CONTEMPT OF COURT (PENGHINAAN KEPADA MAKAMAH)

DEFINITION
Undang-undang penghinaan mahkamah Malaysia berasal daripada tradisi undang-undang Inggeris dan
dicirikan oleh fleksibiliti yang ketara. Fleksibiliti ini menghasilkan pendekatan dan persepsi yang
berubah-ubah oleh hakim yang meninggalkan ketidakpastian dalam bidang undang-undang ini.
Akibatnya, draf Akta Penghinaan Mahkamah 1999 telah dicadangkan kepada kerajaan Malaysia dengan
tujuan utama untuk mengatasi ketidaktentuan undang-undang. Meletakkan peraturan yang komprehensif
dalam statut akan membolehkan akses yang lebih mudah dan kejelasan undang-undang yang lebih jelas
kerana semua peraturan dan prosedur akan ditemui dalam satu perundangan.

Contempt in its origin is being disrespectful to the sovereign which is the king itself as the fountain head
of law and justice, or against his palace where justice was administered. It is not, however, in its primary
meaning of contempt of the King, his person, government, or prerogative, but in its secondary or
derivative meaning of an offence against Courts or persons to whom the judicial functions of the Crown
are delegated that the word contempt understood when used in the technical or legal expression Contempt
of Court. (Ency Of the Laws of England). Contempt of Court is a species of common law created to
protect the administration of justice from interference by any party.

It has often been misunderstood as a power that exists to protect the dignity of judges. As Salmon LJ said,
nothing is further from the truth – it is in fact a power that reposes in a judge for the protection of the
public.
“The archaic description of these proceedings as “contempt of court” is in my view unfortunate and misleading. It
suggests that they are designed to buttress the dignity of the judges and to protect them from insults. Nothing is
further from the truth. No such protection is needed. The sole purpose of proceeding for contempt is to give our
courts power effectively to protect the rights of the public by ensuring that the administration of justice shall not be
obstructed or prevented. This power to commit for what is inappropriately called ‘contempt of court’ is sui generis
and has from time immemorial reposed in a judge for the protection of the public.

Hence, contempt of court simply means the offense of being disobedient to, or disregard of, a court order
or disrespectful towards a court of law. Committal proceedings empower the courts to hold a person in
contempt for refusing to obey a court order. It ensures that the due administration of justice is possible,
and that litigants do not disregard courts orders.

COMMON LAW POSITION

Initially the common law courts only used the power to punish for contempt when the interference with
the administration of justice was in the nature of a public wrong, which came to be known as Criminal
Contempt.

However, in the 17th Century, the Court of Chancery began to use this power to compel obedience to its
orders and decrees, issued to settle disputes between litigants. The exercise of this power by the Courts of
Chancery, enforcing orders in personam came to be known as Civil Contempt.

The basis for the distinction is similar to that between crimes and torts in the law generally – between
public and private wrongs – that is, in its character and purpose. For civil contempt, also known as
“contempt in procedure”, the punishment is remedial and for the benefit of the complainant, whereas for
criminal contempt, the act is one which so threatens the administration of justice that it requires
punishment from a public point of view, which is punitive in nature.

The standard of proof for both types of contempt is beyond reasonable doubt. In the words of Lord
Denning MR in the case of Re Bramblevale Ltd,

“A contempt of court is an offence of a criminal character. A man may be sent to prison for it. It must
satisfactorily proved. To use the time – honoured phrase, it must be proved beyond reasonable doubt,”

In the more recent case of Dean v Dean, the Court of Appeal reiterated,

“It has long been recognised that the procedure in contempt is of a criminal nature and the case against
the alleged contemnor must be proved to the criminal standard of proof.”

MAIN AREAS OF CONCERN:

The Judge, The Advocate, Witnesses

At common law absolute privilege attaches to any statement made by judges, witnesses and advocates
during the course of judicial and quasi-judicial proceedings, the main exceptions being perjury and
contempt of court. In Royal Aquarium v Parkinson Lopes LJ said,

“The authorities established beyond all question this: that neither party, witness, council, jury nor judge,
can be put to answer – civilly or criminally for words spoken in office, that no action for libel or slander
lies whether against judges, council, witnesses, or parties for words spoken in the course of any
proceeding before any court recognised by law and this although the words were written or spoken
maliciously, without justification or excuse, and from personal ill-will or anger against the party defamed.
This “absolute privilege” has been conceded on the grounds of public policy to ensure freedom of speech
where it is essential that freedom of speech exist”.

Its protection attaches to everything said in court and it must equally apply to the contents of documents
tendered in court.

MALAYSIA POSITION

In MALAYSIA, Power to punish for contempt flows from raison d’etre’ for a court of law to uphold the
administration of justice. All courts are empowered to punish for contempt committed when the courts are
in session. The superior courts are empowered to punish any contempt of itself as provided in art 126 of
the Federal Constitution read with s 13 of the Courts of Judicature Act 1964. Article 126 of the Federal
Constitution provides specifically for the power to punish for contempt when it states:

126 Power to punish for contempt

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

[15] As Malaysia does not have any specific legislation to regulate on contempt of court, regard has to be
made to the English common law principle by virtue of s 3 of the Civil Law Act 1956. It was elucidated
in R v Gray [1900] 2 QB 36, the term contempt of court’ has always been referred to as:

… 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 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. The former class belongs to the category which Lord Hardwicke LC
characterised as scandalising a court or a judge. (Emphasis added.)

Hence, In Malaysia, Order 52 of the Rules of Court 2012 gives the court such power to those who commit
such contempt. In Arab-Malaysian Prima Realty Sdn. Bhd. v. Sri Kelangkota-Rakan Engineering
J.V. Sdn. Bhd. &Ors, the purpose of law of contempt of court is to ensure that the administration of
justice is not put injeopardy

Contempt of court may be classified either as

(i) criminal contempt, consisting of words or acts obstructing, or tending to obstruct or interfere with, the
administration of justice, or [ dealt instantly]
(ii) contempt in procedure, otherwise known as civil contempt, consisting of disobedience to the
judgments, orders or other process of the court, and involving a private injury. [Not to be dealt instantly
but according to rules of Court]

This can be best cited by the case of Lee Gee Lam v Timbalan Menteri Hal Ehwal Dalam Negeri,
Malaysia where the court held that contempt is of two kinds, that which interferes with the due course of
justice and pollutes the stream of justice, in so far as it concerns parties to a cause; and that which is
calculated to bring a judge into contempt or lower his authority or to interfere with the lawful process of
the cour

This also can be seen in the Court of Appeal case of Uthayakumar Ponnusamy v Abdul Wahab Abdul
Kassim (Pengarah Penjara Kajang) & Ors 2020 where in that case Uthayakumar was convicted by the
Session Court for sedition and was sentenced to imprisonment. Uthayakumar appealed to the High Court.
Whilst that was happening, Uthayakumar made certain requests to the High Court. His request was
granted. The High Court directed Abdul Wahab (the Director of Kajang Prison) and the Kajang Prison
Wardens to adhere to the orders. Lo and behold, those orders were not complied with. Aggrieved and
disappointed, Uthayakumar commenced contempt proceedings against Abdul Wahab and the Kajang
Prison Wardens.The court of appeal dismissed the appeal. In coming to its decision, the court held that:
Contempt of court in Malaysia can be classified either as a civil contempt or a criminal contempt.
Just because an alleged contempt arises from a criminal proceedings does not automatically make it a
criminal contempt. Whether it is a criminal or civil contempt is dependent on the nature of the contempt.

CIVIL CONTEMPT
Civil contempt is when there is disobedience of judgements, orders or in relation to any process of the
court.It is regarded as contempt of court ; - when fail to comply to act, - to act within the specified time as
required by court order or judgment - disobey the judgment or order requiring a person to abstain from
doing a specified act – act in breach of an undertaking given to court by a person.

As referred to the case of Tiu Shi Kian & Anor v Red Rose Restaurant Sdn Bhd, where the case
provided some elements to be satisfied before a person is said to be in civil contempt. Firstly, there must
be a court order, undertaking or injunction which clearly requires the relevant act to be prohibited by the
said party. In other words, the term must be very clear and precise to avoid difficulty to identify such act
of contempt. Secondly, the contemnor must have knowledge of such notice of prohibition on the order
made by court,thirdly, there has been clear proof that the terms have been broken and the breach must be
proven beyond reasonable doubt, With that, there has been an element of willful disobedience on the
court by court. Tam Lye Chian v Seah Heng Lye states that danger of not complying with court order
may lead destruction of society.Similarly as based on the case of MediaCorp News Pte. Ltd. & Ors. v.
MediaBanc (Johor Bahru) Sdn.Bhd. & Ors states that contempt of court is by disobeying the court
order where the contempt parties had willfully, deliberately disobeyed or disregarding the order of
court.Not only that, as referred to the case of Arab-Malaysian Prima Realty Sdn. Bhd. v. Sri
Kelangkota-RakanEngineering J.V. Sdn. Bhd. & Ors, the court states that purpose of having the rules
on contempt of court is to ensure that the administration of justice is not to be put in jeopardy.For
example, in the case of Tommy Thomas v AG, the appellant knew that the act of publishing defamatory
words is prohibited but appellant still commented by doing such act which shows that
the action is deliberately frustrated the court order.
Tam Lye Chian v Seah Heng Lye where the failure to return an infant is amounting to breach of court in
respect of the visitation order.Article on a Vice-Chancellor from University Utara Malaysia who was
found in contempt of court due failure toabide an injunction issued by High Court. Thus, he was fined
RM5,000 for such action.
Edmund Ming Kwan @ Kwaun Yee Ming, Edmund v Extra Excel (Malaysia) Sdn Bhd & Ors
where the petitioner applied for contempt of court against the respondents on the ground that one of the
respondent has willfully and intentionally made false and misleading statement in his
affidavits. It was held that the respondents cannot compelled an answer to give evidence to make
him prove his guilt. It is upon the petitioner to prove beyond reasonable doubt.
Tay Seng Keng v Tay Ek Seng Co. Sdn Bhd where the appellant was said in contempt of court for
failure to obey the order of court. It was held that the affidavit given by respondents is not sustainable
enough to prove that the appellant is guilty and such contempt is not sustained.
Polygram Records Sdn Bhd v Phua Tai Eng where the plaintiff applied for injunction
preventing the defendant from copyright of recordings of certain songs but the court find that there is no
evidence adduced to show that there were alleged of offending the copies of recording on the relevant
songs. With that, plaintiffhad failed to establish the defendant has committed a breach of terms. It is to
remember that in contempt proceeding, the standard of proof is one beyond reasonable doubt.
Seldon v White where the refusal to comply with the order of taxation and application of
attachment amounts to contempt of court.
The applicability of civil contempt of court can be best illustrated in the case of MBF Holdings Bhd v
HoungHai Kong where injunction to refrain the defendant from printing, publishing etc. against the
plaintiff and failure to do so would amount to contempt of court. 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.

CRIMINAL CONTEMPT
Criminal contempt is when there is a disgrace on the administration of justice. In other words, there is any
interference in regard of the administration of justice where at the point of public view, it is wrong
andimmoral.Eg: The act of threating or insulting a judge, witness and disobeying the order of not
producing evidence.Criminal Contempt of Court can be best illustrated in the case of Attorney General v
Times NewspapersLtd where the due of administration of justice is all citizen have unhindered access to
the constitutionally established in criminal or civil court jurisdiction for determination of disputes as
the legal rights and liabilities. Secondly, they rely on court for remedy that been seek though evidence
adduced before the court and thirdly, the decision is done by no effect from other person but only based
from law. Thus, the conduct of contempt of court is said when either of these are effected.oImprisonment
for a criminal contempt is for a fixed term or alternatively until the court orders the release of the
contemptor. A fine could always be imposed for criminal contempt, sometimes a saddition to a sentence
of imprisonment.
Contempt of court can be divided:
● Contempt in the face of the court
This occurs in court or within the cognizance of court. And this can be best illustrated in the case
of Parashuram Detaram Shamsadani v King Emperor states that the words or act done in the
face of court or in course of proceedings amounting to contempt of court must be in way where it
interfere with course of justice. If the court satisfy there is contempt of court, the court may
invoke the summary jurisdiction and cite the counsel for contempt. Following the Malaysia
principle, Re Kumaraendran (Advocate and Solicitor) states that contempt of court refers to an act
or conduct in open court that immediately disrupt the judicial proceeding. In other words, the
contempt is in the cognizance of the court where the judge was fully aware of it
● Contempt out of court
The conduct committed out of the face of the court that is calculated to interfere
with the proper administration of justice is contempt. In general terms, words spoken or
otherwise published, or acts done, outside court which are intended or likely to interfere with or
obstruct the fair administration of justice are punishable as criminal contempt ofcourtThe
categories are not closed for out of court contempt as well and this is affirmed in the case of
Dobsonv Hastings. An out of court contempt includes ; (i) Firstly, an attack on the integrity or
impartiality of a judge if it interferes with or prejudice those proceedings and (ii) Secondly is that
of a publication sub judice. -Publication contempt in conflict with freedom of speech and
expression in which free speech affected the administration of justice
● Contempt in scandalizing court or judge
Any act done or writing published which is calculated to bring a court or a judge into contempt,
or to lower his authority is a contempt of court. This is the type of contempt being criticized on
their judicial capacity With reference made to the case of AG v Arthur Lee Meng Kwang where
in this case, the advocate andsolicitor criticized the judgment of the court but also alleged that the
decision of the Supreme Court to beunjust and biased. Hence, the court find that there must be a
balance between the right to protect theintegrity of the superior court in the interest of
maintaining public confidence in the judiciary and the right iffree speech which is recognizance
 in Article 10 of the Federal Constitution.Manjeet Singh Dhillon states that this type of contempt
is not obsolete and decided that to find contemptmust a strict proof in which the intention to
disrepute the court or the judge is not necessary. It is sufficientto prove the alleged contemnor
intended to file the said application and affidavit
● Sub-judice
● Sub-judice can be best defined as publications which are intended or likely to impede or prejudice
the administration of justice, that is, comment in the press or elsewhere of a tendentious character
which judges in advance the issues to be decided in proceedings which are pending, may be
punishable as contempt of courtThe law in relation to what may be published concerning current
legal proceedings is sometimes referred to as the sub judice rule.

Landmark decision .
In the case of Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor (Civil Application No.
08(L)-4-06/2020(W), the Attorney General of Malaysia initiated contempt proceedings against
Malaysiakini and its Editor-in-Chief (Respondents). The subject matter of the proceedings centered
around five comments (Comments) published by subscribers of the news portal below an article entitled
“CJ orders all courts to be fully operational from July 1” (Article).

In essence, the comments in question accused the judiciary of corruption and incompetence. As such, the
category of contempt which the Comments fall under is the one known as “scandalizing the court”. In
summary, this means that the Comments are said to pose a real risk of undermining public confidence in
the administration of justice.

The Respondents admitted that the Comments were offensive, contemptuous and inappropriate. Hence,
the sole issue before the Federal Court was whether the Respondents are liable for the Comments which
were posted by third parties. In the end, Malaysiakini was found guilty of contempt and fined
RM500,000.00, but not its Editor-in-Chief.
The Respondents argued that they should not be held liable for contempt of court as they were neither the
publisher nor maker of the Comments. They maintained that they had no knowledge of the Comments
until the police had alerted them to the same.

However, the majority of the judges disagreed and stated that Section 114A of the Evidence Act 1950
presumes Malaysiakini to be the publisher of the Comments. While this presumption is rebuttable, the
Federal Court held that Malaysiakini failed to rebut this legal presumption. It was also held that
Malaysiakini’s knowledge of the Comments could be inferred from the facts of the case.

In reaching its decision, the Court found that Malaysiakini, being the owner of the website, had complete
control over the contents which are published and the way the platform operates. In other words,
Malaysiakini provided the platform which facilitated or allowed the subscribers to post the Comments on
its website. As such, the news portal must accept the risks that come along with it. While Malaysiakini
did have software in place to monitor third party comments, the Court found the software to be
inadequate and inefficient as it did not prevent the offensive substance from being published (more on
this below). The Court also highlighted that Malaysiakini has a well-structured editorial team comprising
of 10 editors and no explanation was provided by any of them as to how the Comments had escaped their
notice. Furthermore, none of the editors had denied knowledge of the Comments.

The Federal Court then decided that Malaysiakini had failed in establishing that it did not have any
knowledge of the contemptuous Comments. It was further held that Malaysiakini ought to have known or
foreseen the comments which the Article would attract at the material time, given that the timing of its
publication coincided with the acquittal of a Malaysian politician (after the prosecution decided to
withdraw all criminal charges) – an event which generated wide public discontent and criticisms.

It is important to note that the Court had also addressed the issue of liability in relation to third-party
publications on social media platforms. In this regard, the Federal Court compared Malaysiakini with
Twitter and held that unlike the news portal, Twitter has no control over what is posted by its users. In
support of this, reference was made to the case of Re: Prashant Bushan & Anor, Suo Motu Contempt
Petition (Crl) No. 1 of 2020, where a lawyer was found guilty of contempt for tweeting contemptuous
remarks, but Twitter itself was not.

As to Malaysiakini’s Editor-in-Chief, the Federal Court held that the Attorney General had failed to
establish the presumption under Section 114A against him as no facts or evidence had been adduced to
show that he had facilitated the publication of the Comments.

When Section 114A of the Evidence Act 1950 was introduced in 2012, the provision was met with much
protests from stakeholders (i.e. platform providers, intermediaries) as they became vulnerable to being
sued for the actions of their users. Their concern was understandable, seeing as the burden is now on them
to prove that they are not the perpetrators. Notwithstanding these protests, Section 114A was still
included as part of the Evidence Act.

Based on the Hansard to the Evidence (Amendment) (No. 2) Bill 2012, it was explained that the rationale
behind the introduction of Section 114A was to deal with the issue of anonymity on the internet and
ensure that users do not exploit the anonymity that the internet can provide to escape the consequences of
their actions. With Section 114A, potential plaintiffs will be able to obtain better cooperation from other
parties such as service providers or intermediaries to identify the actual perpetrators.

The Procedure

A. Ex Parte Application

Committal proceedings comprise of a two-stage process. The first stage is to apply Ex Parte for leave to
commence committal proceedings. When applying for leave, there are 2 documents as set out in Order 52
rule 3(2) of the Rules of Court 2012 that need to be filed in Court i.e.:

1) Notice of Application supported by a statement which sets out:

i. the name(s) and description of the applicant;
ii. the name(s), description and addresses of the of the person sought to be committed (the proposed
contemnor); and
iii. The grounds on which the committal is sought.
.
2) Affidavit in Support verifying the facts averred in the Notice of Application.
.
At the hearing of the Ex Parte application, the Applicant must demonstrate to the Court that he/she has a
prima facie case or a case to be answered by the Court to obtain the leave of court. At this stage, the
hearing is conducted in the absence of the alleged contemnor. However, any alleged contemnor who
wishes to attend the Ex Parte hearing and oppose the leave application can do so by requesting permission
from the court to appear as an “opposed Ex Parte” basis [See: Dato’ Oon Ah Baa & Ors v Eagle &
Pagoda Brand Teck Aun Medical Factory Sdn Bhd & Ors [2003] 7 CLJ 81 and Dato’ Sri Andrew Kam
Tai Yeow v Tan Sri Dato’ Kam Woon Wah & Ors [2022] MLJU 845].

It should also be noted that there is a general duty for the applicant to make full and frank disclosure of all
material facts and failure to do so would result in the Ex Parte order being set aside.

.
B. Inter Partes Application

Upon leave being granted at the Ex Parte stage, Order 52 rule 4 of the Rules of Court 2012 stipulates that
a Notice of Application for an order of committal must then be made to the Court within 14 days from the
date leave was granted. In this Notice of Application, the Applicant must include the grounds of the
alleged contempt otherwise it may be defective. Further, Order 52 rule 4(3) of the Rules of Court 2012
states that the Notice of Application and Affidavit in Support of the application for leave must then be
personally served on the alleged contemnor.

At the hearing of Inter Partes Application, in order to satisfy an application for a committal order, the
applicant must prove to the Court beyond reasonable doubt of the alleged contempt committed. Where
there is a doubt, the Supreme Court in Houng Hai Hong Anor v MBf Holdings Bhd & Anor O’ 3 Other
Appeals [1995] 4 CLJ 427 held that the doubt will be resolved in favour of the person sought to be
committed.

.
Conclusion

As committal proceedings are quasi-criminal in nature which would result in imprisonment should there
be a finding of contempt, the courts should be extra vigilant in committal proceedings, even at the Ex
Parte stage.