Ch 11 Contempt of Court (CoC) - Occurs when someone disobeys a court order, shows disrespect for the judge, or disrupts

judicial proceedings - Law for CoC: to ensure that no words are uttered/ acts done which would obstruct the administration of justice - "Contemnor" - A person found in contempt of court - To prove contempt, the prosecutor or complainant must prove the 4 elements of contempt: existence of a lawful order the contemnor's knowledge of the order the contemnor's ability to comply the contemnors failure to comply - Law of contempt in Malaysia: not codified O 52 RHC: gives the court the power to punish for CoC by an order of committal O 52: sets out what amounts to contempt and procedure for order of committal. This mostly relates to civil contempt. O 52 r 1B: In all other cases of contempt of court, formal notice to show cause why he should not be committed to prison or fined shall be served personally. So this catch all proviso should cover criminal contempt as well. - 2 types of contempt: civil and criminal (A) Civil contempt - Relates to disobedience of court orders, judgments or other court processes or abstaining from performing the court order, breach of undertaking. Tam Lye Chian v Seah Heng Lye - To allow court orders to be disobeyed would be to thread the road to anarchy. If orders of the court can be treated with disrespect, the whole administration of justice is brought into scorn. (B) Criminal contempt - Conduct that hinders or obstructs justice. - Eg. threatening or insulting a judge or witness and disobeying a subpoena to produce evidence - Bring the very administration of justice generally into disrepute - punishment is imposed to vindicate the court's authority - 3 types: (i) Contempt in the fact of the court Parashuram Detaram Shamsadani v King Emperor - The words/ action would interfere or tend to interfere with the course of justice 1st category: Misbehavior/ improper conduct in court (a) Challenging the authority of court Re Kumaraendran, An Advocate & Solicitor - The words uttered by the advocate constituted insulting & contumacious behavior in

outrageous & provocative language tantamount to a deliberate challenge to the authority of the court gross contempt on the face of the court (b) Argument with Magistrate Karam Singh v PP - magistrate summarily committed counsel to 2 weeks imprisonment - Held: Magistrates power for summary committal should not be invoked unless the ends of justice drastically required it. (c) Allegation of bias: PP v Seeralan - Counsel made several allegations of biasness against the magistrate - Magistrate had fully set out the elements of contempt & the counsel was asked to show cause opportunity to be heard (d) Using court to vent political anger: Re TT Rajah; The Law Society of Singapore v Thampoe, T Rajah - Used grossly offensive and improper expressions and threatening gestures to DPP: called the DPP a government agent, a running dog and called the court an organ of power - Disciplinary Committee: Professional misconduct 2 years suspension. (e) Advising client to initiate contempt proceedings against judge: Anthony Ratos v City Specialisit Centre Sdn Bhd, Peguam Negara Malaysia (Intervener) - Counsel cited for contempt for advising his client to take contempt proceedings against the judge - Held: calculated to embarrassing the judge in the eyes of the world - S14(1) CJA 1964 Judges enjoy total statutory protection against prosecution for action in the station of office. 2nd category: obstructing proper conduct of litigation (a) Concealment of document Cheah Cheng Hoc v PP - The counsel concealed a document as to affect the credibility of a witness in a civil suit - Held: the court has power to punish as contempt any misuse of the courts process e.g. forging/ altering court docs or other deceits of the kind or deceiving the court by deliberately suppressing a fact or giving false facts (b) Abuse of process of discovery Home Office v Harman - It is the duty of solicitor of a party to a civil litigation who obtained possession of docs belonging to the other party by way of discovery, to refrain from using the advantage enjoyed for some ulterior purpose of his own (c) Denying others the right of access to court Raymond v Honey - The denial by the governor of the Rs application to court amounts to ao denial of right

of access to the court - contemptuous (ii) Contempt in scandalizing court/ judge - When judges are critised in their judicial capacity - Distinction between: Discourtesy not contempt Virulent attack contempt. - Courts would also consider the surrounding circumstances. in the course of submission not contempt Lewis v Ogden Counsel made adverse remarks to the jury. Held: Mere discourtesy did not constitute contempt. Contempt proceedings are used to vindicate the integrity of the court and rarely to vindicate the personal dignity of the judge deliberate intention to insult the bench - contempt Queen 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. Judges and Courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of Court. Hilborne v Law Society of Singapore Counsel: Court set a seal on dishonesty Held: improper conduct; offensively critical comment rather than a submission seeking to persuade the court to re-open the appeal AG v Arthur Lee Held: criticism of judgment must be within limits of reasonable courtesy and good faith; In the determining limit of reasonable courtesy, court must have regard for local conditions. AG v Manjeet Singh Millon Affidavit filed by counsel stating that the Chief Justice is unfit to be the Lord President Scandalising the court is not limited to cases where criticism is directed at the judiciary as a whole but include criticism directed to a judge undermine the authority of the Lord President & lower the dignity of the court in he eyes of the public

(iii) Subjudice Comment - pre-condition: there must be a pending proceedings - involves the publication or public discussions of ongoing court proceedings or matters related to it

Criminal: case is pending until determination of appeal or until time for giving notice of appeal has elapsed Civil: case comes to an end after judgment is delivered, although time for entering an appeal has not elapsed

Higgins v Richards - To constitute contempt, adverse comments do not have to refer the subject matter of the proceedings - sufficient if the comments tend to prejudice the trial of the action - If the comments are from Counsel / parties - more serious than from independent sources. Test as to whether there is a subjudice comment: whether the comments tend to interfere with due course of justice. AG v Times Newspaper Ltd - It was a CoC to publish an article expressing an opinion on the merits of a specific issue which was before the court for determination in circumstances - The article published by newspaper gave real risk that the fair trial of the action would be prejudiced (C) Procedure & Punishment - Blackburn Justice case Lord Denning: the power to punish for contempt is exercised by judge who is both judge and prosecutor It is a role that ill befits him & must be exercised in more rare of circumstances - Procedure for punishment for contempt in the face of court (i) Promptly Malaysian Bar v Tan Sri Dato Abdul Hamid bin Omar An applicant intending to cite a party for contempt must do so promptly. Allegation of contempt is a serious matter & should be pursued within reasonable time (ii) Summary punishment (SJ) - A judge of the superior courts has jurisdiction to punish summarily, if the act is one where there is gross interference with the course of justice in a case that is being tried/ is about to be tried - Covers all contempt, not just contempt committed in the face of the court Balogh v Crown Court at St Albans Contempt in the face of the court = contempt which the court can punish of its own motion; could be visited with SJ SJ: great but necessary power to maintain the dignity & authority of the judge and to ensure a fair trial SJ: exercised by the judge of his motion only when it is urgent & imperative to act immediately To punish summarily the court must:

(a) Specify nature of alleged contempt and identify insult or imputation the judge put to it Maharaj v AG for Trinidad and Tobago Counsel said to judge: I say you are guilty of unjudicial conduct Held: Judge failed to explain the particulars & charge committal void Lewis v His Honour Judge Ogden Judge did not formulate charge. Instead referred to transcript - Committal void. PP v Seeralan issued a show cause notice terms were clear (b) Give reasonable opportunity to be heard Re Kumaraendran Unsustainable because J did not give him opportunity to answer the charge. Following Re Pollard:- No person should be punished for contempt of court, which is a criminal offence, unless the specific offence against him is succinctly stated and an opportunity to answer it is given. (D) Who may institute the contempt proceedings? 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. Tommy Thomas v Peguam Negara Malaysia - Issue: Whether HC had jurisdiction suo moto move on its own motion to punish appellant for contempt - RHC O 52 r 4 - Held: HC has jurisdiction to punish for contempt of which it takes cognizance but the jurisdiction is exercisable only in urgent cases where it is imperative for the court to act at once. - Such cases are limited instances where there is gross interference with the course of justice in respect of a case tried, that is under way or has just been concluded. In all other cases, the court should leave it to a party or to the AG to institute contempt proceedings in the ordinary way. (E) The standard proof required to prove contempt Re Bramblevale Ltd - CoC was an offence of a criminal character and must be proved with such strictness as was consistent with the gravity of the offence charged and the court could had to be satisfied beyond reasonable doubt Dean v Dean - CoC, whether civil or criminal, was a common law misdemeanor and it had long been

recognized that it must be proved to the criminal standard of proof i.e. proof beyond reasonable doubt.