Lamin Mohd Yunus PCA:

On the various issues raised, with respect, I am inclined to agree with the views expressed by my learned brother judge Ahmad Fairuz Sheikh Abdul Halim, JCA. However I concur with both my brother judges Ahmad Fairuz Sheikh Abdul Halim and Denis Ong Jiew Fook, JCA on the questions of conviction and sentence and also on the costs of this appeal.

Ahmad Fairuz JCA:

These are appeals from an order of the High Court Malaya at Shah Alam (hereinafter referred to as "the said court") ordering the appellant to be imprisoned for three months for contempt of court and further ordering him to pay the costs of the proceedings.

The appellant is a journalist. He is the Far Eastern Economic Review's (hereinafter referred to as "FEER") correspondent based in Kuala Lumpur. He is the author of an article entitled "See You In Court" published in FEER in the edition of 23 January 1997. The article, according to the respondent, inter alia, discusses the merits of a suit in which the respondent was the plaintiff and Julie Dean with Gail A. Vendeland (sued as chairman and on behalf of the Society for the International School of Kuala Lumpur) as defendant. The respondent alleges that the contents of the article, when read as a whole, amounts to serious contempt of the said court and an unwarranted attack upon the Malaysian Judiciary. Consequently the respondent made an ex parte application for leave of the said court to issue a committal order against the appellant for contempt of court. Leave was granted by the said court. Pursuant to that leave the respondent filed the notice of motion dated 4 February 1997. The motion seeks inter alia for an order that:

1. the Appellant be committed to prison for his several contempts of the said court in publishing in the issue of the FEER dated January 23, 1997, an article under the heading "See You In Court", and

2. the costs of and occasioned by the application be paid by the Respondent.

Particulars

This notice of motion, according to the learned appellant's counsel, lacks particulars of the "several contempts" of the said court. The respondent contended otherwise. Both parties submitted several authorities in support of their respective contentions.

A perusal of the notice of motion will show that prayer (1) therein states that the particulars of the "several contempts" are set out in the statement which is found at p. 195 of the Appeal Record (AR). The heading of the statement reads "Statement Pursuant To O. 52 r. 2(2) Rules Of High Court 1980". Order 52 r. 2(2) reads:

An application for such leave must be made ex parte to the court, except in vacation when it may be made to a judge in Chambers, and must be supported by a statement setting out the name and description of the applicant, the name, description and address of the person sought to be committed and the grounds on which his committal is sought, and by an affidavit, to be filed before the application is made, verifying the facts relied on.

The grounds required by O. 52 r. 2(2) Rules of the High Court are found in para. 4 of the statement which is as follows:

The grounds upon which relief is sought against Respondent are that the said article, when read as a whole:

(a) Scandalizes this Honourable Court;

(b) Is calculated to excite prejudice against the Plaintiff and the litigation in Civil Suit No. 22-210-96, presently being tried before this Honourable Court;

(c) Is designed to exert pressure upon this Honourable Court to decide the said suit against the Plaintiff.

The last paragraph of the notice of motion states:

And further take notice that the Applicant intends to read and use at the hearing of this Motion the affidavit of Chandra Sri Ram affirmed on 28.1.97 and the Statement dated 29.1.97 filed heretofore proving the said contempt, a copy of which Afidavit with the Statement are served with this Notice of Motion.

And the respondent's affidavit (see p. 296 AR) exhibits the article in question as "A-2".