- 女方在2017年时申请单方面离婚。法庭批准了女方的申请，并命令男方在每个月支付妻子RM2000.00作为小孩的抚养费。
- 女方在2019年提告男方藐视法庭的庭令，他指男方没有依据庭令如期支付小孩的抚养费。
- 男方在法庭上表示他知道当时的离婚判决，也晓得本身必须支付妻子小孩的抚养费；他也承认自己没有依据庭令支付这笔费用。他向法庭求情，由于他目前没有固定的收入，他希望法庭能减少小孩抚养费的数额。
- 法庭表示如果男方不满这笔数额，他当初就应该做出推翻庭令的申请，可是他并没有这么做。
- 而且在女方提出诉讼时，男方并没有呈交任何文件给法庭证明他的抗辩理由，他只是当天在法庭以口诉的方式解说这些理由。
- 虽然男方有向法庭求情，指由于目前没有固定的收入，他希望法庭能减低每个月支付RM300.00的小孩抚养费；然而由于他没有提供实际证据，法庭不会考虑这些口诉的理由…clear proof must be adduced to satisfy the Court beyond reasonable doubt that the alleged contemnor had indeed breached the terms of the Court’s order. Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor [1993] 4 CLJ 177
- 法庭裁定男方藐视法庭庭令，没有遵从执行庭令里面的条件，因此被判处监禁，直到他支付庭令中所规定的小孩抚养费。The court has discretion to refuse to hear an appeal or other application in the proceedings by a person disobeying an order of court until he has purged his contempt. Wee Choo Keong v MBF Holdings Bhd [1983] 1 CLJ 68
*详细的案情和判决，请阅读以下的英文版的文章。
INTRODUCTION
- The Petitioner Wife (“PW”) filed an application (enclosure 43) to commit the Respondent Husband (“RH”) for his alleged failure to comply with the court’s order (enclosure 28) dated 05.2018 which is endorsed with a penal clause (O.45 r.7 RC 2012) ordering him (among others):
“(c) bahawa Responden membayar nafkah anak tersebut sebanyak RM2,000.00 kepada Pempetisyen pada atau sebelum 7hb setiap bulan dalam akaun Pempetisyen mulai September 2015.
(g) Responden menyelesaikan segala pinjaman (termasuk faedah dan/atau faedah penalty) Bank Bank Rakyat No 621110117618 dan No 62111013578 dalam akaun yang diambil atas nama Pempetisyen dalam masa 2 bulan dari tarikh Perintah ini.“
- This application was heard before me on 12.2019 with the contemnor electing to give oral evidence on oath. At the end of the proceeding, I found the contemnor had failed to raise any reasonable doubt as to the allegations against him and I sentenced him to be imprisoned until he purged his contempt. Dissatisfied with the order, RH had filed this appeal and my reasons are as follows:
BRIEF FACTS
- The brief facts disclosed from the cause papers are as follows:
(a) The PW and RH were legally married on 09.09.2009 and were blessed with a child (“the said child”), a girl name YG [(initial only) – (9+ years old)].
(b) On 03.07.2017, PW presented a single petition for divorce under section 53 (“the said petition”) of the Law Reform (Marriage & Divorce) Act 1976 (“the LRA”). After several attempts to serve the said petition failed, PW applied to serve the said petition via substituted service (“SS”). On 16.01.2018 an order for SS was granted by this court with an order for the said petition is to be served by posting an advertisement in a local newspaper, post to RH last known address and posted at the Shah Alam High Court notice board. The hearing date of the petition was fixed on 03.05.2018.
(c) On 03.05.2018, PW was present, but RH failed to be present. It was established in court that the said petition was served via substituted service, i.e., advertisement in a local newspaper (Tamil Nesan) on 21.02.2018, and on 22.02.2018 it was posted to the Notice Board of Shah Alam High Court and on 20.02.2018 it was posted to RH’s last known address, affidavits of service were filed (enclosure 14 and 15, respectively). Notice of proceeding and direction for trial was filed and served on the RH via ordinary post and an affidavit attesting to these facts was filed in court (enclosure 18).
(d) At the hearing of the petition on 3.5.2018, I found the cause papers to be in order with enough notices were given to RH, but he had failed to be present in court with no lawful excuse. In default of his appearance, this court accordingly granted Decree Nisi with a further order that the Decree Nisi is to be made absolute after three (3) months, which was within its power to do so (enclosure 28 and 30, respectively).
(e) On 10.04.2019, PW filed an application for leave to institute committal proceeding against RH:
1) Leave was granted on 13.06.2019.
2) 14.6.2018, the Notice of Application for an order of committal was filed (within the 14-day requirement of O.52 r.1, 2 and 4 Rules of Court 2012 (“RC 2012”)).
3) Several case managements dates (CM) were fixed since the Notice of Committal Proceeding was not able to be served on RH. However, on 18.07.2019, this court was informed that the Notice for Committal Proceeding against RH was served on him personally at the Kajang Magistrates court, where he refuses to accept the papers; and
4) An affidavit of service with similar averment was filed (enclosure 47).
5) On the hearing date, 08.08.2019, the learned counsel had informed the court that RH had been duly informed of this date by a letter dated 02.08.2019 which was sent by ordinary post (enclosure 48).
6) Since RH still failed to be present, the learned counsel prayed for Warrant of Arrest be issued against RH. Upon inspection of the court documents, I found it to be in order, and though duly informed of the hearing date, RH had elected not to be present. I therefore accordingly issued a warrant for his arrest.
7) Warrant of Arrest was successfully executed and on 14.10.2019 the contemnor RH was brought before me and I made an order for his release on a RM3,000.00 bail with the next hearing date for the committal proceeding being fixed on 18.11.2019. On 18.11.2019, a counsel who appeared for RH had informed this court that he was just appointed and pray for another date to file an application to set aside the committal proceeding and to regularise RH’s papers. Despite objection by PW’s learned counsel the new hearing date was allowed, and hearing date fixed on 16.12.2019.
8) On 16.12.2019, the contemnor RH was present:
i. Learned counsel for PW informed the court that RH had failed to file any affidavit in reply or file any documents to support his evidence/arguments.
ii. The contemnor RH had asked for another postponement based on the reason that his counsel was not present.
iii. I find the counsel was indeed not present and had failed to inform this court the reason for his absence when he knew about today’s date when he was present in court on the last date.
iv. I proceeded with the hearing and RH took the stand to give evidence on oath.
9) During the hearing:
a) RH informed the court that he denies that he is aware of the present committal proceeding (and yet he was present in court).
b) He confirmed that he was served with an envelope when he was at the Kajang Magistrates Court, but he refused to accept that envelope.
c) He is aware of the Divorce Petition and aware that he must pay maintenance.
d) When asked why he did not pay for the child maintenance, RH said he do not know how to reply to that.
e) He agreed that he has not paid maintenance for the child since 07.09.2015.
f) RH informed this court that he cannot pay for maintenance as he is now looking for a new job and can only pay a minimum amount of RM300.00 per month since his job is not permanent.
h) I found RH to be in contempt of the Decree Nisi dated 03.05.2018 which had ordered him to pay maintenance for his child commencing from September 2015 and to pay the Bank Rakyat loan that he took under PW’s name.
i) In mitigation, RH prayed for a low fine to be imposed since he has small children.
j) Based on the above and in the circumstances, I found RH had failed to raise reasonable doubt in the committal proceeding and sentenced him to be imprisoned until he purges his contempt.
THE LAW
- 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 (52 r.2 RC 2012):
a) The Courts’ jurisdiction to issue an order for committal is derived from Article 126, Federal Constitution and Section 13, Courts of Judicature Act 1964.
b) The rules governing procedure in committal proceedings are as set out in Order 52 r.3 RC 2012 which deals with contempt in connection with both civil and criminal proceedings.
c) An order of committal will only be made where no other recourse is available. Where a reasonable alternative is available instead of committal to prison, that alternative must be taken. A person committed may be sentenced to remain in prison indefinitely until he purges his contempt or for a fixed term (52 r.2(6) RC 2012).
d) The court has discretion to refuse to hear an appeal or other application in the proceedings by a person disobeying an order of court until he has purged his contempt. In Wee Choo Keong v MBF Holdings Bhd [1983] 1 CLJ 68, SC, where it relates to an application to purge the contempt; or an appeal against the order on which the contempt is founded, unless the contemnor:
i. Makes it clear that he will not continue to defy the court’s authority whatever the outcome of the appeal; or
ii. Where the contemnors are trustees and it is in the interest of the beneficiaries under the trust that the application should be heard; or
iii. Where a contemnor appeals against the order committing him for contempt.
The application or appeal should ordinarily be heard.
f) Tan Sri Dato’ (Dr) Rozali Ismail &Ors v. Lim Pang Cheong & Ors [2012] 2 CLJ 849, Tun Ariffin FCJ, in delivering the Federal Court decision said:
“[24] Contempt of court has traditionally been classified either criminal or civil…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 applicable for contempt in criminal proceedings where the contempt is in the face of the court or consists of disobedience to an order or 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.”
g) In Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor [1993] 4 CLJ 177, Abdul Malik Bin Hj Ishak J held that, clear proof must be adduced to satisfy the Court beyond reasonable doubt that the alleged contemnor had indeed breached the terms of the Court’s order. His lordship also commented that in a charge for contempt there is no room for implication. Only the relevant facts must be specifically proved. Proof by implication of facts alone would be unlikely to satisfy the burden of proof beyond reasonable doubt.
h) In E & E Equipment Sdn Bhd v Speci Avenue (M) Sdn Bhd & Ors [2005] 6 MLJ 589, Vincent Ng J held that, any argument based merely on implication of certain facts finds no place in contempt proceedings.
i) In Foo Khoon Long v Foo Khoon Wong [2009] 9 MLJ 441, it was held by VT Singam J, that contempt of court is an offence of a criminal character and thus the Court also applied the principle in criminal cases that where there is more than one inference that can be drawn from the facts, the inference most favourable to the accused should be adopted.
l) The granting of leave does not amount to a finding of contempt. It is merely an ex-parte vetting process to consider there was a prima facie case of contempt [see Lim Chau Leng (P) v Wong Chee Chong [2006]1AMR 151 and Foo Khoon Long case (supra)].
m) Pre-requisites on Penal Notice. The court order where the breach is anchored on should have an indorsement of Penal Notice: 45 r.7(4) RC 2012 to notify the consequences of non-compliance: Leow Seng Huat v Low Mui Yein [1996] 2 MLJ 466. However, in Syarikat Perumahan Pegawai Kerajaan Sdn Bhd v Sri Komakumar Sdn Bhd [1998] 3 CLJ 841: Where the order is prohibitory in nature, i.e., abstinence from doing an act, the absence of penal notice in the order is not fatal.
n) The Order must be served personally on the person required: 45 r.7(2) RC 2012. In M/s Hisham Sobri & Kadir v Kedah Utara Development Sdn Bhd [1988] 1 CLJ 627 held that it is fundamental that a man ought not to be penalized unless he is given a fair opportunity to comply with the law and to do that the order must be served. The Federal Court in TO Thomas v Asia Fishing Industry Pte Ltd [1977] 1 LNS 126 ruled If the contemnor has knowledge of the terms of the court order though it had not been served, the court has the discretion to dispense with the requirement of personal service: O.52 r.4(4) RC 2012. The Supreme Court in Puah Bee Hong v Pentadbir Tanah Daerah WP [1994] 2 CLJ 705 ruled that service of the relevant court order not essential, all that is required is for the proposed contemnor to have notice of the order that is said to have been breached. Where a respondent is evading service, the court may dispense with personal service or allow substituted service. Service may be dispensed with only where there is no other course available to uphold the authority of the court and to protect the applicant; the dispensation should be recorded in the order for committal.
o) The requirements of an order of committal must be strictly complied with. An order of committal which fails to specify the contempt for which it has been made is fundamentally defective. An order of committal will only be made where no other course is available. Where a reasonable alternative is available instead of committal to prison, that alternative must be taken. Strict compliance with the rules must be observed before a person can be subjected to committal proceedings (52 r.2(4) RC 2012).
q) Nothing in the foregoing provisions of this Order shall be taken as affecting the power of the Court to make an order requiring a person guilty of contempt of Court, or a person punishable by virtue of any written law in like manner as if he had been guilty of contempt of the Court, to pay a fine or to give security for his good behaviour, and those provisions, so far as applicable, and with the necessary modifications, shall apply in relation to an application for such an order as they apply in relation to an application for an order of committal. Bona fides is a relevant factor in mitigation. Where punishment is necessary, committing a contemnor to prison must be a punishment of last resort (52 r.9 RC 2012).
r) The Court by whom an order of committal is made may by order direct that the execution of the order of committal shall be suspended for such period or on such terms or conditions as it may specify. Where execution of an order of committal is suspended, the applicant for the order of committal must, unless the Court otherwise directs, serve on the person against whom it was made a notice informing him of the making and terms of the order under that paragraph. At the expiry of the period of suspension the committal order becomes operative (52 r.7(1) RC 2012).
s) The Court may, on the application of any person committed to prison for any contempt of Court, discharge him. The application to discharge can be made by the contemnor or on his behalf at any time after the order of committal has been made. The practice is for the application to discharge to be made by way of notice of application to the court which made the order for committal. The application may be dealt with by any judge if the judge who made the order is not available. The court may not in an order of committal, restrict the right to discharge (52 r.8 RC 2012).
FINDINGS OF THIS COURT
- Cognizance must be taken that since the granting of the said Decree Nisi on 3.5.2018, to date RH:
i. Has not made any application to set aside the said Decree Nisi.
ii. Has not file any appeal against the said Decree Nisi.
iii. Has not file any application to vary the terms and conditions as contained in the said Decree Nisi.
iv. Has not file any application to challenge and/or set aside the leave to commence committal proceeding against him.
v. Has not file any affidavit and/or adduce any cogent evidence to answer to the contempt charges against him for the court’s consideration except for a few bare statements by oral evidence.
vi. Did not move the court to suspend the order for committal to enable him to endeavour his compliance (O.52 r.7 RC 2012) in order to purge his contempt.
vii. Has not file any application to challenge his imprisonment for contempt and/or for his discharge (O.52 r.8 RC 2012) as the Rules of Court had provided. It is only then that an appeal to the Court of Appeal herein lies since the relevant provision has not been exhausted by the contemnor. In the circumstances, his appeal would be premature.
- There is no denying that the said order of the court (enclosure 28) is validly granted in accordance with the law and the rules governing it. It is also irrefutable that RH had failed to be present on the day the said order was granted though valid service of the cause papers had been executed in accordance with the rules. RH cannot now complain or disagree before the court on the terms and condition as contained in the said Decree Nisi and the resulting committal because of his wilful disobedience of the said order.
- In his evidence under oath RH stated:
a) He is aware of the Divorce Petition and aware that he must pay maintenance.
b) When asked why he did not pay for the child maintenance, he said he do not know how to reply to that, but he agreed that he has not paid maintenance for the child since 07.09.2015.
c) He told the court that he cannot pay for maintenance as he is now looking for a new job and can only pay a minimum amount of RM300.00 per month since his job is not permanent.
- Other than the above responses on the issue of maintenance he could not offer the court any other cogent evidence for the court to consider in his favour on the allegations of contempt. I take note of the fact that RH had failed to file any affidavit to contest the allegation of contempt against him, except for those bare averments. In the circumstances of the case, I found RH had failed to raise reasonable doubt in the committal proceeding. He has shown a total disregard and defiance to the rules and the proceedings. In mitigation, RH prayed for a low fine to be imposed since he has small children.
CONCLUSION
- In the circumstances, I allowed PW’s application (L.43) and sentenced PH to be imprisoned until he purges his contempt.
Source: Sharmila a/p M Helan Govan v Gunalan a/l Govindasamy & Anor [2020] MLJU 199. High Court Shah Alam. Hayatul Akmal Abdul Aziz J.
==============================
*如果您需要聘请律师处理法律事务，您可以联系我们。
*如果您需要法律咨询(付费)，您可以联系我们。
*我们的律师楼拥有超过18年的执业经验。我们有处理民事纠纷(打官司/法庭诉讼)、商业纠纷、劳工纠纷(工业法庭）、追讨债务、遗产分配、立遗嘱、离婚、抚养权、赡养费、产业分配、领养小孩、拟商业合约、拟雇佣协议、拟买卖合约、银行贷款、法律咨询、法律顾问、等法律事务。全马的案件，我们皆有处理。*We have more than 18 years of experience in the legal profession. We handle matters such as civil litigation, commercial disputes, labour disputes (Industrial Court), debt recovery, probate & letter of administration, will, divorce, children custody, maintenance/alimony, adoption, distribution of matrimonial assets, drafting commercial agreement, drafting employment contract, drafting sale and purchase agreement, process loan documentations, legal consultation, legal advisory, miscellaneous legal works.
*Wilson Kuek律师是“法律与你同行 Law & Justice”面子书群组的创办人。“法律与你同行”是马来西亚最大的法律平台。我们的平台每天为无数的平民百姓免费解除各类的法律困扰。
*加入 我们的“法律与你同行”FB 群组: http://bit.ly/fblawnjustice
*Like 我们的“法律与你同行” FB Page: http://bit.ly/lawnjusticefbpage
*加入我们的Telegram:
(i) 各项法律/政府政策: https://t.me/LawAndJusticeGroup
(ii) 雇主必知的法律/政府政策: https://t.me/LawAndJusticeEmployer
*订阅我们的YouTube: http://bit.ly/lawnjustice
*Kuek, Ong & Associates. Advocates & Solicitors. No.86-1, Jalan Mahagoni 1, Bandar Botanic, 41200 Klang, Selangor Darul Ehsan.
#Kuek, Ong & Associates #Kuek Ong & Associates #Kuek Ong Associates #Klang Legal Firm #Klang Lawyer #KL Lawyer #Kuala Lumpur Lawyer #Chinese Lawyer in Malaysia #Malaysia Lawyer #Litigation Lawyer #Divorce Lawyer #reputable lawyer #trustworthy lawyer
#郭汪律师事务所 #郭汪律师楼 #巴生律师楼 #吧生律师楼 #马来西亚华人律师 #懂华文的律师 #懂华语的律师 #KL律师 #吉隆坡律师 #民事诉讼律师 #民事案律师 #专打官司的律师 #专打官司律师 #工业法庭律师 #劳工法庭律师 #专打离婚案的律师 #专打离婚案律师 #处理离婚的律师 #处理离婚案的律师 #离婚律师 #买卖合约律师 #有经验的律师 #好律师 #专业的律师 #信得过的律师 #利害的律师 #有信誉的律师 #有声望的律师 #出名的律师 #有名的律师 #有实力的律师
