top of page
  • Writer's pictureGavin Jayapal

The Formal Notice to Show Cause in committal: an analysis of Tan Boon Thien v Tan Poh Lee

Updated: Mar 7, 2022


I have previously written about committal applications. One perennial issue that crops-up in any committal application would be the applicability of O. 52, r. 2B ROC 2012, which states as follows:

2B. Other cases of contempt (O. 52 r. 28)
In all other cases of contempt of Court, a formal notice to show cause why he should not be committed to the prison or fined shall be served personally.

This Formal Notice to Show Cause has never been defined, nor has any form been provided in ROC 2012.

I have seen applications for committal succeed without such the issuance of such a Form. The White Book 2018, in its commentary, suggests that the Formal Notice to Show Cause would be the documents contained in O. 52, r. 4 ROC 2012. This has been a lovely source of confusion for practitioners.

The COA decision in Tan Boon Thien [2020] 3 CLJ 28; [2020] MLJU 829

Recently (June 2020), the Court of Appeal provided some much-needed guidance as to the procedure and form governing O. 52, r. 2B ROC 2012. The case is well-worth reading as it discusses and outlines numerous aspects of committal applications.

The Court of Appeal’s decision grants considerable clarity to practitioners. The learned panel held that the issuance of a Formal Notice to Show Cause is a mandatory prerequisite to the issuance of a committal application:

[30]  With respect, both counsel did not address us on the effect of the clear wording of rule 2B that is “a formal notice to show cause why he should not be committed to the prison or fined shall be served personally.”
[31]  It is trite law that the statutory provisions should be given effect to its plain meaning. The word used in rule 2B is “shall”. There are plethora of authorities on the meaning of the word “shall”.

[34]  Based on the foregoing reasons we are of the considered view that rule 2B requires mandatory compliance and its failure will render the subsequent proceedings invalid. We are of the view that the Rules Committee in its wisdom enacted rule 28 with the purpose that the proposed contemnor be given the first opportunity of answering to the notice to show cause before any application for leave is made. The leave application should be made only after the expiry of the period that the answer should be given and it is only when and where there is no reply or no satisfactory explanation given that any ensuing action is taken. Further, we say that as the result of contempt proceedings being criminal in nature involving the liberty of the proposed contemnor (see the Federal Court decision in Tan Sri Dato’ (Dr) Rozali Ismail & 2 Ors v. Lim Pang Cheong@ George Lim & 4 Ors [2012] 2 AMR 429;; [2012] 2 CLJ 849), any ambiguity and uncertainty must be resolved in favour of the alleged contemnor (see the Supreme Court decision in Huong Hai Hong & Anor v. MBf Holdings Bhd & Anor (and 3 Other Appeals) [1995] 4 CLJ 427). Thus, r.2B should be read in favour of the proposed contemnor. We therefore disagree with the High Court in Tang Hak Ju [supra] and prefer the view and approach in 101 Pelita Plantation Sdn Bhd v. Lah Anyue Ngau & Ors [supra].

[35]  Based on the above reasons we also opine that failure to comply with r.2B is not curable under O.1A and O.2 of the ROC 2012.

The Formal Notice being an absolute necessity

Premised upon this decision, it is apparent that the Formal Notice to Show Cause is an absolute prerequisite, prior to the initiation of any committal application.

The White Book 2018, together with all previous authorities must be read in-light of this decision. Circumspect practitioners would do well to scrupulously adhere to the same.


P.S.: An excellent case that analyses the procedural requirements of O. 52 applications may also be seen in the COA decision of Uthayakumar v Pengarah Penjara Kajang [2020] 2 MLJ 259)


The information contained herein is for general information purposes only. The writer does not endeavour to keep the information up to date and correct, makes no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the article or the information, products, services, law, cases or related graphics contained herein for any purpose. Any reliance you place on such information is therefore strictly at your own risk.

For all you know, this article could have been produced by a chimp with a typewriter, blessed with an infinite loop of time.

Consult your solicitor before you undertake any legal action whatsoever. In no event will the writer be held liable for any loss or damage including without limitation, indirect or consequential loss or damage, or any loss or damage whatsoever arising from loss of data or profits arising out of, or in connection with, the use of this article.

Through this article you are able to link to other websites which are not under the writer’s control. The writer has no control over the nature, content and availability of those sites. The inclusion of any links does not necessarily imply a recommendation or endorse the views expressed within them.


bottom of page