Abdul Aziz bin Mohamed Yatim v Rubiah bte Rahmat

• Jurisdiction: Singapore
• Judge: Sundaresh Menon JC
• Judgment Date: 14 December 2006
• Neutral Citation: [2006] SGHC 231
• Date: 14 December 2006
• Subject Matter: Section 10(1) Civil Law Act (Cap 43, 1999 Rev Ed), O 15 r 6A, O 15 r 7 Rules of Court (Cap 322, R 5, 2006 Rev Ed),Civil contempt,Whether civil contempt proceedings pending against contemnor may be continued against contemnor's personal representative after death of contemnor,Whether order of court enforceable by committal proceedings against third party who was actively involved in contemnor's breach,Contempt of Court,Whether committal proceedings against third party may commence and continue even after death of contemnor
• Docket Number: Originating Summons No 650142 of 2003 (Registrar's Appeal from the Subordinate
• Published date: 18 December 2006
• Defendant Counsel: Mohamed Hashim (Mohamed Hashim & Madelene Sng)
• Court: High Court (Singapore)
• Plaintiff Counsel: Soraya Hafsa bte Ibrahim (Soraya H Ibrahim & Co)

14 December 2006 Judgment reserved.

Sundaresh Menon JC

1 This case raises some issues that concern aspects of the court’s power to uphold its authority and secure obedience to its orders by authorising the initiation of committal proceedings.

2 The respondent, Mr Abdul Aziz bin Mohamed Yatim, was divorced from his wife, the defendant, Madam Rubiah Binte Rahmat (“Madam Rubiah”), on 24 July 2002. The decree of the Syariah Court of the same day gave custody of the sole child of the marriage to Madam Rubiah and further provided that the respondent would have access at stated times and days each week. The order of the Syariah Court in respect of the care and control of their child was registered as an order of the District Court on 18 August 2003 (“the Court Order”). By virtue of s 53(3) of the Administration of Muslim Law Act (Cap 3, 1999 Rev Ed) the order of the Syariah Court when registered acquired the same force and effect for the purposes of enforcement as if it had originally been obtained in the District Court.

3 According to the respondent, Madam Rubiah had breached the Court Order. On 27 October 2003, he obtained leave to commence committal proceedings against the defendant for the alleged breach. He then filed a summons against her on 5 November 2003. A penal notice had not been appended to the Court Order and because of this, no order was made by the learned District Judge who heard the matter. The respondent appealed successfully to the High Court and the matter was then remitted to the District Court. However, before it could be restored for hearing, a tragic development overtook the case. Madam Rubiah passed away.

4 The respondent then applied for an order to be allowed to prosecute the contempt proceedings against Madam Rubiah’s personal representative, Mr Abu Hasrin bin Rahmat (“Mr Abu Hasrin”). The respondent also applied for leave to commence proceedings against Madam Rubiah’s parents, Mr Mustafa bin Kassim @ Rahmat bin Abu Kasim (“Mr Mustafa”) and Madam Nuria bin Wahnan (“Madam Nuria”). The basis for the latter application was that Mr Mustafa and Madam Nuria had allegedly abetted the alleged breach of the Court Order by Madam Rubiah.

5 This application came before the learned District Judge on 30 May 2006 and he ordered, int er alia, that the committal proceedings be allowed to continue against Mr Abu Hasrin in his capacity as personal representative of Madam Rubiah. In addition, the learned District Judge gave liberty to the respondent to apply for an order of committal against Madam Rubiah’s parents. Mr Abu Hasrin, Mr Mustafa and Madam Nuria (collectively “the appellants”) appealed against these orders and the appeal came before me.

The effect of Madam Rubiah’s death on the pending committal proceedings

6 The principal thrust of Mr Abu Hasrin’s case is that the respondent cannot proceed against the personal representative of Madam Rubiah because the right of action in question abates upon Madam Rubiah’s death. The contention is that because contempt proceedings are quasi-criminal in nature, they are personal to the alleged contemnor and cannot survive her death. In response, the respondent relies on several statutory provisions, namely s 10(1) of the Civil Law Act (Cap 43, 1999 Rev Ed) (“the CLA”) and O 15 rr 6A and 7 of the Rules of Court (Cap 322, R5, 2006 Rev Ed) (“the ROC”), and a number of precedents to contend that the proceedings should be allowed to continue notwithstanding the death of Madam Rubiah.

7 In my judgment, the starting point of the analysis is the recognition that not every right of action survives the death of one of the parties. For instance, steps in a divorce proceeding can rarely be taken if either party dies before the decree has been obtained: Purse v Purse [1981] Fam 143 (“Purse”) at 151 citing Beaumont v Beaumont [1933] P 39. As noted in Purse at 151, the fact of death generally renders the process meaningless. Similarly, orders for maintenance or custody cease upon the death of the party in whose favour it is made: Sivakolunthu Kumarasamy v Shanmugam Nagaiah & Anor [1987] SLR 182 (“Sivakolunthu”).

8 The judgment of the Court of Appeal in Sivakolunthu was delivered by Chan Sek Keong JC (as he then was) and the following observation at 190-191 is instructive:

The nature of these proceedings is substantially a claim to enforce the settlement order which at the death of KT Arasu had not been carried out. There is still a res before the court. The performance of the settlement order is not dependent upon KT Arasu being, alive, unlike an order for maintenance or custody. (emphasis added)

9 It is evident from this passage that the Court of Appeal considered that the question in each case depends upon the nature of the proceedings. This is consistent with the following recent pronouncement of the English Court of Appeal in Janan Harb v His Majesty King Fahd bin Abdul Aziz [2006] 1 WLR 578 at [16]:

[I]t is clear that the real question is whether following the death of the King further proceedings can be taken. The answer to the question depends first on the nature of the further proceedings … I then come to the second matter, the true construction of the relevant statutory provisions.

10 The present proceedings are for civil contempt as distinct from criminal contempt. Nonetheless, it is settled law that proceedings for civil contempt are quasi-criminal in nature and attract many of the procedural safeguards familiar to criminal law, including the imposition of a higher burden of proof upon the prosecuting party and the vesting in the alleged contemnor of a right to be apprised of the case against him and of the right to be heard. This is evident from such precedents as Re Bramblevale Ltd [1970] Ch 128, which was accepted in Polygram Records Sdn Bhd and Others v Phua Tai Eng [1984-1985] SLR 810 and in Allport Alfred James v Wong Soon Lan [1988] SLR 987 (later reversed by the Court of Appeal but not on this point). Perhaps the clearest articulation of the relevant principles is contained in the decision of Yong Pung How CJ in Summit Holdings Ltd v Business Software Alliance [1999] 3 SLR 197 where he said as follows at [17]:

There are many differences between a criminal charge and the statement under O 52. However contempt of court, whether civil contempt or criminal contempt, is an offence of a criminal character and must be proved beyond reasonable doubt: Re Bramblevale Ltd [1970] Ch 128. The purpose of the statement is to set out distinctly the grounds which the applicants are proceeding upon and to allow the respondents to have the opportunity of answering them, and, in this respect, its rationale is similar to that of a criminal charge, which is required to be sufficiently particularised so that accused knows the case that he is meeting and has the opportunity of refuting the allegations.

11 The gravamen of the offence is in the disobedience of an order of court by a person subject to it. These facets of the nature of a civil contempt suggest that such proceedings are personal to the alleged contemnor and can only be prosecuted against him or her. In the same way that criminal proceedings are not brought against the representatives of dead persons, proceedings, even in respect of a civil contempt, being essentially criminal in nature, should similarly not be brought or allowed to be prosecuted against the personal representatives of an alleged contemnor who has passed away. In Hambly v Trott (1776) 1 Cowp. 371, 98 E.R. 1136 at 1138, Lord Mansfield famously remarked that “all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender.” In my judgment, this is correct. Once an alleged contemnor dies, the proceedings die with him.

12 It is noteworthy that Mr Mohamed Hashim who appeared for the respondent was not able to support his contention, that such proceedings could be brought or pursued against the personal representatives of an alleged contemnor, with even a single authority directly on the point. It is also significant that in the leading textbook on the subject, Sir David Eady and Professor A.T.H. Smith eds., Arlidge, Eady & Smith on Contempt (Sweet & Maxwell : London, 2005) (“Arlidge et al on Contempt”), the learned authors at paras 12–99 to 12–123 do not list the personal representative of an alleged contemnor among those who may be liable for civil contempt. The underlying justification for this is both philosophical and practical. In principle, criminal responsibility must lie squarely on the shoulders of those who commit the offence. A proxy cannot be made to take the responsibility for another’s crimes. Moreover, as a matter of practicality, if an alleged contemnor has the right to be heard, how is this to be given effect where she is no longer alive? Furthermore, if an adverse finding were made, is the court to impose a fine or a term of imprisonment against the representative, who may have had nothing to do with the offence to begin with? In my judgment, this would plainly be wrong.

13 Mr Mohamed Hashim submitted that one should not “confuse substance and punishment”. He suggested that notwithstanding Madam Rubiah’s demise, it would nonetheless be possible for the court to make a finding of contempt against the personal representative of Madam Rubiah without imposing any punishment. In my judgment, this is untenable. First, it appears to me that the exercise would be entirely academic. Furthermore, it would be wrong to divorce a finding of guilt in quasi-criminal proceedings from the necessary consequences that ought to follow upon that finding. Criminal law is penal in nature. In the context of contempt proceedings, the primary objective of committal proceedings is to uphold the authority of the court by securing compliance and/or punishing non-compliance with its orders. A mere declaration of breach in the present circumstances would tend to undermine that objective.

14 I turn then to consider...