A. Introduction
Order 52 rule 2A of the Rules of Court 2012 (“ROC”) provides that it is not necessary to serve a notice to show cause if contempt is committed in the face of the Court.
However, in all other cases of contempt of Court, Order 52 rule 2B of the ROC provides that “a formal notice to show cause why he should not be committed to the prison or fined shall be served personally” on the proposed contemnor.
One of the preliminary objections that we often hear from a proposed contemnor is the non-compliance with Order 52 rule 2B of the ROC on the part of the applicant.
This article sets out the legal position on whether it is mandatory to serve a notice to show cause on the proposed contemnor prior to applying for leave for contempt.
B. Diverging Authorities
The authorities do not speak in one voice on this issue.
The Court of Appeal in Tan Boon Thien & Anor v Tan Poh Lee & Ors [2020] 3 CLJ 28 held that the word “shall” in Order 52 rule 2B of the ROC should be interpreted in its plain and literal meaning and failure to comply with it will render the subsequent proceedings invalid. The Court of Appeal even considered the purpose of introducing Order 52 rule 2B of the ROC, which it said is to provide the proposed contemnor with the first opportunity of answering the notice to show cause before any application for leave is made. In this case, given that the notice to show cause was not issued under Order 52 rule 2B of the ROC, the Court of Appeal held that the ex parte application for leave to issue contempt proceedings was not made in a proper manner, and consequently, the leave order granted to issue contempt proceedings was set aside.
The approach taken by the Court of Appeal in Tan Boon Thien was adopted by the Court of Appeal in Lokman Noor Adam v PP [2020] 10 CLJ 435 and the High Court in Dato’ Sri Andrew Kam Tai Yeow v Tan Sri Dato’ Kam Woon Wah & Ors [2020] 9 CLJ 693 and J v J [2021] 1 CLJ 74.
On the contrary, the Federal Court, in its recent decision of Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652 (“Malaysiakini”), ruled that compliance with Order 52 rule 2B of the ROC is not mandatory.
In this case, the Federal Court held that the proposed contemnors were fully aware of the AG’s application when their counsel appeared on the date of the ex parte hearing. Given such circumstances, the Federal Court held that the failure to serve the notice to show cause did not prejudice the proposed contemnors.
C. Current Position
The Federal Court has recently overturned the Court of Appeal’s ruling in Tan Boon Thien. In so doing, the Federal Court held that the purpose of Order 52 rule 2B of the ROC is to ensure that the proposed contemnor is appraised of the precise nature of the wrongdoing he is accused of. This is in line with what the Federal Court found in Malaysiakini. The Federal Court further held that the ‘notice to show cause’ stated in Order 52 rule 2B of the ROC refers to the notice of application for committal after leave has been granted (pursuant to Order 52 rule 4(3) of the ROC) and it has to be issued at the behest of the Court and not by the parties.
It is now clear that it is no longer necessary to serve a formal notice to show cause on a proposed contemnor prior to applying for leave for contempt.
Note: This article will be updated once the Federal Court releases its grounds of judgment.
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