Wong Chim Yiam V Bar Malaysia [2019] 3 MLJ 129

Wong Chim Yiam V Bar Malaysia [2019] 3 MLJ 129

Court of Appeal (Putrajaya)

Contempt of Court

Facts 1.     The Appellant was at all material times practicing as an advocate and solicitor. His appeal was against the decision of High Court sitting in Kuala Lumpur which found him guilty of contempt of court and sentenced to three months’ imprisonment

2.     At the High Court, the learned judge considered and rejected the Appellant’s argument that he had no notice of the committal proceedings or of the cause papers.

3.     On 10 October 2014, the High Court judge in a Civil Suit No 24NCVC-854-06 of 2014 (‘the 854 Suit’) decided that the Plaintiff in the High Court case (‘Lian Meng Wah’) was required to apply for leave from the court to initiate any suit against the Defendants and that he would be in contempt of court if he failed to comply.

4.     Lian Meng Wah then filed a similar suit against the Defendants in a Civil Suit No 24NCVC-297-02 of 2015 (‘the 297 Suit’) for essentially the same prayers as in another suit in Kuala Lumpur High Court No 24NCVC-560-04 of 2015 (‘the 560 Suit’).

5.     The High Court then struck out the 297 Suit and instructed the Plaintiff to withdraw the 560 Suit or otherwise he was deemed to be in contempt of court. However, Lian Meng Wah failed to do so as ordered by the High Court.

6.     The Court records as per the notes of proceedings showed that the committal proceedings were commenced against Lian Meng Wah and the Appellant but both failed to turn up despite being served and warrants of arrest were issued against them.

7.     The learned judge found that the Appellant was aware at all times of the committal proceedings and had studiously avoided being served personally with the cause papers which were finally served on his firm and received by his legal clerk who was ordered to be cross-examined on her two affidavits filed.

8.     The learned judge concluded that the Appellant had constructive notice if not actual notice of the committal proceedings.

9.     The learned judge also rejected the Appellant’s argument that the nature of the offence was not particularised in the cause papers as the facts as set out in the cause papers were sufficient and adequate for the Appellant to understand the nature of the offence alleged against him and he was not prejudiced in any way.

10.  Furthermore, the learned judge found that the Respondent had proved beyond reasonable doubt that the conduct of the Appellant, by continuing to act for Lian Meng Wah in the 560 Suit despite having knowledge of the 397 Order.

11.  To conclude, the Court decided that it was allegedly done with the intention to interfere with the proper administration of justice and constituted contempt of court.

Issue 1.     Whether the service of the committal papers is bad?

2.     Whether the charge against the Appellant was defective?

Ratios 1.     The Service of the Cause Papers

(a)  In the first instance, the cause papers were not served on the Appellant. The application for dispensation of service was only made by the Respondent at the hearing of the committal application.

(b)  The Court is of the view that it ought to have been made prior to the hearing date. If it had been made prior to the hearing of the application, then the cause papers could have been served by way of substituted service on the Appellant so as to give the Appellant due and proper notice of the proceedings.

(c) Further, the Court decided that there is nothing in the affidavit evidence or in the appeal record to indicate that the Appellant was evading service of process as there is no such averment to that effect by the process server. As such, the Court decided that the Respondent has failed to establish that the Appellant was evading service of process.

(d)  The Court also emphasized that according to the affidavit of service of the process server, the Respondent was only instructed to serve the committal papers on LMW (the Plaintiff) and not on the Appellant.

(e) This is because, the Respondent had gone to the Appellant’s law office for that purpose but he did not inform the clerk at the Appellant’s law office that he wanted to serve the cause papers on the Appellant and he did not even ask for the Appellant.

(f)    Instead, he left the cause papers with the clerk. He even did not ask the clerk to hand over the cause papers to the Appellant. He then assumed that he had taken reasonable steps to serve the cause papers on the Appellant and that service was proper.

(f)   The learned judge made a finding that the Appellant was at all material times aware of the committal proceedings and had ‘… studiously avoided being served personally with the cause papers which were finally served on his firm and received by his legal clerk …’.

(g) The learned judge also discounted the clerk’s explanation that she placed the cause papers on her table for LMW’s collection and that she did not give the cause papers to the Appellant. As such, the learned judge found that the Appellant had constructive notice if not actual notice of the committal proceedings.

(h)  In the first instance, there were no grounds warranting the granting of dispensation of service under Order 52 Rule 4(4) of the Rules of Court 2012. The Court reiterated that application for dispensation of service ought to have been made prior to hearing date and not on the hearing date itself.

(i)  In the absence of any evidence showing that the Appellant was evading service of process, the order for dispensation of service should not have been granted especially since the application for dispensation was made so late and in a committal proceeding.

(j)   The Court also do not see any reason being proffered by the Respondent for the inordinate delay in making the application for dispensation of service.

(k) The fact that the Appellant had knowledge of the contempt proceedings makes no difference because the requirement for personal service of the cause papers on the Appellant is a mandatory requirement.

(l)   As a result, the Court decided that this defect is fatal and by itself is a sufficient ground to warrant appellate intervention in setting aside the learned judge’s order.

2.  Defective Charge

(a) The learned judge accepted that the main thrust of the complaint in the affidavit in support was levelled against LMW.

(b) However, the learned judge found that from the cause papers and the fact that the Appellant had represented LMW in the various proceedings in different courts, the Appellant cannot now deny his involvement in the matter.

(c)  The Court was of the view that the question of whether the charge is defective turns on a construction of the notice of application, the Order 52 statement and the Respondent’s affidavit in support. The notice of application contains a prayer for the Appellant to be committed for abetting and assisting LMW in wilfully and deliberately disregarding the 297 Order.

(d) However, neither the Order 52 statement nor the affidavit in support filed by the Respondent contained any particulars as to how, when and in what manner the Appellant aided and abetted LMW in disregarding the 297 Order.

(e)  In the Order 52 statement, the only reference to the Appellant by way of further relief is found in para 6. Apart from stating that the Appellant was acting for LMW at all material times, the allegations peppered throughout the affidavit in support are not specific and devoid of the necessary facts as against the Appellant.

(f)  Therefore, the Court held that there is no sufficient material to ensure that the Appellant knows clearly what is alleged against him; as such that the Appellant was not afforded every opportunity to answer the serious allegations levelled against him.

(g) In conclusion, for the foregoing reasons, the Court decided that the safeguards entrenched in the rules in committal proceedings have not been observed. Accordingly, the Court found that the process is defective and that appellate intervention is warranted.

Decision 1.     The Court of Appeal set aside the order of the High Court and allowed the appeal with costs of RM5,000.00 subject to payment of allocator.
Key Take Away 1.     In the event that the safeguards entrenched in the rules in committal proceedings have not been observed, then the process is defective even if no particular harm may have been done.

2.     For instance, if the notice of application for an order of committal together with a copy of the statement under Order 52 Rule 3(2) of the Rules of Court 2012 has not been served personally on the alleged contemnor, the fact that the alleged contemnor knows all about it, and indeed attends the hearing of the proceedings, makes no difference as in the case of re B (JA) (an infant) [1965] Ch 1112.

3.     Similarly, if the notice of application does not give the grounds of the alleged contempt or the affidavits are not served at the same time as the notice of application, that is a fatal defect, even though the alleged contemnor gets to know everything before the notice of application comes on, as well as answers the affidavits as decided in the case of Taylor v Roe [1893] WN 14.

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