The law of contempt is integral to the administration of justice. Its overarching purpose is to promote the confidence of the public in the integrity of the system of justice and supremacy of the law. Oswald’s Contempt of Court (3rd edition) offers a definition in the following terms:
“… contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of law into disrespect or disregard, or to interfere with, or prejudice parties, litigants or their witnesses during trial.”
The imperative of safeguarding the dignity and integrity of the Federal Courts, Court of Appeal and the High Court is encapsulated in Article 126 of the Federal Constitution, conferring on the courts the power to punish for contempt, a provision which is similarly found in section 13 of the Courts of Judicature Act.
As Malaysia does not have any specific legislation to regulate on contempt of court, regard has to be made to the English common law principle by virtue of section 3 of the Civil Law Act 1956.
Our Federal Court in Tan Sri Dato (Dr) Rozali Ismail & Ors v. Lim Pang Cheong @ George Lim & Ors  3 MLJ 458,  2 CLJ where it was held that there are two types of contempt:
- A specific conduct of contempt for breach of a particular court order; or
- A more general conduct for interfering with the due administrating or the course of justice
Order 52 of Rules of Court 2012
It is settled law that there are two stages to the committal of a non-complying party. The 1st stage involves the leave application (ex parte) to commence committal proceedings against the respondent (Order 52 rule 3 of the Rules of Court 2012). Once leave has been granted, the 2nd stage involves the actual application for an order of committal against the respondent. This application has to be made within 14 days of the grant of the leave. (Order 52 rule 4 of the Rules of Court 2012)
In Dato’ Onn Ah Baa & Ors v. Eagle & Pagoda Brand Teck Aun Medical Factory & Ors  7 CLJ 81, at 91 e-f:
“… the approach of the court in an application for leave which is actually at a permission stage was to consider whether the applicant has shown or demonstrated a prima facie case of contempt and this process is conducted ex parte and in the absence of the alleged contemnor. It is important to state at this stage that the hearing of the ex parte application for leave is not an adjudication on the merit of the case, (see Arthur Lee Meng v. Faber Merlin Malaysia Bhd & Ors 2 CLJ 109;  CLJ (Rep) 58).”
The Singapore Court of Appeal in Mok Kah Hong v. Zheng Zhuan Yao  SGCA 8 at p.23 held that:
“ The threshold for the grant of leave at the first stage of the committal proceedings is that of a prima facie case of contempt.
In brief, the requirement for leave prior to any commencement of committal proceedings essentially serves as a procedural safeguard. It is one of the procedural rules put in place to ensure that the liberty of the alleged contemnor is not, in any way, compromised due to the summary and quasicriminal nature of the court’s jurisdiction in civil contempt. To this end, the applicant is required to provide full and frank disclosure of the background facts to the application. The proper procedure must also be strictly complied with before the court will grant leave to commence committal proceedings.
 In the course of hearing the leave application, the court must be mindful not to venture into or purport to decide the substantive merits of the committal application, which is properly the subject matter for adjudication at the second stage (ie, the actual application for the order of committal)….
 To that end, a respondent’s objection to a leave application will succeed if it can be shown that there are exceptional circumstances directly impinging on the applicant’s entitlement to apply for leave to commence committal proceedings. In Ang Boon Chye, Kan Ting Chiu J provided (at ) a number of examples which a respondent may rely on to resist an application for leave to commence committal proceedings:
(a) the Order of Court had been complied with;
(b) the plaintiffs waived their rights to the accounts;
(c) the plaintiffs had undertaken not to take out committal proceedings.”
Please also see:
- Wee Choo Keong v. MBf Holdings & Anor and Another appeal  2 MLJ 217, 220 I- 221A;
- Young v. Jackman  11 Fam LR 331, 334
- Hadkinson v. Hadkinson  2 All ER 567, 571E;
- Muhammad Sai Amin v. Haszeri Hussin  3 CLJ 536,539, para 5
From the authorities above, the following principles may be gathered:
- The threshold for the grant of leave is actually at a permission stage;
- At the permission stage, the court is to consider whether the applicant has shown or demonstrated a prima facie case of contempt;
- the requirement for leave prior to any commencement of committal proceedings essentially serves as a procedural safeguard;
- At this stage is not an adjudication on the substantive merits of the committal proceedings; and
- The respondent’s objection to a leave application will success if it can be shown that there are exceptional circumstances directly impinging on the applicant’s entitlement to apply for leave to commence committal proceedings (please see para  of Mok Kah Hong)
What is prima facie in this context?
In Tan Kang Ho v. Mao Sheng Marketing (M) Sdn Bhd & Ors  4 CLJ 113, the court stated the following principles concerning the leave requirement:
- the purpose of the leave requirement is to ensure that there is no abuse of the committal procedure. The leave requirement acts as a sieve to ensure that there is a prima facie basis for the committal application;
- the purpose of the leave requirement is to prevent abuses of the committal procedure. Such a purpose may be fulfilled without the need for such a high standard of proof beyond all reasonable doubt;
- a prima facie case of contempt of court is satisfied if:
- the statement and verifying affidavit show that the respondent in question has committed a specie of contempt of court, the respondent has:
- breached an injunction or court order;
- breached an undertaking to court;
- scandalised the court;
- interfered with the due administration of justice or perverted the course of justice in relation to pending proceedings; and
- published or disseminated publication which interferes with the course of justice in pending proceedings, namely sub judice publication or sub judice dissemination of publication.
- the contents of the verifying affidavit should not be inherently improbable.
- the court should keep an open mind and not make any finding of fact as an application for leave to commence committal proceedings is made on an ex parte basis (without hearing the respondent) and the respondent may still raise a reasonable doubt at the end of the committal proceedings – Wee Choo Keong, at p. 222.