Pendakwa Raya v Badrul Hisham Bin Shaharin (WA-43-13-05/2024)

His Lordship had decided: 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 a contempt of court. (Emphasis is mine) [6] Parameters and limits are set on publication in respect of a case pending in court for trial and judgment, like the present. The rationale being, due to fear that any publication be it electronic or otherwise on an ongoing trial, would have the tendency to report on matters beyond the events in a courtroom, which if it takes place, has the effect of undermining fairness of the trial. To publicly share any facts about a case; on evidence which has not been tendered in court yet; or expressing opinion on the guilt or innocence of an accused is prohibited, as it is considered prejudicial, and may affect the ongoing trial, specially so when the said publication is widely circulated outside confines of the court. (See by analogy cases like Trustees of Leong San Tong Khoo Kongsi (Penang) Registered & Ors v SM Idris & Anor and Another Application (1990) 1 MLJ 273) [7] Case law has evolved showing that after reading such publication, a witness who has agreed earlier to testify in court had refused to do so or if he testifies, he may offer an altered testimony. Such instances would certainly sully the pristine stream of justice in a pending court proceeding. (See the case of PP v Arumugam a/l Doraisamy (2022) 10 MLJ 684). Evolution of the sub judice rule [8] Ensuing from above, the sub judice rule has evolved to limit anyone including an accused person from publishing any part of the case or matters pertaining to his case, which is pending trial and determination by the court. Failure to abide by that golden rule may give rise to a dire consequence, like contempt of court against the publisher. [9] To avoid such calamity in the administration of criminal justice and in a pending court proceeding be it for trial or judgment, the court is empowered to impose a gag order to restrain anyone including the accused from publishing on matters in respect of his case. The court as the final arbiter and bastion of justice, is in the best position to do so, as the case is pending before it and once a gag order is made, it would be in the best position to decide on the case freely, unhindered by any adverse and prejudicial comments emanating from irresponsible publication. Issue at hand [10] Foremost, it has to be iterated that each case that comes before the court has to be decided based on its own peculiar facts and circumstance. A decision made does not amount to one size that fits all cases. The deputy public prosecutors (DPPs) appearing for and on behalf of the PP in this case as well as counsel representing the accused had submitted at length on their stance and they have pursued it candidly, with a high degree of professionalism and also without any fear or favor. [11] As alluded to above, this court when deciding on the revision able issue, is only guided by the charge preferred against the accused. Together with the charge, a host of applicable legal principles would come into play and be of assistance for a final determination if a gag order is justified against the accused, and the refusal by the SCJ is improper and incorrect in law. [12] Certainly, any comment made by the accused on the pending case against him would be sub judice. If that happens, the court will not hesitate to act, in order to prevent or punish the publisher as it had the tendency not only to prejudice the fair trial of the case, but obviate the smooth running of the process of administration of criminal justice. In essence, the rule limits comment and disclosure on a pending court proceeding so that there is no prejudging of issue arising in the case by the judge or he is influenced by the comments made. (See R v Gray (1900) 2 QB 36 at page 40). Moreover, in a criminal case, the sub judice rule commences from the issuance of warrant or arrest made until conclusion of appeal. (See: PP v Abdul Samad bin Ahmad & Anor (1953) 1 MLJ 118). [13] On that score, it would be appropriate for the SCJ presiding in this case, to be allowed to deal with it unhindered and unaffected by any prejudicial comments. With that, is left for the SCJ to only decide on the case in accord with the facts, admissible evidence, law and procedure applicable. Only then integrity of the criminal proceeding, sanctity of the trial and its process involving the accused would be preserved. That would augur well for right to fair trial of the accused person. [14] He is for all intents and purposes, presumed innocent until proven guilty only by admissible evidence, thus no one individual including the accused should question, comment and discuss his innocence or guilt or make any statement relating to the facts, issues or evidence that are yet to be presented, argued and proven in court, which at its utmost, would only be speculative. Once again, in order for the court to safeguard, preserve and protect the right of the accused to a fair trial, such irresponsible publication ought to be deterred altogether. [15] This court is at liberty to take judicial notice of the notorious fact (see section 56 of the Evidence Act 1950 (EA/Act 56) that if comments are made on the pending case, by the accused on the social media, which could either be on the charge itself; the trial underway; his innocence, it would invite comments by netizens who may support the accused and some may also at the same breath comment on his guilt and how the court should view such an offence allegedly committed by the accused. Such comments, if made would be prejudicial and if read by reasonable men or by the judge himself, would have his mind tainted and prejudiced. His mind would be usurped by such prejudicial comments, which should not be the case, as he is supposed to be an arbiter of the criminal case without any bias, fear, favor or prejudice but to decide on the case freely premised on admissible evidence only and not hearsay matters that comes to his mind. It is this kind of dissemination of information that has the tendency to cloud the mind of the public or even the presiding judge and be prejudiced by it. So, in the interest of justice, such dissemination of information ought to be deterred and nipped at the bud, by a gag order. What more, the information disseminated is in respect of a pending case at the sessions court which is yet to be judged and determined by the SCJ. [16] As the charge denotes an offence of criminal defamation punishable under section 500 of the PC which is to be read with section 499 of the PC, its criminalization is to deter any imputation, defamatory in nature, allegedly hurled at our King. In a civil setting, the victim being the aggrieved party is placed in a restored position to apply to the court for an equitable remedy of injunction to restrain and prevent the defendant from repeating the defamatory statement. But in a criminal case like the present, such an avenue is closed. Thus, it is for the criminal court to act with all immediacy to issue a gag order against the accused, to prevent him from publishing sub judice comments, thus restoring position of the case until the point of charge and then to proceed with its trial unhindered, unbiased and unprejudiced. [17] It syncs with our process of administration of criminal justice, wherein once the case is in court, it takes over conduct of the case to ensure justice is not compromised for all parties to the criminal proceeding. Thereon is very much the powers and jurisdiction of the court and its judgment. (See the case of PP v Dato Yap Peng (1987) 1 MLRA 1). In that respect, issues and arguments ventilated during the criminal trial, has to remain fresh and not as those addressed in a publication outside the courtroom, or sullied by it. That preserves the sanctity and integrity of the trial. (See by analogy the case of Attorney General for New South Wales v John Fairfax and Sons Ltd

6 NSWLR 695). [18] It is easier said that any form of prejudicial publication would not affect the trial judge presiding over a case, as he would be able to sieve through consideration of the case on a measure of relevancy and not swayed by irrelevant information or public opinion. However, judging a case and exercise of judicial discretion is a pristine act and it ought not be sullied by prejudicial comments made by any individual, including the accused, thus preventing the judge to contain himself with only the core and jugular, which is the facts of case, its circumstance, admissible evidence and the law applicable. Hence, it is only ideal for a judge to try a case without any other publication lingering and affecting his judicial mind, in order for him to arrive at a decision fairly and justly. Conclusion [19] Flowing from the above, factors guiding the court to displace the order of refusal of a gag order by the SCJ and substituting it with one against the accused, includes: • Its inherent jurisdiction and power to do so, in order to prevent usurpation by any other person, including the accused of the function of the court to decide a case according to facts, admissible evidence and law. Conduct which is calculated to prejudice such pristine function or to undermine its public confidence would stand to be deterred with all immediacy before it takes place. That too is the pith and substance of the operation of Article 126 of the Federal Constitution where the High Court shall have power to punish any contempt of court. In respect of the sessions court, according to Article 121 of the Federal Constitution, is an inferior court created pursuant to Federal Law, i.e. Subordinate Courts Act 1948 (Act 92), which shall have jurisdiction and powers as may be conferred by the said Act. Thus, by express provision in section 99A of Act 92 read with section 26 of the Third Schedule to Act 92, the sessions court has also the power to take cognizance of any contempt of court. It renders the following: Further powers and jurisdiction of courts 99A. In amplification and not in derogation of the powers conferred by this Act or inherent in any court, and without prejudice in the generality of any such powers, every Sessions Court and Magistrates’ Court shall have the further powers and jurisdiction set out in the Third Schedule. Section 26 of the Third Schedule reads as follows:

Contempt of court Power to take cognizance of any contempt of court and to award punishment for the same … • Bereft of any other information to the court, it is iterated that the charge and the offence of criminal defamation specified in it, where our King is the victim, would form the basis to issue the gag order. • The court being the guardian of justice, would be in the best position to issue the gag order with the aim of preventing pre-trial publicity and if made would have an effect and influence on the fairness of the pending criminal proceeding; • It is also aimed at protecting the privacy and safety of witnesses in the case and specially so our King at whom the defamatory words were hurled at; and also • To preserve and maintain the integrity of the pending criminal proceeding against the accused. • The sessions court when trying the case of the accused, shall be free from bias and prejudice against any party, including the accused. • Any decision made shall be based on the facts that have been proved vide admissible evidence adduced before the court in accordance with law and procedure applicable. • As the criminal proceeding is already before the sessions court, there shall be no usurpation by any other person including the accused of the function of that court to decide the case according to law and not to be prejudiced by statements and comments made to sully the process of administration of criminal justice. • It has to be emphasized any form of conduct which is calculated to prejudice the smooth running of the criminal proceeding shall be observed as contempt and it shall be deterred and nipped from the inception of the case, which is at the point when the accused is charged in court. [20] Ensuing from the above analysis, refusal of the gag order by the SCJ is unjustified, incorrect and improper. As such, pursuant to section 325 (1) of the CPC, this court in the exercise of its revisionary cum supervisory jurisdiction over the subordinate court, takes the liberty to revise the said order of refusal and pursuant to section 316 (c) of the CPC, substitute it with a gag order against the accused. Jurisdictionally, reference is made to the decision of the Supreme Court then, in the case of Liaw Kwai Wah v PP (1987) 2 MLJ 69, wherein the Indian case of Nasrullah & Ors AIR (1928) All. 287 was referred to which had decided the following: The object of the revisionary power is to confer upon criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand, in some undeserved hardship to individuals. (Emphasis is mine) Further, the revisionary powers, has to be exercised with regard all circumstances of each particular case, like the present, and not to adopt a strait jacket approach, so tight. (See the case of Muhairi bin Mohd Jani & Anor v PP (1996) 3 MLJ 116. Thus, the accused is deterred from making any sub judice comment on the pending criminal trial against him, until its conclusion. It is also an order made to supplement the order of bail pending trial granted to the accused on 29.4.2024. Cue is taken from the dictum of Wan Yahya J (who was speaking for the Supreme Court then) in the case of PP v Dato’ Mat (1991) 2 MLJ 186, after having tacitly approved the imposition of bail conditions, concluded that analogous, fair and reasonable conditions apropos to the securing of the accused’s subsequent attendance in court are not illegal and therefore imposable by our courts. [21] The gag order issued is precise, and applicable to the accused whose trial is pending against him. The order made is also necessary and proportional to the competing interests of free speech and his right to a fair trial against the utmost risk of prejudice to a fair trial. The competing interests have to be balanced delicately. Obviously, the risk of prejudice to a fair trial has to be circumvented at all cost and nipped at the bud, so that justice of the case will prevail. The court shall jealously safeguard and preserve it to its core. (See the test propounded in the case of DSNR v PP

4 MLJ 281 FC). By issuance of the gag order, right to fair trial of the accused is not eroded but well preserved and left intact, it being, he has still the opportunity to defend himself and receive a fair and just outcome from the sessions court. [22] At this juncture, I wish to acknowledge the scholarly work of Shukriah Mohd Sheriff titled SUB JUDICE AND GAG ORDER:THE RECENT DEVELOPMENT IN MALAYSIA 30 (2) IIUMLJ 1-22, wherein she has afforded an insightful view of the legal principles on the issue at hand and the approach adopted by the court when dealing with accusatory publication like in the case of DSNR and Arumugam and also how the court is guided to arrive at a proportionate ruling when confronted with the issue at hand. The said article has assisted me a great deal in the preparation and rendering of this judgment. Gag Order allowed. Dated 10 November 2024 SGD Muniandy Kannyappan Judge, High Court 2 (Criminal) Kuala Lumpur. Parties DPP Kalmizah Salleh with DPP Mohd Sabri Othman and DPP Nurilya Ellyana Nor Azmal of the Attorney General’s Chambers for and on behalf of the Public Prosecutor Muhammad Rafique Bin Rashid Ali with Nurmustanir Bin Md Nor and Yahya Bin Othman of the Law Practice of Rafique for the respondent/accused.