Salleh Abas LP:

This Reference first came before us on 7 January 1985 but the hearing was postponed because of the absence of the respondent and his Counsel. In the meantime, Mr. Param Cumaraswamy on behalf of the Bar Council made an application to us to allow him to address us on the questions raised in the Reference after the parties have completed their submission. We granted this application. Now, the facts are as follows:

On 7 November 1984 the Magistrate, Port Dickson, Mr. N. Rajendran, was holding an Inquest (Inquest No. 47/1984). The respondent Mr. Seeralan, a member of the Bar was in Court holding a watching brief and conducting the inquest was Prosecuting Officer, Inspector Arvinder Singh.

During the course of the inquest, witness No. 8 became unduly difficult, whereupon Inspector Arvinder Singh informed the Court that he wished to bring to the attention of the witness the provisions of s. 193 of the Penal Code, presumably in order to impress upon the witness the importance of speaking the truth.

At this juncture, the respondent stood up and without seeking the permission of the Court objected to the course which the Prosecuting Officer intended to take and accused him and the Bench of unnecessarily tormenting the witness. He was reminded by the Magistrate that he had no right to address the Court unless permitted to do so; whereupon, the respondent became emotional and made several allegations of bias against the Magistrate. In order to continue the proceedings, the Magistrate ordered the respondent to leave the Court, but he refused to comply with the order saying that he had every right to be in Court. He continued to make allegations of bias against the Bench saying that the Bench was unfair and prejudiced against the witness, and that he would apply to have another Magistrate to hear the inquest.

As a result of this the Magistrate told the respondent that he was in contempt and informed the Prosecuting Officer that the respondent was then under arrest and was to be moved out from the Court. When the respondent refused to leave the Court, and said that he had to be carried away, the Court adjourned. Anyhow, on being informed by the Prosecuting Officer that the respondent was leaving for lunch and would be back at 2.00 p.m., the Magistrate agreed and allowed the respondent to leave for lunch.

When the Court reassembled after lunch, the Magistrate invoked para. 26 of the Third Schedule of the Subordinate Courts Act 1948 and said that he took cognizance of the contempt committed by the respondent and informed him of his acts and statements which, in the opinion of the Magistrate, constituted a contempt and required him to show cause why he should not be punished. The acts and statements were:

(1) as he was only holding a watching brief in the matter, the respondent had to ask the Court's permission before addressing it, and he had not done so;

(2) he accused the Bench of being unfair and biased against witness No. 8;

(3) he refused to leave the Court when ordered to do so;

(4) by his continued unbecoming behaviour the respondent had disrupted the Court's proceedings.

He denied the charge and claimed to be tried before another Magistrate because the Magistrate being himself the complainant was therefore biased. As a result of that response the Magistrate then fined the respondent RM150 or in default one week's imprisonment. The respondent refused to pay the fine.

The next day, 8 November 1984, Peh Swee Chin J of the Seremban High Court exercising his powers of revision reversed and set aside the Magistrate's order. The revisionary proceedings were held in his chambers in the presence of the Magistrate and Mr. Ramachandran. The DPP was not notified of the revision nor asked to be present at the revision proceedings although this officer was on that morning in Court waiting for the hearing of a number of criminal appeals.

The Public Prosecutor now refers three questions to us which, in his opinion, are questio