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Shamala A/P Sathiyaseelan V Dr. Jeyaganesh A/L C.Mogarajah&1lagi - 06-7 OF 2009(W) [2010] MYFC 49 (12 November 2010)

DALAM MAHKAMAH PERSEKUTUAN DI MALAYSIA (RUJUKAN DARIPADA MAHKAMAH RAYUAN MENGIKUT PERUNTUKAN DI BAWAH

ARTIKEL 128(2) PERLEMBAGAAN PERSEKUTUAN )

NO. RUJUKAN : 06-7 OF 2009 (W)

ANTARA SHAMALA A/P SATHIYASEELAN

(NO. K/P: 721501-02-5210/A 2138944) …PERAYU

DAN

CORAM:

ZAKI TUN AZMI [CJ] ALAUDDIN DATO’ MOHD SHERIF [PCA]

ARIFIN ZAKARIA [CJM]

RICHARD MALANJUM [CJSS] ZULKEFLI MAKINUDDIN [FCJ]

JUDGMENT OF ARIFIN ZAKARIA [CJM]

[ 1 ] This is a reference by the Court of Appeal under Article 128(2) of the Federal Constitution wherein five constitutional questions were posed to us. Apparently, the reference was made with the consent of all parties. The appeal before the Court of Appeal arose from the decision of the High Court in a family matter. The facts of the case were set out in the judgment of my learned brother CJSS and I do not propose to restate them here.
[ 2 ] At the hearing before us, learned counsel for the first respondent objected to the reference on the ground that leave was granted by the High Court on 6.5.2004 for contempt proceeding to be commenced against the Appellant for breach of the interim order dated 17.4.2003. The interim order inter alia gave the Respondent the right of access to the children.
In the order of 6.5.2004, the High Court further directed the Appellant to bring back the children within the jurisdiction of the Malaysian Court while awaiting the disposal of the case. This became necessary because the Appellant had on 16.4.2004 fled the country together with the two children. And by letter dated
14.5.2004, the Appellant’s Solicitor informed the Respondent’s Solicitor that they have no knowledge of the whereabouts of the Appellant.
[ 3 ] It is true that up to now, the Respondent had only obtained leave to commence contempt proceeding against the Appellant. Therefore, strictly speaking, the Appellant could not be said to be
in contempt of court as yet. But, the Respondent could not proceed further with the contempt proceeding as the Appellant is out of the country. However, judging from her conduct, it is apparent that she has no intention of complying with the orders of the Court.

[ 4 ] In the circumstances, I am of the view that it would be most unjust to the Respondent for this Court to allow the Appellant to avail herself of the judicial process, when it is clear that she has no intention to comply with the court orders. The court should not permit itself to be used by her for her own end or benefit. As stated by my learned brother CJSS, to do so “… would result in the constitutional right of the husband being made illusory irrespective of who succeeds. And it is the solemn duty of this court to ensure that the constitutional rights enshrined in the FC is safeguarded.” The same observation was made by Abdul Hamid bin Omar LP in Wee Choo Keong v. MBf Holdings Bhd. & Anor. and Another Appeal [1993] 3 CLJ at page 213, which reads as follows:

“In this regard, we are mindful of the competing public interest in a litigant having a right to be heard. Although the right to be heard is a fundamental right vested in all litigants, that right however cannot be taken as an absolute right. Where the litigant shows himself to have little or no regard to an order issued against him, then he has to an extent, forfeited his right to be heard or at least postponed that right until he has suitably purged his contempt”.

[ 5 ] In this connection, I would also refer to Hadkinson v. Hadkinson [1952] 2 AER 567 , a decision of the English Court of Appeal, wherein the facts are quite similar to the present case. In that case, it was held inter alia, that where an order related to a child, the court would be adamant on its due observance, for such an order was made in the interests of the welfare of the child, and the court would not tolerate any interference with or disregard of its decisions on those matters, and least of all would permit disobedience of an order that a child should not be removed outside its jurisdiction. It was further held that the mother was not entitled to prosecute or be heard in support of her appeal until she had taken the first and essential step towards purging her contempt by returning the child to the jurisdiction. Lord Denning, in delivering judgment of the Court had this to say at page 575:

“The present case is a good example of a case where the disobedience of the party impedes the course of justice. So long as this boy remains in Australia, it is impossible for this court to enforce its order in respect of him. No good reason is shown why he should not be returned before counsel is heard on the merits of this case, so that, whatever order is made, this court will be able to enforce it. I am prepared to accept the view that in the first instance the mother acted in ignorance of the order, but nevertheless, once she came to know of it, she ought to have put the matter right by bringing the boy back. Until the boy is returned, we must decline to hear her appeal”.

[ 6 ] Reverting to the present case, I am of the firm view that unless and until the two children are brought back, the court should decline to proceed with the reference. Finally, I wish to state that in coming to my decision, I have had the advantage of reading both the judgments of the learned Chief Justice (CJ) and my learned brother Chief Judge of Sabah and Sarawak (CJSS). I entirely agree with the analysis of the law and authorities cited by the learned CJSS in support of his judgment but for the reasons given above, with much regret, I could not agree with the order as proposed by him. As stated by the learned CJ, much time had passed since the leave order was made by the High Court and the Appellant continues to stay out of the jurisdiction. For that reason, the Respondent could not commence the contempt proceeding against the Appellant. In the circumstances, I do not see the need for this Court to grant the Appellant further time to comply with the orders of the court. Orders of the Court must be respected otherwise, the integrity and respect for the judiciary will be seriously undermined.
[ 7 ] In the result, I agree with the learned CJ that the preliminary objection by the Respondent ought, in the circumstances, to be allowed and the reference be dismissed forthwith with costs. Accordingly, the matter is to be remitted to the Court of Appeal for disposal.

Dated : 12.11.2010

TAN SRI ARIFIN BIN ZAKARIA

Chief Judge of Malaya

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