HONG XIN CONSTRUCTION SDN BHD TETUAN CHONG + KHENG HOE

HONG XIN CONSTRUCTION SDN BHD TETUAN CHONG + KHENG HOE

The court dismissed the committal action as premature and an abuse of process because the core factual issue (service of invoices) was already finally determined in the substantive suit (20.8.2024) and remains subject to appeal; finality/res judicata bars relitigation of the same facts in committal proceedings. Although s.410 moratorium does not automatically bar committal (criminal/quasi-criminal jurisdiction retained), it was unnecessary to resolve that bar because the committal was founded on an issue already finally adjudicated. Costs awarded on party-and-party basis (RM3,000 per successful application).

Citation
JA-17D-1-02/2024 (Mahkamah Tinggi)
Parties
Applicant/plaintiff (committal); Defendant (original Action): Tetuan Chong + Kheng Hoe; Respondent; Plaintiff in Original Action; Alleged Contemnor: Hong Xin Construction Sdn Bhd; Respondent; Plaintiff in Original Action; Alleged Contemnor: Low Hui Xiang; Respondent; Plaintiff in Original Action; Alleged Contemnor: Low Hui Ying
Court
High Court
Jurisdiction
Malaysia
Judgment Date
31 October 2025
Case Number
JA-17D-1-02/2024 (Mahkamah Tinggi)
Procedural Posture
Committal Proceedings Alleging False Affidavit Arising From Civil Suit; Applications to Set Aside Committal Proceedings / High Court Judgment Disposing Applications to Set Aside Committal; Notices of Appeal Filed to Court of Appeal
Outcome
Applications in Lampiran 33 and Lampiran 35 allowed; committal proceeding in Lampiran 29 dismissed/cancelled and the ex parte order dated 29.10.2024 set aside; costs awarded on party-and-party basis.
Legal Topics
Committal Proceedings, Finality of Litigation / Res Judicata, Judicial Management (s.410 Companies Act 2016), Costs Indemnity Vs Party and Party, Service of Invoices, Fraud on the Court
Source Language
Malay/English
Civil Procedure Contempt of Court Company Law Costs Committal Proceedings Finality of Litigation / Res Judicata Judicial Management (s.410 Companies Act 2016) Costs Indemnity Vs Party and Party +2 more

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Parties

Tetuan Chong + Kheng Hoe

Applicant/plaintiff (committal); Defendant (original Action)

Hong Xin Construction Sdn Bhd

Respondent; Plaintiff in Original Action; Alleged Contemnor

Low Hui Xiang

Respondent; Plaintiff in Original Action; Alleged Contemnor

Low Hui Ying

Respondent; Plaintiff in Original Action; Alleged Contemnor

Procedural Posture

Committal Proceedings Alleging False Affidavit Arising From Civil Suit; Applications to Set Aside Committal Proceedings / High Court Judgment Disposing Applications to Set Aside Committal; Notices of Appeal Filed to Court of Appeal

Legal Issues

  1. 1 Whether an alleged false affidavit can found committal proceedings where the underlying factual issue has been finally decided
  2. 2 Whether the moratorium under s.410 Companies Act 2016 prevents committal proceedings against the company or its directors

Ratio Decidendi

The court dismissed the committal action as premature and an abuse of process because the core factual issue (service of invoices) was already finally determined in the substantive suit (20.8.2024) and remains subject to appeal; finality/res judicata bars relitigation of the same facts in committal proceedings. Although s.410 moratorium does not automatically bar committal (criminal/quasi-criminal jurisdiction retained), it was unnecessary to resolve that bar because the committal was founded on an issue already finally adjudicated. Costs awarded on party-and-party basis (RM3,000 per successful application).

Court Disposition

Applications in Lampiran 33 and Lampiran 35 allowed; committal proceeding in Lampiran 29 dismissed/cancelled and the ex parte order dated 29.10.2024 set aside; costs awarded on party-and-party basis.

Orders

  • Allow Lampiran 33 (application by Respondent First) and Lampiran 35 (application by Respondent Second)
  • Set aside/cancel Notis Permohonan bertarikh 30.10.2024 (Lampiran 29) and set aside Ex Parte Order dated 29.10.2024