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2011 MarsdenLR 4008
HIGH COURT MALAYA, KUALA LUMPUR
SYARIKAT BEKALAN AIR SELANGOR SDN BHD – Appellant
Versus
FADHA NUR AHMAD KAMAR & ANOR – Respondent
[Originating Motion No: D-25Ncc-5-2011]
The court reaffirmed that contempt of court must be proven beyond reasonable doubt, emphasizing the balance between media freedom and the sub judice rule in protecting the administration of justice.
Headnote:(A) Order 52 rule 2 of the Rules of the High Court - Contempt of Court - Standard of proof must be beyond reasonable doubt, as stated in Re Bramblevale Ltd [1970] Ch 128 - The courts must ensure that allegations against an alleged contemnor are clearly articulated and substantiated - Contempt to uphold the administration of justice far outweighs individual dignity, as articulated in Re HE Kingdon v.Goho [1948] MLJ 17 - The 'sub judice' rule restricts publications that might prejudice ongoing legal proceedings, emphasizing public interest without overshadowing freedom of expression, as discussed in Bursa Malaysia Securities Berhad v. Gan Boon Aun [2009] 2 MLRA 313. (Paras 1, 4, 5, 17, 21)
(B) Constitutional Dimension - Article 10(1)(a) guarantees freedom of speech, subject to lawful restrictions in public interest - The Respondent argued for the balance between media freedom and contempt of court, supporting the argument in Dewan Undangan Negeri Kelantan & Anor v. Nordin bin Salleh [1992] 1 MLRA 430. (Paras 12, 33)
(C) The Court ruled that no contempt was proven against the Respondents, as criticisms made in public interest did not substantiate as prejudicial under the sub judice rule and did not influence a professional judge. (Para 60)
Findings of Court:
The application alleging contempt was dismissed due to lack of evidence proving the requisite standard of prejudice against the Respondents.
Issues: Core issues included the definition and application of the sub judice rule, the tension between freedom of expression and contempt of court, and the evidentiary standard required in contempt proceedings.
Ratio Decidendi: The court emphasized that contempt must be proven beyond reasonable doubt to safeguard against the suppression of legitimate discourse, reiterating that public interest must be considered alongside the integrity of judicial processes.
Result: Application dismissed with costs awarded to Respondents.
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| 1. court's jurisdiction on contempt applications. (Para 1 , 2) |
At the present stage of a full hearing for an order of committal against these Respondents, I have had the advantage of the replies from each of the Respondents, and aided by very detailed submissions by counsel representing the parties, the allegation of contempt can now be seen in its totality and properly evaluated by this Court.
Preliminary Principles
It will be useful to clarify at the outset three important preliminary principles which should guide and control the Court's jurisdiction to punish for contempt. One of these principles was highlighted by the Court of Appeal in the leading case of Murray Hiebert v. Chandra Sri Ram , [1999] 4 CLJ 65 ; [1999] 4 MLJ 321 which quoted an earlier leading decision of Arthur Lee Meng Kwang v. Faber Merlin (M) Berhad & Others; [1986] CLJ (Rep) 58 ; [1986] 2 CLJ 109 ; [1986] 2 MLJ 193 ,and that important principle is this. Committal is a very serious matter and the courts must proceed very carefully before making an order to commit someone to prison. Rules have been laid down to secure that the alleged contemnor knows clearly what is being alleged against him and has every opportunity to meet the allegations. See also the English case of Re-B (JA) (An infant) 1 Ch 1112 as a source authority referred to by our courts for the principle outlined.
A second preliminary important principle relates to standard of proof. The standard of proof required in contempt of Court proceedings is proof beyond reasonable doubt. It goes without saying that where a doubt exists, it should be resolved in favour of the alleged contemnor. See eg, Lord Denning in Re Bramblevale Ltd [1970] Ch 128:
"A contempt of Court is an offence of a criminal character. A man may be sent to prison for it. It must be satisfactorily proved. To use the time-honored phrase, it must be proved beyond all reasonable doubt."
Re Bramblevale has been applied in local cases such as the recent decision in Mediacorp News Pte Ltd v. Mediabanc , [2010] 5 MLJ 562 .
The third preliminary important principle is in relation to the "root principle", and the purpose for which the courts inherent power to punish a contempt is founded. This is addressed, for instance, in Re HE Kingdon v.Goho ; [1948] MLJ 17:
"But the root principle on which this inherent power to punish a contempt is founded, and the purpose for which it must be exercised is not to vindicate the dignity of the individual judge or the judicial officer of the Court or even of the Court itself but to prevent an undue interference with the administration of justice in the public interest." (per Brown J, at page 18)
Thus stated, the law of contempt has less to do with the direct litigants but is more concerned with upholding the administration of justice. This point has to be emphasized and clarified because there are some old case authorities which have a tendency to cloud the issue. And this is particularly true in that specific area of the law of contempt which touches on the so-called "subjudice" rule.
The Sub Judice Rule
This present case directly concerns the "sub judice" rule. Nigel Lowe and Brenda Sufrin, "The Law of Contempt" (a relevant commentary cited by counsel for the Applicant, Mr. Max Yong) describes it simply and succinctly as follows: "The law on what may be published about current legal proceedings is popularly known as the sub judice rule". The learned authors also added this observation:
"Contempt of Court as it appli
