Peguam Negara Malaysia V Mohd Kassim Bin Abd Hamid (Biological Father Of Muhammad Adib Bin Mohd Kassim) [2022] MLJU 577

Peguam Negara Malaysia V Mohd Kassim Bin Abd Hamid (Biological Father Of Muhammad Adib Bin Mohd Kassim) [2022] MLJU 577

Court of Appeal (Putrajaya)

Jurisdiction of Subordinate Court to Punish for Contempt of Court

Facts 1.     Sometime in December 2018, Tan Sri Tommy Thomas, the then-Attorney General (“AG”) in his capacity as the Public Prosecutor (“PP”), had directed for an inquiry of the death of Muhammad Adib bin Mohd Kassim (“the Deceased”) to be carried out pursuant to Section 339(1) of the Criminal Procedure Code (Act 593).

2.     The Deceased was a firefighter who was injured amid a violent riot within the vicinity of Sri Maha Mariamman Temple in Seafield on 27.11.2018. He succumbed to his injury and passed away on 17.12.2018.

3.     In accordance with the said direction, an inquiry was conducted by the learned Sessions Court Judge (“SCJ”) Rofiah binti Mohamad, who was sitting as a Magistrate at the time.

4.     The deceased’s family, the Fire and Rescue Department (“FRD”), and the Ministry of Housing and Local Government (“the Ministry”) were all recognised as interested parties and granted watching briefs in the inquiry. Ms. Syazlin Mansor represented them.

5.     However, Seafield Mariamman Temple Task Force (“the Task Force”) was denied the right to participate in the inquiry. The Task Force filed an appeal to the Court of Appeal.

6.     The Deputy Public Prosecutor (“DPP”) in charge of the inquiry affirmed and filed an affidavit on 03.04.2019 (“DPP Hamdan’s Affidavit”) affirming that the Deceased’s death was not a result of an assault by any person.

7.     Consequently, the Task Force withdrew their appeal and the hearing before the Court of Appeal was struck off.

8.     The inquiry commenced on 11.02.2019. Several witnesses were called to testify. One of the witnesses in the inquiry, Prof. Dr. Shahrom bin Abdul Wahid, an independent pathologist, was supposed to continue giving his evidence on 27.05.2019.

9.     However, on the same day, Ms. Syazlin Mansor suddenly withdrew herself from representing the Deceased’s family, the FRD and the Ministry.

10.  She also informed that Prof. Dr. Shahrom bin Abdul Wahid would not continue to give his evidence. As a result, the inquiry came to a halt and a case management was fixed on 26.06.2019.

11.  Tan Sri Tommy Thomas issued a media statement on May 28, 2019, a day after Ms. Syazlin Mansor abruptly resigned from representing the respective parties, in which he stated, among other things, that-

“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 of our DPPs have taken, thus causing embarrassment in her capacity as the Ministry’s lawyer.”

12.  The media statement by Tan Sri Tommy Thomas had prompted the Deceased’s father to file an ex parte application for leave to issue a committal proceeding under Order 52 rule 3 of the Rules of Court 2012.

13.  In the said application, the Deceased’s father alleged that the impugned media statement, read in conjunction with DPP Hamdan’s Affidavit, meant that Tan Sri Tommy Thomas had already made a premature decision regarding the Deceased’s death while the investigation into the Deceased’s death was still ongoing.

14.  It was further alleged that Tan Sri Tommy Thomas had suppressed, delayed, and disrupted the transparency of the inquiry which constituted an interference with the course of justice.

15.  The learned SCJ heard the said application by way of an opposed ex parte. On 27.08.2019, the application for leave was allowed. On 29.08.2019, the AG filed a notice of appeal to the High Court against the said decision.

16.  Subsequently, the Deceased’s father applied to the High Court to strike out the AG’s appeal. However, this application was dismissed by the learned High Court Judge (“HCJ”) on 25. 11.2019.

17.  The Deceased’s father then filed an appeal to the Court of Appeal against the decision of the learned HCJ and the appeal was registered as Criminal Appeal No. B-06B-96-12/2019 (“Appeal No. 96”).

18.  On the other hand, the AG filed a cross-appeal solely on the issue of whether the learned SCJ in holding an inquiry of death under Chapter XXXll of the Act 593 has the jurisdiction to punish for contempt of court.

Issue 1.     Whether the learned SCJ sitting as a Magistrate holding an inquiry of death under Chapter XXXll of Act 593 has any jurisdiction to punish for contempt of court?

2.     Whether the exercise of the learned SCJ’s jurisdiction to punish for contempt of court is limited to contempt in the face of the court (facie curiae) which means contempt before or in the presence of the court?

Ratios 1.     Jurisdiction to punish for contempt of court.

(a) The power of the Subordinate Courts i.e., the Sessions Court and the Magistrate Court to punish for contempt of court is derived from Section 99A and paragraph 26 of the Third Schedule to the Subordinate Courts Act 1948 (Act 92) which provide-

“Section 99A. Further powers and jurisdiction of courts.

In amplification and not in derogation of the powers conferred by this Act or inherent in any court, and without prejudice to the generality of any such powers, every Sessions Court and Magistrates’ Court shall have the further powers and jurisdiction set out in the Third Schedule.”

“26. Contempt of court.

Power to take cognizance of any contempt of court and to award punishment for the same, not exceeding, in the case of a Sessions Court, a fine of three hundred ringgit or imprisonment for six weeks, in the case of a Magistrates’ Court presided over by a First Class Magistrate, a fine of one hundred and fifty ringgit or imprisonment for three weeks, and in the case of a Magistrates’ Court presided over by a Second Class Magistrate, a fine of fifty ringgit or imprisonment for one week, to such extent and in such manner as may be prescribed by rules of court. If the contempt of court is punishable as an offence under the Penal Code, the court may, in lieu of taking cognizance thereof, authorize a prosecution.”

(b)  The learned counsel for the AG, Dato’ Ambiga Sreenevasan, submitted that a Magistrate holding an inquiry of death is not a “court” per se, hence there can be no jurisdiction on to punish for contempt of court.

(c) This is because, the terms “court” and “inquiry” are distinctively defined under Sections 2 and 6 of Act 593.

(d)  However, the Court did not agree with the learned counsel for the AG because Section 2 and 6 of Act 593 defines “court” and “inquiry” as follows:

“Court” means the High Court, a Sessions Court, or a Magistrate’s Court of any class, as the context may require; “inquiry” includes every inquiry conducted under this Code before a Magistrate;”

  Section 6 of the CPC further states: The Courts for the administration of criminal justice in Malaysia shall be those constituted pursuant to the Constitution, or the Courts of Judicature Act 1964 [Act 91], or by the Subordinate Courts Act 1948 [Act 92], or by any other law for the time being in force.”

(e) The Court was of the view that for the purpose of the present appeal, the term “court” under Sections 2 and 6 of Act 593 should be read together with Section 3(2) of Act 92 which states that:

“There shall be established the following Subordinate Courts for the administration of civil and criminal law in Peninsular Malaysia:

(a)Sessions Courts;

(b)Magistrates’ Courts.”

(f)   According to the Court, when these provisions are read together, the term “court” in the context of the present appeal simply means a Magistrate Court established pursuant to Act 92.

(f)  By virtue of Section 9 of Act 593, the law confers cognizance, power and authority to the Magistrate to hold inquiries of death and to inquire into complaint of offences.

(g)  The definition of the term “inquiry” under Section 2 of Act 593 therefore, refers to all of these inquiries conducted by a Magistrate pursuant to the provisions under Act 593.

(h) In addition, Section 82 of Act 92 above makes no distinction between a Magistrate and a Magistrate Court in terms of the exercise of its lawful powers and jurisdiction under the law.

(i)   In a nutshell, when a Magistrate exercises its lawful powers and jurisdiction under the law, even for an inquiry of death as conferred on the Magistrate under Part VIII and Chapter XXXll of Act 593, it is doing so as a court of law.

(k)  As a result, since a Magistrate holding an inquiry of death is doing so as a court of law, the Magistrate clearly has jurisdiction to punish for contempt of court.

2.  Contempt in the Face of the Court (facie curiae)

(a)  The learned counsel for the AG submitted that even if the Magistrate holding an inquiry of death has the power and jurisdiction to punish for contempt of court, the exercise of such a power is limited only to contempt in the face of the court (facie curiae).

(b)  Reference was made to the case The Queen v Lefroy (1873) LR 8 QB 134. In this case, the Queen’s Bench Division of the UK High Court held that the County Courts in the UK, which have been made a court of record pursuant to the County Courts Act 1846 (9 & 10 Vict c 95) shall have the power to punish for any contempt committed in the face of the court necessary for due administration of justice under Sections 113 and 114 of the said Act.

(c) However, it was further held that as inferior courts of record, the County Courts’ power under the said Act does not extend to contempt committed out of court, as there are other remedies for such proceeding.

(d)  It is pertinent to note at this juncture that our court did not have any similar legislation with the UK’s County Courts Act. Instead, our court have our own constitutional and statutory provisions regarding the power of our courts to punish for contempt of court.

(e) The power to punish for contempt of court by the superior courts are stipulated in Article 126 of the Federal Constitution and Section 13 of the Courts of Judicature Act 1964 (Act 91). For the subordinate courts, the power to punish for contempt are provided in Section 99A and paragraph 26 of the Third Schedule to the (Act 92).

(f) As a result, the Court decided that the principles enunciated in Lefroy’s case is not applicable in Malaysia by virtue of Section 3(1) of the Civil Law Act 1956 (Act 67).

(g) The counsel for the AG further submitted that the Magistrate’s power and jurisdiction to punish for contempt of court is limited only to contempt in the face of the court (facie curiae) due to the use of the word “cognizance” in paragraph 26 of the Third Schedule Act 92.

(i)      The Court affirmed that there is no merit in such submission as by definition, the term “cognizance” merely means, among others, jurisdiction or judicial notice or knowledge as defined in Black’s Law Dictionary.

(j)  On the contrary, the Court reasoned that the term “cognizance of any contempt of court,” as defined in paragraph 26 of the Third Schedule to Act 92, encompassed both contempt in the face of the court (facie curiae) and contempt outside of the court (ex facie curiae).

(k)  As a result, the Court agreed and adopted the similar position taken by Suriyadi J (as His Lordship was then) in Bok Chek Thou & Anor v Low Swee Boon & Anor [1998] 4 MLJ 342, which was also mentioned by the learned counsel for the AG, as follows:

“Adverting to, and disseminating this relevant para 26, the subordinate courts may act on any contempt of court, inclusive of any form of contempt in the face of the court (or contempt ex-facie the court).”

(l)  To conclude, the Court held that for the purpose of due administration of justice in Malaysia, the law confers jurisdiction to the subordinate courts to take cognizance of any contempt of court committed either contempt in the face of the court (facie curiae) or contempt outside of the court (ex facie curiae).

(m) Taking everything into account, the Court also decided that a Magistrate conducting a death investigation under Act 593 has the authority and jurisdiction to punish for contempt in the face of the court (facie curiae) as well as contempt outside of the court (ex facie curiae).

Decision 1.     The Court of Appeal dismissed the cross-appeal by AG as the Court found no merits in the AG’s cross-appeal.
Key Take Away 1.     The general powers and jurisdiction of a Magistrate Court established pursuant to the SCA 1948 are provided under Section 82 of such Act which reads-

A Magistrates’ Court constituted under this Act shall, for all purposes, be deemed to be the Court of a First Class Magistrate, and shall have all the powers and jurisdiction conferred on a First Class Magistrate by this Act or any other written law, and any Magistrate of either class within the local limits of whose jurisdiction the Court is situate may exercise the powers and jurisdiction of the Court:

Provided that a Second Class Magistrate shall not hold any preliminary inquiry or proceed to the final trial and determination of any cause or matter which is not within the jurisdiction conferred upon him by section 88 or 92 or by any other written law.”

2.     As a result, a Magistrate Court established under Act 92 shall have all the powers and jurisdiction conferred on a First Class Magistrate, whether under Act 92 or any other written law that includes any powers and jurisdiction conferred on a First Class Magistrate including under Act 593.

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