To Show Cause or Not to Show Cause: Deciphering Order 52 Rule 2B of the Rules of Court 2012 and its position in the Law of Contempt of Court

Contempt of court has been making the airwaves again. Recently, the Federal Court had found Malaysiakini liable for contempt of scandalizing the judiciary and sentenced the same to pay a fine of RM500,000.00 (see Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652).

In 2019, the Federal Court had found Arun Kasi, an advocate and solicitor, in contempt and sentenced him to 30 days jail and a fine of RM40,000.00 (see PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian International Arbitration Centre, intervener) [2019] 4 MLJ 747). The Malaysian Bar, during the 75th Annual General Meeting, had once more reiterated calls for reform on the law of contempt of court. 

In spite of this, one of the major underpinnings of the law of contempt of court is the requirement to show cause under Order 52 rule 2B of the Rules of Court 2012. The specific rule states:

2B. Other cases of contempt (O. 52 r. 2B)

In all other cases of contempt of Court, a formal notice to show cause why he should not be committed to the prison or fined shall be served personally.

This procedure has been spotlighted in recent times due to a number of cases happening within a short period of time. In the case of Uthayakumar a/l Ponnusamy v Abdul Wahab bin Abdul Kassim (Pengarah Penjara Kajang) & Ors [2020] 2 MLJ 259, the Court of Appeal had observed that the process to begin contempt proceedings “has to start with a formal show cause notice”. The Court of Appeal in Tan Boon Thien & Anor v Tan Poh Lee & Ors [2019] MLJU 1972 explained that the rationale for this requirement was as follows:

[34] Based on the foregoing reasons, we are of the considered view that r. 2B requires mandatory compliance and its failure will render the subsequent proceedings invalid. We are of the view that the Rules Committee in its wisdom enacted r. 2B with the purpose that the proposed contemnor be given the first opportunity of answering to the notice to show cause before any application for leave is made. The leave application should be made only after the expiry of the period that the answer should be given and it is only when and where there is no reply or no satisfactory explanation given that any ensuing action is taken. …

From the above, we can see that the courts have taken a very strict view in the requirement to show cause. To that extent, we have seen the courts being prepared to throw out contempt applications on the basis of procedural non-compliance of Order 52 rule 2B (see for example Dato’ Sri Andrew Kam Tai Yeow v Tan Sri Dato’ Kam Woon Wah & Ors [2021] 7 MLJ 874). 

The wordings of the rule, however, are not clear and this has lead to confusion as to the precise nature and scope of its applicability. In this regard, the courts have grappled with the exact meaning of “formal notice to show cause” and the Rules of Court 2012 do not provide any clarity on its scope. As a result, the High Court in J v J [2020] MLJU 1839 found that a formal show cause notice need not be strictly “formal” as messages communicated via Whatsapp between the parties themselves can be construed as a show cause notice. The High Court found that:

[37] However, the Court agrees with the submission of counsel for the Petitioner that sufficient prior [formal] notice to show cause had been given to the Respondent for the following reasons:

(1) the Respondent accepts that the Leave Order of 20.2.2020 to apply for an Order for committal has been validly obtained as to-date, the Respondent has not taken any steps to have this Order obtained ex parte set aside;

(2) the Access Order gave very detailed and specific timelines on when the Petitioner could have access to her children;

(3) from the Court records in this action, the Access Order was one obtained by the Petitioner whose application for the same (Encl 72) was strongly contested with three Affidavits filed, two by the Petitioner (Encls 73 and 78) and one by the Respondent (Encl 77) with written submissions (Encl 82 by the Petitioner and 79 by the Respondent) exchanged and oral submissions made on 9.12.2019 which means that the Respondent is very much aware of the time allotted to the Petitioner;

(4) the days that the Petitioner could have access to her young children were limited to only 10 days for the period commencing 16th December to 26th December; and with the clock and the Court-sanctioned period for access literally ticking away, following from the exchanges of WhatsApp messages set out in paragraph [28] above, the cryptic message by the Petitioner sent by WhatsApp to the Respondent on 24.12.2019 saying “…if they don’t come out I will report to the court” is adequate prior notice in the circumstances. More so, when the Respondent replied to say “Yes that’s your right and You may do so” which clearly signify that he has had notice of the same.

The Federal Court in Peguam Negara Malaysia v Mkini Dotcom Sdn Bhd & Anor [2021] 2 MLJ 652 also observed that failure to show cause was not fatal when the respondents are fully aware of the application being made against them before leave was obtained. The Federal Court held that:

[11] In Uthayakumar the Court of Appeal was merely articulating the procedure laid down in O 52 r 2B of the ROC. While in Tan Boon Thien the contemnor complained of the non-compliance of the same order after leave was granted against him. There was nothing in these two cases to denote that the contemnors were in fact aware of the application made against them, before leave was obtained. On the contrary, the respondents here were fully aware of the application by the AG when learned counsel for the respondents appeared on the date of the ex parte hearing, for reasons we have alluded to earlier. Since the respondents were fully aware of the AG’s application, in our view the failure of formal notice did not prejudice the respondents.

The requirement to show cause under Order 52 rule 2B is now once again in the spotlight. The Federal Court had recently delivered an oral decision in Tan Poh Lee v Tan Boon Thien (unreported, 18 February 2021, Civil Appeal No.: 02(i)-45-09/2020(W)) and had determined that: 

"That does not mean that there has to be a notice issued by the parties. That is not how to construe O. 52, r. 2B. The notice has to be issued at the behest of the Court. Private parties do not issue notices to show cause to each other, the Court does and that is what the Order refers to – O. 52, r. 2B. It is the disrespect to the Order of Court that is the subject matter for consideration. To our minds, the Court of Appeal erred in focusing solely on the word shall without considering the rationale and purpose of the entirety of Order 52. We further find that O. 52, r. 2B – the notice there refers to the notice in O. 52, r. 4(3)."

As of the 28th of March 2021, the precise scope of the Federal Court’s decision Tan Poh Lee (supra) is still unclear as only an oral decision has been released so far. Her Ladyship Nalini Pathmanathan FCJ, in delivering this oral decision, has notified that grounds are being written as we speak. What is hoped is that these written grounds will provide some clarity in an area that has been unclear for some time.