Contempt of Court in Malaysia

1. UPPL7:
CONTEMPT OF COURT
❑ Contempt of court is a common law doctrine
which empowers courts to punish those who
interfere with the administration of justice.
❑ In Arab-Malaysian Prima Realty Sdn. Bhd.
v. Sri Kelangkota-Rakan Engineering J.V.
Sdn. Bhd. & Ors. Low Hop Bing J.
commented that public policy and public
interest demand the law of contempt of court
in order to ensure, for example, that court
orders are fulfilled and the ‘due
administration of justice is not put in
jeopardy’.
❑ A person found in contempt of court called
"Contemnor"
SOURCES OF LAW FOR CONTEMPT
! The Malaysian law of contempt is derived
from 2 sources:
(i) Federal Constitution, statutes and Rules of
Court,
(ii) Common law
Jurisdiction & Power
a. Superior Court
! A.126 FC & S.13 CJA: The FC, the COA
and the HC shall have the power to punish
any contempt of itself.
! Order 52 ROC provides for the procedural
vehicle to exercise the courts‘ power to order
committal.
b. Subordinate Courts
! S.99A SCA read with Para 26, Third
Schedule
Power to take cognizance of any contempt of court
and to award punishment for the same… if the
contempt of court is punishable as an offence under
the Penal Code, the court may, in lieu of taking
cognizance thereof, authorize a prosecution.
! Order 52 ROC
! The Constitution, statutes and ROC only
confers general powers to the courts. The
content of the law is still very much
developed in the common law.
! In Dato’ Seri S Samy Vellu v Penerbitan
Sahabat (M) Sdn Bhd & Ors the Court
stated that since there is no specific statute in
Malaysia covering the definition of contempt,
in the meantime the courts have to follow
common law approving the principle
established in Manjeet Singh Dhillon.
! Contempt of court has been regarded sui
generis (unique). The Court in Re Abdul
Aziz’s Application perceives contempt as an
offence sui generis which has been treated as
a criminal matter and falls on the criminal
side of the jurisdiction
CLASSIFICATION
! In general, contempt may be divided into
two:
DISTINGUISHING CASES
! Anuar J in Houng Hai Kong opines that the
distinction between civil and criminal law is
irrelevant. According to His Lordship,
whether the act is scandalising the court or
CIVIL CRIMINAL
N o t i n s t a n t l y b u t
accordingly to ROC.
Dealt instantly.
Relates to disobedience of
court orders, judgments or
other court processes or
a b s t a i n i n g f r o m
performing the court
o r d e r , b r e a c h o f
undertaking
committed when there
is an interference with
the administration of
justice in the nature of a
public wrong that
requires punishment
from the public point of
view, which is punitive
in nature
known as ‘contempt by
disobedience‘/‘contempt
in procedure‘ where its
sanction is remedial,
coercive and for the
benefit of the complainan
Imprisonment for a
criminal contempt is for
a f i x e d t e r m o r
alternatively until the
court orders the release
of the contemnor. A
fine could always be
imposed for criminal
contempt, sometimes as
addition to a sentence
of imprisonment
give rise to a private
injury or wrong at the suit
of another party
P r o c e e d i n g s f o r
criminal contempt
could be commenced
by the court of its own
motion or by the
Attorney General, and
also by an interested
party.
IMK

2. the wilful disobedience of the orders makes
no difference because in both circumstances
the administration of justice is at stake.
! Asia Pacific Parcel Tankers Pte. Ltd. v The
Owners of the Ship or Vessel ‘Normar
Splendour’. The Court took a view that it is
meaningless to have two categories of
contempt since the standard of proof of the
alleged contemptuous act is to the same
exacting standards as in criminal cases.
CIVIL CONTEMPT CASES
! MediaCorp News Pte. Ltd. & Ors. v.
MediaBanc (Johor Bahru) Sdn. Bhd. &
Ors. (Lim Leong Wuoh & Ors., proposed
contempt parties) explained that contempt of
court by disobeying a court order involves
proving that “ …the proposed contempt
parties had wilfully, deliberately disobeying,
or disregarding the order of the court”.
! Arab-Malaysian Prima Realty Sdn. Bhd. v.
Sri Kelangkota-Rakan Engineering J.V.
Sdn. Bhd. & Ors. that public policy and
public interest demand the law of contempt
of court in order to ensure, for example, that
court orders are fulfilled and the ‘due
administration of justice is not put in
jeopardy’.
! Tiu Shi Kian & Anor v Red Rose Restaurant
Sdn Bhd has listed ingredients to be satisfied
before a person could be cited for civil
contempt.
Firstly, there must be a court order, undertaking
or injunction which specifically and unambiguously
requires the relevant act to be done or omitted by
the other party.
Secondly, the alleged contemnor must be shown to
have had proper notice of the terms of the order as
he cannot be held in contempt of what he does not
know.
Thirdly, there must be clear proof that the terms
have been broken and the breach must be proved
beyond all reasonable doubt.
CRIMINAL CONTEMPT CASES
! Attorney General v Times Newspapers Ltd
explains what due administration of justice
means: The due administration of justice
requires first that all citizens should have
unhindered access to the constitutionally
established courts of criminal or civil
jurisdiction for the determination of disputes
as to their legal rights and liabilities;
secondly, that they should be able to rely on
obtaining in the courts the arbitrament of
tribunal which is free from bias against any
party and whose decision will be based on
those facts only that have been proved in
evidence adduced before it in accordance
with the procedure adopted in courts of law;
and thirdly that, once the dispute has been
submitted to a court of law, they should be
able to rely on there being no usurpation by
any other person of the function of that court
to decide it according to law. Conduct which
is calculated to prejudice any of these three
requirements or to undermine the public
confidence that they will be observed is
contempt of court.
! Criminal contempt can be classified into
TWO contempt:
(I) IN THE FACE OF COURT
! Karam Singh v PP and Re Kumaraendran.
In these two cases, upon appeal and revision
by the higher court, the orders of committal
were unsustainable in law and invalid on the
basis of procedural irregularities despite
maintaining the act as gross contempt in the
face of court. The Courts were more
concerned with the rule of natural justice and
the Courts will only resort to summary
procedure when it is in real need.
! Leela Ratos, an advocate was found guilty of
contempt in the face of the court for failing to
give a satisfactory explanation for his client‘s
absence on the hearing date. The High Court
found that the advocate‘s conduct showed a
deliberate attempt to mislead the court or to
disrupt the proceeding by maneuvering an
adjournment.
! Cheah Cheng Hoc v PP: Concealment of
document
(II) OUTSIDE THE COURT
Contempt by 1 scandalising prohibits verbal or
written attacks upon judges or courts.
! R v Gray which Lord Russell of Killoween
CJ defined as: … Any act done or writing
in the face of the court
(in facie)
outside the court (ex
facie).
occurs in court or
within the cognisance
of the court.
(i) Scandalising Court
(ii) Subjudice
IMK

3. published calculated to bring a court or a
judge of the court into contempt, or to lower
his authority, is a contempt of court. That is
one case of contempt. Further, any act done
or writing published calculated to obstruct or
interfere with the due course of justice or the
lawful process of the courts is a contempt of
court.
! Arthur Lee Meng Kwang, the Supreme
Court found that the advocate not only
criticised the judgment of the Court but also
alleged the decision of the Supreme Court to
be unjust and biased. The Supreme Court
recognised that there must be a balance
between the right to protect the integrity of
the superior courts in the interest of
maintaining public confidence in the
judiciary and the right of free speech which is
recognised in Article 10 of the Constitution.
! PP v The Straits Times Press Ltd The Court
of Appeal also held that in order to establish
contempt of court as the result of a
publication scandalising the court or
interfering with the course of justice,
intention or mens rea on the part of the
alleged contemnor was not an essential
ingredient and having no knowledge that the
alleged conduct or publication amounted to
contempt of court was not a defence for the
alleged contemnor.
On 2. subjudice, this category involves commenting
on pending legal proceedings, which tends to
prejudice a fair and proper trial of these
proceedings.
! Loot Ting Yee v. Tan Sri Shiekh Hussain bin
Sheikh Mohamed & Ors. clarified that, “we
feel that the real question for the court in this
case is to decide whether there is contempt, is
whether the risk of prejudice to a fair and
proper trial of the pending legal proceedings
is serious or real or substantial”.
! To establish liability under sub judice rule,
Murray Hiebert rules that it is not necessary
to prove affirmatively that there had been an
actual interference with the administration of
justice by reason of offending statements.
PROCEDURE
! How do we determine when does the case
start?
! Criminal: case is pending until determination
of appeal or until time for giving notice of
appeal has elapsed: R v Davies
! Civil: case comes to an end after judgment is
delivered, although time for entering an
appeal has not elapsed: Dunn v Beavan
! In general there are 2 ways of commencing
contempt proceedings:
O52R5 - Who may institute the contempt
proceedings?
! Arthur Lee Meng Kwang v Faber Merlin
Malaysia Bhd & Ors Mohamed Azmi SCJ –
AG or any private party who has sufficient
interest in the matter, or even by the court
itself.
Conditions:
! The court must act Promptly:
Malaysian Bar v Tan Sri Dato’ Abdul Hamid bin
Omar - inordinate delay in making the application.
Lapse of 9 months.
! Specify the nature of alleged contempt
(charge)
Maharaj v AG for Trinidad and Tobago
J failed to explain the particulars & charge
Lee Chan Leong v Jurutera Consultant
No formal charge was formulated and framed
against the appellant. The notice to show cause did
not allege any misconduct or criminality on the part
of the appellant requiring an answer
INSTANSTER
(summary
proceeding)
SUMMARY PROCESS
Judge allowed to deal
immediately.
When motion brought
before a judge.
O. 52, r. 2A O.52, r.3(1)(2)
O.52, r. 4(1)
Blackburn Justice:
Lord Denning: Judge
is both judge and
p r o s e c u t o r , a n d
proceeds on his own
motion. To be exercised
o n l y i n r a r e
circumstances.
IMK