SEPTEMBER 5 — It is settled law that committal proceedings are criminal in nature since it involves the liberty of the alleged contemnor. The fundamental principle is that no man’s liberty is to be taken away unless every requirement of the law has been strictly complied with.
Accordingly, the law has provided procedural safeguards in committal proceedings which require strict compliance. The safeguards are in place even prior to the commencement of the committal proceedings.
A fundamental safeguard is the requirement for leave as embodied in Order 52 rule 3 of the Rules of Court 2012 (ROC). Order 52 rule 3(1) stipulates that 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 in accordance with this rule.
Order 52 does not elaborate on the test to be applied when granting leave but Order 52 rule 3(2) specifies two documents to support a leave application. The first is a statement describing amongst others, the alleged contemnor, and the grounds on which he is alleged to be in contempt. The second is an affidavit verifying the facts relied on.
The courts must thoroughly and carefully examine the two documents before granting leave.
In Dewan Perniagaan Melayu Malaysia Negeri Johor v Menteri Besar Johor & Ors [2015], High Court judge Mohd Nazlan (as he then was) analysed the test for granting leave and said as follows:
“My review of the relevant case law authorities suggests that it should by now be considered settled law that leave to file committal proceedings will be granted if a prima facie case of contempt can be established. In the case of Wee Choo Keong v MBf Holdings Bhd & Anor and Another Appeal [1993] 2 MLJ 217, Abdul Hamid Omar LP, delivering the judgment of the Supreme Court, [accepted there must be] a prima facie case for contempt against the [alleged contemnors].”
“In other words, the test required to be met before leave is granted is that the applicant must satisfy that there is a prima facie case of contempt (see Ngu Yen v Canada (Minister of Citizenship And Immigration) [1996] FCJ No 1478 (TD) (QL).”
The learned judge continued:
“The exact formulation of what constitutes ‘prima facie’ in this context does not appear to have been definitively stated. Cases such as Woodsville Sdn Bhd v Tien Ik Enterprises Sdn Bhd & Ors [2009] 3 MLJ 191 and Ronald Philip Devereux & Anor v Majlis Perbandaran Langkawi Bandaraya Pelancongan & Ors [2012] 4 MLJ 665 affirmed that the threshold to be satisfied at leave stage is the prima facie test, without discussing what it entails precisely.
“Indeed, whilst there is an abundance of case law authorities on committal proceedings, the preponderance of which however concerned disputes at the subsequent committal stage or for the setting aside of the leave which, especially for the former, hardly needed to touch on the threshold and prior issue of the ambit of the prima facie test for leave to be granted.”
The learned judge, however, was able to refer to the case of Tan Kang Ho v Mao Sheng Marketing (M) Sdn Bhd & Ors [2015], where High Court judge Wong Kian Kheong (as he then was), after reviewing the relevant legal position and noting the absence of the meaning of ‘prima facie’ case and on the standard of proof required for leave to commence committal proceedings, stated the following principles concerning the leave requirement:
a) the purpose of the leave requirement is to ensure that there is no abuse of the committal procedure. The leave requirement acts as a sieve to ensure that there is a prima facie basis for the committal application;
b) the purpose of the leave requirement is to prevent abuses of the committal procedure. Such a purpose may be fulfilled without the need for such a high standard of proof beyond all reasonable doubt;
c) a prima facie case … is satisfied if:
(i) the statement and verifying affidavit show that the respondent in question has committed a specie of contempt of court, for example, the respondent has breached an injunction or court order; and
(ii) the contents of the verifying affidavit should not be inherently improbable; and
d) the court should keep an open mind and not make any finding of fact as an application for leave to commence committal proceedings is made on an ex parte basis (without hearing the respondent) and the respondent may still raise a reasonable doubt at the end of the committal proceedings.
High Court judge Alice Loke Yee Ching was therefore spot on when she dismissed former prime minister Datuk Seri Najib Razak’s application for leave to initiate committal proceedings against former Attorney General (AG) Tan Sri Ahmad Terrirudin Mohd Salleh for alleged contempt of court having failed to prove a prima facie case for contempt.
The learned judge, in her decision, said Najib’s application was based largely on speculation.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
