Professional

Prac-ce I
LAW4510

Contempt of Court

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 CONTENT
•  Introduc-on
•  Defini-on
•  Why?
•  Civil Contempt
•  Criminal Contempt
•  Disobedience to Court’s order.
•  Decep-on to Court
•  Ac-ng Without Authority
•  Offensive conduct in Court
•  Contempt in Syariah Court
•  Issues and Conclusion

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 Introduc-on
•  Law of contempt in Malaysia – not codified.
•  Order 52 Rules of High Court 1980 – court
may punish for CoC by order of commiEal.
•  Purpose – to ensure no word are uEered or
acts done which would obstruct
administraGon of jusGce.
•  Important for the protecGon to judges,
parGes, witnesses and the public.

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 Defini-on
•  Contempt of court or contemplus curiae.
•  Any conduct that tends to bring the authority and
the administraGon of the law into disrespect or
disregards or to interfere with or prejudice
parGes, liGgants, their witnesses during the
liGgaGon.
•  The above definiGon does not postulate mens rea
such as intenGon or knowledge or even reason to
believe to accompany the act.
•  However, criminal contempt may require
element of mens rea.
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A contempt can be in any form, any act, any slander,
any contemptuous uEerance, or can be the subject
maEer of any news, report or arGcle or it may be an act
of disobedience of court’s order.

R v Gray

Contempt of court is any act/wriGng:
•  Calculated to bring the court/judge into contempt
or lower his authority.
•  Which interferes with the due course of jusGce or
lawful process of the court
•  Impending and perverGng the course of jusGce
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 Ra-onales
1. To maintain the dignity and authority of the
judge
•  To ensure a fair trial
•  To prevent the obstrucGon of jusGce
2. To maintain the authority of the court
•  To prevent disorder
•  For the witness to be free from fear
3. To ensure members of the public and liGgants
receive jusGce in an untainted form
4. To protect and defend the integrity of jusGce and
the court.

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 Contempt of Court in Malaysia
•  AG v Manjeet Singh Dillon
o  English common law principle of CoC is
applicable in Malaysia by virtue of S 5 CLA
1956
•  Arthur Lee Meng Kwang v Faber Merlin
Malaysia Bhd & Ors
o  The jurisdicGon of the court to deal with
CoC is conferred by the Federal
ConsGtuGon.
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 Categories of Contempt
Civil Contempt
•  Disobedience to court’s order, injuncGon and etc.
•  Breach of undertakings.

Criminal Contempt
•  Contempt in the face of the Court - in the course
of proceedings
•  Contempt in scandalizing the court or judge in
judicial capacity
•  Subjudice comment
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 CIVIL CONTEMPT
•  Involves private injury.
•  Relates to disobedience of judgments, orders or other
court processes.
Example: If a solicitor has given an undertaking and
failed to perform it his conduct will regarded by the
court exercising disciplinary jurisdic<on over its officers
as a civil contempt.
Similarly disobedience to the court’s order may amount
to civil contempt.
•  The vital ingredient in civil contempt is that he must
have acted as an officer of the court in carrying on
legal proceedings.

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 IllustraGve cases
•  Tam Lye Chian v Seah Heng Lye [1999] 8 CLJ
614
Jeffrey tan J cited the Canadian case of
Canadian Metal Co Ltd v Canadian
Broadcas<ng Corp (No 2) [1975] 48 DLR (3rd)
641

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 Disobedience to Court Order
•  Lawyer must be careful when advising the
client when the decision is made.
•  They must obey the decision Gll the order is
set aside.
•  Seldon V Wilde - Refusal to comply with an
order of taxaGon and applicaGon for an
aEachment . It was held that it amount to civil
contempt.

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•  Disobedience of an injuncGon (permanent or
temporary) such as Mareva injuncGon and any
other order such as Anton Pillar order may amount
to civil contempt.
o  Provided that proper noGce is properly issued
and the compliance is impossible.
MBF Holdings BHD V Houng Hai Kong
InjuncGon to refrain the defendant from
prinGng, circulaGng, distribuGng and publishing
any allegaGon of impropriety or illegality against
the PlainGff.
o  If failed to comply with a wriEen undertaking by
him.
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Interfering with the Due
Administra-on of Jus-ce
•  Strict Approach
Re Freston
Order to pay a certain sum and to deliver certain
documents. The Court held that it was a criminal
contempt and an aEachment was granted.
•  Liberal Approach
Ram Goswamy v PP
Solicitors applied to discharge from represenGng his
client but refused by the judge. The solicitor declined
to carry on. CoA held that such conduct did not
amount to contempt and interference of jusGce.

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 Use of Violence
•  Use of violence such as an assault in
complying with the Order may amount to
contempt of court.

Re Clements
Court’s order to inspect document at the solicitor’s
office but the officer was abused and assaulted by
the solicitor. The court found that the solicitor was
contempt.
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 CRIMINAL CONTEMPT
Criminal Contempt may be divided into 3 broad
categories:
•  Contempt in the face of the Court
•  Contempt in scandalizing the Court
•  Subjudice comment
Contempt proceedings may be insGtuted
by AG, Court, private person.

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Contempt in the face of the Court
•  See Parashuram Detaram Shamsadani v King
Emperor [1945] AC 264

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Two sub-categories of contempt in
the face of the Court
• 
Misbehaviour/Improper conduct in Court

o  Challenging the court authority

ProvocaGve language which amounts to a deliberate
challenge to the judge consGtutes a gross contempt
of the court.
Re Kumaraendran
Abdool Cader J: the solicitor shouted at the
president of the sessions court was held guilty of
criminal contempt.

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o  Arguing with the magistrates
Tarnishing of the image of jusGce will amount to
contempt if there are proper channels for redress.

Karam Singh V PP
Heated argument between the counsel and the
magistrate and learned magistrates summarily
commiEed the counsel to imprisonment. Raja Azlan
Shah set aside the convicGon.
o  AllegaIon of Bias

PP v Seeralan [1985] 2 MLJ 30
Publicity-staGng that magistrate is not independent
and biased, unfair and prejudiced.
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•  Re Zainur Zakaria

Being counsel for DSAI he contended that the charge against
his client was a conspiracy because of :-
1) decision to prosecute is not bona fide.
2) the charge is false.
However the court viewed the allegaGons were serious and
ordered him to provide proof. He gave leEers and affidavit to
the court. Court did not find any substance of the allegaGons
and asked him to retract his statement. He refused and was
held contempt . The principle in R v Gray is applied in
Malaysia.
•  R 9A- allows an A&S by all means to undertake the defence.
•  R 16- Duty to uphold the interest of the client.

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o  Using Court to vent poliIcal anger

Re TT Rajah- The lawyer alleged that the court was not
interested in jusGce and the court running the proceedings for
BriGsh.

o  Advising client to iniIate contempt proceedings
against judge

Anthony Ratos v City Specialist Centre Sdn Bhd,
Peguam Negara Malaysia (intervener) [1996] 3 MLJ
349

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 Offensive Conduct Outside Court
•  It is not contempt in the face of the court.
o  Contempt in scandalizing court or judge.
o  PublicaGon of comments on any case if
amount to sub judice and undermining
judicial determinaGon of the truth may
tantamount to criminal contempt.

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•  Obstruc-ng the proper conduct of li-ga-on

o  Concealment of documents

Cheah Cheng Hock v PP

The Court had power to punish for contempt
for forging or altering court documents or
commikng other deceits.
But penalty imposed was too harsh and be
varied to RM1,000.00 or 3 months jailed in
default of payment.
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o  Abuse of process of discovery

Home Office v Harman [1982] 1 All ER 532

o  Denying others the right of access to court

Raymond v Honey [1982] 1 All ER 756

o  Deceiving the court may amount to contempt.
R V Weisz

o  The solicitors cited fic--ous case was found for contempt.
Dr Leela Ratos v Anthony Ratos

o  Misleading the court into gran-ng an adjournment.
Cheah Cheng Hock v PP
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Absence from Court
• 
Solicitor must aEend the court at the date of
hearing. Breach of duty to clients.
Izoura v R
•  There must be intenGon to interfere with the
administraGon of jusGce.
Lai Cheng Chong v PP
The counsel’s failure to aEend the hearing had
prima facie interfered with the administraGon of
jusGce but since the counsel had apologized to
the Court there was no contempt.

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Re John Tan Khee Eng
Solicitor was held to be in contempt of
court aler several failure to aEend in
court.
Weston v Central Criminal Court
Court’s Administrator
If solicitor is able to give good reason
such short noGce to aEend the court,
there will be no contempt.
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 Ac-ng Without Authority
•  A lawyer acGng without jurisdicGon.
Eg. Advocate and solicitor who does not have
cerGficate of pracGce cannot represent his
client in court.
•  Any person who are not qualified to be
admiEed as advocate and solicitor cannot
represent case in Civil court.

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Contempt in scandalizing the Court

•  This is where judges are criGcised in their
judicial capacity outside the court
•  DisGncGon is drawn between discourtesy and
launching virulent aVack on a judge in her
judicial capacity.
•  The former – not contemptuous; the laEer is.
•  Court would also concern itself on
surrounding circumstances leading to remarks
being made before concluding the act
consGtutes contempt.
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 IllustraGve cases
Ex parte Pater (1864) 5 B & S 299 (122 ER 842), where a barrister was
adjudged guilty of contempt in that he wilfully insulted a juryman during the
course of his address to the jury, the wilful insult was treated as an
obstrucGon of the administraGon of jusGce and, accordingly, as a contempt.
Cockburn C.J. observed (5 B. & S. at p.310 (122 E.R. at p.846)): "... they are
words which counsel might have uEered in the honest discharge of his duty
for the purpose of vindicaGng the interests of his client and prevenGng the
other jurors from being prejudiced or unduly influenced by the opinion of the
foreman; and if they had been so uEered, though they were harsh and
offensive to the juryman to whom they were applied, that would be within
the right and privilege of counsel. But if they were uEered with the intenGon
to insult the juryman, then they were an abuse of the privilege of counsel, and
the Judge might treat the uEering of them as a contempt...".
Blackburn J., aler referring to the power of Quarter Sessions to punish "an
unwarrantable obstrucGon of the administraGon of jusGce in the face of the
Court", conGnued (5 B. & S., at p.312 (122 E.R., at p.847)): "... if counsel under
colour of addressing the jury, insults a juryman, or the Court, I cannot doubt
that it would be such an obstrucGon as would be a contempt...".
It follows that a person who wilfully insults a judge in the course of
proceedings in court does something which necessarily interferes, or tends to
interfere, with the course of jusGce. 28
Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin & Ors
It is the most serious maTer to allege bias against judge
par<cularly unfounded and unwarranted allega<on of
bias.

Hilborne v Law Society of Singapore [1996] 3 MLJ 349

Arthur Lee Meng Kwang v Faber Merlin Malaysia Bhd &
Ors [1987] 1 MLJ 206

Trustees of Leong San Tong Khoo Kongsi (Penang)
Registered & Ors v SM Idris & Anor [1990] 1 MLJ 273
Issuing press statement criGcizing the judgment .
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AG v Manjeet Singh Dillon [1991] 1 MLJ 167
CriGcism in affidavit that the CJ is unfit to be the
Lord President. Any criGcism must be given
within the ambit reasonable courtesy and in
good faith.

Lewis v His Honour Judge Ogden (1984) 153
CLR 682

Queen v Gray [1900] 2 QB 36

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 Subjudice Comments
•  Pre-condiGon – there must be a ‘pending
proceeding’.
•  Criminal maVers – case is pending unGl
determinaGon of appeal or unGl Gme for
giving noGce of appeal has elapsed. R v Davies
•  Civil maVers – acGon comes to an end aler
judgment delivered, although Gme for
entering appeal has not elapsed. Evans v
Bevan

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 IllustraGve cases
•  Test – whether comments tend to interfere with
due course of jus<ce.
AG v Times Newspaper Ltd
Sunday Gmes published an arGcle criGcizing the
law on liability and the method of assessing the
damages. The HoL held that it was contempt of
court to publish such an arGcle which may give
rise to the real risk that the fair trial of an acGon
would be prejudiced.

Higgins V Richards (1912) 28 TLR 202
Adverse comments on a party need not refer to
subject maEer of pending proceedings; sufficient if it is
clear that comments tend to prejudice trial of the
acGon. 32
•  Making public comments before/during trial

Chandra Sri Ram v Murray Hiebert
The appellant is commiEed to 6 weeks
imprisonment for wriGng an arGcle which
consGtutes CoC.

•  Refraining from briefing press

Cheak Yoke Thong v PP [1984] 1 MLJ 311

Salleh Abas: Lawyers should refrain themselves from
briefing the press on maEers pending before the
court. Lawyers are bound by Rules 45, 46, 47.
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•  Interference in the form of public criGcism
PP v Seeralan S/O Suppiah
Publicity-staGng that magistrate is not
independent and biased, unfair and
prejudiced.
AG V Arthur Lee Meng Kwangnν
Contempt in scandalizing court or judge.
CriGcized the decision made by the Supreme
Court and alleged that the decision was biased
and unjust. Although judges and courts are
open to criGcism it must be within the limits of
reasonable courtesy and good faith.
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 Differences Between Criminal and
Civil Contempt
CRIMINAL CIVIL
•  Punishable by *Compensatory in nature
aVachment. •  Remedy for loss resul-ng
from disobedience to an
•  Puni-ve in nature.
order of court.
•  Marks an interference •  Element of mens rea is not
with the administra-on necessary to be proved.
of jus-ce.
•  Requires element of
mens rea

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Procedure for Contempt – in the face
of the Court

Lord Denning in Blackburn JusGces Case says:
Power to punish for contempt is exercised by a
judge in circumstances where he is both the
judge and prosecutor, it is a role that ill befits
him and must be exercised in most rare of
circumstances.

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Procedure for Punishment:

•  Promptly

Malaysian Bar v Tan Sri Dato’ Abd Hamid - should
be reasonable.

•  Summary punishment - requirements
o  Specify the nature of the alleged contempt.
o  Give reasonable opportunity to be heard.
o  The power to punish should be rarely to be
invoked.
o  Really necessary.

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• Courts, in dealing with the contempt
case should maintain by taking the
utmost care that it is not used on
occasions or in cases to which it is
not appropriate.
• It would be beEer for the judge to
refer any misconduct to the DB
rather than they are punished for
contempt of court.
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 Contempt In Syariah Court
•  S220 (1) Syariah Civil Procedure Code Enactment 1991-
if contempt in face of the court, no need to serve
noGce to show cause. The person has the right to be
heard.
•  Other cases of contempt noGce to show cause need to
be served personally.
•  SecGon 221- imposing of fine.
•  SecGon 222- power to suspend, vacated or varied the
•  punishment
•  SecGon 223- contempt by corporaGon.
•  SecGon 224- proceedings without authority.

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 Comparison of Contempt in Syariah
and Civil Court
Civil Court Syariah Court

Punishable by aVachment. No clear provision on

Puni-ve in nature. contempt of court.
*Compensatory in nature No exact defini-on and
• Marks an interference with interpreta-on on law of
the administra-on of contempt.
jus-ce. Punishment might be
• Courts of Judicature Act puni-ve and
1964 and RHC 1980 Order compensatory.
52 Rule 1. Syariah Civil Procedure
No Code.

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 Conclusion
•  Contempt of Court can be defined as any conduct
that tends to bring the authority and the
administraGon of the law into disrespect or
disregards or to interfere with or prejudice
parGes, liGgants, their witnesses during the
liGgaGon.
•  Lawyers should avoid any contemptous offence
whether inside or outside the court in order to
maintain the public confidence on the legal
profession.

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