IN THE FEDERAL COURT OF MALAYSIA AT PUTRAJAYA

(APPELLATE JURISDICTION)

[CIVIL APPLICATION NO.: 08()-144-2011(W)]

BETWEEN

1. TAN SRI DATO’ (DR.) ROZALI ISMAIL

AND

1. LIM PANG CHEONG @ GEORGE LIM

2. DATO’ VIJAY KUMAR NATARAJAN

3. HOW CHEE HONG

ARIFIN BIN ZAKARIA [CJ]

RAUS BIN SHARIF [PCA]

AHMAD BIN HJ MAAROP [FCJ]

JUDGMENT OF THE COURT

INTRODUCTION

[ 1 ] On 19.5.2011, this Court gave leave to the applicants to commence

committal proceedings against the respondents. The leave was

granted pursuant to O. 52 r. 2(2) of the Rules of the High Court

1980(“the RHC”) read together with rule. 3 of the Rules of the Federal

Court (“the RFC”). The committal proceeding was set down for

hearing before us on 14.12.2011. However, the respondents had in

the mean time applied for the leave order to be set aside. Since leave

was granted by us on an ex-parte basis, it is within the inherent

power of this Court to revoke the same if it is of the view that the

original leave was granted under a misapprehension upon new

matters being placed before it. (See Lord Denning MR in Becker v.

Neol and Another (1971) 1 WLR 803).

2
 Having heard the parties, we allowed the respondents’ applications

and set aside our earlier order. We now give our reasons for the

decision.

THE FACTS

[ 2 ] The facts leading to the present applications are briefly as follows:

Action was commenced by the 1st respondent against the applicants

in the High Court for breach of the alleged oral contract between the

1st applicant and the 1st respondent, in which the 1st applicant is said

to have agreed to pay a commission to the 1st respondent for

procuring a government project for the 3rd applicant. After a full trial,

the High Court allowed the 1st respondent’s claim with costs and

awarded damages in the sum of RM23,412,034.65 (“the Judgment

Sum”) plus interests.

[ 3 ] During the trial, the 1st respondent was represented by Messrs.

Kumar Jaspal Quah & Aishah (“the Firm”). It is not in dispute that all

proceedings in the said suit were conducted exclusively by the 2nd

respondent, who is a consultant in the Firm. The 3rd, 4th and 5th

respondents are partners of the Firm.

3
[ 4 ] Dissatisfied, the applicants appealed to the Court of Appeal against

the whole decision of the High Court. At the same time, they also

applied for a stay of execution (“the High Court Stay Application”)

pending the disposal of the appeal. However, before the High Court

Stay Application was heard, the parties agreed to record a consent

order for an interim stay of execution, pending the disposal of the

High Court Stay Application. The consent order was conditional upon

the Judgment Sum and interests being paid to Messrs. Zul Rafique &

Partners as a stakeholder (“the Stakeholder”) in a Fixed Deposit

Account.

[ 5 ] On 14.12.2010, a sum of RM34,989,978.47 was deposited with the

Stakeholder. The Stakeholder then placed the said sum in a Fixed

Deposit Account on 16.12.2010 (“the FD Sum”).

[ 6 ] In the meantime, the 1st respondent’s solicitor wrote to the

applicants’ solicitor, notifying them to release the FD sum

immediately in the event the High Court Stay Application was

dismissed. On 10.2.2011, the High Court dismissed the stay

application.

4
The Court of Appeal

[ 7 ] On the same day, the applicants appealed to the Court of Appeal

against the High Court’s Order dismissing the application.

Simultaneously, they also filed in the Court of Appeal, an ex-parte

application for a stay of execution of the High Court judgment. The

Court of Appeal granted the ex-parte stay. On 28.2.2011 the stay

application was heard inter-parte by the Court of Appeal and the court

dismissed the same.

[ 8 ] Later in the afternoon of the same day, the Stakeholder released the

FD sum with accrued interests to the Firm vide a cheque drawn on

the Stakeholder’s bank account kept with RHB Bank Berhad. The

amount released was RM35, 087,135.06 (“the Released Sum”).

The Federal Court

[ 9 ] Dissatisfied with the Court of Appeal’s dismissal of the inter-parte

stay application, the applicants filed an ex-parte application in this

Court for an order, inter alia, to preserve the Released Sum in the

hand of the Firm. This Court had on 2.3.2011 allowed the application

5
 and granted an ex-parte preservation order over the Released Sum

(“the Ex-Parte Preservation Order”). This Court then directed the Ex-

Parte Preservation Order be heard inter-parte. The inter-parte

hearing was fixed on 9.3.2011. In obtaining the Ex-Parte Preservation

Order, the applicants undertook to file a motion for leave to appeal to

this Court against the whole decision of the Court of Appeal in

dismissing the inter-parte stay application. A motion for leave to

appeal was filed in this Court, but was later discontinued.

[10] In the meantime, on 2.3.2011 the applicants’ solicitor served the Ex-

Parte Preservation Order on the 2nd respondent and the Firm vide e-

mail at or about 3.49 pm. The same was also served on the Firm vide

facsimile on 3.3.2011 at or about 5.13 pm.

[11] In opposing the inter-parte application for the preservation order, the

1st respondent had affirmed an affidavit dated 8.3.2011 (“the Affidavit

in Opposition”). The Affidavit in Opposition was prepared by the 2nd

respondent. It was used in the inter-parte hearing on 9.3.2011. In that

Affidavit, the 1st respondent deposed that the Released Sum had

been disbursed before the Ex-Parte Preservation Order was served

on the respondents. The relevant paragraphs of the affidavit read as

follows:

6
“(a) The Released Sum was no longer in the possession of

the 1st respondent and/or the Firm. The Released Sum

had been transferred out of the Firm’s client’s account

upon the 1st respondent’s instruction and that the entire

Released Sum had been disbursed on 1.3.2011 and

2.3.2011.

(b) The Released Sum had been disbursed by cash out of the

Firm’s account vide 2 respective cash cheques for the

sums of RM3,500,000.00 and RM31,500,007.00

respectively.

(c) Then, based on investment and tax advice, the 1st

respondent had created a trust and appointed an

international accounting firm namely Messrs PFK &

Associates via PKF Tax Service Sdn. Bhd. to be the

trustee. On the 1st respondent’s instruction, the sum of

RM 31,500,007.00 was disbursed by the Firm to the

trustee. The trustee then disbursed all the said monies on

1.3.2011 and 2.3.2011 in accordance with the 1st

respondent’s instruction.”

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[12] On 9.3.2011, this Court dismissed the applicants’ application for inter-

parte preservation order on the sole ground that subject matter of the

preservation order was no longer in the hands of the respondents. To

quote the words of this Court, “The horse has bolted”.

[13] Subsequent to that, the applicants alleged that they had received an

anonymous note found in their solicitor’s letter box. This anonymous

note was said to have triggered the applicants to initiate this

committal proceedings. Based on the anonymous note, the applicants

believed that as at 5.13 pm on 3.3.2011 (the date when the Ex-Parte

Preservation Order was served on the Firm) the Released Sum was

still in the possession of the Firm and not disbursed out as deposed

by the 1st respondent in his Affidavit in Opposition . The applicants

alleged that what transpired on the material date was that the cash

withdrawals in the sum of RM3,500,000.00 and RM31,500,007.00

were used to purchase 2 bank drafts in the name of the Firm from

RHB Bank Berhad KLCC Branch. The said sums were still with the

Firm when the Ex-Parte Preservation Order was served on the Firm.

[14] On that premise, the applicant alleged that the 1st respondent had

told a lie in his Affidavit in Opposition and by so doing, the 1st

8
 respondent had interfered with the due administration of justice

and/or in the course of justice.

[15] The applicants’ solicitor had on 17.3.201 wrote to the Firm enquiring

how the sums of RM3,500,000.00 and RM31,500,007.00 had been

dealt with and in what manner they had been withdrawn. However, on

the same day, the 1st respondent served a Notice of Change of

Solicitor on the applicants’ solicitors. The 1st respondent’s new

solicitor is Messrs. Mathews Hun Lachimanan.

[16] On 24.3.2011, the new solicitor responded to the applicants’ enquiry

but declined to furnish details on how the Released Sum was dealt

with.

[17] In reply to the applicants’ allegation that the Ex-Parte Preservation

Order was in fact served on the Firm vide an email, the Firm

disclaimed knowledge of the said email as they said it was emailed to

the Firm’s corporate department, and as regard the 2nd respondent it

was stated that he does not open his email every day. In short, they

had no notice of the Ex-Parte Preservation Order.

9
Leave For Committal Application in the Federal Court

[18] Against that background, the applicants applied for leave of this Court

for the order of committal against all the respondents. The 1st

respondent was alleged to have committed contempt in making the

false statement in his Affidavit in Opposition. The 2nd respondent, who

acted as counsel for the 1st respondent, was alleged to have

committed contempt for aiding and abetting the 1st respondent. While

the 3rd, 4th and 5th respondents were alleged to be similarly liable as

partners of the Firm.

[19] The above allegations are contained in the supporting statement

made pursuant to O.52 r.2(2) of the RHC, which reads:-

“Grounds upon which committal is sought against the

Respondents are that the 1st Respondent has committed

contempt of Court by interfering with the due administration of

justice and/or interfered in the course of justice when he swore

in an Affidavit affirmed on 08.03.2011 filed in the proceedings

known as Federal Court Malaysia Civil Application No. 08()-79-

2011 that the monies sought to be injuncted by the Applicants

had been disbursed on 01.03.2011 and 02.03.2011, well

10
 knowing the same to be untrue and false and the 2nd, 3rd, 4th

and 5th Respondents have caused, aided or abetted the 1st

Respondent in committing contempt of Court in the

circumstances hereinafter set out.”

The Law of Contempt

[20] In dealing with the applications to set aside the leave for committal

proceedings, it is necessary for us to consider the law of contempt. A

good starting point would be the definition of contempt of court itself.

Oswald’s Contempt of Court (3rd Ed.) at p.6 gives a general definition

of contempt of court as follows:-

“To speak generally, contempt of court may be said to be

constituted by any conduct that tends to bring the authority and

administration of the law into disrespect or disregard, or to

interfere with or prejudice parties, litigants, or their witnesses

during the litigation.”

11
[21] The jurisprudence for arming the court with the power to punish a

contempt is best expounded by Brown J in Re HE Kingdon v SC

Goho [1948] MLJ 17 as follows:-

“But the root principle on which this inherent power to

punish for contempt is founded, and the purpose for which

it must be exercised, is not to vindicate the dignity of the

individual judge or other judicial officer of a Court or even

of the Court itself, but to prevent an undue interference with

the administration of justice in the public interest.”

[22] Hence, the power to punish a contempt is not derived merely

from statute nor truly from common law but instead flows from

the very concept of a court of law. (See Borrie & Lowe’s The

Law of Contempt 3rd.ed., at p.465; and Master Jacob (1970)

23 Current Legal Problems 23).

[23] Article 126 of the Federal Constitution empowers the Federal Court,

the Court of Appeal and the High Courts to punish any contempt of

itself. This is repeated in s.13 of the Courts of Judicature Act 1964.

However since the RFC has no procedural provision on committal,

therefore, by virtue of r. 3 of the RFC, the procedure under O. 52 of

12
 the RHC may be adopted. Thus, an applicant can bring contempt

proceedings via O. 52 of the RHC without having to go through the

Criminal Procedure Code or the Penal Code even if the relief sought

is imprisonment. (See Chandra Sri Ram v Murray Hiebert [1997] 3

MLJ 240; Arthur Lee Meng Kwang v Faber Merlin Malaysia

Berhad & Ors [1986] 2 MLJ 193 and Chung Onn v Wee Tian Peng

[1996] 5 MLJ 521).

[24] Contempt of court has traditionally been classified as being either

criminal or civil. In England, the general approach has been that a

criminal contempt is an act which so threatens the administration of

justice that requires punishment whereas by contrast, a civil contempt

involves disobedience of a court order. However, O. 52 of the RHC is

inapplicable for contempt in criminal proceedings where the contempt

is in the face of the court or consists of disobedience to an order of

the court or a breach of an undertaking to the court (see O. 52 r.

1(2)(a)(ii) of the RHC). One thing is clear, be it civil or criminal

contempt, the standard of proof required in either type is the same,

which is beyond reasonable doubt.

[25] Be that as it may, judges found the traditional classification as highly

unsatisfactory. For instance, Salmon LJ in Jennison v Baker [1972]

13
 1 All ER 997 observed it as „unhelpful and almost meaningless

classification‟. Sir Donaldson MR stated the classification “tends to

mislead rather than assist” (see AG v Newspaper Publishing Plc

[1987] 3 All ER 276 at p. 294).

[26] Contempt has been reclassified either as (1) a specific conduct of

contempt for breach of a particular court order; or (2) a more general

conduct for interfering with the due administration or the course of

justice. This classification is better explained in the words of Sir

Donaldson MR in Attorney-General v Newspaper Publishing Plc,

(Supra) at p.362:-

“Of greater assistance is the reclassification as (a) conduct

which involves a breach, or assisting in the breach, of a

court order; and (b) any other conduct which involves an

interference with the due administration of justice, either in

a particular case or , more generally, as a continuing

process, the first category being a special form of the latter,

such inference being a characteristic common to all

contempts per Lord Diplock in Attorney-General v Leveller

Magazine Ltd [1979] AC 440 at 449.”

14
[27] This reclassification was adopted by the Court of Appeal in Jasa

Keramat Sdn. Bhd. V Monatech (M) Sdn. Bhd. [2001] 4 MLJ 577

(CA).

[28] Hence, the law of contempt is wide enough to cover not only those

who are bound by the court order, but other parties who assist the

disobedience to the court order. It was reported in Attorney

General v Times Newspapers Ltd [1991] 2 All ER 398 that a

person, who knowingly impeded or interfered with the

administration of justice in an action between two other parties,

was guilty of contempt of court notwithstanding that he was

neither named in any order of the court nor had assisted a person

against whom an order was made.

[29] It is settled law that committal proceeding is criminal in nature since it

involves the liberty of the alleged contemnor. Premised upon that, the

law has provided procedural safeguards in committal proceeding

which requires strict compliance. In this regard, Cross J in Re B (JA)

(An Infant) [1965] 1 Ch 1112 had this to say:-

“Committal is a very serious matter. The courts must

proceed very carefully before they make an order to

commit to prison; and rules have been laid down to

15
secure that the alleged contemnor knows clearly what

is being alleged against him and has every opportunity

to meet the allegations. For example, it is provided that

there must be personal service of the motion on him even

though he appears by solicitors, and that the notice of

motion must set out the grounds on which he is said to be

in contempt; further, he must be served as well as with the

motion, with the affidavits which constitute the evidence in

support of it.

It is clear that if safeguards such as these have not

been observed in any particular case, then the process

is defective even though in the particular case no harm

may have been done. For example, if the notice has not

been personally served the fact that the respondent knows

all about it, and indeed attends the hearing of the motion,

makes no difference. In the same way, as is shown

by Taylor v. Roe, if the notice of motion does not give the

grounds of the alleged contempt or the affidavits are not

served at the same time as the notice of motion, that is a

fatal defect, even though the defendant gets to know

16
 everything before the motion comes on, and indeed

answers the affidavits.

When, however, one passes away from safeguards which

are laid down in the interests of the contemnor and comes

to consider mere verbal deficiencies in the documents in

question – cases where the documents do not comply

strictly with the rules, but it is impossible that in any

conceivable case the contemnor could be in any way

prejudiced by the defects – then it seems to me that there

is no reason why the courts should be any slower to waive

such technical irregularities in a committal proceeding than

they would be in any other proceeding.” (emphasis added)

[30] In similar tone, Lord Denning MR in McIlraith v Grady [1968] 1 QB

468 said at p.477:-

“The second appeal is as to the committal order. Here we

must remember the fundamental principle that no

man's liberty is to be taken away unless every

requirement of the law has been strictly complied

with.”

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[31] Later, in Re Bramblevale Ltd [1970] 1 Ch 125, Lord Denning

MR reaffirmed the same and had this to say:-

“A contempt of court is an offence of a criminal character.

A man may be sent to prison for it. It must be satisfactorily

proved. To use the time-honoured phrase, it must be

proved beyond reasonable doubt”. (See Lord Denning MR

in at p.137)

[32] In Chanel Ltd v FGM Cosmetics [1981] FSR Whitford J was

reported to refuse an order of committal as he found the notice of

motion for committal before him to be bad because it failed on its face

to specify the precise breaches of the undertaking of which the

plaintiffs complained.

[33] The same spirit was echoed in Chiltern District Council v Keane

[1985] 2 All ER 118, where Sir Donaldson MR at p.119 made this

observation:-

“However, where the liberty of the subject is involved,

this court has time and again asserted that the

procedural rules applicable must be strictly complied

with.”

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The Safeguards Under O. 52 of the RHC

[34] The procedural law on committal in our law is laid down in O. 52 of

the RHC which is based on the then O. 52 of the English Rules of

Supreme Court 1965 (Revision 1965). It provides that no application

for a committal order can be made without leave of the court. The

application for such leave must be made in accordance with O. 52 r.

2 of the RHC.

[35] For ease reference, r. 2 is reproduced below:-

„„2. (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, except in vacation when it may be made to a

Judge in Chambers, and must be 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

19
 be filed before the application is made, verifying the

facts relied on.” (emphasis added)

[36] The safeguards in r. 2(2) entail the application to be supported by a

statement describing amongst others, the person sought to be

committed and the grounds on which he is alleged to be in contempt.

It must be supported by an affidavit verifying the facts relied on in the

statement.

[37] We wish to state in clear term that the alleged act of contempt must

be adequately described and particularized in detail in the statement

itself. The accompanying affidavit is only to verify the facts relied in

that statement. It cannot add facts to it. Any deficiency in the

statement cannot be supplemented or cured by any further affidavit at

a later time. The alleged contemnor must at once be given full

knowledge of what charge he is facing so as to enable him to meet

the charge. This must be done within the four walls of the statement

itself. The same approach was taken by the Supreme Court in Arthur

Lee Meng Kwang case, supra. (See also Syarikat M Mohamed v.

Mahindapal Singh & Ors. [1991] 2 MLJ 112.)

[38] Reverting to the present case, the first ground raised by the

respondents is the applicants’ non-compliance with O.52 r.2 (2) of the

20
 RHC. Counsel for the respondents contended that the statement and

the verifying affidavit in support of the application for leave under

O.52 r. 2(2) of the RHC, must be filed before the date of filing of the

application for leave.

[39] In the present case, the applicants, had initially on 12.4.2011 filed the

Notice of Motion [“Encl.2 (a)”] together with the applicants’ 1st affidavit

[“Encl. 2(b)”] and the statement pursuant to O. 52 r. 2 (2) of the RHC

[“Encl. 2(d)”]. On 26.4.2011 the applicants filed the 2nd affidavit [“Encl.

8(a)”]. On 27.4.2011 the applicants filed the amended statement

pursuant to O.52 r.2 (2) of the RHC [“Encl. 9”]. And on 3.5.2011, the

applicants filed the 3rd affidavit [“Encl. 12(a)”]. Learned counsel for the

respondents submitted that since Encl. 8(a) and Encl. 12(a) were filed

after the date of filing of the notice of motion for leave, the applicants

were in breach of O.52 r. 2(2) which requires the affidavit to be filed

prior to the filing of the motion.

[40] In support of his contention, he relied on the case of Follin &

Brothers Sdn. Bhd. v Wong Boon Sun & Ors and Another Appeal

[2010] 4 CLJ 64. In that case Zaleha Zahari JCA in delivering the

judgment of Court stated:

21
 “We are in agreement with the High Court Judge that the filing

of an amended statement, the filing of further affidavits after the

filing of the original notice of motion, statement and initial

affidavit in support contravenes O. 52 r. 2(2) which requires an

affidavit in support to be filed before the filing of the notice of

motion. The High Court Judge was right in ruling that such non

compliance was not a mere irregularity but was fatal.”

[41] In response, counsel for the applicants submitted that the Court of

Appeal in Follin & Brothers Sdn. Bhd. (Supra) failed to consider the

principle of law laid down in the Supreme Court case of Arthur Lee

Meng Kwang (Supra). There, Mohamed Azmi SCJ (as he then was)

in his judgment stated:

“There is therefore a distinction in principle between cases

where there have been non-observance of some safeguards

laid down in Order 52 RHC in the interest of the alleged

contemnor, and a mere technical irregularity. Whilst the former

is fatal, the latter is not. In our opinion, this is the correct

principle to be applied in all contempt proceedings under Order

52 RHC, which, it must be noted, is distinct from summary

22
 contempt procedure which is normally resorted to only in urgent

and imperative cases, where the contempt is committed in the

face of the Court.[See Cheah Cheng Hoe v. Public

Prosecutor].”

Relying on Arthur Lee Meng Kwang (Supra), counsel for the

applicants submitted that the respondents’ procedural objection

should be dismissed.

[42] In our view, what O.52 r.2(2) stipulates is that an affidavit verifying

the facts must be filed before the application is made. We agree with

counsel for the applicant that the word “application” here cannot be

read to mean “filing” but rather the hearing of the application by the

court. In this regard, we fully agree with the view expressed in Arthur

Lee Meng Kwang (Supra). In that case, the objections were that:

“(1) The Motion does not state that it has been issued

pursuant to leave granted on July 4, 1985.

(2) No Statement was before the Court on the date when

leave was granted.

23
 (3) The original documents in the ex-parte application

including the affidavit in support were not served on the

advocate.

(4) The leave has lapsed under O.52 R. 3 (2), R.H.C.

(5) There was non-observance of r. 71(3) RSC 1980.”

[43] It was held that the alleged procedural defect No. (1) and No. (3) are

technical irregularities, hence not fatal to the case. We also endorsed

the view of Zulkefli Ahmad Makinudin J (as he then was) in the case

of Soceite Jas Hennesy & Co. & Anor. v. Nguang Chan (M) Sdn

Bhd [2005] 4 MLJ 348.

[44] Similarly, in the present case, we are of the view that the irregularities

complained of are mere technical irregularities which do not cause

any prejudice or injustice to the respondents. We accordingly

dismissed the procedural objection raised by the respondents.

[45] It was contended on behalf of the respondents that the statement

filed by the applicants is vague, ambiguous, imprecise and lacking in

material particulars. The statement in support of the application for

leave as against the 1st respondent is found in para. 3 referred to

earlier.

24
[46] It cannot be denied that upon the stakeholder’s cheque for the

Released Sum being cleared into the firm’s RHB account, they were

monies belonging to the 1st respondent. The clearing into the RHB

account took place on 1.3.2011 itself and this was disclosed in the 1 st

respondent’s Affidavit in Opposition. That is not being disputed. What

is disputed is whether the Released Sum was paid out of the RHB

account prior to receiving notice of the Ex-Parte Preservation Order

on 3.3.2011.

[47] The affidavits filed on behalf of the respondents disclosed that

monies were disbursed in three tranches. The question is whether

any of these releases constitutes a breach of the Ex-Parte

Preservation Order. The detail of the three tranches as they were

referred to are as follows:

25
First Tranche: RM 3.5 million (cleared out on 1.3.2011)

[48] On 1.3.2011, the 3rd respondent presented a cheque signed by him

for the sum of RM 3.5 million and withdrew this sum in cash at

3:47:08 p.m. The monies were paid over to various 3rd parties on

1.3.2011 itself on the instructions of the 1st respondent.

[49] As there was no injunction in place on 1.3.2011, the respondent

contended the withdrawal of the First Tranche in cash and the

subsequent payment of the same to various third parties on 1.3.2011

cannot be in breach of the Ex-Parte Preservation Order. Further, they

said the documents produced by the applicants themselves vide Encl.

8(a) and 12(a) pursuant to their investigations reveal that the

encashment of these monies out of the Firm’s RHB account took

place on 1.3.2011. On that premise, the respondents contended that

the utilization of the First Tranche on 1.3.2011 did not violate the Ex-

Parte Preservation Order.

26
Second Tranche: RM31,500,007.00 (“the Trust Monies”) cleared out on

1.3.2011

[50] The Second Tranche involved the withdrawal of monies in cash and

the subsequent remittance of the same to the Firm’s PBB account on

1.3.2011.

[51] The respondent contended that based on the documents produced

by the applicants themselves pursuant to their investigations, in Encl.

8(a) and 12(a), the encashment and transfer out of these monies

from the RHB account took place on 1.3.2011. Therefore, the

utilization of this Second Tranche on 1.3.2011 did not breach any

order of the court. The averments in the 1st respondent’s Affidavit in

Opposition relating to the utilization of the Second Tranche are found

at paragraph 22 where it was averred that the Second Tranche was

disbursed from his solicitor’s account to his Trustee on 1.3.2011.

[52] The respondents further contended that when the trust monies were

paid to the Trustee, they no longer belong to the 1st respondent. And

the fact that the Trustee chose to retain the Firm as its solicitors does

not render the 2nd, 3rd, 4th and 5th respondents guilty of any breach of

the court’s order.

27
Third Tranche : RM87,128.06 (cleared on 2.3.2011)

[53] The 3rd respondent paid the sum of RM87,128.06 on the 1st

respondent’s instruction to a third party. The payment cleared out of

the RHB account on 2.3.2011 itself and this is reflected in the Firm’s

RHB account statement for March 2011.

[54] It is submitted on behalf of the respondents that there is no specific

allegation of any breach in relation to the Third Tranche and neither is

there any allegation of the disclosure of this transaction at paragraph

23 of the 1st respondent’s Affidavit in Opposition being untrue.

Findings

[55] Thus, from the evidence before us, it is clear that the entire Released

Sums were paid out and cleared from the RHB account at the latest

by 2.3.2011, that is one day prior to the service of the notice of Ex-

Parte Preservation Order on the respondents. Therefore, the question

of breach of the said Order does not arise. Similarly the averments in

the 1st respondent’s Affidavit in Opposition regarding the Released

Sum cannot be said to be untrue or a lie as alleged by the applicants.

28
 On that premise, we hold that para. 3 of the statement filed in

pursuant of O.52 r. 2(2) of the RHC is unsustainable.

[56] The complaint against 2nd, 3rd, 4th and 5th respondents is for aiding

and abetting the 1st respondent. Since, we find that the complaint

against the 1st respondent is unsustainable hence, the complaint

against 2nd, 3rd, 4th and 5th are equally unsustainable.

CONCLUSION

[57] For the above reasons, we allowed the respondents’ applications to

set aside the leave order issued against them and hence, the motion

for committal against the respondents is accordingly struck out with

costs.

t.t

(TAN SRI ARIFIN BIN ZAKARIA)

Chief Justice of Malaysia

Dated : 16 December 2011

Date of hearing : 14 & 16 December 2011

Date of decision : 16 December 2011

29
Counsel for the Applicants : 1. K. Kirubakaram

2. B.E. Teh

3. Fadzilah Pilus

Solicitors for the Applicants : Messrs Teh & Associates

Damansara Intan E-Business Park

Block A, Lift Lobby No 5, Level 5,

Unit A-522, Jalan ss20/27, 47400

Petaling Jaya, Selangor.

Counsel for the 1st Respondent : 1. David Mathews

2. Regina Ho

Solicitors for the 1st Respondent : Messrs Mathews Hun Lachimanan

103-3, 3rd Mile Square, 3rd Mile,

Old Klang Road, 58100 Kuala Lumpur

Counsel for the 2nd Respondent : Hj. Sulaiman bin Hj.Abdullah

Solicitors for the 2nd Respondent : Messrs Kumar Jaspal Quah &

Aishah

K-8-6,Solaris Mont Kiara, No. 2,

Jalan Solaris, 54080 Kuala Lumpur

30
Counsel for the 3rd Respondent : Krishna Dallumah

Solicitors for the 3rd Respondent : Messrs Krishna Dallumah, Maniam

& Indran

No. 62 & 63-1,

Jalan S2 D36 Regency Avenue,

Seremban 2, 70300 Seremban

Negeri Sembilan

Counsel for the 4th Respondent : Dato’ C. Sri Kumar

Solicitors for the 4th Respondent : Messrs Kumar Partnership

Suite 12.01-12.02,Level 12,

Wisma E&C, No.2,

Lorong Dungun Kiri,

Damansara Heights,

50490 Kuala Lumpur

Counsel for the 5th Respondent : Jagjit Singh Gill

Solicitors for the 5th Respondent : Messrs Putra Gill

313, Block E, Phileo Damansara 1

No. 9, Jalan 16/11, 46350

Petaling Jaya, Selangor

31