Justice delayed is justice denied.

This famous quote has been always the crux of the justice system in
any part of the world so long as human interaction with the court to seek justice. Thus, judicial
mechanics is most crucial factor in the judicial system and to ensure the smooth flow of the system it
must have proper criteria to that. As one of the most important components of the judicial system is
judges, as chief executive officers of the court all other officers of the courts which include lawyers,
prosecutors, clerks of the courts and others they have to pay respect to judges in order to dispense
decisions smoothly and accurately with the main objective is to preserve the due administration of
justice, the dignity of the court and to ensure the independent and impartiality of judiciary.

Lord Russel said that; “Courts or judges alike are open to criticism”

While judges are human and they are subject to criticism, however, there are limits to it and to
certain circumstances it may also leads to a breach of conduct which is punishable under the law -
the act - called contempt of court.

The Court in ARTHUR LEE MENG KUANG [1987] 1 MLJ 206 approved the definition of contempt by
Lord Russel in REG V. GRAY [1990] 2 QB 36, 40 who said that contempt of Court is any act/writing:

a. Calculated to bring the Court/Judge into contempt or lower his authority;

b. To obstruct or interfere with the due course of justice or lawful process of the court.

A. DIFFERENT TYPES OF CONTEMPT

In order to have a better understanding what is constitute contempt of court, it is submitted that
there are two types of contempt:

1. Civil contempt also known as “contempt in procedure” which involves the breach of act or
assists in the breach of an order of Court or an undertaking to the court; and

2. Criminal contempt which are further segregated to the followings types and may arise in
each of the following situation: -:

B. SITUATION IN WHICH ACT OF CONTEMPT OF COURT MAY ARISED

While in Malaysia, we have yet to have a codified law on contempt of court – whereas in the other
part of the world - especially in the UK and India, they have codified the law on contempt of court in
line with the findings of the Phillimore Committee in UK and Sanyal Committee in India.

Nevertheless, our Bar Council had initiated the drafting of the law in line with the codified act as
mentioned above with a view to pass legislation to govern laws of contempt. The drafted legislation
had been presented to the Attorney General for them to pursue the codification of the same.

The followings are the types of contempt of court that has been established in view of the decided
cases on criminal contempt of court: -

a. Contempt in the face of the Court i.e breach of and act and conduct during trial before a
Judge which may take place in a courtroom or in chambers.

This may arise when there is a misbehavior or improper conduct in Court which were
simulated in the following cases:-
  RE KUMARAENDRAN AN ADVOCATE & SLICITOR 1975] 2 MLJ 45: Challenging the
authority of the Court and arguing with the magistrate or judge;
 RE TAI CHOI YU [1999] 1 MLJ 416 : Allegation of bias;
 RE TT RAJAH : Using the court as a political forum

It may arise also where there is obstruction of proper conduct of litigation or an interference
with the administration of justice by:

 CHEAH CHENG HOC V PP [1986] 1 MLJ 299; Concealing documents :

 MALAYSIAN BAR V TAN SRI ABDUL HAMID OMAR 1989] 2 MLJ 281; Denying others
right of access to the Courts :
 KOPERASI SERBAGUNA TAIPING BARAT BERHAD V LIM JOO THONG [1999] 6 MLJ
38; Interfering with the conduct of litigation :

b. Scandalizing the Court i.e making remarks outside the Court that derogatory to Court or the
judge or the administration of justice. The Attorney General or any private person or the
Court itself may institute contempt proceedings. Such situation may arise as illustrated by
the following cases:

 AG & ORS V ARTHUR LEE MENG KUANG [1987] 1 MLJ 206 : after the judgement
was given, the lawyer wrote letter criticizing the judgement of the Supreme Court,
and alleged the decision was unjust and biased. It was held to be contempt and in
breach of Rule 15.
 TRUSTEES OF LEONG SAN THONG KHOO KONGSI V SM IDRIS & ANOR [1990] 1 MLJ
273 : the lawyer criticized the Court and Judge. It was held that he had acceded the
bounds of reasonably courtesy and not acting in good faith. He was fined RM5,000
and cost.
 ATTORNEY GENERAL, MALAYSIA V MANJEET SINGH DILLON [1991] 1 MLJ 67: the
lawyer filed an affidavit containing allegations that the Chief Justice was l unfit to be
the Lord President'. The Attorney General applied to imprison the lawyer for
contempt of Court. The application was allowed, however upon appeal to the
Supreme Court, it was held by majority that the criticism made by the Respondent in
the affidavit indisputably undermined the authority of the Lord President, and
lowered the dignity of the Court in the eyes of the public. Therefore, contempt of
court had been proven against the Respondent. The Court imposed a fine of
RM5,000 or in default three months imprisonment.

c. Sub judice comments i.e. making public comments about a matter that is to be heard or is
being heard in Court as it may prejudice the trial. In Cheak Yoke Thong, Salleh Abas LP
advised that lawyers should refrain from briefing the press.

d. Interfering with the course of justice i.e this is actually a catch-all category covers every
other form of criminal contempt which in any way obstructs or interferes with or deflects
the administration of justice. The action may include intimidation of witnesses, destroying
of evidence, changing notes of evidence, obstructing court officials from performing their
duties and others.
C. JURISDICTION AD POWER TO PUNISH FOR CONTEMPT

The legislation that provides the power to punish contempt are as follows:-

a. Federal Constitution, Article 1 26: The Federal Court, the Court Appeal or the High Court
shall have power to punish any contempt of itself;

b. Courts of Judicature Act 1 964, section 1 3: The Federal Court, the Court of Appeal or the
High Court shall have power to punish any contempt of;

c. Subordinate Courts Act 1 948, section 99A, Third Schedule, Clause 25: Additional powers of
Sessions Courts and Magistrates' Courts: Power to take cognisance of any contempt of Court
and to award punishment for the same, not exceeding, in the case of a Sessions Court, a fine
of three hundred ringgit or imprisonment for six weeks; in the case of a Magistrates' Court
presided over by a First Class Magistrate, a fine of one hundred and fifty ringgit or
imprisonment for three weeks; and in the case of a Magistrates' Court presided over by a
Second Class Magistrate, a fine of fifty ringgit or imprisonment for one week; to such extent
and in such manner as may be prescribed by rules

D. PROCEDURAL SAFEGUARDS THAT NEED TO BE FULLFILED

To ensure that the procedure for the contempt of court is effectively and efficiently carried out and
since the punishment involve for these misconducts are grave and serious, certain procedural need
to be followed prior to the punishment is to be meted out:
a. An opportunity to be heard must be given to the alleged contemnor where it is a
fundamental right of an accused person to be heard and is presumed innocent until proven
otherwise;

 RE KUMARAENDRAN, AN ADVOCATE and SOLICITOR [1975] 2 MLJ 45 : evidence

presented that the advocate was shouting and behaving in a manner which was
most unexpected” to the President of the Session Court when his application to
have the case heard by another President is allowed. However, the advocate then
remarked that if the President repeated his ruling, discharging the advocate outside
the Court, the advocate will “take on” the President. The President pronounce the
advocate in contempt of court and sentenced him to two days imprisonment.

On appeal the court reversed the decision and decided that the remarks were
viewed as contemptuous, however the President had not afforded the advocate a
reasonable opportunity to be heard and had not properly framed a charge of
contempt against him.

b. The alleged contemnor is required to be informed of the precise charge against him, and the
evidence that is tendered to prove the charge;
 RE KUMARAENDRAN, AN ADVOCATE and SOLICITOR [1975] 2 MLJ 45 .

c. The burden of proof is 'proof beyond a reasonable doubt';

 ZAINUR BIN ZAKARIA V PUBLIC PROSECUTOR [2001] 3 MLJ 604. The advocate made
a sworn in affidavit on behalf of his client in support of a motion to disqualify the
two prosecutors from conducting the proceedings. The Appellant was sentenced to
three months imprisonment by the High Court ,the Appellant appeal to the Court of
 Appeal which in turn affirmed the conviction, however when he appealed to the
Federal Court, Federal Court allowed his appeal and set aside the conviction on the
ground that in case of contempt of court, proof must be beyond reasonable doubt.
In this case the charge of contempt of Court against the Appellant had not been
proved beyond reasonable doubt.

d. In the case of contempt in the face of the Court, the judicial officer citing the alleged
contemnor should transfer the proceedings for contempt to another of their colleagues on
the Bench, so that the alleged contemnor is not entirely at the mercy of Presiding Officer,
who may be motivated by ill-will towards him, or may record his own impressions of the
behaviour complained of rather than the true facts.