EDITORIAL NOTE: THE COURT OF APPEAL'S DECISION HAS BEEN OVERTURNED BY THE FEDERAL COURT DECISION OF TAN POH LEE V TAN BOON THIEN [2021] MLJU 2749. THE ARTICLE BELOW IS MAINTAINED FOR GENERAL INFORMATION PURPOSES ONLY.
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].
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.
GAVIN JAYAPAL
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)
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