TAN HOO ENG v Ng Siew Wee

a-05-561-12-2022 Court of Appeal (Mahkamah Rayuan) 22 May 2024 • A-05-561-12/2022 • 22 min read

9 cases cited (0 SG, 9 foreign)

Catchwords

Rayuan Jenayah - Rayuan perayu terhadap keputusan Hakim Mahkamah Tinggi yang menolak permohonan perayu untuk memindahkan kes dari Mahkamah Sesyen ke Mahkamah Tinggi - Responden mengemukakan notis bantahan awal iaitu keputusan Hakim Mahkamah Tinggi bukanlah keputusan muktamad yang memutuskan hak perayu dan tidak boleh dirayu ke Mahkamah Rayuan - Responden mengatakan rayuan perayu adalah tidak kompeten dan harus dibatalkan - Perayu kemudiannya memfailkan Notis Usul untuk kebenaran memohon Perintah Pengkomitan terhadap Timbalan Pendakwa Raya - Mahkamah Rayuan bersetuju dengan responden bahawa keputusan Mahkamah Tinggi tersebut bukanlah keputusan muktamad yang memutuskan hak perayu dan tidak boleh dirayu - Rayuan perayu adalah tidak kompeten dan dibatalkan - Tidak ada asas untuk perayu memohon Perintah Pengkomitan - Notis Usul perayu untuk kebenaran memohon Perintah Pengkomitan terhadap Timbalan Pendakwa Raya dibatalkan - Seksyen 417 Kanun Tatacara Jenayah (Akta 593) - seksyen 3, 22 dan 50(1)(a) Akta Mahkamah Kehakiman 1964.

Practice Areas

Criminal Procedure

Judges (3)

Azman bin Abdullah Coram Azmi bin Ariffin Coram Hadhariah bt Syed Ismail Delivered

Counsel (8)

Attorney General's Chambers Firm Bachan & Kartar Firm Afina binti Abdul Hakim Counsel Appellant Amir Faliq bin Mohamad Jamil Counsel Appellant Datin Asmah binti Musa Counsel Prosecution Gobindeep Singh a/l Gurbachan Singh Counsel Appellant Gurbachan Singh a/l Bagawan Singh Counsel Appellant Mohd. Fuad bin Abdul Aziz Counsel Prosecution

Parties (2)

Ng Siew Wee Respondent Tan Hoo Eng Appellant

Case Significance

Confirms that a party-initiated application to cite a prosecutor for contempt is civil contempt under Order 52, and that raising a successful preliminary objection is not obstruction of justice, so leave to commit will be refused where no prima facie case is shown.

This Court of Appeal decision concerns an application by an appellant for leave to cite a Deputy Public Prosecutor for contempt of the Court of Appeal, arising out of earlier criminal proceedings. The appellant had been charged in the Sessions Court at Ipoh with offences under the Penal Code and the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, and had applied to the High Court under section 417(1) of the Criminal Procedure Code to transfer the case to the High Court. The High Court dismissed that transfer application, and the appellant's appeal against that refusal was itself dismissed by a panel of the Court of Appeal, which upheld a preliminary objection taken by the prosecution that the appeal was incompetent. The appellant then filed a notice of motion seeking leave to cite the Deputy Public Prosecutor for contempt, alleging that she had obstructed and interfered with the administration of justice by raising that preliminary objection. The Court examined the nature of the contempt alleged and the applicable procedure, holding that a party-initiated application of this kind is a matter of civil contempt governed by Order 52 of the Rules of Court, applied to the Court of Appeal through the Rules of the Court of Appeal, and that the appellant therefore had to establish a prima facie case. It held, without hesitation, that the appellant had failed to establish a prima facie case of contempt: a party who successfully raises a preliminary objection cannot thereby be said to obstruct the administration of justice, and to hold otherwise would open the floodgates to committal proceedings whenever a preliminary objection succeeds. The Court emphasised that the power to punish for contempt is to be used sparingly and as a last resort. It accordingly dismissed the application for leave to cite the Deputy Public Prosecutor for contempt.

Summary

Tan Hoo Eng, charged with various offences in the Ipoh Sessions Court, sought leave to cite Deputy Public Prosecutor Ng Siew Wee for contempt of the Court of Appeal for allegedly misleading the court regarding a preliminary objection in a transfer application. The Court of Appeal dismissed the application, finding no basis for the contempt allegation as the DPP had the right to maintain the preliminary objection that was ultimately upheld. The Court held the application was incompetent and not within the scope of criminal appellate jurisdiction under the Courts of Judicature Act.

Why did the Court refuse leave to cite the Deputy Public Prosecutor for contempt?

The Court held that the appellant had failed to establish a prima facie case of contempt. It reasoned that a party who raises a preliminary objection — as the Deputy Public Prosecutor had done in the earlier appeal — cannot thereby be said to obstruct or interfere with the administration of justice, and that to hold otherwise would open the floodgates to committal proceedings whenever a preliminary objection succeeds. It emphasised that the contempt power is to be used sparingly and as a last resort, and dismissed the application.

What procedure governed the application to cite the prosecutor for contempt?

The Court held that the application, being party-initiated to enforce or vindicate against an alleged interference, was in the nature of civil contempt governed by Order 52 of the Rules of Court, which applies to the Court of Appeal through the Rules of the Court of Appeal. The mere fact that the alleged contempt emanated from criminal proceedings did not make it criminal contempt, so the appellant had to satisfy the requirements for a prima facie case under that procedure, which it failed to do.