CIMB Bank Bhd & Anor v Tan Hoo Eng and another appeal [2024] 1 MLJ 936

Court of Appeal Putrajaya

Committal Proceedings for Contempt of Court Arising from Criminal Proceeding

(2)  In July 2020, the High Court allowed the respondent to regain access to her property, and the Respondent’s lawyer served the order to the Appellant, informing them that the freezing orders had been lifted. Since the order did not mention section 50 seizure, the bank sought clarification from the court through an application. However, the High Court Judge dismissed the application because the Appellants were not a party to the order and thus lacked locus standi. Nonetheless, the judge stated that the seizure order was lifted.

(3)  Following this, the Appellants released the accounts. However, the Respondent’s lawyer demanded an unreserved apology to the High Court judge for the delay. Although the Appellants issued the apology, the Respondent had already obtained leave to commence the first and second proceedings. The Appellant’s attempt to set aside the leave that was granted to the Respondent was rejected, prompting these appeals.

(4)  Treating the matters as civil appeals, the Appellants submitted appeal records and memorandum.

(5)  The Respondent entered a preliminary objection, arguing that the petitions failed to comply with Rule 65(1) of the Court of Appeal Rules 1994 and section 53(1) of the Courts of Judicature Act 1964, which require petitions to be filed within 10 days of receiving court-prepared records. Since those records were received on 1 July 2021, the deadline was 11 July 2021.

(6)  The Respondent also criticised the Appellants for claiming the registrar had directed them to file by 11 August 2021, pointing out that a registrar cannot override a statutory deadline.

(7)  In reply, the Appellants argued that the objection was raised only on 19 November 2021 and served just days before the 6 December 2021 hearing. And submitted that the Respondent had made no objections during several key dates:

(a)    At the 5 July 2021 case management;

(b)    When the petitions were served on 10 August;

(c)     At later case management on 11 August and 6 September.

(8)  The Appellants also argued that the committal proceedings are civil in nature, even if they stem from a criminal case. They also said the content of the memorandum and petitions was the same, and the respondent accepted the documents for months without complaint.

(9)  The appellants argued that the preliminary objection was an afterthought, and they had already applied to regularise the delay with proper explanations. As a precaution, they asked the court to officially extend the time limit until 10 August 2021.

(2)  Whether the appeal records and memorandum of appeal filed by the Appellants on the premise that it was a civil appeal were proper and complied with the Rules of Court.

(a) The court highlighted that Appeals 202 and 203 originated from appeals against two High Court rulings which had granted permission to initiate committal proceedings against the appellants.

(b) In reference to the Federal Court’s decision in Tan Sri Dato’ (Dr) Rozali Ismail & Ors v Lim Pang Cheong @ George Lim & Ors [2012] 3 MLJ 458; [2012] 2 CLJ 849, the Court in Uthayakumar a/l Ponnusamy v Abdul Wahab bin Abdul Kassim (Pengarah Penjara Kajang) & Ors [2020] 2 MLJ 259; [2020] 1 CLJ 82 reaffirmed that contempt of court falls into two broad categories: civil and criminal.

(c)  In the English legal context, criminal contempt typically refers to acts that seriously undermine the administration of justice and warrant punishment. In contrast, civil contempt usually pertains to the failure to comply with a court order. Under Malaysian law, specifically Order 52 of the Rules of the High Court 1980, the procedure does not apply to contempt committed during criminal proceedings when the contempt involves disobedience to a court order or contempt in the face of the court. Accordingly, the court pointed out that regardless of whether the contempt is civil or criminal in nature, the burden of proof remains the same which is beyond reasonable doubt.

(d) The distinction between the two is further clarified in Attorney-General v Newspaper Publishing Plc & Ors [1988] Ch 333, where Sir Donaldson MR explained that contempt can be understood either as (1) a specific breach of a court order or (2) general conduct that interferes with the fair administration of justice.

(e)  The distinction between civil and criminal contempt was clearly discussed in Uthayakumar, where the court referred to the decision in Miller v Miller, 652 SE 2d 754 (Court of Appeals, South Carolina, 2007). That judgment offers persuasive guidance on how contempt should be classified, making it especially relevant to the current issue.

(f)   The Court also referred to the case of Floyd v Floyd, on the classification hinges on the purpose of the contempt ruling. If the aim is to compel compliance with a court order for the benefit of the complainant, the contempt is civil in nature. Civil contempt is thus meant to be coercive and remedial. In contrast, criminal contempt serves to uphold the authority of the court and to penalize defiance. It is punitive in character, aimed at punishing conduct that challenges the dignity or functioning of the court.

(g) The Court further explained that in cases of civil contempt, it is the aggrieved party who initiates the contempt proceedings. On the other hand, in criminal contempt, the process is usually triggered by the court itself, the Attorney General, or another party with a sufficient legal interest in the matter.

(h)  Following the reasoning adopted by the court in Uthayakumar a/l Ponnusamy v Abdul Wahab bin Abdul Kassim & Ors [2018] MLJU 1263; [2018] 1 LNS 1333, it was held that the committal proceedings brought against the appellants should be treated as a civil matter. Generally, failure to comply with a court order falls under civil contempt. In contrast, criminal contempt typically arises in situations where the Public Prosecutor initiates proceedings, or where the misconduct occurs in open court and directly disrupts the administration of justice.

(i)    The court is of the opinion that the contempt application, stemming from the alleged breach of the High Court’s order dated 23 July 2020, does not amount to criminal contempt simply because it arose within the context of criminal proceedings.

(2)  Whether appeal records and memorandum of appeal filed by Appellants on the premise that it was a civil appeal was proper and complied with the Rules of Court.

(a) The court concluded that the case is more appropriately viewed as a case of civil contempt, which falls under the scope of Order 52 of the Rules of Court 2012. The fact that the contempt issue arises from a criminal matter does not, by itself, convert it into a criminal contempt. Contempt proceedings are procedurally distinct from the substantive case regardless of whether the main matter is civil or criminal. Where the proceedings are brought by an affected party seeking to enforce a court order, the contempt is ordinarily classified as civil. Therefore, the procedures under Order 52 RC 2012 apply.

(b) Thus, the Court agreed that the appellants were right to submit their memorandum and record of appeal in accordance with Rule 18 of the Rules of the Court of Appeal 1994 (RCA 1994).

(2)  Accordingly, the Court found that the Appellants were correct in filing their memorandum and record of appeal under Rule 18 of the Rules of the Court of Appeal 1994, which applies to civil matters.

(3)  Nevertheless, the Court dismissed the appellants’ applications to abridge the time for filing their petitions of appeal (Enclosure 45 in Appeal 202 and Enclosure 39 in Appeal 203). It also ordered that each party bear their own costs, and directed that the appeal records filed on 16 June 2021 be used in both appeals.