Contempt Of Court

 A common law doctrine which empowers courts to punish those who interfere with
the administration of justice
 Contempt of court occurs when someone disobey a court order, shows disrespect
towards judges or disrupts judicial proceedings
 The person who found in contempt of court is known as ‘contemnor’

R v Gray
 Any act done or writing 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 class 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 Court is a
contempt of court

Monatech (M) Sdn Bhd v Jasa Keramat Sdn Bhd

 Contempt of court may be said to be constituted by any conduct that tends to bring
the authority and the administration of the law into disrespect or disregard, or to
interfere with or prejudice parties, litigants, their witnesses during the litigation

Arab-Malaysian Prima Realty Sdn. Bhd. v. Sri Kelangkota-Rakan Engineering J.V. Sdn. Bhd.
& Ors
 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

Sources of Law:

 Federal Constitution
 Common Law

In Malaysia the law on contempt is no codified

Rule 15 Legal Profession (Practice And Etiquette) rules 1978

 An advocate and solicitor shall maintain a respectful attitude towards the Court

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 (quoted R v Gray)
Article 126 FC

 The Federal Court, the Court of Appeal or a High Court shall have power to punish any
contempt of itself

Section 13 CJA

 The Federal Court, the Court of Appeal and the High Court shall have power to punish
any contempt of itself

Order 52 ROC

 Gives court the power to punish for contempt of court by an order of committal
 To ensure that no words are uttered/act done which would obstruct the
administration of justice;
 To maintain the dignity and authority of judge

Third Schedule Para 26 of SCA

 Power to take cognizance of any contempt of court and to award punishment for the
same

Types of contempt

 Civil Contempt
 Criminal Contempt

 Direct contempt: Happen in the presence of judge/disruption of court proceeding

 Indirect contempt: Occurs outside the presence of judge

Civil Contempt (contempt by disobedience/contempt in procedure)

 Refers to disobedience of judgments, orders or other processes in courts

 Refuse to or neglect to do an act required by a judgment or order
 Breach of undertaking given to the court

 Proceedings for civil contempt would normally be commenced by the party

aggrieved.
 A motion issues on affidavits, the alleged contemnor is brought before the court and
has an opportunity to disprove the facts alleged against him.
 If the disobedience is proved, the contemnor can be committed to prison to remain
until he purges himself of contempt by doing the right or undoing the wrong.
MediaCorp News Pte Ltd & Ors v. MediaBanc (Johor Bahru) Sdn Bhd & Ors

 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

O. 45, r. 5 – where any person is required to do an act by a judgment/order but

refuses/neglects to do it or a person disobeys a judgment/order which abstain him from
doing an act, then, an order of committal for contempt of court may be enforced.

O. 52:
Elements of civil contempt:
 Existence of an order
 Contemnor’s knowledge of that order
 Contemnor’s ability to comply with the order (whether it is reasonable for
contemnor to comply with the order)
 Contemnor had failed to comply with the order

Tiu Shi Kian & Anor v Red Rose Restaurant Sdn Bhd

Elements to be satisfied before a person could be cited for civil contempt:

1. 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
2. The terms of the order must be clear and unambiguous otherwise it is difficult to
identify any particular act of contempt
3. 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
4. Clear proof that the terms have been broken and the breach must be proved beyond
all reasonable doubt
5. There must have been an element of willful disobedience

Fairclough & Sons v Manchester Ship Canal Co. (No.2)

 Contempt must be willful and the order of court must have been contumaciously
disregarded
 It is no good if it is casual, accidental or unintentional

Dato Seri Samy Vellu

 F: P obtained a court order to stop D from publishing in newspaper the allegations
against him.
  H: The standard of proof to prove a civil contempt is BRD
 The article was published before D received the order. They were unaware of the
specific terms that would cause a breach of the order
 Therefore, the publication cannot be amounted to contempt of court due to failure
to comply with court order

Criminal Contempt

 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
 Example: Threatening or insulting a judge or witness and disobeying a subpoena to
produce evidence

3 Categories:

 Contempt in the face of court

 Contempt in scandalizing the court/judge in judicial capacity
 Subjudice comment

1. Contempt In The Face Of Court

 Occurs in court or within the cognizance of the court

Re Kumaraendran, an Advocate and Solicitor

 Defence counsel shouted at the witness notwithstanding the advice of the court
 Contempt in the face of the court refers to an act or conduct in open court which
immediately disrupts judicial proceedings
 It is contempt in the cognizance of the court where all the circumstances are in the
personal knowledge of the judge

Parashuram Detaram Shamsadani v King Emperor

 Words or actions in the face of the court must be such as would interfere or tend to
interfere with the course of justice

2 types of contempt in face of court:

 Misbehavior/improper conduct in court
 Obstructing the proper conduct of litigation
Misbehavior/ improper conduct in court

Challenge the authority of court:

Re Kumaraendran, An Advocate & Solicitor

 F: The defence counsel shouted at the witness and failed to conduct the case with
decorum. The advocate had committed contempt of court
 H: The words uttered by the advocate tantamount to gross contempt on the face of
court. However, there were procedural irregularities in that the advocate was not
given an opportunity to show cause. The order of committal was invalid

Argument with Magistrate:

Karam Singh v PP
 F: There was a heated argument between magistrate and counsel. The magistrate
adjourned the matter for 15 minutes and then summarily committed the counsel for
imprisonment for 2 weeks
 H: Magistrate’s power to proceed summarily must never be invoked unless justice
really requires it. The magistrate should have adjourned the matter and report it to
Bar Council

Allegation of bias:

PP v Seeralan
 F: Counsel become emotional while watching brief and made allegations of biasness
against the magistrate
 He continued to make allegations of bias against the bench and said that he would
apply to have another magistrate to hear the inquest
 H: The counsel whom continuously criticized the court as biased, unfair and
prejudiced clearly showed arrogance and insolence towards Magistrate. It clearly
amounted to contempt of court of a serious kind without mitigating factor

In Re Tai Choi Yu
 F: Counsel applied to disqualify the trial judge. Counsel alleged that the trial judge
had ruled unfavourably on the counsel’s credibility in another suit therefore there
was a likelihood of the trial judge being biased or impartial against the counsel in the
material suit
 H: The nature of the contempt committed by the counsel, if condoned would impair
the public’s confidence in the integrity of the judiciary and consequently imperil the
administration of justice in this country
Using the court to vent political anger:

The Law Society Of Singapore v Thampoe T Rajah

 F: The counsel called the DPP a running dog and called the court a police court and
used improper expressions and used threatening gestures against defence counsel
 H: Counsel’s conduct = professional misconduct and contempt of court

Advise client to commence contempt proceeding against judge:

Anthony Ratos v City Specialist Centre Sdn Bhd, Peguam Negara, Malaysia
 F: The counsel was cited for contempt for advising his client to take contempt
proceeding against the judge
 H: the counsel’s action is to embarrass the judge in the eyes of the world. S. 14 CJA
gives judges immunity of law against all prosecution in their office

Obstructing the proper conduct of litigation

Concealment of document:

Cheah Cheng Hoc v PP

 F: An A&S was charged and committed for contempt as he concealed a document as
to affect the credibility of witness
 H: Court has power to punish any contempt any misuse of the court’s process like
deceiving the court by deliberately suppressing the facts or giving false facts

Abuse of process of discovery:

Home Office v Harman

 F: A counsel obtained documents by way of discovery. He had given undertaking not
to use the document for other purposes except for the case. However, he allowed
the journalist to access and publishes the documents which was about the highly
critical article about the Home Ministry
 H: The counsel who obtained the documents by way of discovery is refrained from
using it for his own purpose. Such action amounts to contempt of court

Denying others the right to access to court:

Raymond v Honey
F: R was imprisoned. H was the governor of prison. R’s letter to his solicitor was stopped by
H. R then applied to court to commit H for contempt of stopping his letter. H stopped the
application.
H: The governor who denied R’s application to court was denying the right to access to the
court. It amounts to contempt of court.

2. Contempt in scandalizing the court/judge in judicial capacity (Out of court)

 When the judges are criticized in their judicial capacity

 Purpose: To prohibit scandalous, libelous, defamatory attack/abuse of judge/court
 An attack on the integrity or impartiality of a judge if it interferes with or prejudices
those proceedings and (ii) a publication sub judice
 These two types of contempt are also known as publication contempt as it involves
publication of material that tends to interfere with the proper administration of
justice

R v Gray
 Contempt by scandalizing involves publications interfering with the due course of
justice
 The offence of scandalizing can be committed regardless of whether the words said
or acts done occur before, during or after a trial or without reference to a particular
trial at all

Hilborne v Law Society of Singapore

 F: After the case is dismissed, the advocate realized that Defendant had put forward
a dishonest case. The advocate then appealed but refused by the court. He then
made the remark ‘the court had set a seal on dishonesty’
 H: The remark constituted improper conduct after the court had refused to re-open
the appeal and it was therefore an offensively critical comment rather than
submission

AG v Arthur Lee
 F: Mr. Arthur (A&S) wrote letters to Supreme Court judges who heard his appeal. He
criticized that the decision of the court as unjust and biased
 H: Even there is criticism of a judgment, the criticism must be within the limits of
reasonable courtesy and good faith. Mr. Arthur had gone outside the limit as his
intention is clearly to scandalize and disrepute the court

Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Ors v SM Idris & Anor
 F: Issued press statement that decision of Supreme Court may lead to lawlessness
and during meeting criticize the judgment
  H: Respondents had exceeded the bounds of reasonable courtesy and good faith and
guilty of contempt of court

AG v Manjeet Singh
 F: Say that Chief Justice is unfit to be Lord President
 H: The criticism made by A&S was directed to a judge and it is an act of scandalizing
the court
 Such criticism would undermine the authority of judge and lower the dignity of court
in the eyes of public
 It amounts to contempt of court

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 scandalizing 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
 Having no knowledge that the alleged conduct or publication amounted to contempt
of court was not a defence for the alleged contemnor

3. Subjudice comment

 Involves commenting on pending legal proceedings which tends to prejudice a fair

and proper trial of these proceedings
 Precondition is that there must be a pending proceedings
 In criminal matters the case is pending until determination of an appeal or until the
time for giving notice of the appeal has elapsed
 In civil matters an action is said to have come to an end after the judgment is
delivered even though the time for entering an appeal has not elapsed
 The law on what may be published about current legal proceedings is known as the
sub judice rule

Loot Ting Yee v. Tan Sri Shiekh Hussain bin Sheikh Mohamed & Ors.

 The question is to decide whether there is contempt and whether the risk of
prejudice to a fair and proper trial of the pending legal proceedings is serious or real
or substantial
Lewis v Ogden

 Mere discourtesy did not constitute contempt

 Contempt proceedings used to vindicate the integrity of the court and rarely to
vindicate the personal dignity of the Judge

Higgins v Richards
 To constitute contempt the adverse comments made need not refer to the subject
matter of the pending proceedings
 It is sufficient if it is clear that the comments tend to prejudice the trial

AG v Times Newspaper
 F: Distillers (a drug company) made a product and caused babies born suffered from
deformities. Times Newspaper then published an article criticized the law relating to
liability of drugs company and directly criticized Distillers
 H: It was a contempt of court to publish an article expressing an opinion before the
court determines the issues. Such article will prejudice the fair trial.
 The test as to whether there is subjudice comment or whether the comments tend
to interfere with the due course of justice

Cheak Yoke Thong v PP

 Lawyers should refrain themselves from briefing the press on matters pending
before the court, especially when the cases have not been properly heard before the
court

Procedure For Punishment For Contempt In the Face of The Court

2 ways of commencing contempt proceedings:

1. By way of instanster or promptly (Summary Proceeding)

2. By summary process (By way of motion)

By way of instanster

A judge is allowed to deal with the matter immediately. It is normally when the contempt
committed before him is in the face of the court
O. 52 R. 2A

If a contempt is committed in the face of the Court, it shall not be necessary to serve a
formal notice to show cause, but the Court shall ensure that the person alleged to be in
contempt understands the nature of the offence alleged against him and has the
opportunity to be heard in his own defence, and the Court shall make a proper record of the
proceedings

Malaysian Bar v Tan Sri Dato’ Abdul Hamid Bin Omar

 Applicant intending to cite a party for contempt must do so promptly

 Contempt of court should be pursued within reasonable time as it is a serious matter

Summary Judgment

 Adopted when the motion is brought before a judge before whom the accused must
appear and show cause why he should not be cited for contempt of court
 A Superior court judge can punish summarily if the act is one where there is gross
interference with the course of justice in a case that is being tried or is about to be
tried

Tommy Thomas v Peguam Negara

 Court can invoke its summary jurisdiction to punish a solicitor

 Summary remedy is available in cases of breaches of undertakings to the court
 The court has power to exercise its summary jurisdiction in punishing the solicitors
whether or not the solicitor is present in court

Balogh v Crown Court

 Contempt should be visited with summary judgment

 It is to maintain dignity and authority of the judge
 It is to be exercised with care and only when the case is clear and beyond reasonable
doubt

O.52 R.3(1)
No application to a Court for an order of committal against any person may be made unless
leave to make such an application has been granted

O.52 R.3(2)

An application for such leave must be made ex parte to the Court by a notice of application
supported by a statement setting out the name and description of the applicant, the name,
description and address of the person sought to be committed and the grounds on which his
committal is sought, and by an affidavit, to be filed before the application is made, verifying
the facts relied on

O.52 R. 4(1)

When leave has been granted under rule 3 to apply for an order of committal, the
application for the order must be made by notice of application to the Court, and, there
must be at least eight clear days between the service of the notice of application and the
day named therein for the hearing

To punish summarily:

1. An applicant intending to cite a party for contempt must do so promptly

Malaysian Bar v Tan Sri Dato’ Abdul Hamid bin Omar

 F: Bar Council applied for an order for committal to prison R for alleged contempt of
court 9 months after the incident
 H: there was inordinate delay in the application
 Allegation of contempt is a serious matter. It should be pursued promptly/within
reasonable time
 Inordinate delay in making the application
 Lapse of 9 months

2. The court must specify the nature of the alleged contempt and identify the
insult/imputation the judge put to it

Maharaj v AG for Trinidad and Tobago

 F: Counsel said to judge in the proceeding: ‘you are guilty of unjudicial conduct’. The
judge then charged the counsel for contempt of court and sentenced to 7 days
imprisonment
  H: The judge failed to explain to the appellant that the contempt with which he
intended to charge him
 Further, he had not been given an opportunity to explain
 The order for committal is set aside

Lewis v His Honour Judge Ogden

 F: Judge without formulating a specific charge but merely identifying that pages of
transcript of Lewis’ closing address which contained objectionable material found
Lewis guilty of contempt
 H: The charge of contempt should specify the nature of contempt that it consists of a
willful insult to the judge and identify the alleged insult

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
O.52 R.2B

 In all other cases of contempt of Court, a formal notice to show cause why he should
not be committed to the prison or fined shall be served personally

3. The judge must give the contemnor reasonable opportunity to be heard

Re Kumaraendran
 H: There were procedural irregularities in that the advocate was not given an
opportunity to show cause
 The order of committal was invalid

Zainur Zakaria v PP
 F: Appellant filed an application for an order that the 2 prosecutors be disqualified
on the basis that they wanted a person to fabricate evidence against Datuk Seri
Anwar Ibrahim. HC held that application was baseless
 The appellant is guilty of contempt and sentenced to 3 months’ imprisonment
 H(FC): Appellant should be given the opportunity to defend himself and to call
witnesses to rebut the allegation
  The summary procedure invoked by learned HC had not been correctly applied
resulting in injustice to appellant

Who may institute the contempt proceedings?

 The court can commence the proceedings of its own motion

 The Attorney General can assume conduct of the proceedings even if the parties do
not wish to pursue a contempt motion
 Related party or person who has interest can initiate contempt proceeding

O. 52 R. 5

 The AG and persons interested in the litigation may also initiate the proceedings

O.52 R.2

 Provides that the Court may, on the application of any party to any cause or matter
or on its own motion, make an order of committal in Form 107

Arthur Lee Meng Kwang v Faber Merlin Malaysia Bhd & Ors

 AG or any private party who has sufficient interest in the matter, or even by the
court itself