Chapter 12.3 - Contempt Outside of the Court

Question 1

CONTEMPT OUTSIDE THE COURT

Overview

Answer 1

1) Scandalizing the court or judiciary
2) Scandalizing the judge in his judicial capacity
3) Making sub-judice comments
4) Other instances

Question 2

SCANDALIZING THE COURT OR JUDICIARY

Overview

Answer 2

1) Criticism vs scandalizing
2) Proper balance
3) Applicability of English law

Question 3

SCANDALIZING THE COURT OR JUDICIARY

Criticism vs scandalizing

Answer 3

AG v Arthur Lee:

For a criticism to not be amounting to scandalizing the court:

• criticism within the limit of reasonable courtesy;
• criticism made in good faith;

Otherwise, it will amount to scandalizing the court & may amount to contempt.

Question 4

SCANDALIZING THE COURT OR JUDICIARY

Proper balance

Answer 4

Trustee of Leong v Idris & Ors:

• proper balance needs to be struck between the freedom of speech & the need to protect the dignity of the court.

Question 5

SCANDALIZING THE COURT OR JUDICIARY

Applicability of English law

Answer 5

AG v Manjeet Singh Dillon:

• English common law for contempt of court applies in Malaysia.

Question 6

SCANDALIZING THE JUDGE IN HIS JUDICIAL CAPACITY

Overview

Answer 6

1) Lowering his authority
2) Whether limited to judiciary only
3) Exception for reasonable argument

Question 7

SCANDALIZING THE JUDGE IN HIS JUDICIAL CAPACITY

Lowering his authority

Answer 7

R v Gray:

• lowering the authority of judge amounts to contempt/

Question 8

SCANDALIZING THE JUDGE IN HIS JUDICIAL CAPACITY

whether limited to judiciary only

Answer 8

AG v Manjeet Singh:

• scandalizing the court is not limited to criticism to the judiciary as a whole only;
• it includes criticism directed to the judge.

Question 9

SCANDALIZING THE JUDGE IN HIS JUDICIAL CAPACITY

exception for reasonable argument

Answer 9

R v Gray:

• if reasonable argument or explanation is offered, it would not be treated as contempt of court.

Question 10

MAKING SUB-JUDICE COMMENTS

Overview

Answer 10

1) General principles
2) Pre-condition
3) Test
4) Application

Question 11

MAKING SUB-JUDICE COMMENTS

General principles

Answer 11

Higgins v Richards:

• adverse comments need not refer to the subject matter of pending proceedings;
• it is sufficient if it is clear that the comments tends to prejudice the trial of the action;
• comments coming from parties or their solicitors are more serious contempt than comments from independent sources.

Question 12

MAKING SUB-JUDICE COMMENTS

Pre-condition

Answer 12

• proceeding should be pending when the comments are made or published.
  1) Civil action, when end - Dun v Beavan:
• when the judgment is delivered
  2) Criminal action, when end - R v Davies:
• until determination of appeal or time to file notice of appeal elapsed.

Question 13

MAKING SUB-JUDICE COMMENTS

Test

Answer 13

Murray Hiebert v Chandra Sri Ram:

• whether the publication of the said comments tends to or is likely to interfere with the administration of justice;
• i.e. real risk of interference with the due course of justice.

Question 14

MAKING SUB-JUDICE COMMENTS

Application

Answer 14

AG v Times Newspaper:

• express opinions on merits of any issue which is up for litigation cannot be allowed;
• this is so when there would be real prejudice to the administration of justice.

Question 15

OTHER INSTANCES OF CONTEMPT

Evasion of service

Answer 15

Wee Choo Keong v MBF Holdings:

• deliberate evasion of service of an order of court is an interference of justice;
• it is tantamount to a contempt of court.

Question 16

OTHER INSTANCES OF CONTEMPT

Making a press statement

Answer 16

MBF Finance v Tommy Thomas:

• D was held to be guilty of the offence by issuing a press statement in breach of court order.