempt
proceedings. The first is to seek compliance of any order of court to
compel the contemnor to perform what is stipulated in the court order,
often for the benefit of the applicant, which would be civil contempt.
The second is to uphold and vindicate the authority of the court, when
the alleged contemnor's action or inaction interferes with the due
administration of justice, which would be criminal contempt. In both
cases, the procedure is the same, ie, that which is prescribed in O 52,
and in particular the followings rules:

2B. Other cases of contempt (O 52 r 2B)

..........

[26] Having regard to the above, since the present motion for
contempt by the appellant was party initiated, whether it be
categorised as civil or criminal contempt, it was entirely correct for the
learned High Court Judge to have held that the procedural
requirements under O 52 of the Rules of Court 2012 must be strictly
adhered to. This was also the finding of the Court of Appeal in CA No
1, which was subsequently affirmed by the Federal Court. The
appellant argued that O 52 of the Rules of Court 2012 has no
application to his application for reasons discussed earlier. However,
the fact that the appellant had applied for ex parte leave to commence
committal proceedings is in itself an acknowledgment by the appellant
that the applicable procedure is that which is stipulated in O 52 of the
Rules of Court 2012. Further, when queried as to what other
procedures were available in law to handle an application for
contempt, other than that provided in O 52 of the Rules of Court 2012,
learned counsel for the appellant was unable to show us any. Hence,
the applicable procedure when the court is moved for contempt by the
Attorney General or an interested party is that which is found in O 52
of the Rules of Court 2012. The process has to start with a formal
show cause notice under O 52 r 2B of the Rules of Court 2012 and
continue therefrom.

[Emphasis Added]

[37] Based on the above Court of Appeal cases, it can be seen that the act of
breach of court order falls under a contempt committed in other cases of
contempt of Court. Hence, this court finds that the type, nature and category
of contempt committed in this case constitutes a contempt committed in other
cases of contempt of Court.

[38] Further I find that the allegations of contempt of court levelled against the
proposed contemnors in the present proceedings do not constitute contempt in
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 13

the face court as the allegations did not involve any form of misconduct in the
course of proceedings either within the court itself or directly connected with
what happened in court. Hence, O 52 r 2A(1) of the ROC 2012 under which
rule the requirement of a formal show notice is dispensed with, does not apply
to present proceedings. (see Re Kumaraendran (supra); Summit Holdings Ltd
(supra); British Broad casting Corporation (supra) and Zainur Zakaria (supra))

[39] Based on the above, this court disagrees with the Plaintiff/Applicant's
contention that the act of contempt in this case is a contempt in the face of the
court which falls under O 52 r 2A of the ROC 2012.

[40] The Federal Court case of MKini Dotcom (supra) cited by the
Plaintiff/Applicant to support its contentions is a case of scandalising the
judiciary and thus does not bind this court as this present case involves a case
of breach of court order. Further, the said Federal Court case is confined to its
own facts as stated below:

[6] The other grounds relied upon by the respondents to set aside the
leave are the followings:

(i) O 52 r 2B Of The Rules Of Court 2012 - Procedural

requirement

On the requirement of notice pursuant to O 52 r 2B

which has not been complied with, on the facts of this
case, we agree that the non-compliance is not fatal or
prejudicial to the respondents.

(ii) Commencement at Federal Court

Looking at the nature of the impugned comments

earlier elaborated, which implicate the judiciary as a
whole, which also include the Chief Justice of the
Federal Court, we are of the view that this Court is the
right forum to commence these proceedings.

[Emphasis Added]

[41] Further, the High Court case of Tang Hak Ju (supra) cited by the
Plaintiff/Applicant to support its contentions has been disagreed by the Court
of Appeal in the case of Tan Boon Thien (supra) which reads as follows:

[34] .... We therefore disagree with the High Court in Tang Hak Ju
(supra) and prefer the view and approach in 101 Pelita Plantation Sdn
Bhd v. Lah Anyue Ngau & Ors (supra).

[Emphasis Added]

[42] The Plaintiff/Applicant further contended that the case of Tang Hak Ju
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
pg 14 & 328) [2020] MLRHU 866

(supra) is in conflict with the Court of Appeal case of Tan Boon Thien (supra)
as the appeal against the decision of the High Court in Tang Hak Ju (supra)
has been dismissed by Court of Appeal and the leave to appeal to the Federal
Court has been dismissed as well.

[43] On that contention, this court disagrees with the said position taken by the
Plaintiff/Applicant as the Plaintiff/Applicant failed to provide any written
grounds to support and/or explain that principle of law but merely provide the
seal order of the decision.

[44] Hence, the Plaintiff/Applicant's contention cannot be agreed upon as

stated in the case of Mohd Ezri Saad v. Tan Sri Dato' Sri Khafid Abu Bakar
(Pengerusi Lembaga Tatatertib Polis Diraja Malaysia, Bukit Aman) & Ors [2018]
MLRHU 1331; [2018] 8 AMR 799 as follows:

[25] The applicant relied on the case of Mohd Johan Khair Azmi v. Tan
Sri Dato' Sri Khalid Abu Bakar (DIG) dan 3 Lagi [2014] MLRHU 370
(MTKL 25-93-04/2013) which granted a prayer for damages and this
was affirmed by the Court of Appeal on appeal. However, there are no
written grounds given by the Court of Appeal with regards to the issue
of the granting of damages. For a decision of the superior court to be a
binding precedent, within the principle of stare decision, there must be
written grounds to support and/or explain that principle of law. In S
Selvaraja T Singarathevar v. Timbalan Menteri Hal Ehwal Dalam Negeri
Malaysia & Anor [1997] 1 MLRH 121; [1997] 2 CLJ Supp 275, the
court held as follows:

"Under the principle of stare decisis, the Court below is bound

to follow the decision on a point which constituted a ratio
decidendi of a superior Court. And, such ratio decidendi is
binding upon the Court below:

(i) if it is expressed in a written judgment, published or

unpublished, of a superior Court, which judgment the
Court below is itself aware of or is cited to by Counsel
in the proceedings;

(ii) the ratio decidendi is clear and unequivocal and

based on a point necessary to or arising for decision.
[This is almost always to be ascertained by an analysis
of the material facts of the case for a judicial decision.
For it is not part of the Court's duty to spell out with
difficulty a ratio decidendi in order to be bound by it
See The Mostyn [1928] AC 57 at p. 78 HL Statements
which are not necessary to the decision, which go
beyond the occasion and lay down a rule that is
unnecessary for the purpose in hand, have no binding
authority, and are generally termed obiter dictum];
and
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 15

(iii) the point arising for decision, in the case before

the Court, based upon its factual pattern, is
sufficiently and closely identifiable (though not
necessarily identical) with the ratio decidendi as
ascertained by an analysis of the material facts of the
binding precedent."

[Emphasis Added]

[45] Hence, due to the above authorities it is well established that this present
case falls under a contempt committed in other cases of contempt of Court.
Thus, the next issue that must be considered by this court is whether there is a
non-compliance with O 52 r 2B of the ROC 2012 by the Plaintiff/Applicant.

[46] Based on the Court of Appeal case of Tan Boon Thien (supra) , it is
mandatory to issue and serve the notice to show cause under O 52 r 2B of the
ROC 2012 if the case falls under a contempt committed in other cases of
contempt of Court. The said case states as follows:

[34] Based on the foregoing reasons, we are of the considered view

that r 2B requires mandatory compliance and its failure will render the
subsequent proceedings invalid. We are of the view that the Rules
Committee in its wisdom enacted r 2B with the purpose that the
proposed contemnor be given the first opportunity of answering to the
notice to show cause before any application for leave is made. The
leave application should be made only after the expiry of the period
that the answer should be given and it is only when and where there is
no reply or no satisfactory explanation given that any ensuing action is
taken.

Further, we say that as the result of contempt proceedings being

criminal in nature involving the liberty of the proposed contemnor (see
the Federal Court decision in Tan Sri Dato' (Dr) Rozali Ismail & Ors v.
Lim Pang Cheong & Ors [2012] 2 MLRA 717; [2012] 3 MLJ 458;
[2012] 2 CLJ 849; [2012] 2 AMR 429), any ambiguity and uncertainty
must be resolved in favour of the alleged contemnor (see the Supreme
Court decision in Wee Choo Keong; Houng Hai Hong & Anor v. MBf
Holdings Bhd & Anor & Other Appeals [1995] 2 MLRA 1; [1995] 4
CLJ 427; [1995] 3 AMR 3079). Thus, r 2B should be read in favour of
the proposed contemnor. We therefore disagree with the High Court
in Tang Hak Ju (supra) and prefer the view and approach in 101 Pelita
Plantation Sdn Bhd v. Lah Anyue Ngau & Ors (supra).

[35] Based on the above reasons, we also opine that failure to comply
with r 2B is not curable under O 1A and O 2 of the ROC 2012.

[Emphasis Added]
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
pg 16 & 328) [2020] MLRHU 866

[47] It is not disputed that the Plaintiff/Applicant had not issue or serve notice
to show cause under O 52 r 2B of the ROC 2012 prior to the filing of encl 297
and encl 300 to the Proposed Contemnors.

[48] Hence, based on the Court of Appeal case above, as consequent to the
failure of the Plaintiff/Applicant issue or serve notice to show cause under O
52 r 2B of the ROC 2012 prior to the filing of encls 297 and 300 to the
Proposed Contemnors, thus encls 313 and 314 as well as the filing of encls 297
and 300 are invalid and is not curable under O 1A and O 2 of the ROC 2012.

Whether There Is A Non-Disclosure/Suppression Of Material Facts In Filing

Enclosures 297 And 300

[49] It is the contention of the Proposed Contemnors that the

Plaintiff/Applicant failed to disclose the content of a letter dated 31 October
2019 to court where the said letter had given notice to the Plaintiff/Applicant
solicitor that if the Plaintiff/Applicant is moving the court for leave to file
commital proceedings, they want to be heard on the same.

[50] On this issue, this court is with the Plaintiff/Applicant as the content of
the said letter had been disclosed to court as exhibited in exhibit A-10 of encl
299 and exhibit A-11 of encl 301. Thus, the Plaintiff/Applicant has made full
disclosure of fact on this issue.

Whether Inordinate Delay In Filing Enclosures 297 And 300

Whether Enclosures 297 And 300 Were Filed Due To A Collateral Purpose
And Constitute An Abuse Of The Court's Process

[51] On this issue, this court finds that there is no delay or abuse of the court's
process in the Plaintiff/Applicant's applications as parties were
communicating with correspondence until October 2019.

Conclusion

[52] In view of the reasons above, the court hold that:

(a) the ex parte applications for leave to issue contempt proceedings

against the Proposed Contemnors in encls 297 and 300 were not made
in a proper manner;

(b) the leave orders granted on 12 December 2019 (encls 313 and 314)
are invalid and should be set aside;

(c) the Proposed Contemnors' applications in encls 320, 323, 325 and
328 to set aside encls 313 and 314 are allowed;

(d) the Plaintiff/Applicant pay costs to the Proposed Contemnors in

encls 320 and 323 RM10,000.00 subject to payment of the allocator
fees;
 Dato' Sri Andrew Kam Tai Yeow
v. Tan Sri Dato' Kam Woon Wah & Ors (Encls 320, 323, 325
[2020] MLRHU 866 & 328) pg 17

(e) the Plaintiff/Applicant pay costs to the Proposed Contemnors in

encls 325 and 328 RM20,000.00 subject to payment of the allocator
fees; and

(f) as consequence, encls 311 and 312 are strike out.