Tuesday, September 5, 2000
Below is the full text of Court of Appeal's judgement on lawyer Zainur
Zakaria's appeal against three-month jail sentence for contempt of court
DALAM MAHKAMAH RAYUAN MALAYSIA
RAYUAN JENAYAH W-05-83-98
Zainur bin Zakaria ........ Perayu
Pendakwa Raya ........ Responden
(Daripada Mahkamah Tinggi Malaya di Kuala Lumpur:
Wilayah Persekutuan Perbicaraan Jenayah Bil. 45-48 & 49-98
Wilayah Persekutuan Permohonan Jenayah Bil. 44-115-98)
Corum: Lamin Hj. Mohd. Yunus, PCA
Ahmad Fairuz, JCA
Mokhtar Hj. Sidin, JCA
JUDGMENT OF THE COURT
The appellant, an advocate and solicitor, practising in the law
of Zainur Zakaria & Co., was convicted for contempt and sentenced to three
months' imprisonment by the learned Judge of the High Court of Malaya at
Kuala Lumpur. The appellant appealed to this Court. We heard oral arguments
of the appeal on the 21st and 22nd March 2000. We then reserved judgment.
now hand down the following judgment.
The circumstances leading to the conviction of the appellant arose
in the course of a criminal case in which the appellant was one of the
defence counsel. The accused in the case was Dato' Seri Anwar Ibrahim
(DSAI). The trial began on the 2nd of November 1998. On the 28th of November
1998 DSAI applied inter alia to disqualify two deputy public prosecutors
from continuing as prosecutors in his trial. The application and the
affidavit of DSAI were filed by the appellant's firm on Saturday, 28th
The affidavit of DSAI exhibited a statutory declaration (SD) of
Mr. Manjeet Singh Dhillon (MSD) as "DSAI-2". MSD is an advocate and
solicitor of the High Court of Malaya and was counsel for Dato'
Nallakaruppan a/l Solaimalai in Kuala Lumpur High Court Criminal Trial No.
45-40-1998. In the SD, MSD referred to a letter written by him to the
Honourable Attorney-General (AG). The letter was dated 12th October 1998
was marked as "MSD-1". According to 'MSD-1', MSD met Dato' Abdul Gani Patail
(AGP) at his office on 2nd October 1998. At that meeting AGP expressed that
he wanted Dato' Nallakaruppan, in exchange for a reduction of the charge
against him (which charge carried a death sentence), in the words used in
'MSD-1', "to cooperate with them and to give information against Anwar
Ibrahim, specifically on matters concerning several married women".
The SD also disclosed that 'MSD-1' was sent to the AG on 12th
October 1998. On 13th October 1998 MSD met the AG. Nothing transpired at
that meeting about the allegations in 'MSD-1'. The AG, however, mentioned
that 'MSD-1' was not clear as to how Dato' Nallakaruppan would plead to
amended charge under the Arms Act. MSD responded that Dato' Nallakaruppan
would plead guilty. The AG asked for a letter to confirm that and either
or Azhar would revert to MSD after that. On 14th October 1998 MSD sent out
the letter confirming that Dato' Nallakaruppan would plead guilty on an
amended charge. On 16th October 1998 MSD telephoned Azhar who confirmed
having received the letter. In that telephone conversation Azhar was alleged
to have said, in the words used in the SD, "there would have to 'be
something else' [i.e. more than just a plea of guilt to an amended charge]".
This is contained in paragraph 7 of the SD which further stated:
"This 'something else' asked for by Encik Azahar was obviously what Dato'
Gani had asked for on 2 October 1998 and confirmed to me a common approach
to extracting evidence from Nallakaruppan a/l Solaimalai by using the I.S.A.
'death threat' as their bargaining chip."
Having referred to the SD and 'MSD-1', DSAI's affidavit, in its paragraph
13, inter alia, stated:
"Dato' Abdul Gani Patail yang tersebut dahulu telah membayangkan (indicated)
bahawa dia akan mempertimbangkan permintaan tersebut jika Datuk
Nallakaruppan bersedia untuk bekerjasama dengan Kamar Peguam Negara dengan
secara palsu membabitkan saya di dalam perlakuan kesalahan-kesalahan seksual
dengan beberapa orang wanita yang telah atau belum berkahwin;"
(The learned High Court Judge had quoted the English version of this
paragraph 13 in his learned judgment and it reads:
"Dato' Abdul Gani Patail had indicated that he would consider the request
Datuk Nallakaruppan was prepared to co-operate with the Attorney-General's
Chambers by falsely implicating me in the commission of sexual offences
various married and unmarried women;")
In paragraph 16 of his affidavit, DSAI said:
"Tindak-tanduk mereka yang dirujuk di atas menunjukkan kedua-dua Dato' Abdul
Gani Patail dan Encik Azahar bin Mohamed telah menyalahgunakan kedudukan
mereka sebagai pegawai-pegawai Kamar Peguam Negara dan sebagai
pendakwa-pendakwa di dalam perbicaraan saya di sini, dengan mencuba sedaya
upaya untuk membuatkan Datuk Nallakaruppan merekapalsu keterangan bagi
membolehkan lebih banyak pertuduhan-pertuduhan dibuat terhadap saya
berkenaan lain-lain kesalahan seksual yang dikatakan."
(The learned High Court Judge, in his judgment quoted the English version
the paragraph thus:
"Their conduct referred to above shows both Dato' Abdul Gani Patail and
Encik Azahar bin Mohamed to have abused their position as officers of the
Attorney-General's Chambers and as prosecutors in my trial herein, by going
out of their way to get Datuk Nallakaruppan to fabricate evidence in order
to prefer more charges against me for other alleged sexual offences.")
In paragraph 18 of the affidavit, DSAI said:
"Setelah menampakkan diri mereka sebagai amat tidak profesional di dalam
perlaksanaan tanggungjawab mereka dan sebagai mempunyai kepentingan peribadi
dalam mempastikan kesabitan kesalahan saya melalui cara yang boleh
dipersoalkan, penglibatan mereka di dalam perbicaraan saya di sini telahpun
membangkitkan keraguan yang mendalam terhadap keutuhan keterangan yang telah
setakat ini dikemukakan oleh pihak pendakwaan."
(The English version as spelt out in the learned Judge's judgment reads:
"Having shown themselves to be highly unprofessional in the performance
their duties and to be personally interested to secure my conviction by
questionable means, their involvement in my trial herein has already raised
grave doubts as to the integrity of the evidence which has so far been
adduced by the prosecution.")
The above quoted paragraphs in particular led DSAI not to believe that it
would be in the interests of justice for AGP and Dato' Azahar to proceed
conduct the prosecution against him.
The application was heard on 30th November 1998. According to the
notes of evidence of the learned judge, the appellant, at the request of
learned judge, read the SD and 'MSD-1'. In answer to the learned judge's
question, the appellant agreed that the SD and 'MSD-1' formed the basis
DSAI's application. The learned judge then read out from various textbooks
the law relating to accomplice evidence and the right of the Public
Prosecutor to reduce a charge or not to charge a person if he cooperates
provides information to the police. To futher questions by the learned
judge, the appellant stated that the allegations in paragraphs 13, 16 and
of DSAI's affidavit are supported by the aforementioned documents - in
particular paragraphs 2-4 of 'MSD-1'. The appellant also agreed with the
learned judge that paragraph 4 of 'MSD-1' is MSD's own conclusion. When
referring to paragraph 3, the learned judge asked:
".... Which part of paragraph 3 suggests that there was a request to
The appellant replied:
"Paragraph 3 must be read with paragraph 4 ....".
The learned judge asked further:
"Does item 3 in paragraph 3 suggest that there was a request
The appellant answered:
"It must be read with paragraph 4".
The learned judge then asked again where in paragraph 3 is the suggestion
that a request was made to fabricate evidence. In answer to that the
appellant, inter alia, said:
"The use of the words "creation and collection of evidence which is
otherwise not there" suggests that Nalla was requested to give evidence
against Dato' Seri Anwar.".
To this the learned judge said:
"You say 'to give evidence' - nothing wrong with that. Where is the evidence
to show that there was a request to fabricate evidence?".
To this the appellant responded:
"In paragraph 4 the use of words to create evidence means Nalla is asked
The learned judge then asked:
"Are you satisfied that the two documents in question sugggest that there
was a request to fabricate evidence?".
The appellant replied:
The notes of evidence then revealed the learned judge's remarks which,
amongst others, stated:
"In the light of the baseless application filed by you which is totally
unsupported by the documents exhibited by you I propose to cite you for
contempt for having attempted to undermine the integrity of this trial.
Before I do so this court will show mercy towards you by dropping all
further proceedings if you tender an unconditional apology to this court,
the AG, to Dato' Gani Patail and to En. Azahar for filing an application
which is absolutely baseless and which is an abuse of the process of court.
(Court to adjourn for half and hour to enable En. Zainur to think about
10.45 Court adjourns."
When the court resumes its proceedings the appellant informed the court
thus - "I have come to a decision that I am unable to tender my apologies."
Then the court said:
"I shall now cite you for contempt of Court.
- En. Zainur Zakaria, I call upon you to show cause why you should not be
punished for contempt of Court for filing a notice of motion with a
supporting affidavit which contains scandalous and contemptuous matters,
particular in paragraphs 13, 16 and 18."
At this juncture, Raja Aziz, one of the counsel representing DSAI informed
the court that he, together with Haji Sulaiman Abdullah, Christopher
Fernando, Gurbachan Singh, Sankara N. Nair, Pawanchik Merican, Kamar Ainiah
and Zulkifli Nordin were representing the appellant. Refusing an application
for adjournment by the appellant's counsel, the learned judge requested
appellant to show cause immediately. The appellant then gave evidence from
the witness box. On this, the notes of evidence shows -
Advocate and Solicitor.
The application was filed upon instructions by my client, Dato' Seri Anwar
Ibrahim. And I did so in the discharge of my professional duty. The
obligations of an advocate and solicitor is not only found in common law
in our case is also, if I may say, enshrined in our Legal Profession Act,
I am not mistaken Sec. 42 requires an advocate and solicitor to uphold
justice without fear or favour. That was my objective in filing this
Sgd: (Datuk Augustine Paul)
No questions by Court.
Sgd: (Datuk Augustine Paul)"
The learned judge then found the appellant guilty of contempt. When asked
address on sentence, the appellant said:
"It was not the intention to commit contempt. When the defence team studied
the application before filing it was based on the documents exhibited. Our
instructions were based on the documents. In the interest of justice it
felt this matter must be brought to attention of Court."
The learned judge then asked the appellant:
"You do not wish to tender an apology in the terms that I described
The appellant replied:
"I regret I am unable to do that".
The court then proceeded to convict the appellant and sentence him to three
Before us, the learned appellant's counsel submitted that the SD
'MSD-1' if read together, would show a strong suggestion of fabrication
evidence. The learned counsel contended that the two deputy public
prosecutors were trying to fabricate evidence. The learned counsel then
invited us to pages 27-30 of the learned judge's grounds of judgment wherein
the learned judge, when referring to exhibit ID14B, said: "At the time he
filed the motion the prosecution had already tendered in evidence exhibit
ID14B of which ZZ, being a senior member of the defence team, must be
aware.". (ZZ, in the grounds of judgment, refers to the appellant). After
quoting the material parts of ID14B, the learned judge then said:
"The pertinent parts of Exhibit ID14B that I have reproduced reveal the
involvement of Dato Nallakaruppan in the alleged relationship between the
accused and Shamsidar. As this exhibit was in the possession of the
prosecution when MSD met AGP, AGP was clearly not asking for ".... evidence
that is otherwise not there ...". As ZZ was aware or ought to have been
aware of the contents of Exhibit ID14B his acceptance of the conclusion
MSD as appearing in paragraph 4 of the letter is sheer recklessness and
negligence at its height. ZZ has in fact expanded on the mildly worded
conclusion of MSD to found an allegation which is completely baseless and
unsupported by the evidence available to him. As a matter of fact the
contents of Exhibit ID14B ought to have put ZZ on guard when he read the
letter." (The accused in the grounds of judgment refers to DSAI whilst
Shamsidar refers to the wife of one Mohamed Azmin). This, urged the learned
counsel, showed that the learned judge had gone off tangent and was not
In response to this submission, the learned counsel for the
respondent argued that the relevant parts of the SD and 'MSD-1' did not
support the appellant's contention that the two DPPs were trying to
fabricate evidence against DSAI. The respondent contended further that an
offence under s.498 Penal Code (i.e. enticing of married women) was
disclosed by ID14B. Under the circumstances, the respondent contended that
the application of the appellant had the effect of trying to influence the
learned judge to hold the view that the evidence so far tendered before
were fabricated. This, consequently, it was submitted had a tendency to
obstruct the ordinary course of justice or to prejudice the trial before
learned judge. As such, the respondent argued that the learned judge had
power and duty to summarily deal with the appellant for contempt.
The learned judge in his grounds of judgment referred to
Attorney-General v. Times Newspapers Ltd. (1974) AC 273 at 302 as an
authority on the purpose of contempt proceedings. The learned judge then
quoted from Lord Russell's judgment in R v. Gray (1900) 2 QB 36 to show
acts constitute contempt of court. We are accordingly of the view that the
learned judge has not erred in his perception of the meaning of contempt
court. In fact, Lord Cross of Chelsea in Attorney-General v. Times
Newspapers Ltd. (supra) said, at page 322,
"...... 'Contempt of court' means an interference with the administration
In the notes of evidence, the learned judge stated that the
application of DSAI was baseless because it was totally unsupported by the
documents exhibited therein. Accordingly the learned judge held that the
application was an attempt to undermine the integrity of the trial of DSAI
and also an abuse of the process of court. Thus, according to the learned
judge, the appellant had committed contempt of court.
In his grounds of judgment, the learned judge referred to paragraph
4 of 'MSD-1' - in particular to the following:
"...... To use the death threat as a means to the extortion of evidence
is otherwise not there (why else make such a demand?) is unforgivable
The learned judge then commented thus -
"MSD was in no position to come to such a conclusion in the absence of
knowledge of the nature of evidence that is contained in the investigation
papers in the hands of the prosecution. The use of the words by him "....
(why else make such a demand?) ....." clearly show that his views were based
on the assumption that the prosecution did not have any evidence at all
as a result, he was asked for evidence ...... "that is otherwise not there."
"....... the conclusion of MSD as contained in paragraph 4 of the letter
be justifiable only if it was arrived at after he had discussed the matter
with his client in order to ascertain what the latter knew. The letter is
dated 12 October 1998. However, paragraph 8 of the SD states that MSD met
his client on 13 October 1998 to convey AGP's demands to him. This shows
that MSD came to his conclusion even before he had discussed the matter
his client to find out what the latter knew. I find support for this in
paragraph 8 of the SD where MSD had said that there was nothing that his
client could have done "....... short of lying". This clearly indicated
up to the 13th MSD did not know what his client knew. It cannot be assumed
that MSD was aware of what his client knew at that point of time as
otherwise there would have been no need for him to refer the matter to his
client which he did. For MSD, therefore, to refer to ".... the extortion
evidence that otherwise not there ...." is ill-advised."
The learned judge then concluded thus -
"In my opinion there is no indication, explicit or subtle, direct or
indirect, in the request for information against the accused by AGP for
giving of any false information. It was an exercise of lawful powers with
undertones of any impropriety. The conversation that transpired at the
meeting as described in paragraph 3 of the letter ought to have made this
plain and patent even to the most uninitiated. It follows that the reading
of anything else into paragraph 3 of the letter is an act of bad faith
calculated to undermine the administration of justice."
Having come to such an opinion, the learned judge then quoted the material
parts of ID14B which in brief revealed the involvement of Dato'
Nallakaruppan in the alleged relationship between DSAI and Shamsidar.
According to the learned judge, ID14B had already been tendered in evidence
when the appellant filed the application. Consequently, the learned judge
was of the view that the appellant, being a senior member of the defence
team was or ought to have been aware of the contents of the ID14B. As such,
the learned judge found that the appellant's acceptance of MSD's conclusion
in paragraph 4 of 'MSD-1' was "sheer recklessness and negligence at its
height". We agree with the learned judge's conclusion and reasonings. We
would however add by pointing out that 'MSD-1' reveals that, at the meeting
between AGP and MSD, AGP expressed that he wanted Dato' Nallakaruppan in
exchange for the reduction of the charge against him (which charge carried
the death sentence), in the words used in 'MSD-1', "to cooperate with
tppellant's allegation of fabrication of evidence by the two deputy public
prosecutors as contained in the affidavit in support of the application,
not supported by the SD and 'MSD-1'.
Consequently, this act of the appellant
is obviously, as correctly put by the learned judge, an act of bad faith.
Under such circumstances, we agree with the learned judge when he held that
the appellant's application was an attempt to undermine the integrity of
trial of DSAI and abuse of the process of court. We are, in fact, of the
view that the appellant's act and conduct are inherently likely to interfere
with the administration of justice as a continuing process in the lower
court (Attorney-General v. Butterworth (1963) 1 QB 696). In this connection,
we would like to refer to paragraph 18 of DSAI's affidavit which alleges
that the deputy public prosecutors' involvement in the trial of DSAI have
already raised grave doubts as to the integrity of the evidence which had
far been adduced by the prosecution. This, in
"Nothing is more incumbent upon courts of justice, than to preseve their
proceedings from being misrepresented; nor is there any thing of more
pernicious consequence, than to prejudice the minds of the public against
persons concerned as parties in causes, before the cause is finally heard."
This, in our view, is most relevant in the light of what the learned judge,
in his grounds of judgment, said -
"This assumes monumental significance in this case in view of its extensive
publicity both at national and international levels."
Thus, for the reasons stated above, we find that the learned judge was right
in holding that the acts and conduct of the appellant sufficiently
constituted contempt of court.
The next issue raised by the appellant was the fact that 'MSD-1'
not denied by the AG when MSD met him at his office. The appellant also
contended that the AG never sought for an adjournment in order to put in
affidavit-in-reply. As such, the appellant submitted, the learned judge
to accept the contents of DSAI's affidavit, the SD and 'MSD-1' as correct.
On this issue, the learned respondent's counsel drew our attention to page
33 of the learned judge's grounds of judgment wherein the learned judge
"In considering whether the motion filed by Messrs. Zainur Zakaria and Co.
was contemptuous I accepted the description as to what transpired between
AGP and MSD at the meeting as stated in the documents annexed to the
At page 43 of the grounds of judgment, the learned judge said:
"The whole basis of the contempt proceedings that I had instituted against
ZZ is anchored on what had transpired at the meeting between AGP and MSD
based on documents filed by ZZ which I had accepted and which were
Because of these findings, the learned respondent's counsel argued that
AG's failure to file affidavit-in-reply was a non-issue. We agree with the
respondent. Consequently, we also agree with the learned judge that the
calling of witnesses by the appellant was unnecessary. The learned judge
therefore right in refusing an adjournment to enable the calling of
The next attack of the learned appellant's counsel was on the charge
which reads: "I shall now cite you for contempt of Court. En. Zainur
Zakaria, I call upon you to show cause why you should not be punished for
contempt of Court for filing a notice of motion with a supporting affidavit
which contains scandalous and contemptuous matters, in particular, in
paragraphs 13, 16 and 18." The learned counsel contended that there are
adequate particulars in that charge. In reply, the learned respondent's
counsel referred us to the case of Balogh v. Crown Court (1974) 3 AER 283
wherein Stephenson LJ, at page 290, said:
"The power of a superior court to commit (or attach) a contemnor to prison
without charge or trial is very ancient, very necessary but very unusual,
not indeed unique. It is as old as the courts themselves and it is necessary
for the performance of their functions of administering justice, whether
they exercise criminal or civil jurisdiction."
We also were referred to a comment made by Mustill LJ, in the case of R
Griffin (88) Cr App R 63 which reads (at page 67) -
"In proceedings for criminal contempt there is no prosecutor, or even a
requirement that a representative of the Crown or of the injured party
should initiate the proceedings. The judge is entitled to proceed of his
motion. There is no summons or indictment, nor is it mandatory for any
written account of the accusation made against him to be furnished to the
contemnor. There is no preliminary enquiry or filtering procedure, such
committal. Depositions are not taken. There is no jury. Nor is the system
adversarial in character. The judge himself enquires into the circumstances,
so far as they are not within his personal knowledge. He identifies the
grounds of complaint, selects the witnesses and investigates what they have
to say (subject to a right of cross-examination), decides on guilt and
pronounces sentence. This summary procedure, which by its nature is to be
used quickly if it is used at all, omits many of the safeguards to which
accused is ordinarily entitled, and for this reason it has bee
The learned appellant's counsel referred us to the case of Coward v.
Stapleton (90) C.L.R. 573 wherein the High Court of Australia, at page 579
and 580, said -
"Even apart from any such express provision, however, it is a
well-recognized principle of law that no person ought to be punished for
contempt of court unless the specific charge against him be distinctly
stated and an opportunity of answering it given to him: In re Pollard; R.
Foster; Ex-parte Isaacs. The gist of the accusation must be made clear to
the person charged, though it is not always necessary to formulate the
charge in a series of specific allegations: Chang Hang Kiu v. Piggott. The
charge having been made sufficiently explicit, the person accused must then
be allowed a reasonable opportunity of being heard in his own defence, that
is to say a reasonable opportunity of placing before the court any
explanation or amplification of his evidence, and any submissions of fact
law, which he may wish the court to consider as bearing either upon the
charge itself or upon the question of punishment."
In Gamalath Ralalage Daniel Appuhamy v. The Queen (1963) AC 474 (referred
us by the learned appellant's counsel) Lord Dilhorne L.C., at page 483,
"It was clearly established in In re Pollard, on a reference to the Judicial
Committee of the Privy Council, that no person should be punished for
contempt of court, which is a criminal offence, unless the specific offence
charged against him be distinctly stated and an opportunity of answering
given to him."
With these authorities in mind, we perused the notes of evidence of the
learned judge and found that the notes abundantly show that the learned
judge had complied with the principles laid down by those authorities. We
are satisfied that the charge contains in clear terms "the gist of the
accusation" against the appellant (Coward v. Stapleton [supra]). The charge,
in the circumstances of the whole proceedings as pictured in the learned
judge's notes of evidence, has "distinctly stated the specific offence"
against the appellant (Gamalath Ralalage Daniel Appuhamy v. The Queen
The learned appellant's counsel also urged us to hold that mens
is a necessary element in contempt offences. However, the learned
respondent's counsel referred us to several authorities which support his
argument that mens rea is not an ingredient of the contempt offence. On
issue, both counsel and the learned judge made reference to the case of
Attorney-General v. Butterwoth & Ors. (supra). The learned appellant's
counsel drew our attention to page 722 and 723 of the report and in
particular to page 722, wherein, Lord Dening M.R., was reported to have
"I think the short answer to this contention is that contempt of court is
criminal offence, punishable summarily by the court itself, and, like all
criminal offences, it requires in general a guilty mind."
On the other hand, the learned respondent's counsel referred us to the
following part of Donovan LJ's judgment in the same case at page 725 of
"I return to the finding in the present case that none of the respondents
had any future proceedings in mind or any intention to interfere with the
course of justice. I regard that state of affairs as immaterial. The
question is whether the respondents' action was calculated so to interfere,
and this involves a consideration not of their state of mind on this
particular point but of the inherent nature of their act: see as to this
decision in Reg. v. Odhams Press Ltd., Ex parte Attorney-General."
At page 726 Donovan LJ, said -
"I conceive the position, however, to be this. Reg. v. Odhams Press Ltd.,
parte Attorney-General makes it clear that an intention to interfere with
the proper administration of justice is not an essential ingredient of the
offence of contempt of court. It is enough if the action complained of is
inherently likely so to interfere. A newspaper article accusing a man of
crime after proceedings have been begun and before his trial plainly answers
that description. But there may be other actions where the likely effect
not self-evident, and further inquiry will have to be made. The present
is an instance. The respondents were within their legal rights in seeking
relieve Greenlees from his honorary posts. But if the object of doing so
not merely to exercise that right for the good of the branch but to punish
him for the evidence which he gave before the Restrictive Practices Court,
and if the taking of such revenge was calculated to interfere with the
administration of justice, then it will be no
We note that Donovan LJ, had said in no uncertain terms that the existence
of any future proceedings in the mind of an offender or the fact that the
offender had any intention to interfere with the course of justice was
immaterial in the consideration of whether the contempt offence had been
committed. We also observe that the remaining judge in the case i.e. Pearson
L.J. had, in his judgment, inter alia, said at page 728 of the report:
"In my judgment, however, such victimisation, because it tends to deter
persons from giving evidence as witnesses in future proceedings, and giving
that evidence frankly and fully and without fear of consequences, is an
interference with the due administration of justice as a continuing process,
and does constitute contempt of court, and can be dealt with summarily under
the inherent jurisdiction."
Pearson L.J. used the term "tends" and not "intends". In fact, both Donovan
L.J. and Pearson L.J., when making those statements addressed themselves
the specific facts before them i.e. interference with witnesses whilst
Denning M.R., on the other hand, was making the above-quoted remark in a
general context. We agree with the view expressed by both the learned Lord
Justices. But before we leave this subject, we would like to refer to the
case of Attorney-General, Malaysia v. Manjeet Singh Dhillon (1991) 1 MLJ,
167. The learned Attorney-General in that case contended that the
respondent's honest intention was no defence to a contempt of court charge.
He referred to the case of Yusof Ali Khan v. State PLD 970 SC 350 wherein
Hamoodur Rahman CJ, inter alia, said -
"No one can be allowed to defame, ridicule or abuse a judge in his public
capacity even with the best of motives because if that sort of thing were
once held to be permissible the whole judicial system would readily be
brought into utter contempt."
After referring to this and several other authorities, Mohamed Yusoff SCJ,
said at page 180: "On this basis I would accept the Attorney-General's
contention as a proper statement of the law." In the same case Gun Chit
SCJ, referred to defence counsel's argument on mens rea. The counsel had
referred the court to several cases from Canada. The Attorney-General,
however, referred the court to several cases from Pakistan and India to
support his submission that the intention of the respondent as a contemnor
was immaterial if the court was satisfied that the criticism amounted to
contempt. After considering both counsel's submissions, Gun Chit Tuan SCJ,
said at page 182:
"In this case, there can be no doubt that the respondent intended to affirm
the affidavits in question and in paras 7, 9 and 11 of the said affidavit
dated 25 April 1989, there are, as already pointed out, statements
containing accusations and allegations which were an attack on Justice Tun
Dato' Abdul Hamid causing unwarranted and defamatory aspersions on his
character, which could be considered to be scurrilously abusive of the
judge, thereby amounting to contempt by scandalizing the court. Even if
respondent was acting on instructions, he has read the statements in his
affidavits and must accept responsibility for the contents. (See the Privy
Council case of Vijaya Wickramatunga Vidyasagara v The Queen.)"
In fact Gun Chit Tuan SCJ, had earlier on said, at page 181:
"Having considered the circumstances in which the words were uttered or
published in the said affidavit, I would prefer to follow the persuasive
authority of the Pakistan Supreme Court case of Yusof Ali Khan v. State,
which it was held, inter alia, that a legal practitioner can be guilty of
contempt of court even for language professedly used in discharge of his
functions as an advocate."
The passages quoted above, in our view, show that mens rea is immaterial
a contempt of court offence. We would however, at this point, like to refer
to the evidence given by the appellant from the witness box to the effect
that the application was filed by him on his client's instructions. On this,
we would refer to the case of M.Y. Shareef v. Judges of Nagpur High Court
(AIR) 1955 S.C. 19, wherein, at page 23, Mahajan C.J., said -
"It cannot be denied that a section of the Bar is under an erroneous
impression that when a counsel is acting in the interests of his client,
in accordance with his instructions he is discharging his legitimate duty
his client even when he signs an application or a pleading which contains
matter scandalizing the Court. They think that when there is conflict
between their obligations to the Court and their duty to the client, the
This misconception has to be rooted out by a clear and emphatic
pronouncement, and we think it should be widely made known that counsel
sign applications or pleadings containing matter scandalizing the Court
without reasonably satisfying themselves about the prima facie existence
adequate grounds therefor, with a view to prevent or delay the course of
justice, are themselves guilty of contempt of Court, and that it is no duty
of a counsel to his client to take any interest in such applications; on
other hand, his duty is to advise his client for refraining from making
allegations of this nature in such applications."
This statement of Mahajan CJ, clearly, in our view, applies to the
He should have advised DSAI against the filing of the application. He had
known of the ID14B at the relevant time. He was also aware of what were
facts and what were conclusions in the MSD-1. Accordingly, we are of the
view that the learned judge was right in holding that the filing of the
application by the appellant "was scandalous, frivolous, vexatious and an
abuse of the process of the Court ......" and a contempt of court. The
learned judge in the court below therefore was right in holding, in the
circumstances of the case before him, that the respondent's intention was
immaterial and the respondent had consequently committed contempt of court.
It was also submitted by the appellant that the learned judge was
wrong in adopting the summary procedure when dealing with the alleged
contempt by the appellant. The learned respondent's counsel argued
otherwise. On this issue we find that the learned judge had reminded
himself of the principles pertaining to the exercise of the summary
procedure as laid down by the cases of Jaginder Singh & Ors. v.
Attorney-General (1983) 1 MLJ 71, Cheah Cheng Hoc v. PP (1986) 1 MLJ 299
Karam Singh v. PP (1975) 1 MLJ 229. The Supreme Court had in Cheah Cheng
Hoc's case (supra) said, at page 301-
"This power must be used sparingly but fearlessly when necessary to prevent
obstruction of justice. We feel that we must leave the exercise of this
awesome power to the good sense of our Judges. We will interfere when this
power is misused."
The High Court of Australia in Bell v. Stewart (1920) 28 CLR 419 had said,
at page 428 -
"The only justification for the summary process of a Court punishing a
person for contempt is to protect the public by guarding the administration
of justice from any obstruction or interference which might affect its
purity, its impartiality or its effectiveness."
Blackburn J. in Skipworth & the Defendant's case (1873) 9 LRQB 230, at page
233, said -
"When an action is pending in the Court and anything is done which has a
tendency to obstruct the ordinary course of justice or to prejudice the
trial, there is a power given to the Courts, by the exercise of a summary
jurisdiction, to deal with and prevent any such matter which should
interfere with the due course of justice; and that power has been exercised,
I believe, from the earliest times that the law has existed."
At page 30 of the grounds of judgment, the learned judge said -
"To further state in paragraph 18 of the affidavit that the involvement
the Senior Deputy Public Prosecutors " .... has already raised grave doubts
as to the integrity of the evidence ...." adduced by the prosecution in
case is an attempt to undermine the integrity of this trial."
Then at page 32 of the grounds of judgment, the learned judge said -
"The allegations against the two Senior Deputy Public Prosecutors interfere
with the due administration of justice as they are of such a nature as to
affect the dignity and authority of the Court's proceedings (see R v Collins
(1954) VLR 46). This becomes particularly significant in this case in the
light of the immense public interest that it has generated. An allegation
that the involvement of the two Senior Deputy Public Prosecutors in this
case has raised grave doubts as to the integrity of the evidence adduced
will seriously affect public confidence in this trial. The motion interferes
with the course of justice or has a tendency to do so. I was therefore of
the view that the filing of the motion by ZZ was scandalous, frivolous,
vexatious and an abuse of the process of the Court with the objective of
undermining the integrity of this trial. It had the tendency to deflect
Court from a strict and unhesitating application of the letter of the law
and from determining the issues exclusively by reference
With these findings made by the learned judge, it is difficult for
us to say that he had, as said by the Supreme Court in Cheah Cheng Hoc'c
case (supra), "misused" the power of the summary procedure. As such we
cannot interfere with the learned judge's exercise of such power.
For the reasons stated above, we dismiss the appeal against
As to sentence, we find that the learned judge has not taken into
consideration any irrelevant matters. Before citing the appellant for
contempt, the learned judge, in fact, offered him the opportunity to
apologise. But the appellant refused to apologise. Again, after finding
appellant guilty of contempt and before proceeding to convict him of the
offence, the learned judge offered him another opportunity to apologise.
Again the appellant refused to apologise. An apology might have even changed
the nature of the punishment. (M.Y. Shareef v. Judges of Nagpur High Court
[AIR 1955 S.C. 19]).
We note that the learned judge had referred to the case of Trustees
of Leong San Tong Khoo Kongsi (Penang) Registered & Ors. v. S.M. Idris &
Anor. and another application [(1990) 1 MLJ 273]. In that case, the 1st
2nd respondents were advocates and solicitors. And that was a 1990 case.
the circumstances have changed. We observe that lately there has been an
increase in contempt offences being committed by advocates and solicitors.
As such we feel that the time is now ripe for imposition of custodial
sentence in contempt offences.
The learned judge had also considered the case of Chandra Sri Ram
Murray Hiebert (1997) 3 CLJ Supp. 518. In that case a journalist committed
the contempt. He was convicted and sentenced to three months' imprisonment.
He appealed to this Court against the conviction and sentence. This court
allowed his appeal on sentence and Denis Ong JCA, at p.360, said:
"The other factor relevant to sentencing is the matter of apology. I accept
that there was an expression of regret by the appellant given early in his
affidavit and that was not discourteous or unbefitting having regard to
circumstances which were unclear to him at that point in time. I accept
that there was an offer to apologize by the appellant if he was told where
in the said article he had offended. But there was no response to his offer.
To my mind, this is not a case where the offender was unwilling to
In the appeal now before us, no such circumstances exist. The appellant
fact adamantly and arrogantly refused to apologise. We, therefore,
respectfully feel that the three months' imprisonment is not excessive.
accordingly dismiss the appeal against sentence.
Dated: 5th September 2000.
(AHMAD FAIRUZ SHEIKH ABDUL HALIM)
Judge, Court of Appeal
(Heard on 21 & 22 March 2000 in Kuala Lumpur)
Counsel For Appellant
Y.M. Raja Aziz Addruse
Hj. Sulaiman Abdullah
Aris Rizal Christopher Fernando
Md. Ariff Md. Yusof
Sankara M. Nair
Solicitors: T/n Sivananthan & Assoc
No. 253, Tingkat 4
Jalan Tun Sambanthan
Counsel For Respondent
Mohd. Yusof Zainal Abidin Jabatan Peguam Negara
K.Muniandy Bahagian Pendakwaan
Zauyah Bee Loth Khan Bangunan Bank Rakyat
Shamsul Sulaiman Kuala Lumpur
Watching brief for the Bar Council
Mah Weng Kwai (on 21st March)
Roy Rajasingam (on 22nd March)