COMMITTAL PROCEEDING

COMMITTAL PROCEEDING

(ORDER 52 OF RULES OF COURT 2012)

Do you know that committal proceeding empowers the Court to hold a person in contempt for declining and/or refusing to obey the Court’s order The committal proceeding is governed by Order 52 of the Rules of Court 2012 (ROC).

If a contempt is committed in the face of the Court, the Judge may order the contemnor to appear before him on the same day for the purpose of purging his contempt.  If the contemnor declines or refuses to purge his contempt, the Judge shall sentence him.

However, the Court may, on the application of any party to any cause or matter, make an order of committal.

PROCEDURES FOR COMMITTAL PROCEEDING

Generally, these are the procedures for committal proceeding-

1. Show Cause Notice

• Order 52 Rule 2B of ROC provides that in all other cases of contempt of Court, a formal notice to show cause why he should not be committed to the prison or fined shall be served personally.
• However, in the case of Tan Poh Lee v Tan Boon Thien [2022] 3 MLJ 177, the Federal Court in which the quorum was led by Nallini Pathmanathan FCJ, among others decided that-

“[9]  The notice referred to in Order 52 Rule 2B is to be issued at the behest of the Court, and not the parties. Private parties do not issue notices to show cause to each other. It is the Court that does. It is after all, the Order of Court which has been breached. And it is therefore the Court that ensures compliance and redresses any contravention.

And that is therefore what Order 52 Rule 2B is concerned with – ensuring compliance and redressing non-compliance.

[10]  It then follows that such a notice can only come into being after the initiation of contempt proceedings by making the requisite application to Court. And that is why the notice in Order 52 Rule 2B ties in with the documents referred to in Order 52 Rule 4(3).

[11]  In this context, we respectfully concur with the decision of Lim Chong Fong J in Tang Hak Ju v Pengarah Tanah dan Galian Pulau Pinang [2017] 2 CLJ 345 that the notice to show cause referred to in Order 52 Rule 2B refers to the documents stated in Order 52 Rule 4(3), particularly the notice of application itself.” 

• The above case has clearly shown that Order 52 Rule 2B and Order 52 Rule 4(3) of ROC must be read together. Thus, it is not mandatory for a formal notice to show cause to be served on the person sought to be committed prior the committal proceeding.

2. Leave to Apply for An Order of Committal (Ex-Parte)

• In compliance with Order 52 Rule 3(2) of ROC, any party who intends to apply for an order of committal, must first file an application for leave by way of ex-parte to the Court.

3. Application for Committal Order (Inter-Partes)

• The leave to apply for an order of committal shall lapse after 14 days from the date of the said leave was granted. Thus, the notice of application shall be filed within 14 days from the date of the leave granted.

• Upon leave has been granted to apply for an order of committal, the application for the order of committal must be made by notice of application to the Court. The party who applies for an order of committal must serve the notice of application on the person sought to be committed at least eight clear days before the hearing date.

• Order 52 Rule 4(3) of ROC provides that the notice, accompanied by a copy of the statement and affidavit in support of the application for leave and the order granting such leave, must be served personally on the person sought to be committed.
• However, in the event that the notice together with documents/cause papers stated in Order 52 Rule 4(3) of ROC failed to be served personally on the person sought to be committed, the Court may order that the said documents to be served by way of substituted service. Substituted service means that the said notice must be advertised in newspaper, pasted at the Court’s notice board and pasted at the premise of the person sought to be committed.
• Nevertheless, Order 52 Rule 4(4) of ROC provides that the Court may dispense the said service of notice if it thinks just to do so.

4. Hearing

• As for the hearing of the application for an order of committal, the hearing is usually conducted in an open court. However, there are some circumstances where the hearing will be conducted in private or in Chambers as provided under Order 52 Rule 6(1) of ROC.
• In the case of Wee Choo Keong; Houng Hai Hong & Anor v. MBf Holdings Bhd & Anor & 3 Other Appeals [1995] 4 CLJ 427, the Supreme Court has decided that-

“[1] In contempt of Court proceedings, the standard of proof required is proof beyond reasonable doubt, and where there is doubt, such doubt ought to be resolved in favour of the person charged. In other words, the proof must be of the standard as is required in a criminal case.”

 

• Thus, the standard of proof in contempt of Court proceedings must be of the standard as is required in a criminal case i.e. beyond reasonable doubt.

CONCLUSION

To conclude the above, the committal proceeding is one of the execution proceedings which empowers the Court to punish the contemnor who disobey the Order from the Court. The committal proceeding itself shows that the Order from the Court has its own implication to the person who failed to act as per the Order.  Therefore, the Order from the Court must be respected and obeyed.

Prepared by,

Muhammad Naif Amal bin Zulkiflie

Legal Associate