Matthias Chang: Victim or Martyr Without A Cause?

ARCHIVES 2010

By admin-s On Apr 10, 2010

A deliberation on whether Matthias Chang was unjustly found in contempt of court through an examination of the law of contempt; from its coming to being to its evolution to what it is today and how it applies to Matthias Chang’s unruly behaviour in court – in 2 parts.

In the Sun newspaper of Friday April 2 2010 I came across this story:

Dr. M’s ex-aide starts jail term for contempt

KUALA LUMPUR: Matthias Chang, former political secretary of ex-premier Tun Dr. Mahathir Mohamad, was sent to prison after he refused to pay a RM20,000 fine for contempt of court.

Chang was served the committal order by the High Court before he was taken to Kajang prison.

The lawyer was cited for contempt of court on March 25 when he failed to apologise to the court during cross-examination in his defamation suit against American Express (Malaysia).

The committal order stated: “At about 2.30pm to day (March 25) … when the court refused your request to address the court as a witness, you lost your cool and walked out of the witness box and thereafter left the court during the proceedings. Your conduct is a contempt in the face of the court by virtue of Order 52 (1A) of the Rules of the High Court.”

Judge Noor Azian Shaari had ordered Chang to pay a fine of RM20,000 within seven days, in default [to serve a] month’s jail sentence.

The judge says that Chang had committed contempt in the face of the court.

I will first tell about how the law of contempt came into being. Then I will tell about how it had evolved into what it has become in modern times. But before that you may wish to know,

What is contempt in the face of the court?

If you have read my book How to Judge the Judges, 2nd edition, Sweet & Maxwell Asia, you will come across this passage on page 61:

Contempt in the face of the Court

If you attack the character or conduct of a judge it could be termed a contempt by scandalizing the judiciary. If you make the same attack in court or if you disrupt proceedings in court it is called contempt in the face of the court.

This was what the judge Noor Azian Shaari meant when she told Matthias Chang “Your conduct is a contempt in the face of the court.” Chang had disrupted court proceedings as a witness when he walkout in a huff.

The difference between contempt by scandalising the judiciary and contempt in the face of the court is that the latter is dealt with summarily, that is to say, done or made immediately and without following the normal procedures – this is the dictionary meaning. And this is how Lee Hun Hoe CJ (Borneo) put it in Cheah Cheng Hoc v Public Prosecutor [1986] 1 MLJ 299 (SC), at p 301:

The power of summary punishment is a necessary power to maintain the dignity and authority of the Judge and to ensure a fair trial. It should be exercised with scrupulous care and only when the case is clear and beyond reasonable doubt. As Lord Denning, MR said in Balogh v Crown Court [1974] 3 All ER 283, at 288:

“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 being improperly influenced – and the like …”

This power must be used sparingly but fearlessly when necessary to prevent obstruction of justice. We feel that we must leave the exercise of this awesome power to the good sense of our judge. We will interfere when this power is misused.

Now that we know what is contempt in the face of the court better than any other uninstructed person, we should not listen to a non-lawyer, like Che Det, giving pompous legal advice and telling-off the judge that “no one should be the prosecutor, the judge and the executioner.” Doesn’t our former prime minister know that summary decisions are part of living in a civilized society? The umpire in a badminton match does it all the time, so does the referee in a soccer match and other sporting activities, but most of all, and he should know as he was a parliamentarian, the speaker of the House of Representatives or Legislative Assembly does it all the time at every sitting; they are all, to use his own words, “prosecutor, judge and executioner.”

Contempt in the face of the court means “the power of summary punishment to be exercised by the judge of his own motion only when it is urgent and imperative to act immediately” so as to prevent – as in the case of Matthias Chang – disruption of the court proceedings. This is a necessary power to be exercised only in the most pressing cases so as to deal with the circumstances or situations stated by Lord Denning in Balogh v Crown Office.