1. DR SIM KUI HIAN 2. SHANKAR RAM POHUMALL 1. CHONG CHIENG JEN 2. DR SIM KUI HIAN

1. DR SIM KUI HIAN 2. SHANKAR RAM POHUMALL 1. CHONG CHIENG JEN 2. DR SIM KUI HIAN

The Court of Appeal held the learned Judicial Commissioner breached the mandatory procedural requirements of Order 52 r.2A by making emphatic findings of prima facie contempt and ordering disciplinary referral without first giving the alleged contemnor notice and an opportunity to defend; there was insufficient material to treat the late filing as contempt in the face of the court and the summary dismissal under Order 34 r.2(3) was a disproportionate exercise of discretion given absence of prejudice or disruption to trial; accordingly the High Court orders were set aside, the plaintiff’s claim reinstated and the matter remitted to another judge.

Citation
Q-02(IM)(NCVC)-120-01/2021, Q-02(IM)(NCVC)-121-01/2021, Q-02(IM)(NCVC)-247-02/2021 & Q-02(IM)(NCVC)-248-02/2021 (Mahkamah Rayuan)
Parties
Appellant / Plaintiff: Dr. Sim Kui Hian; Respondent / Defendant: Chong Chieng Jen; Appellant / Counsel: Shankar Ram Pohumall
Court
IM
Jurisdiction
Malaysia
Judgment Date
18 March 2021
Case Number
Q-02(IM)(NCVC)-120-01/2021, Q-02(IM)(NCVC)-121-01/2021, Q-02(IM)(NCVC)-247-02/2021 & Q-02(IM)(NCVC)-248-02/2021 (Mahkamah Rayuan)
Procedural Posture
Civil Appeal (court of Appeal) Arising From Defamation Suit and Associated Contempt Finding / Judgment on Appeals From High Court Orders (case Management, Contempt, Summary Dismissal)
Outcome
All four appeals allowed; High Court orders dated 12.1.2021 and 3.2.2021 set aside; finding of contempt set aside; plaintiff's claim reinstated; matter remitted to be heard before another judge; no order as to costs.
Legal Topics
Case Management, Summary Dismissal Under Order 34 R.2(3), Contempt in the Face of the Court (order 52 R.2 A), Procedure for Contempt (order 52), Advocates Disciplinary Referral, Appealability of Interlocutory/final Orders
Source Language
Malay/English
Civil Procedure Contempt of Court Professional Discipline (advocates) Defamation Law Case Management Summary Dismissal Under Order 34 R.2(3) Contempt in the Face of the Court (order 52 R.2 A) Procedure for Contempt (order 52) +2 more

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Parties

Dr. Sim Kui Hian

Appellant / Plaintiff

Chong Chieng Jen

Respondent / Defendant

Shankar Ram Pohumall

Appellant / Counsel

Procedural Posture

Civil Appeal (court of Appeal) Arising From Defamation Suit and Associated Contempt Finding / Judgment on Appeals From High Court Orders (case Management, Contempt, Summary Dismissal)

Legal Issues

  1. 1 Whether the Judicial Commissioner erred in finding counsel committed prima facie contempt in the face of the court
  2. 2 Whether the procedure mandated by Order 52 r.2A was observed before finding contempt
  3. 3 Whether the behaviour amounted to contempt in the face of the court or required prosecution under Order 52 r.3

Ratio Decidendi

The Court of Appeal held the learned Judicial Commissioner breached the mandatory procedural requirements of Order 52 r.2A by making emphatic findings of prima facie contempt and ordering disciplinary referral without first giving the alleged contemnor notice and an opportunity to defend; there was insufficient material to treat the late filing as contempt in the face of the court and the summary dismissal under Order 34 r.2(3) was a disproportionate exercise of discretion given absence of prejudice or disruption to trial; accordingly the High Court orders were set aside, the plaintiff’s claim reinstated and the matter remitted to another judge.

Court Disposition

All four appeals allowed; High Court orders dated 12.1.2021 and 3.2.2021 set aside; finding of contempt set aside; plaintiff's claim reinstated; matter remitted to be heard before another judge; no order as to costs.

Orders

  • Set aside High Court orders dated 12.1.2021 and 3.2.2021
  • Finding of prima facie contempt against counsel (Shankar Ram Pohumall) set aside for procedural defect