Order 45 – Penal Code
Q&M DENTAL GROUP Preliminary issue
(SINGAPORE) LTD & ORS v
DR HONG AN LIANG & [29] At the outset of the committal proceedings, Learned
ORS [2018] MLJU 1981 counsel for the 1st and 2nd Defendant raised a
preliminary issues in relation to both enclosures. The
issue raised was that there was a failure to include a
penal endorsement as required by Order 45 rule 7(4) of
the ROC 2012.
[30] Order 45 rule 7(4) of the ROC 2012 reads as
follows:-
“There shall be endorsed on the copy of an order served
under this rule a notice in Form 83 informing the person
on whom the copy is served -
(a)in the case of service under paragraph (2), if he
neglects to obey the order within the time specified
therein, or, if the order is to abstain from doing an act,
that if the disobeys the order, he is liable to process of
execution to compel him to obey it; and
(b)in the case of service under paragraph (3), that if the
body corporate neglects to obey the order within the
time so specified or, if the order is to abstain from doing
an act, that if the body corporate disobeys the order, the
body corporate is liable to process of execution to
compel the body to obey it.
[31] The Learned Counsel for the 1st and 2nd Defendant
had submitted that the notice under Order 45 rule 7(4) of
the ROC 2012 is a pre requisite before making the
committal order. A failure to endorse the notice is fatal to
an application for contempt proceeding.
[32] The Learned Counsel for the 1st and 2nd Defendant
had also relied the Court of Appeal case of Loh Eng Leong
& Anor v Loh Mun Sen & Sons Sdn Bhd & Anor [2003] 2
MLRA 148 at 149; ; (2003) 4 CLJ 743 where the Court of
Appeal held that a failure to indorse an order of court
with a penal notice is fatal to an application for committal
proceeding.
[33] Learned counsel further submitted that since there is
no notice under Order 45 rule 7(4) of the ROC 2012 in the
said AP Order and the Prohibitory and Mandatory Order,
therefore, these Notice of Applications should be
dismissed.
[34] Learned Counsel for the Plaintiffs however had
submitted that the penal notice pursuant to Order 45 rule
7(4) of the ROC 2012 is not required as the Plaintiffs’
application herein against the 1st & 2nd Defendant is
premised on the basis of Order 52 rule 4 of the ROC 2012
and not Order 45 rule 5 of the ROC 2012.
[35] It is further submitted that the 1st & 2nd Defendant
have failed to appreciate that the application for
committal in Loh Eng Leong (supra) was made on the
basis of enforcement of a judgment pursuant to Order 45
rule 5 of the Rules of the High Court 1980 which is, in pari
materia with Order 45 rule 5 of the ROC 2012 and not an
application for committal pursuant to Order 52 rule 2 & 3
of the Rules of the High Court 1980 or its current
equivalent, Order 52 rule 3 & 4 of the ROC 2012.
[36] I agree with the submission of the Learned Counsel
for the Plaintiffs that a penal notice pursuant to Order
45 rule 7(4) of the ROC 2012 is not required as the
Plaintiffs’ application herein against the 1st and 2nd
Defendant is premised on the basis of Order 52 rule 4 of
the ROC 2012 and not Order 45 rule 5 of the ROC 2012.
[37] A gleaned from the dicta of Augustine Paul JCA
(Later FCJ) in Loh Eng Leong (supra) clearly shows that
the learned Judges of the Court of Appeal had directed
their minds to the application of an order of committal
proceeding pursuant to Order 45 rule 5 of the Rules of
the High Court 1980.
[38] Further, I find that the decision in Loh Eng Leong
(supra) is of little or no relevance in terms of the facts of
the case, as the Court of Appeal in Loh Eng Leong (supra)
was dealing with the issue of whether an ex parte
application include a penal notice had any merits prior
to granting an adjournment requested by the
respondent. In dismissing the appellant’s application,
the Court of Appeal held that the insertion of the penal
notice would be pointless since the Order of Court dated
26.7.2002 did not specify a specific period of time for
compliance and there was no supplemental Order fixing
such time for compliance.
[39] In Muhammad Said Amin v Haszeri Hussin (2014) 3
CLJ 536, the Plaintiff sought for an order of committal
pursuant to Order 52 of the ROC 2012 against the
defendant for non-compliance and failure to comply
with a consent judgment which stipulated that the
defendant was required to redeem the property from
Ambank; and complete the transfer of title within the
period of 12 months from the date of court judgment.
The Defendant submitted that the consent order served
on him was not endorsed with a penal notice, which was
contrary to Order 45 rule 7(4)(a) of the ROC 2012 as
under the said provision, it was mandatory for the penal
notice to be given. Yeoh Wee Siam J (now JCA) held:-
[8] In my view the requirement of the endorsement of a
penal notice in the court order under O.45 r.7(4)(a) of
the ROC applies only in a situation where the person
served personally with the order is required to “obey the
order within the time specified therein” and that “if he
disobeys the order, he is liable to process of execution to
compel him to obey.”
[9] However, in the present case, O.45 r.7(4)(a) of the
ROC does not apply because the 12 months allowed in
the consent order from 22 October 2011 for the
defendant to comply with the order ie, to transfer the
property to the plaintiff is already over. The 12 months
ended on 21 October 2012. Thus, the issue of execution
of the consent order under O.45 of the ROC does not
arise here at all.
[40] Based on the above, I am also of the considered
opinion that in Order 52 ROC 2012 there is no
mandatory requirement of a penal notice to be endorsed
in the order sought to be enforced by the Plaintiffs i.e AP
Order and the Prohibitory and Mandatory Order.
[41] All that is required is for the Plaintiff to apply by
way of an ex parte notice of application under Order 52
rule 3 of the ROC 2012 for leave of the court to
commence committal proceedings and such application
must be supported by the statement as required under
r.3(2).
[42] Therefore, in view of Muhammad Said Amin (supra)
and based on the fact that the Plaintiffs’ Application for
an Order of Committal against the 1st & 2nd Defendant
is not premised on Order 45 rule 5 of the ROC 2012, I am
of the considered opinion that there is no requirement of
a penal notice to be endorsed on the AP Order or the
Prohibitory Injunction Order.
[43] Further I also noted that Paragraph 10 & 11 of the AP
Order does contain a penal notice albeit a modified
version of Form 83 of the ROC 2012. For ease of
reference, Form 83 of the ROC 2012 & Paragraph 10 & 11
of the AP Order provides:-
“No.83
NOTICE ON CERTAIN JUDGMENTS (O.45 r.7)
The endorsement should be in the following words or
words to the following effect:
(a) In the case of judgment or order requiring a
person or body corporate to do an act within a
specified time -
“If you, the within-named .................... (or ...........) neglect
to obey this judgment (or order) by the time therein
limited, you will be liable to process of execution for the
purpose of compelling you to obey the same.
(b)In the case of a judgment or order requiring a person
to abstain from doing an act -
“If you, the within-named ..................... disobey this
judgment (or order), you will be liable to process of
execution for the purpose of compelling you to obey the
same. “
(c)In the case of a judgment or order requiring a body
corporate to do or to abstain from doing the act, but it is
sought to take enforcement proceedings against a
director or other officer of that order.
“If ..............neglect to obey this judgment (or order) by
the time therein limited (or in the case of an order to
abstain from doing an act, if ................. disobey this
judgment (or order), you (a director or officer of the
said ...................) will be liable to process of execution for
the purpose of compelling the said to obey the same.
AP Order
(10) That it is a contempt of Court for any person notified
of this Order knowingly to assist or permit a breach of this
Order. Any person so doing may be sent to prison or fined.
(11) A defendant who is an individual who is ordered not
to do something must not do it himself or any other way.
He must not do it through other (s) acting on his behalf or
on his instructions or with his encouragement. “
[44] Eventhough I find that the exact terms stated in
Form 83 of the ROC 2012 were not employed, the
requirement of the endorsement of a penal notice
pursuant to Order 45 rule 7(4)(a) of the ROC 2012 has
been complied with as it cannot be denied that pursuant
to Paragraphs 10 & 11 of the AP Order the 1st & 2nd
Defendant knew that ‘if they disobey the AP Order, they
are liable to process of execution to compel them to
obey’.
[45] In fact, I am of the considered view that Paragraph
10 & 11 of the AP Order are so specific that it precludes
the Plaintiffs from applying under any other process of
execution except committal.
[46] In Dewan Perniagaan Melayu Malaysia, Negeri Johor
v. Menteri Besar Johor & Ors (2016) 1 CLJ 52 at 70 Mohd
Nazlan Mohd Ghazali JC (now J) held:
Indeed in the case TO Thomas v. Asia Fishing Industry Pte
Ltd [1977] 1 LNS 126; ; [1977] 1 MLJ 151, the Federal
Court ruled that in the matter of contempt arising out of
disobedience to an injunction, the test is to ask whether
the proposed contemnor knows of it. It need not be
necessary that he should be served. The former Supreme
Court in Puah Bee Hong & Anor. v. Pentadbir Tanah
Daerah Wilayah Persekutuan Kuala Lumpur & Anor
(Robert Teo Keng Tuan, Intervener) & Another Case
[1994] 2 CLJ 705 ruled that service of the relevant court
order was not essential, for all that is required is for the
proposed contemnor to have notice of the order said to
have been breached.
Thus a fortiori, equally unnecessary in this situation is the
need for indorsement of the penal notice (see also Class
One Video Distributors Sdn Bhd & Anor v. Chanan Singh
Sher Singh & Anor [1997] 3 CLJ 694; [1997] 5 MLJ 209 and
Lembah Mayang Sdn Bhd & Ors v. Pengarah Jabatan
Perhutanan & Anor [2004] 6 CLJ 465. Additionally,
although it is trite that as mentioned earlier, a committal
order can only issue if the contempt is proven beyond
reasonable doubt, I am also not unmindful of the
principle, expressed by Lord Woolf MR in the case of
Nicholls v. Nicholls [1997] 147 NLJ, that if there is non-
compliance with the procedural requirements which does
not prejudice the proposed contemnor, setting aside the
order purely on the grounds of technicality is contrary to
the interest of justice. This was followed in Chandra Sri
Ram v. Murray Hiebert [1997] 3 CLJ Supp 518; ; [1997] 3
MLJ 249 and Majlis Perbandaran Melaka Bandaraya
Bersejarah v. Yau Jiok Hua (Berniaga Atas Nama Dan Gaya
Tetuan Yau Jiok Hua & Company) [2006] 1 LNS 376; ;
[2006] 5 MLJ 389. The Supreme Court in Arthur Lee Meng
Kwang v. Faber Merlin (M) Bhd & Ors [1986] 2 CLJ 109; ;
[1986] 2 MLJ 193 too earlier expressed a similar rule,
making a distinction between non-observance of rules
and mere technical irregularity. (emphasis added)
[47] In Tang Hak Ju v Pengarah Tanah & Galian Pulau
Pinang & Anor [2017] 2 CLJ 345 at 362, 363 Lim Chong
Fong JC (now J) had opined:
[54] The defendants in reply contended that the absence
of the penal notice wasn’t fatal since the plaintiff had
knowledge of the amended repayment order. In this
respect, the plaintiff was served the order and he has
also previously applied for a stay of execution of the
order in the Court of Appeal and Federal Court.
[55] In Class One Video Distributors Sdn Bhd & Anor v
Chanan Singh Sher Singh & Anor [1997] 3 CLJ 694 at pp.
700-702; ; [1997] 5 MLJ 209, Haidar J (later CJ (Malaya))
held as follows at 215-216:
In this case, though the order was not personally served
on the second defendant, I am satisfied that the second
defendant - having had the benefits of counsel’s advice -
is deemed to know of the terms of the order. In any
event, the second defendant did not deny that he had
knowledge of the terms of the order. The word
‘otherwise’ in r.7(6) would be wide enough to cover this
situation. In the circumstances, the conditions under
r.7(6) would have been satisfied though the order did not
contain the penal notice required under r.7(4). Though
the service of the copy of the order had not been
‘effected in accordance’ with r.7 - as I said earlier - the
second defendant had full knowledge of the terms of the
order and the order was for the second defendant to
abstain from doing certain acts. In other words, the court
has a discretion to enforce the order if the court was
satisfied that the second defendant had notice of the
order in one of the ways specified that the second
defendant had notice of the order in one of the ways
specified in sub-paras (a) and (b) of para. 6 of O.45 r. 7 of
the RHC. I am so satisfied.
In the circumstances I am of the view that, following
Allport Alfred James, which cited with approval the
English case of Sofroniou, the defect in not complying
with the indorsement of the penal notice is not fatal so
long as the second defendant had knowledge of the
terms of the order. It has been brought to my attention.
[56] In the premises, I held that the non-endorsement of
the penal notice in the amended repayment order
wasn’t fatal to the defendants’ application for leave to
commit the plaintiff. (emphasis added)
J v J [2021] 10 MLJ 784 LACK OF ENDORSEMENT OF A PENAL NOTICE
[44] Having made all the findings above, the court was
further tasked to deal with this final issue.
[45] On this issue, the respondent submitted (encl 113
para 4) that the Court of Appeal in the case of Loh Eng
Leong & Anor v Lo Mun Sen & Sons Sdn Bhd & Anor
[2003] 4 MLJ 284; [2003] 4 CLJ 743 clearly held that ‘a
failure to indorse an order of court with a penal notice is
fatal to an application for committal proceedings’ (see
Held [1]).
[46] In Loh Eng Leong, the order sought to be enforced
was for the rectification of the register of members of
the defendant company. The order was one that must be
done within a prescribed period. However, the time
period within which the act must be done had not been
specified and there was no supplemental order to fix a
time period. The Court of Appeal held (at p 290 (MLJ); at
p 751 (CLJ)) that:
There is noncompliance with this requirement as the time
period within which the act must be done has not been
specified. Neither was there a supplemental order to fix a
time period. The corollary is that the appellants are not
entitled to fix the penal notice indorsed on the order.
The application before us (for leave to commence
committal proceedings) is therefore without merit.
Accordingly, we dismissed it without the need to consider
an adjournment as requested by the respondents.
(Emphasis added.)
[47] Unlike the case in Loh Eng Leong, when and at what
specific times the petitioner was entitled to take the three
children out and from where, were specifically set out in
the access order. The facts that obtain in the case of Loh
Eng Leong can, therefore, be distinguished from the facts
that obtain in this case.
[48] However, Augustine Paul JCA (as His Lordship then
was) speaking for the Court of Appeal in Loh Eng Leong
(at p 286 (MLJ); at p 747 (CLJ) paras g to h) also said:
It is true, as contended by learned counsel for the
appellants, that a failure to indorse the order of court
with a penal notice is fatal to an application for
committal (see Leow Seng Huat v Low Mui Yein [1996] 5
MLJ 381; [1996] 2 BLJ 466; General (RTD) Tan Sri Hashim
Mohd Ali & Anor v Francis a/l MG Mirandah [2000] MLJU
436; Gribbles Pathology (M) Sdn Bhd v Adventist Hospital
& Clinic Services (M) Bhd [2002] MLJU 619; [2003] 1 CLJ
317)
[49] From the facts that obtain in Loh Eng Leong, what
was said by Augustine Paul JCA was not the ratio
decidendi of the case but obiter dicta.
[50] As for the other authorities referred to by His
Lordship Augustine Paul JCA, they can be distinguished as
follows:
(a)in the case of Leow Seng Huat v Low Mui Yein [1996] 5
MLJ 381; [1996] 2 BLJ 466, the order required the wife to
send their child to the husband’s house every Saturday
and as this was a positive act required of the wife, the
court dismissed the committal proceedings for lack of the
indorsement of a penal notice;
(b)in General (RTD) Tan Sri Hashim Mohd Ali & Anor v
Francis a/l MG Mirandah [2000] MLJU 436, the order
sought to be enforced required a payment to be made
by the defendant who failed to make payment and the
application to insert a penal notice was dismissed
because by the time it came up for hearing the timeline
for payment had lapsed and the order was not served
personally on the defendant;
(c)in Gribbles Pathology (M) Sdn Bhd v Adventist Hospital
& Clinic Services (M) Bhd [2002] MLJU 619; [2003] 1 CLJ
317 the injunction order sought to be enforced included
making payments of invoices, verification of invoices and
resolving differences by way of arbitration which the High
Court held to be positive acts that require the
endorsement of a penal notice onto the order sought to
be enforced before it could be enforced; and
(d) in the access order there is no positive act required of
the respondent. If at all there is any act that is required, it
is only that the respondent is entitled to be present when
the petitioner is exercising her court-ordered right of
access. The respondent could waive this right, if he so,
wishes. In fact, when he notified the petitioner earlier
that he was not well, the petitioner informed the
respondent ‘Please rest at home while I take them out’
(encl 100 exh CG3).
[51] The following provisions of O 45 r 7 of the ROC 2012
would be relevant and are set out below:
(2) … an order shall not be enforced under rule 5 unless:
(a) a copy of the order had been served personally on
the person required to do or to abstain from doing the
act in question; and
(b) in the case of an order requiring a person to do an
act, the copy has been so served before the expiration of
the time within which he was required to do the act.
(4) There shall be endorsed on the copy of an order
served under this rule a notice in Form 83 informing the
person on whom the copy is served:
(a) In the case of service under paragraph (2), if he
neglects to obey the order within the time specified
therein, or, if the order is to abstain from doing an act,
that if he disobeys the order, he is liable to process of
execution to obey it;
(5) With the copy of an order required to be served
under this rule, being an order requiring a person to do
an act, there shall also be served a copy of any order
made under Order 3 rule 5, extending or abridging the
time for doing the act and where the first-mentioned
order was made under rule 5(3) or 6 of this Order, a copy
of the previous order requiring the act to be done.
(6) An order requiring a person to abstain from doing an
act may be enforced under rule 5 notwithstanding that
service of a copy of the order has not been effected in
accordance with this rule if the Court is satisfied that,
pending such service, the person against whom or
against whose property is sought to enforce the order
has notice thereof either:
(a) by being present when the order was made; or
(b) by being notified of the terms of the order, whether,
by telephone, telegram or otherwise.
(7) Without prejudice to its power under Order 62, rule
5, the Court may dispense with service of a copy of an
order under this rule if it thinks it just to do so.
(Emphasis added.)
[52] The draft of the access order as signed off by both
the solicitors for the petitioner and the respondent can be
seen in encl 93 exh CG1. It was not indorsed with a penal
notice.
[53] Unlike the case in Leow Seng Huat there was no
necessity for the respondent to bring their children to the
petitioner. Instead, it was the petitioner who had to go
over to the SA to collect them.
OSSG MANAGEMENT SDN [52] Finally, the Applicant has also failed to indorse the
BHD v PLATINUM EDEN Consent Judgement with the requisite penal notice
ASSET MANAGEMENT SDN pursuant to Order 45 Rule 7 (4) of the Rules. The failure
BHD & ANOR [2021] MLJU of the Applicant to indorse the penal notice on the
929 Consent Judgement is fatal.
[53] Order 45 Rule 7(4) of the Rules provides as follows:-
“Service of copy of judgment or order prerequisite to
enforcement under rule 5 (O. 45, r. 7)
(1) …
(2) …
(3) …
(4) There shall be endorsed on the copy of an order
served under this rule a notice in Form 83 informing the
person on whom the copy is served—
(a) in the case of service under paragraph (2), if he
neglects to obey the order within the time specified
therein, or, if the order is to abstain from doing an act,
that if he disobeys the order, he is liable to process of
execution to compel him to obey it; and
(b)in the case of service under paragraph (3), that if the
body corporate neglects to obey the order within the
time so specified or, if the order is to abstain from doing
an act, that if the body corporate disobeys the order, the
body corporate is liable to process of execution to
compel the body to obey it.”
[54] Penal indorsement in the Consent Judgement is a
mandatory precondition as the same requires the parties
to do certain act within a specified time. In Loh Eng
Leong & Anor v Lo Mun Sen & Sons Sdn Bhd & Anor
[2003] 4 CLJ 743, the Court of Appeal ruled, inter alia,
the followings:-
„Rule 7(4) provides that it is only where the order of
court is one that must specify the time period within
which an act must be done that can be indorsed with the
penal notice. Rule 7(2)(b) provides that an order shall
not be enforced under r 5 unless a copy of the order
requiring a person to do an act has been served on him
before the expiration of the time within which he was
required to do the act. Rule 7(4) deals with the
indorsement of the penal notice in the case of service
under r 7(2) informing the person on whom the order is
served that if he neglects to obey the order within the
time specified therein then he is liable to process of
execution to compel him to obey it.
It is therefore clear that where an order of court to do an
act must specify the time within which an act is to be
done then such time must be specified. It is only in such
cases that there can be indorsement with the penal
notice. As the indorsement with the penal notice is a
prerequisite to the making of a committal order which
involves the liberty of the subject it is particularly
important that the relevant rules are duly complied with
(see Nicholls v. Nicholls [1977] 147 NLJ 61; Allport Alfred
James v. Wong Soon Lan [1989] 1 CLJ 271; [1989] 2 CLJ
(Rep) 852).‟
[emphasis added]
[55] In Greenpower Value Sdn Bhd v Universal Trustee &
Ors [2020] MLJU 1051, the High Court in Kuala Lumpur
ruled as follows on the issue of penal notice:-
“Whether a penal notice is a prerequisite
[47] It is the view of this Court if the Consent Order was
meant to have penal implications, it must bear an
endorsement of a penal notice. Only by endorsing the
penal notice will it give notice to the Alleged
Contemnors that they may potentially face penal
sanctions if they fail to abide by the said order. In the
Court of Appeal case of Inter Heritage (M) Sdn Bhd v
ASA Sports Sdn Bhd [2009] 2 CLJ 221, it was held that a
failure to endorse a penal notice was fatally flawed. The
court held as follows:
“Where the body corporate or alleged contemnor is not
severed with the order bearing the appropriate penal
endorsement as required under Order 45 r.7(4), the
application for committal was fatally flawed.”
[48] It would however, be an exception if the words of
the consent order contain undertakings to court or is
coercive in nature.
[49] In Lee Lay Ling v Goh Kim Nam (Cheah Pei Ching,
Co- Respondent) [2014] 8 MLJ 805, Nanthabalan JC (as
he then was) held that even if there was a penal notice,
the terms as contained in the order had to be examined
for substance and must ultimately be one which was
recognised by law as constituting an act, the
disobedience of which would attract the penalties or
punishment which would flow from its breach or
disobedience.
[50] Purely based on the facts of this case, this Court
cannot but arrive at the conclusion that the failure to
endorse the Consent Order with a penal notice is based
on the original intention that the Consent Order was
never meant to be enforced by way of committal
proceedings. This finding is further fortified when parties
then embarked on negotiating the SPA. As such, the
failure to have a Penal Notice endorsed on the said
Consent Order was fatal to the case of the Banks as laid
down in Inter Heritage (M) Sdn Bhd.
[56] In the present case, the Consent Judgment laid
down the obligation of the 1st Respondent to make
payment of the Settlement Sum to the Applicant within
the Settlement Period and/or the Extended Settlement
Period. Hence, the indorsement of the penal notice
under Order 45 Rule 7(4) of the Rules is a mandatory
prerequisite before the same can be executed via
committal proceedings. The failure to insert the said
penal notice is fatal to the application herein.
