1. Inquest proceedings — Media release by Public Prosecutor — Application for leave to initiate committal proceedings for contempt of court — Appeal against the grant of leave. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 )
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2020 MarsdenLR 1654
HIGH COURT (SHAH ALAM)
MEOR HASHIMI ABDUL HAMID, JC
Attorney General of Malaysia – Plaintiff
Versus
Mohd Kassim bin Mohd Hamid – Defendant
CRIMINAL APPEAL NO BA-42(ORS)(A)-1-09/2019
Advocates:
Ambiga Sreenevasan (Zainur bin Zakaria, Narkunavathy Sundareson, Mankiranjit Kaur a/p Mehinder Singh and Sarah Ho with him) for the appellant.
Mohamed Haniff bin Khatri Abdulla (Aidil bin Khalid and Abdul Rahim bin Sinwan with him) (Mohd Zubir Embong & Assoc) for the respondent/applicant.
Ambiga Sreenevasan (Zainur bin Zakaria, Narkunavathy Sundareson, Mankiranjit Kaur a/p Mehinder Singh and Sarah Ho with him) for the appellant.
Mohamed Haniff bin Khatri Abdulla (Aidil bin Khalid and Abdul Rahim bin Sinwan with him) (Mohd Zubir Embong & Assoc) for the respondent/applicant.
An order granting leave to initiate committal proceedings, based on a finding of a prima facie case of contempt, is an appealable "decision" under the Criminal Procedure Code and not a non-appealable "ruling" under the Courts of Judicature Act.
Headnote:(A) Criminal Procedure Code - Section 307 - Courts of Judicature Act 1964 - Section 3 - Rules of Court 2012 - Order 52 rule 3 and Order 18 rule 19 - Appeal against order granting leave for committal proceedings - Definition of 'decision' - Whether an order granting leave to initiate committal proceedings constitutes an appealable 'decision' or a non-appealable 'ruling' - An order made by a subordinate court judge sitting as a coroner granting leave to initiate committal proceedings after finding a prima facie case of contempt is considered a 'judgment, sentence or order' under Section 307 of the Criminal Procedure Code and is therefore appealable (Paras 51, 63, 68).
(B) Contempt of Court - Leave stage - Committal proceedings are a two-stage process; at the leave stage, the applicant must prove a prima facie case - An order granting leave based on the merits of the application is a final order in respect of that application and not a mere ruling in the course of a trial (Paras 63, 65).
(C) Striking out of Appeal - Application under Order 18 rule 19 of the Rules of Court 2012 to strike out a criminal appeal is misplaced as the appeal is governed by the procedures of the Criminal Procedure Code (Paras 55, 57).
Facts of the case:
An application for leave to issue committal proceedings for contempt of court was filed against a public official following the issuance of a media release. The coroner granted leave to the applicant. The official filed a notice of appeal against this decision. The applicant subsequently applied to strike out the appeal, contending that the grant of leave was not a final decision and therefore not appealable under the relevant statutory definitions.
Findings of Court:
The court found that the order granting leave was not a preliminary ruling but was decided on the merits of the application, having found that a prima facie case of contempt was proven. Consequently, the order was a final order for that specific application and fell within the definition of an appealable decision under the Criminal Procedure Code. Furthermore, the application to strike out the appeal using civil rules was inappropriate for a matter treated as a criminal appeal.
Issues: Whether the order granting leave to initiate committal proceedings is a "decision" appealable under Section 307 of the Criminal Procedure Code or a "ruling" excluded from appeal under Section 3 of the Courts of Judicature Act 1964.
Ratio Decidendi: An order granting leave for committal proceedings, where the court has determined on the merits that a prima facie case of contempt exists, constitutes a final order for that application and is not a mere interlocutory ruling. Such an order is an appealable decision under the Criminal Procedure Code.
Result: Application to strike out the appeal dismissed.
Act Referred
Criminal Procedure Code: S.339, S.337, S.328, S.307, S.304, S.305, S.306
Rules of Court 2012: O.52 r.3, O.18 r.19
Courts of Judicature Act 1964: S.3, S.26, S.50
Penal Code: S.354
Rules of Court 2012: O.52 r.3, O.18 r.19
Courts of Judicature Act 1964: S.3, S.26, S.50
Penal Code: S.354
Legal Category Hierarchy
Table of Contents
2. Whether the grant of leave for committal proceedings constitutes a non-appealable interlocutory ruling under s. 3 CJA or an appealable order under s. 307 CPC. (Para 26 , 27 , 29 )
3. The grant of leave was a final order on merits finding a prima facie case, and the appeal is governed by s. 307 CPC rather than s. 3 CJA. (Para 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 )
4. An order granting leave for committal proceedings based on a prima facie finding of contempt is a considered order on merits and is appealable under s. 307 CPC. (Para 51 , 63 , 68 )
5. Application to strike out the appeal is dismissed; the appeal is held to be competent and is ordered to proceed. (Para 78 , 79 )
6. Is an order granting leave to initiate committal proceedings appealable?
Yes, if the court decides on the merits and finds a prima facie case of contempt, the grant of leave is considered a final order and not a mere ruling, making it appealable. (Para 63 , 68 )
7. Does the definition of decision under s. 3 CJA restrict appeals in criminal matters governed by the CPC?
The court distinguished s. 3 CJA from s. 307 CPC, noting that appeals under the CPC are permitted for judgments, sentences, or orders, regardless of the restrictive finality definition in s. 3 CJA. (Para 38 , 49 , 51 , 52 )
8. Can a criminal appeal be struck out using Order 18 rule 19 of the Rules of Court 2012?
No, such an application is misplaced for criminal appeals under the CPC; the appropriate procedure to challenge the competency of an appeal is through a preliminary objection. (Para 55 , 56 , 57 )
9. Under what circumstances can leave to commence committal proceedings be set aside?
Leave may be set aside on appeal or application if there is non-compliance with the strict requirements of Order 52 rule 3 ROC 2012, particularly regarding the detailed particularization of the alleged contempt. (Para 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 )
Meor Hashimi Abdul Hamid JC:
JUDGMENT
BACKGROUND FACTS
[1]The appellant in his capacity as the Public Prosecutor under s. 339Criminal Procedure Code (“CPC”)
[2]The function of a magistrate or sessions court judge (the learned coroner) holding an inquest (inquiry) under Chapter XXXII of the CPC is to enquire, when, where, how, and in what manner the deceased came by his death and also whether any person is criminally concerned in the cause of death of the deceased as provided for under s. 337CPC
[3]The ‘cause of death’ as defined under s. 328CPC
[4]The said inquest proceeded before the learned coroner with the presence of representatives from the Ministry of Housing and Local Government, the Fire and Rescue Services Department and the deceased’s family whom all were acknowledged as interested parties and therefore allowed to hold watching brief in the inquest proceedings. The said inquest was also assisted by a Deputy Public Prosecutor (DPP) from the Attorney General’s Chambers (AGC) whom acted as the conducting officer.
[5]The learned coroner however rejected the application by the Seafield Mariaman Temple Task Force (“Task Force”) to be made a party to the inquest proceedings which they subsequently appealed to the Court of Appeal.
[6]The Task Force’s appeal and their application to stay the inquest was fixed for hearing before the Court of Appeal on 15/4/2019. The learned DPP having charge of the inquest affirmed an affidavit dated 3/4/2019 (DPP’s Affidavit) where he stated therein inter alia that the deceased’s death was not due to assault by any person. This resulted in the Task Force withdrawing their appeal and subsequently all related proceedings in the Court of Appeal were struck out.
[7]The said inquest thereafter commenced on 11/2/2019 and proceeded with the calling of witnesses by the conducting officer. Apart from the conducting officer, an advocate and solicitor by the name of Syazlin Mansor was appointed as counsel to hold watching brief on behalf of all the three interested parties in the inquest ie. the Ministry, the Fire and Rescue Department and the deceased’s family.
[8]One of the witnesses at the inquest was Professor Dr Shahrom bin Abdul Majid, an independent pathologist whom was scheduled to give his evidence at the inquest on 27/5/2019.
[9]However what transpired on the said 27/5/2019 was, Syazlin Mansor abruptly applied to withdraw from representing the Ministry, the Fire and Rescue Department and the deceased’s family and further informed the learned coroner that Prof. Shahrom would not continue to give his evidence.
[10]As a result of Syazlin Mansor’s withdrawal, the inquest came to a halt and a case management was fixed on 26/6/2019 to address the issues of parties’ representation at the inquest and the continued process of Prof. Shahrom’s giving his evidence at the inquest.
[11]Syazlin Mansor’s abrupt withdrawal caused confusion and raised inevitable speculation as this also resulted in her withdrawing from representing the deceased’s family.
[12]Subsequently, the appellant issued a Media Release dated 28/5/2019 to clarify matters related to the said withdrawal (see pages 14–16 of the Record of Appeal volume 3).
LEAVE TO ISSUE COMMITTAL PROCEEDINGS
[13]The respondent/applicant filed an ex parte application for leave to issue committal proceedings against the appellant (Enclosure 62) under Order 52 rule 3 of the Rules of Courts 2012. The application was prompted by the appellant’s Media Release dated 28/5/2019 wherein the appellant had said:
“Thirdly, my officers, who are performing their traditional role as counsel assisting the learned coroner, have informed me that Pn Syazlin Mansor takes an active part in the inquest, often contradicting the positions our DPPs have taken, thus causing embarrassment in her capacity as the Ministry’s lawyer”.
[14]The respondent/applicant alleged that the said paragraph in the appellant’s Media Release dated 28/5/2019, read together with the averment in the DPP’s Affidavit dated 3/4/
