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Thursday, June 28, 2001

Judgment of the Federal Court delivered by Tan Sri Datuk Steve L.K. Shim

1. This appeal turns on a most significant legal aspect in the administration of justice, namely contempt of court. Contempt of court is an ancient concept developed over the centuries in England as a means whereby the courts may act to prevent or punish conduct which tends to obstruct, prejudice or abuse the administration of justice either in relation to a particular case or generally. For a better prespective of this concept, I can do no better than refer to the illuminating speeches made by a strong panel of Law Lords in Attorney-General v Times Newspaper Ltd (1973) 3 All ER 54 (universally known as "the thalidomide case"). Therein, Lord Morris has said as follows:-

".... the phrase contempt of court is one which is compendious to include not only disobedience to orders of a court but also certain types of behaviour or varieties of publications in reference to proceedings before courts of law which overstep the bounds which liberty permits. In an ordered community courts are established for the pacific settlement of disputes and for the maintenance of law and order. In the general interests of the community it is imperative that the authority of the courts should not be imperiled and that recourse to them should not be subject to unjustifiable interference. When such unjustifiable interference is suppressed it is not because those charged with the responsibilities of administering justice are concerned for their own dignity, it is because the very structure of ordered life is at risk if the recognised courts of the land are so flouted that their authority wanes and is supplanted. But as the purpose and existence of courts; of law is to preserve freedom within the law for all well disposed members of the community, it is manifest that the courts must never impose any limitations on free speech or free discussion or free criticism beyond those which are absolutely necessary. When therefore a court has to consider the propriety of some conduct or speech or writing decision will often depend on whether one aspect of the public interest definitely outweighs another aspect of the public interest. Certain aspects of the public interest will be relevant in deciding or assessing whether there has been contempt of court. But this does not mean that if some conduct ought to be stigrnatised as being contempt of court, it could receive absolution and be regarded as legitimate because it had been inspired by a desire to bring about a relief of some distress that was a matter of public sympathy and concern. There can be no such thing as a justifiable contempt of court."

These are words of unparallelled wisdom which should be engraved in tablets of stone. Lord Diplock sitting in the same case has echoed words in identical vein when he states with inimitable clarity:-

"....in any civilised society, it is a function of government to maintain courts of law to which its citizens can have access for the impartial decision of disputes as to their legal rights and obligations towards one another individually and towards the state as representing society as a whole. The provision of such a system for the administration of justice by courts of law and the maintenance of public confidence in it are essential if citizens are to live together in peaceful association with one another. 'Contempt of court' is a genetic term descriptive of conduct in relation to particular proceedings in a court of law which tends to undermine that system or to inhibit citizens from availing themselves of it for the settlement of their disputes. Contempt of court may thus take many forms."

And later he says:-

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely on obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based on those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely on there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court."

Now, this peculiar English concept is however applicable in Malaysin by virtue of Section 3 of the Civil Law Act, 1956, but it has to be moulded to take into consideration local conditions and peculiarities (see Attorney General Malaysia v Manjeet Singh Dhillon (1991) 1 MLJ 167). It is of course well settled that at common law, a judge of the superior courts has jurisdiction to punish summarily, of his own motion, for contempt of court whenever there has been a gross interference with the course of justice in a case that is being tried or is about to be tried, whether the judge has seen the contempt with his own eyes or it has been reported to him; the jurisdiction is not limited to contempt committed "in the face of the court". This expression "in the face of the court" has never been defined and is not confined to conduct which a Judge sees in his presence. It covers all contempts for which a Judge of his own motion could punish a man on the spot. Lord Denning M.R. in Balogh v Crown Court at St Albans (1974) 3 All ER 283, had described "contempt in the face of the court" as the same thing as "contempt which the court can punish of its own motion". Such contempt would be visited with summary punishment. In this respect, the noble Lord took pains to underline the need for caution when he said as follows:-

"This power of summary punishment is a great power, but it is a necessary power. It is given so as to maintain the dignity and authority of the judge and to ensure a fair trial. It is to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately - so as to maintain the authority of the court - to prevent disorder - to enable witnesses to be free from fear - and jurors From being improperly influenced - and the like. It is, of course, to be exercised with scrupulous care, and only when the case is clear and beyond reasonable doubt: see R v Gray [(1900) 2 QB at 41, (1900-3) All ER Rep at 62] by Lord Russell of Killowen CJ. But properly exercised, it s a power of the utmost value and importance which should not be curtailed."

Nearer home, the same caution was also emphasized by Raja Azlan Shah (Ag. L.P. as he then was) in Jaginder Singh & Ors v Attorney-General (1983) 1 MLJ 71, when he said at page 73:-

"We have said many a time that the summary contempt procedure not only should be employed most sparingly but should rarely be resorted to except in those exceptional cases where it is urgent and imperative to act immediately to preserve the integrity of the trial in progress or about to commmence."

The Issues

2. It is in the light of the above stated principles and observations that this appeal will be considered, but first, let me, in passing, touch on a matter which is not entirely clear and that is: why the learned High Court Judge had thought it fit to proceed only against the appellant when there was sufficient evidence to indicate that the affidavit. in support of the disqualification application affirmed by Dato' Seri Anwar Ibrahim (DSAI) was prepared and settled by leading counsel Raja Aziz Addruce and Haji Sulaiman Abdullah and the appellant was apparently only concerned in filing it on behalf of DSAI. Indeed, Haji Sulaiman Abdullah, in his submission, had, rather ungraciously I thought, referred to the appellant's role as no more than that of a filing clerk. Perhaps, the learned Judge had singled him out in order to put a message across to the defence team that he wanted no nonsense in his court. Whatever the case, it does raise a perplexing question. I will say no more beyond that.

3. In this case, although the appellant has canvassed 12 grounds in his petition of appeal, they can be effectively compressed into three:

(1) Whether the Court of Appeal had erred in law and in fact in holding (as the High Court had done) that the filing of the applic.ation by the appellant to disqualify the 2 senior prosecutors was reckless, negligent and an act of bad faith which constituted an abuse of the process of court and therefore had the effect of undermining the integrity and/or authority of the trial in progress.

(2) Whether the Court of Appeal erred in law and in fact in holding that the learned High Court Judge had correctly adopted the summary procedure in convicting the appellant for contempt of court.

(3) Whether the custodial sentence imposed on the appellant was appropriate in the circumstances of this case.

The factual background:

4. The background facts have been admirably set out in the judgment of the learned High Court Judge. As such, I find it unnecessary to restate them here except very briefly in order to keep track of the proper perspectives. The appellant was one of the defence counsel of Dato' Seri Anwar Ibrahim (DSAI) who was charged with the commission of 4 offences of corrupt practice under Section 2 of the Emergency Ordinance No. 22 of 1970. In the course of the trial on 30:h November 1998, DSAI applied to disqualify 2 of his prosecutors i.e. Dato' Abdul Ghani Patail (AGP) and Encik Azahar bin Mohamed apparently based on a Statutory Declaration dated 9th November 1998 made by Encik Manjeer Singh Dhillon (MSD), a senior advocate and solicitor and a letter,dated 12th October 1998 he wrote to the Attorney-General. The main ground relied on was that the prosecutors were actively involved in requesting one Dato' Nallakaruppan (Nalla) to fabricate evidence against DSAI, The application was supported by the affidavit affirmed by DSAI. Both the application and the affidavit in support were filed by the appellant's firm. The learned High Court Judge held that the application was baseless and proposed to cite the appellant for contempt of

court. He thereafter embarked upon a summary process in dealing with the issue at the end of which he found the appellant guilty of contempt and sentenced him to 3 months imprisonment. The appellant appealed to the Court of Appeal against both conviction and sentence. That appeal was dismissed. He now appeals to this Court against that decision.

Whether filing of Application reckless, negligent and in bad faith

5. This first issue, as I have stated, relates to the question of whether the appellant, in filing the disqualification application, had acted recklessly, negligently and in bad faith. The issue is reflected in that part of the judgment of the learned High Court Judge which reads:-

"The pertinent parts of Exhibit ID14B that I have reproduced reveal the involvement of Dato' Nallakaruppan in the alleged relationship between the accused and Shamsidar. As this exhibit was in the possession of the prosecution when MSD met AGP, AGP was clearly not asking for" ... evidence that is otherwise not there ..." As ZZ was aware or ought to have been aware, of the contents of Exhibit ID14B, his acceptance of the conclusion of MSD as appearing in paragraph 4 of the letter is sheer recklessness and negligence at its height. ZZ has in fact expanded on the mildly worded conclusion of MSD to found an allegation which is completely baseless and unsupported by the evidence available to him. As a matter of fact, the contents of Exhibit ID14B Ought to have put ZZ on guard when he read the letter. I would have expected him, as a senior member of the Bar and an officer of the Court, to have alerted MSD on the folly of the conclusion drawn by the letter in the light of information available to him. That may have afforded an opportunity for MSD to retract from the stand that he has taken."

It is to be noted that the initials ZZ above refer to the appellant. This part of the judgment was also fully cited by the Court of Appeal in its acceptance of the findings of the High Court. In order to appreciate fully the stand taken by the High Court as reflected above, it is necessary to look closely at the

letter Exhibit ID 14B referred to as well as the letter dated 12th October 1998 written by MSD to the Attorney-General. Because of the central role played by these documents, I think it is appropriate to reproduce them in extenso. First, Exhibit ID14B reads as follows:-

"BAB MODUS OPERANDI ANWAR-SHAMSIDAR DATO' NALA

Pada kebiasaannya, si-pemandu Azizan akan menurunkan Shamsidar pada setlap kali pertemuan di Cafe Guana di Bangsar Shopping Complex dan kereta mewah Daimler WBV 37 yang dikatakan kepunyaan Dato' Nala (Eksekutif Director Magnum Corporation) akan datarig bersama beliau untuk menjemputnya di Bangsat Shopping Complex dan seterusnya mereka akan menuju ke kondominium mewah di Tivoli Villa untuk tempoh dua-tiga jam. Waktunya ialah 5.30 petang dan pada kebiasaannya ialah pada hari Rabu.

Alasan yang sering diberikan oleh Anwar kepada polls pengiring bahawa beliau ingin bermain tennis dengan Nala di Bukit Kiara. Polis pengiring dilarang turut serta. Begitulah kejadian keji yang berlaku sekian lama untuk tempoh beberapa tahun tanpa pengetahuan Azmin.

Selalunya perbuatan rnereka adalah dua-minggu atau sebulan sekali.

BAB KEJADIAN 30 JUN 1997 5.35 PETANG (ISNIN)

Saya menerima panggilan telefon pada pukul 5 petang dad Azizan bahawa satu pertemuan arttara mereka yakni Anwar-Shamsidar di Bangsar Shopping Complex.

Ketika itu saya berada di Setapak dan dengan penuh rasa tanggungjawab bagi memastikan pengaduan Azizan adalah benar dan sahih maka saya berkejar ke tempat kejadian iaitu di Bangsar Shopping Complex.

Dalam perjalanan, saya sempat menelefon abang sulung Mohd Azman AIi untuk turut serta.

Bersama saya ialah rakan karib saya Puan Zamrah Lajis. Saya juga sempat menelefon seorang lagi rakan bernarea Puan Normala untuk meminjam pelekat kereta Kondominium Trivoli Villa bagi tujuan masuk ke dalam Kondominium.

Dengan izin Allah, kami tiba tepat pada masanya di maria kereta Daimler WBV 37 sedang menanti. Mereka tidak perasan kehadiran kami.

Akhirnya Allah telah menunjukkan di depan mata kami Puan Shamsidar menaiki kereta tersebut menyusur ke Kondo Trivoli Villa Bangsar.

Kami mengekorinya dari belakang tanpa pengetahuan mereka.

Lima saksi pada kejadian tersebut ialah Ummi Hafilda All, Mohd Azman Ali, Puan Zamrah Lajis, Puan Normala dan Azizan Abu Bakar.

Mereka keluar dari Kondo Trivoli Villa pada pukul 7.40 malam dan kereta Daimler menghantar semula Shamsidar ke Bangsar Shopping Complex di mann Azizan menanti di ternpat yang saran.

Kami tidak keberatan memberikan laporan terperinci sekiranya diberikan peluang tmtuk bertemu secara peribadi dengan YAB yang cukup kami sanjungi.

Saya hampir-hampir gila bila mengenangkan seorang tokoh pemimpin yang begitu saya sanjungi lebih-lebih lagi ketokohan beliau di bidang agama sanggup melakukan perbuatan yang amat keji dan hina sebagai pemimpin negara.

Mujurlah abang saya Mohd Azman menenangkan keadaan di mana beliau mengatakan terlalu bahaya untuk kami mengambil tindakan apatah lagi ketika itu bapa kepimpinan yang amat kami sanjungi iaitu Dato' Seri Dr. Malaathir tiada di dalam negara.

Seluruh keluarga terperanjat, sedih tertekan, terhina oleh perbuatan keji insan munafik Anwar Ibrahim. Tetapi apakan daya, kami tiada kuasa kecuali meminta pandangan dari rakan-rakan yang saya percaya seperti Puan Sri Saadah dan Puan Norziela Jalil yang akhirnya memberikan saya sam semangat bagi membongkar pembohongan dan kemungkaran terbesar di mukaburni ini.

YAB, kami tidak melapurkan kepada Mohamed Azmin kerana percaya bahawa kasih-sayang dan kesetiaannya terhadap isteri dan ketua tidak berbelah bagi. Kami juga khuatir beliau mungkin.mengambil tindakan diluar jangkaan sekiranya berasa amat tertekan."

Next, the letter by MSD states:-

" Re: PP lwn Nallakaruppan a/1 Solaimalai

KL High Court Criminal Trial No: 45-40-98

At the very outset let me apologize for writing this letter in English. I would under normal circumstance have arranged for my staff to translate it into Bahasa but there are matters that I am about to set out that for the moment I feel are best left on a p & c basis. Hence the need to keep the letter away from my staff. I have even taken the precaution of hand-delivering this letter myself.

You will recollect that I wrote to you on 1 October 1998 on the above matter citing the recent prosecution of Samsuri Welch Abdullah under the Arms Act 1960 as a comparative basis for you to amend the charge against Nallakaruppan from the Internal Security Act 1960 to one under the Arms Act 1960, I had copied that letter to Dato Gani Patail. 1 had expected a response from your office but instead, as in the case of my first letter dated 17 August 1998, I had a call from Dato Gani Patall on 2 October 1998 asking to see me on a very urgent basis. Both Mr. Balwant Singh Sidhu and I saw him at 3.20 p.m. on 2 October 1998. The date & time of this visit is recorded in the police log book maintained outside Dato Gani's office on the 17th floor of Bangunan Bank Rakyat.

I had gone to this meeting with the expectation that, on the basis of my 1st October letter, there would be some discussion about possible sections under the Arms Act 1960 with a view to an amendment of Nallakaruppan's present ISA charge. To my absolute horror and disappointment Dato Gani Patail used the meeting and the death sentence under section 57 of the ISA as a bargaining tool to gather evidence against Dato Seri Anwar Ibrahim. He had with him the letter I had written to you and copied to him. He was waving the letter about and kept on saying, repeatedly, "I am not impressed" and suggesting that he would not be impressed with my plea to a charge under the Anus Act but instead wanted more. This 'more', and it came across very loud and clear because Dato Gani Patail laid it out in very clear and definite terms, was

1. That Nallakaruppan was now facing the death sentence.

2. That there were other charges also under the ISA that he could prefer against Nallakaruppan but that if they [AG's chambers?] hanged him once under the present charge what need would there be to charge him for anything else.

3. That in exchange for a reduction of the present charge to one under the Arms Act he wanted Nallakaruppan to co-operate with them and to give information against Artwar Ibrahim, specifically on matters concerning several married women. Dato Gani kept changing the number of women and finally settled on five, three married and two unmarried.

4. That he would expect Nallakaruppan to testify against Anwar in respect of these women.

I was shocked that Dato Gani even had the gall to make such a suggestion to me. He obviously does not know me. I do not approve of such extraction of evide,nce against ANYONE, not even or should I say least of a1I, a beggar picked up off the streets. A man's life, or for the matter even his freedom, is not a tool for prosecution agencies to use as a bargaining chip. No jurisprudential system will condone such an act. It is blackmail and extortion of the highest culpability and my greatest disappointment is that a once independent agency that I worked with some 25 years ago and of which I have such satisfying memories has descended to such levels in the creation and collection of evidence. To use the death threat as a means to the extortion of evidence that is otherwise not there [why else make such a demand?] is unforgivable and surely must in itself be a crime, leave alone a sin, of the greatest magnitude. Whether his means justify the end that he seeks are matters that Dato Gani will have to wrestle with within his own conscience.

I have agonized over this machinations of Dato Gani's for the last 10 days. I have known you for clese to 26 years. I cannot imagine you condoning such an act. And so this third and final letter on this matter and my decision to let you know what transpired on the afternoon of 2 October 1998. How far into your Chambers the corruption has spread I carmot say but you will have to stop it goes without saying.

Nallakaruppan does not deserve the charge under the ISA bearing in mind what I have set out above and what is tabulated below. The facts relating to the 125 bullets have been set out in my earlier two letters. In my second letter I mentioned that Samsuri Welch Abdullah charges. I have since researched into the Arms Act prosecutions by your Department over the last ten years but because of the constraint of time have only been able to go back till 1993, a period well within your tenure as AttorneyGeneral. I have chronologically listed out below all the cases reported in the local papers that i have been able to locate. All that is important at this juncture is to note that even in matters of far greater magnitude you have chosen the Arms Act as the vehicle for your prosecutions."

5. It seems clear that the learned Judge in the High Court had taken the stand that as the appellant was aware of Exhibit ID 14B his acceptance of the conclusion by MSD in paragraph 4 of the letter which MSD wrote to the Attorney-General, was (as he put it) "sheer recklessness and negligence at its height." In paragraph 4 of his letter, MSD had, in effect, concluded that AGP had used the meeting on 2nd October 1998 as 'a means of invoking the death threat to extract and/or extort evidence from Nalla against DSAI. Quite obviously, the learned High Court Judge did not think that such a conclusion was justifiable under the circumstances. So did the Court of Appeal.

6. It is, I think, important to note that the pertinent parts of Exhibit ID14B relied on by the learned High Court Judge and which he himself conceded concern the involvement of Nalla in the alleged relationship between DSAI and Shamsidar, the wife of his secretary. The allegation shows, clearly enough, DSAI's extramarital affairs with one married woman. But at the meeting on 2nd October 1998, AGP had wanted Nalla to give evidence specifically of DSAI's alleged sexual involvement with 5 women: 3 married and 2 unmarried. This of course begs the question: why specifically with 5 women? In my view, only AGP could have provided the answer, but unfortunately, he did not file any affidavit in response nor was he called as a witness to explain. Given the stand taken by DSAI throughout the trial in denying and/or disputing any extramarital affairs with other women, it could hardly provoke any surprise that he should allege that the request made by AGP at the meeting on 2nd October 1998, was an attempt to get Nalla to fabricate evidence against him. At this stage, we would not of course be concerned with whether or not the denial and/or dispute had any merit because no charges had yet been brought against DSAI relating to his alIeged extramarital affairs. What was perfectly c1ear then was the stand he took in the trial when he denied and/or disputed the prosecution's allegation of extramarital affairs. In the circumstances, was he not justified, on a prima facie basis, in complaining that AGP's conduct at the meeting on 2nd October 1998, was an attempt to get Nalla to fabricate evidence in order to prefer charges against him for other alleged sexual offences? Looking squarely at the picture from his standpoint and given the fact that at the material time, he had not as yet been charged with any sexual involvement with other women, I would think that his complaint was prima facie justified.

7. But what about the standpoint of AGP? Was it legally proper for him to request for assistance from Nalla in the manner he did? In this respect, the learned High Court Judge had, quite rightly, stated that it was within the power of the Public Prosecutor not to charge a person or to prefer a reduced charge against him if he co-operated with the police by providing information to secure the conviction of his parreefs in crime. He cited in support a passage from The Law of Evidence by Woodroffe & Anor at page 3464 which read:-

"The police, of course, will never solicit a party to become an approver unless they have failed in every other mode. When however, they consider it necessary to resort to this measure and have obtained the necessary authority, they will, of course, be at liberty to address themselves directly to such of the prisoners as they think most proper and to urge them, by every argument and by the fullest promises of pardon, to make a free disclosure.

A good deal of fact, however, will be necessary in selecting the prisoners whom it is desired to admit as approvers; it will not do to embarrass the course of justice by pardoning more criminals than can be helped. On the other hand, it is necessary to choose one who is thoroughly acquainted with every circumstance and every accomplice, and who is at the same time willing to tell the entire truth .... It should then be definitely explained to him that his pardon is only conditional and that the condition is that he should make a full and true disclosure of everything he knows and of every person connected with the matter."

It seems evident from the passage above that the discretionary power of the Public Prosecutor is invoked only as a last resort. Two pre-reQuisites appear to exist, namely (1) that the Public Prosecutor considers it necessary to resort to such an exercise and (2) that the exercise should be conducted properly and fairly so as to obtain a full and free disclosure by the accomplice. Given those pre-requisites, what is the position in the instant case? Here, there was no explanation as to why AGP had thought it fit to seek the cooperation of Nalla. He had not filed any affidavit in reply nor was he called as a witness. Had he been called, he could well have explained the situation and perhaps to the satisfaction of the Court. The learned High Court Judge held that Nalla was an accomplice drawing particular attention to Exhibit ID14B, a document in the possession of the prosecution, the contents have been set out in extenso, but as I have stated, a close scrutiny of the contents therein, would disclose that he (Nalla) was only involved in the alleged relationship between DSAI and Shamsidar (the wife of his secretary) and no one else. I have also indicated that AGP had, at the meeting on 2nd October 1998,

sought his assistance in respect of not just one woman but specifically with 5 women. AGP might well have his reasons for placing a specific figure on the number of women involved but, in my view, he should have been called to extrapolate. As this was not done, we are left with an unenviable position of questioning the motive or motives of AGP.

8. It is common ground that the application filed by the appellant on behalf of DSAI was grounded on 2 documents, more particularly on the letter dated 12th October 1998 which MSD wrote to the Attorney-General informing him of the events which transpired at a meeting he had with AGP on 2nd October 1998 and his reaction or perception on the matter. He was obviously taken aback by what AGP had said at the meeting and he had perceived the conduct of AGP to be an attempt to extract and/or extort evidence. It is, I think, an error of judgment, to conclude purely on the basis of the letter dated 12th October 1998 that MSD's reaction or perception was ill-founded without taking into consideration all the circumstances in which the meeting was held. As the letter merely summarized the terms attributable to AGP, evidence would have to be led as to the exact words used and how they were uttered, etc. Reading the letter as a whole, it is not unreasonable to assume, that the atmosphere at the meeting could not have been anything but tense. Voices could well have been raised. One gets the distinct impression that AGP was extremely annoyed as he began to set down his terms in pretty strong language. It would appear that at one stage of the meeting, he was waving a copy of the letter and said repeatedly that he was not impressed. He then indicated to MSD in no uncertain tenns that he wanted Nalla to cooperate and give information against DSAI specifically on matters concerning 5 women and added that he would expect Nalla to testify against DSAI in respect of these women. It would appear that what was perhaps originally intended to be a mere request by AGP had suddenly been transformed into a demand of sorts. That process of metamorphosis was clearly evident here.

9. Given this scenario, it was hardly surprising that MSD should have concluded or perceived that there was an attempt to extract or extort evidence from Nalla on the part of AGP. If there was, wherefore can it be said that there had been a full and free disclosure by Nalla? It would have been a clear contravention of the second pre-requisite I spoke of a moment ago that the prosecution has to act properly and fairly in seeking the cooperation and assistance of an accomplice. Furthermore, there is nothing to indicate or suggest that AGP had made any effort to determine whether or not Nalla was in a position to give such evidence. If he (Nalla) was unable to give the sort of information requested to the knowledge of AGP, then quite clearly, this would be asking Nalla to give evidence which never existed - in short, to fabricate evidence. In my view, evidence should have been led to ascertain these matters by calling MSD and/or AGP. They should have been given the opportunity to explain.

10. In the circumstances, the view taken by the learned High Court Judge that the request for information by AGP in this case was an exercise of lawful powers with no undertones of any impropriety is clearly misconceived. It follows therefore that the Court of Appeal's endorsement of that view is equally tainted with the same misconception.

11. I have earlier drawn attention to that part of the judgment of the learned High Court Judge when he said that since the appellant was aware of the contents of Exhibit IDI4B in the possession of the prosecution at the material time, he should have been on his guard when he read the letter dated 12th October 1998 written by MSD to the Attorney-General and which should have prompted him as a senior member of the Bar and an officer of the Court to alert MSD as to the folly of his conclusions. With respect, such a stand could not have been tenable as it would conceivably be premised on the wrong assumption that the appellant had accepted or should have accepted the truth of the contents in Exhibit ID14B. It is clear that the accused DSAI had, in the course of his trial, denied and/or disputed the allegation that he had had extramarital affairs with other women. As I said before, whether that denial and/or dispute had any merit or not was beside the point. What was significant was the fact that DSAI had taken such a stand. The learned High Court Judge had apparently failed to consider this material particular and, as a result, had arrived at a conclusion which, in my view, was quite unsustainable in all the circumstances.

12. For the reasons stated, I must, with respect, disagree with the High Court in holding (as did the Court of Appeal) that the appellant had acted recklessly, negligently and in bad faith in filing the disqualification application. In my view, he was prirna facie justified in filing the said application. In the premises, there could not therefore have been any abuse of the process of the court having the effect of undermining the authority and/or integrity of the trial in progress. It must consequently follow, as night follows day, that the charge of contempt against the Appellant has not been proved beyond reasonable doubt.

Whether correct summary procedure adopted

13. I have, at the outset of this judgment, cited with approval those observations of Lord Donning M.R. in Balogh v Crown Court (supra), which will, I believe, echo in the corridors of the Judiciary for all time. He said that the power of summary punishment was a great power but a necessary one given to maintain the dignity and authority of the judge and to ensure a fair trial. He emphasized that it should only be exercised when it was agent and imperative to act immediately with scrupulous care and when the case was clear and beyond reasonable doubt. The summary procedure in proceedings for criminal contempt has been succinctly laid down by Mustill, L.J. in R. v Griffin 88 Cr. App. R. 63 when he said inter alia:-

"We are here concerned with the exercise of a jurisdiction which is sui generis so far as the English Law is concerned.. In proceedings for criminal contempt there is no prosecutor, or even a requirement that a representative of the Crown or of the injured party should initiate the proceedings. The judge is entitled to proceed of his own motion. There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor. There is no preliminary enquiry or filtering procedure such as a committal. Depositions are not taken. There is no jury. Nor is the system adversarial in character. The judge himself enquires into the circumstances, so far as they are not within his personal knowledge. He identifies the grounds of complaint, selects the witnesses and investigates what they have to say (subject to a fight of cross-examination), decides on guilt and pronounces sentence. This summary procedure, which by its nature is to be used quickly if it is used at all, omits many of the safeguards to which an accused is ordinarily entitled, and for this reason it has been repeatedly stated that the judge should choose to adopt it only in cases of real need."

14. Bearing those observations in mind, what is the position in the case at bar? Here, the procedure employed by the learned Judge of the High Court has been stated in the forefront of his judgment. Therein, he dealt with the disqualification application very shortly. after it was filed by the appellant. From the notes of evidence, it would appear that the learned Judge began by calling upon the appellant to read the Statutory Declaration affirmed by MSD as well as the letter dated 12th October 1998 he wrote to the Attorney-General. Having read them, the learned Judge drew the appellant's attention to paragraphs 13, 16 and 18 of the affidavit deposed by DSAI which he apparently took umbrage and thereafter posed certain questions to the appellant, at the end of which he came to this conclusion delivered extempore: -

"This application with its affidavit in support is an interference with the course of justice as it has no basis. (I explain.) It therefore amounts to a pre-emptive step to undermine the integrity of a trial in progress. The object is to project an impression that the prosecution is anchored on fabricated evidence. This is a serious contempt and I have to act on it with all urgency to preserve the integrity of this trial. As I said in the early stage of this trial I will not hesitate to flex every. inch of my judicial muscle to ensure that this trial proceeds smoothly. It is my duty to guarantee that persons who are following this trial are not hoodwinked in any way. With an application of this nature to muddy the smooth flow of justice, I would not be surpnsed if a similar application is made to have me disqualified from hearing this case. In the light of the baseless application filed by you which is totally unsupported by the documents exhibited by you, I propose to cite you for contempt for having attempted to undermine the integrity of this trial. Before I do so this court will show mercy towards you by dropping all further proceedings if you tender an unconditional apology to this court, to the AG, to Dato Gani Patall and to Encik Azahar for filing an application which is absolutely baseless and which is an abuse of the process of court."

He then cited the appellant for contempt of court after the latter refused to tender his apologies to the court and the prosecution. In citing the appellant for contempt, he called upon him to show cause why he should not be punished for contempt for filing a notice of motion with a supporting affidavit containing scandalous and contemptuous matters, in particular paragraphs 13, 16 and 18 thereof. Raja Aziz Addruce, leading counsel for the defence thereupon intimated to the court that in view of the unusual turn of events, they would need time to prepare the appellant's defence. He then asked for a short adjournment. This was disallowed. The learned Judge directed the appellant to show cause immediately. The appellant mounted the witness box and "gave evidence briefly. This was followed by submissions from Raja Aziz Addruce and the Attorney-General. The appellant was then found guilty and he was asked to address the court on sentence which he did. When he again refused the tender the apologies requested by the court, he was sentenced to 3 months imprisonment.

15. In this appeal the appellant is not complaining so much about whether the learned High Court Judge was legally entitled to invoke the summary procedure in dealing with the alleged contempt but that the procedure employed by him did not ensure sufficient fairness to the appellant when he was refused time to prepare his defence and call witnesses. At this point, I should perhaps draw attention to the relevant principle expressed so forcefully by Abdoolcader J. (as he then was) in Kumaraendran, an Advocate and Solicitor (1975) 2 MLJ 45 when he said at page 47:-

"The power to take cognizance of any contempt of court connotes summary disposal of the matter as an offence without the formality of a charge or complaint. Punishment for contempt in the face of the court which may be imprisonment or a fine can be imposed immediately and without notice (Watt v. Ligertwood), but it has however been firmly established that:

"no person should be punished for contempt of court, which is a criminal offence, unless the specific offence charged against him be distinctly stated, and an opportunity of answering it given to him." (In re Pollard).

The Privy Council followed this decision in the later case of Chang Hang Kiu v. Piggot and affirmed it again in Appuhamy v. R., All J., (as he then was) applied this very principle in Public Prosecutor v. Lee Ah Keh & Others. It is therefore abundantly clear that in such cases it is necessary that the contempt should be distinctly stated and that the alleged contemnor should be given an opportunity of answering the charge.

In the more recent case of Jaginder Singh & Ors v Attorney General (supra) the observation of Raja Azlan Shah Ag. LP (as he then was) indicated how important it was to comply with this principle in dealing with a charge of contempt of court. He said as follows:-

"The disturbing aspect, amongst others, in this case is that no specific charges against the appellants were distinctly stated and what is worse they were not given an opportunity to answer and defend themselves. It is unthinkable that they should be sent to prison unless specific charges were framed and they have had an opportunity to answer them. This is because the summary contempt procedure more often involves a denial of many of the principles of natural justice, requiring, as it did in this case, that the judge should not only be both prosecutor and adjudicator, but should also have been witness to the matters to be adjudicated upon."

In my view, the phrase "an opportunity of answering the charge" must necessarily include a reasonable opportunity be given to the alleged contemnor to prepare his case. That the conduct of the hearing must be fair is a reflection of the deeper principle that the alleged contemnor is entitled to present his case fully.

16. As I said, the main complaint in this case is that the appellant was not given an opportunity to answer and defend himself. He had wanted an adjournment in order to prepare his defence to the charge of contempt and to call witnesses. The learned High Court Judge had refused his request made through his counsel Raja Aziz Addruce..Apparently, the main reason for the refusal was because the learned Judge took the stand that it was urmecessary to call witnesses as it was sufficient for him to rely on the documents filed by the appellant which he considered comprehensive for the purpose. It might be argued that this was a matter strictly within the discretion of the learned High Court Judge. That of course could not be disputed. But that discretion had to be exercised judicially. It was not done here. For the reasons already stated, I take the view that the exercise of that judicial discretion must necessarily entail the calling of certain witnesses such as AGP and MSD. To merely rely on the documents, without more, would be an act of injudicious discretion.

17. Having regard to the very serious nature of the charge against the appellant, he should have been given the opportunity of calling witnesses to rebut the allegation that the affidavit in support of the disqualification application contained scandalous and contemptuous matters. Here, I would echo the sentiment expressed by Raja Azlan Shah, Ag. L.P. in Jaginder Singh that it is unthinkable for a person to be sent to prison unless he has been given the opportunity of answering the charge against him. In my view, the learned High Court Judge should have allowed the appellant adjournment he requested so that he could prepare his defence fully fairly and effectively. It may well be that such an exercise was likely to delay further the trial of DSAI but this consideration must be balanced against the obvious need for the court to comply with that immortalized maxim which has so often been repeated, like incantations in a religious order, that justice must not only be done but must manifestly be seen to be done. By refusing to grant the adjournment, the appellant had, in effect, been deprived of the opportunity of answering the charge against him, thereby offending the sacrosanctity of a principle so fundamental to our system of justice. In the circumstances, I must, with respect, disagree with the stand taken by the Court of Appeal that the High Court had complied with the said principle on this score. In that context, I hold that the summary procedure invoked by the learned High Court Judge had not been correctly applied resulting in injustice to the appellant.

18. Given the conclusions above, I do not find it necessary to consider the issue of sentence. It is sufficient, for the reasons stated, to allow the appeal. The conviction is hereby quashed and the sentence set aside.

Original copy signed by

Y.A.A. TAN SRI DATUK STEVE L.K. SHIM

Chief Judge, Sabah & Sarawak

(STEVE L.K. SHIM, Hakim Besar Sabah & Sarawak)

Date of delivery of judgment: 27th June 2001 Date of Hearing: 29th - 31st January 200I

Counsel for the Appellant: YM Raja Aziz Addruse, Tuan Hj. Sulaiman Abdullah, Ambiga Saeeneyasan, Christopher Leong, Daniel Khan, Gopal Saeenayasan, Messrs Sivananthan Advocates, Kuala Lumpur.

Counsel for the Respondent: Encik Mohd. Yusoff Hj. Zainal, Deputy Public Prosecutor Encik R. Muniandy, Deputy Public Prosecutor, Noorbahari Baharuddin, Deputy Public Prosecutor