Committal: Prima Facie Case Test and of Last Resort

Justice Wong Kian Kheong’s Grounds of Judgment in the case of Tan Kang Ho v Mao Sheng Marketing (M) Sdn Bhd provides a useful summary of the typical issues and challenges raised in a committal application. I have shared some tips about making a committal application earlier as well.

The Case of Tan Kang Ho

In summary, this case involved a consent Order allowing one of the party’s appointed auditor to inspect and to take photocopies of accounts of the company. This is the Order that triggered the subsequent committal application. This Order arguably had vague terms, it did not have a proper sealed penal indorsement, it did not provide for any time limit for the carrying out of any act, and the Order had not been served personally on the alleged contemnors. All of these were upheld as the procedural defects going towards the dismissal of the committal application.

This case also usefully sets out two points.

Firstly, what is the threshold to be met for leave for committal to be granted? Committal proceedings are a two-stage process. The first stage is to apply ex parte for leave to commence committal proceedings. At this stage, the case law sets out that a prima facie case for contempt has to be made out. The Court noted that there did not appear to be any Malaysian decision setting out what is the threshold for such a prima facie case. The Court’s view was that this prima facie case is met where:

  1. The Statement and Affidavit Verifying show that the alleged contemnor has committed a specie of contempt of court e.g. breaching a Court Order or having scandalised the Court.
  2. The contents of the Affidavit should not be inherently improbable.
  3. The standard of proof at the leave stage is not beyond a reasonable doubt. The Court should keep an open mind and not make any finding of fact.

Secondly, this case also reiterated that committal should only be used as a last resort. The Court did take into account alternative remedies open to the applicant. In this case, for example, the Court was of the view that complaints could be lodged with the Companies Commission of Malaysia for it to investigate into any breaches.

Conclusion

In conclusion, my view is that Courts can afford to be extra vigilant in committal proceedings, even at the leave stage. Committal proceedings are quasi-criminal in nature and with the real possibility of imprisonment if there is a finding of contempt. One of the side effects of there being an Order allowing leave for committal is that the alleged contemnors must then first purge their contempt. The alleged contemnors will find it difficult to continue with their own applications and must first oppose the committal application.

Where a party applies for leave for committal (and the Rules of Court 2012 sets out that this is done ex parte), then the general duty to make full and frank disclosure should oblige the applicant to highlight the possible procedural problems in the committal application. So for example, here, where the consent Order did have procedural weaknesses for the purposes of making a committal application. At the ex parte leave stage, the Court could also query an applicant on any of such issues and to also query whether there were alternative remedies open.

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