KAK v AAK [2023] SLRAU 21

Syariah Court of Appeal (Shah Alam)

Appeal against dismissal of preliminary objection to the Show Cause Notice

1. The present case concerns an application for judicial review of a decision rendered by the Syariah High Court Judge. The learned Judge dismissed the Applicant’s preliminary objection to the Show Cause Notice and directed that the Show Cause proceedings should proceed without further delay.

2. On 27 May 2021, the Respondent instituted proceedings by filing an application for leave to issue a Show Cause Notice under Application No.: 10207-XXX-XXXX-2021.

3. Subsequently, on 22 November 2022, the Applicant submitted a preliminary objection under Application No.: 2211-XXXX-XXX-XXXX-2022, predicated upon the following grounds:

(a) A material error existed in the referenced case number, which ought to have been Case No.: 10300-XXX-XXXX-2018;

(b) The service of documents was procedurally defective by reason of incorrect address and postcode particulars;

(c) Service was effectuated after the scheduled hearing date, constituting late service; and

(d) The warrant of arrest was fundamentally defective as it bore a date antecedent to the commencement of proceedings.

4. On 14 September 2023, the learned Syariah High Court Judge pronounced the following decision:

(a) The preliminary objection was dismissed in its entirety;

(b) The Court directed that the proceedings under Application No.: 10207-XXX-XXXX-2021 should continue without further delay; and

(c)  Each party was ordered to bear their respective legal costs.

1. Whether the Trial Judge erred in law and/or in fact in dismissing the Applicant’s preliminary objection and ordering the Show Cause proceedings to proceed without delay?

1. Whether the Trial Judge erred in law and/or in fact in dismissing the Applicant’s preliminary objection and ordering the Show Cause proceedings to proceed without delay?

(a) This application is made pursuant to section 68 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, which relates to the supervisory and review jurisdiction of the Syariah Court of Appeal.

(b) Based on the Notice of Application and the Applicant’s Supporting Affidavit dated 12 October 2023, the Court notes that the Syariah High Court Judge had allowed a Show Cause Notice to be issued and served on the Applicant. The notice required the Applicant to explain why contempt proceedings should not be taken against him for allegedly disobeying terms No. 3 and No. 4 of the Syariah High Court Order dated 18 September 2018 in Case No.: 10300-XXX-XXXX-2018.

(c) Dissatisfied with the issuance of the Show Cause Notice, the Applicant filed a preliminary objection and at the same time submitted a Defence Affidavit in response. The Applicant later filed a review application before the Syariah Court of Appeal to challenge the Syariah High Court Judge’s decision to dismiss the preliminary objection. As a result, the committal proceedings are still pending and have not been resolved.

(d) In further addressing this issue, the Court respectfully refers to the case of Shamala Sathiyaseelan v. Dr Jeyaganesh C Mogarajah & Anor [2012] 5 MLRA 601, where the Federal Court, in its commentary, held as follows:

   ‘Per Arifin Zakaria CJ (Malaya):

(1) It would be most unjust to the respondent for the court to allow the appellant to avail herself of the judicial process, when it is clear that she had no intention to comply with the court orders. There was no need for the court to grant the appellant further time to comply with the orders of the court. Orders of the court must be respected, otherwise the integrity and respect for the judiciary will be seriously undermined. As such the reference was dismissed forthwith with costs.’

(e) The Court also refers to the Syariah Court Practice Direction No. 13 of 2004, which provides that:

‘e. No application or claim by a person accused of contempt of court shall be heard by the Court so long as the earlier judgment or order remains unsatisfied in full.’

(f) Having considered the above grounds, the Court is satisfied that the Learned Trial Judge was correct in directing that the committal proceedings be prioritised and heard expeditiously. The issues raised by the Applicant in the preliminary objection may appropriately be advanced as part of the Applicant’s defence for the Court’s consideration during the substantive hearing.

1. The Applicant’s application is dismissed.

1. The judgment emphasizes that court orders must be respected to maintain judicial integrity.

2. The court highlighted that applications from persons accused of contempt cannot be heard until previous court orders have been fully complied with.

3. The case demonstrates the application of section 68 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, which governs the supervisory and review jurisdiction of the Syariah Court of Appeal.