JCW

[Contempt proceedings – breach of Anton Piller Order] Justin and Christina Chin acted as counsel for the Plaintiff in this case. This case involves the principles of law in respect of the enforcement of an Anton Piller Order (“APO”) which the Plaintiff states was not complied with by the 1st Defendant (the 1st Alleged Contemnor) and the persons in control of the premises i.e the 2nd and 3rd Alleged Contemnors   The Court inter alia held that :   (i)              The case against the 1st Defendant is very clear where she has been served with the APO and the terms of the APO has been explained to her. She was asked to surrender her laptop were she responded she did not have her laptop but she was pictured later that day carrying a laptop bag. The Court found that it was improbable that she would not have her laptop with her seeing that she was at the premises to carry out a demonstration to a potential client. In any event she was subsequently asked again by letter dated 26/10/2017 to deliver up her lap top but she has not complied with the APO to date.     (ii)            The 1st Defendant refused to comply with the APO on basis the premises is not her office, but the premises is the place where the Plaintiff has reason to believe that the Defendants’ products or some of them are, since she was there to conduct a demonstration of her products   (iii)          However, since the person in control of the premises are the 2nd and 3rd Alleged Contemnors, and there is possibility that the Plaintiff would not be able to execute the APO even if the 1st Defendant did not object to it, the Court is not satisfied beyond reasonable doubt that she had obstructed the execution of the APP. But the 1st Defendant is guilty of contempt of Court in not surrendering her laptop at all, in breach of the terms of the APO     (iv)          As for the case against the 2nd and 3rd Alleged Contemnors, the Supervising Solicitors (“SS”) did hand the APO to the 2nd Alleged Contemnor for her to hand to her lawyers. The  SS did not explain the terms of the APO to the 2nd and 2rd Alleged Contemnors but to their lawyers who advised them what they should do. Despite that , the 2nd Alleged Contemnor pointedly said the Plaintiff cannot search the premises , they are not bound by the APO, there are not parties to the action, the premises do not belong to the Defendants and the APO might be obtained due to non disclosure of material facts.   (v)            The  2nd and 3rd Alleged Contemnors’ lawyers wrote a letter dated 19/10/2017 stating they are not bound by the APO and the APO might be obtained due to non disclosure of material facts but it did end the letter by saying that should the Plaintiff insist on entry and search it will reserve its rights to claim damages. The Court is of the view that the 2nd and 3rd Defendant have not categorically refused to comply with the APO as the option was given to the Plaintiff to insist on the entry and search. There is a reasonable doubt whether the 2nd and 3rd Alleged Contemnor had obstructed the Plaintiff from enforcing the APO   (vi)          The failure to comply with Order 52 rule 2B of the Rules of Court 2012 on service of a show cause notice is not fatal nor prejudicial to the 2nd and 3rd Alleged Contemnors   (vii)         The case of Dato Seri Yusof Bin Dato Biji Sutra @ Mohamad v BTM Timber Industries Sdn Bhd [2010] 1 MLJ 644 where the Court of Appeal held the words “persons appearing to have control of the premises” are too vague but on the careful reading of that case, the Court of Appeal is saying that it has not been shown the alleged contemnors in that case were the persons appearing to be in control of  the premises. In this case, the APO uses the words “owner of the Premises” or “persons on control of the Premises” and it is not in dispute that the 3rd alleged Contemnor is the owner of the premises and the 2nd Alleged Contemnor was the person who had control of the premises.     [Note : The Plaintiff appealed to the Court of Appeal vide Civil Appeal No. W-02(IM)(NVCV0-73-01/2021 and the Court of Appeal on 7/7/2022 allowed the Appeal and reversed the decision of the High Court vis-à-vis the 2nd and 3rd Alleged Contemnors and ordered that they were in contempt of court]