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Case Update: Absence during hearing due to poor health, illness and incapacity

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CIVIL PROCEDURE
Contempt proceedings – Absence during hearing due to poor health, illness and incapacity – Whether matter against contemnors could be dispensed with or dealt with in absentia –Whether court seized with power to proceed with trial of contempt proceedings and to impose sentence against contemnors who waived right to be present in court
 
Attorney General of Malaysia v Dato’ See Teow Chuan & Ors
[2018] 3 CLJ 283, Federal Court
 
Facts Pursuant to a winding up order of Kian Joo Holdings Sdn Bhd, the liquidators entered into a conditional share sale agreement for the sale of shares. The tender process for the sale of shares was opposed by the major contributories. An application was filed to the High Court but was dismissed. After a series of appeals, the Federal Court upheld the decision of the High Court. Subsequently all contributories filed an application to the Federal Court to review its judgment on the grounds of plagiarism. This was dismissed. The liquidators then initiated contempt proceedings against all contributories including their lawyers, alleging contempt of the Federal Court. The contributories and the lawyer who were present at the trial conceded to the contempt charges and were sentenced. However, three other minority contributories and a lawyer failed to appear in court for the trial. The counsel, who appeared on behalf of the minority contributories, informed the court that one of the contemnors had passed away and the other two were unable to attend court due to old age, poor health, illness and incapacity. The counsel then applied that their attendance in court be dispensed with and the matter against them be dealt with in absentia; as both of them had waived their right to be present in court and were prepared to be sentenced in absentia.
 
Issue The issue was whether the court had the power to proceed with the trial of the contempt proceedings and to impose sentence against the contemnors who were prepared to be sentenced in absentia, had offered their apology and waived their right to be present in court.
 
Held The Federal Court held that it has the power to proceed with the trial to determine the guilt of contempt as charged and to sentence accordingly. In this case, the contemnors had voluntarily requested to be heard in absentia therefore no prejudice was done. Since there were other contemnors who were of advanced age and unwell in this contempt proceedings who were sentenced to a fine in default of imprisonment, thus the appropriate sentence against both of the contemnors would also be similar.