Contempt challenge - Shafee's 'mala fide' claim a red herring, says AGC

The Kuala Lumpur High Court today heard that senior counsel Muhammad Shafee Abdullah's (above) claim that the prosecution's "forum shopping" was mala fide (bad faith) was a mere red herring, 

Senior federal counsel Alice Loke Yee Ching for the Attorney-General's Chambers (AGC) said this when submitting over Shafee's assertion that the AGC had shown mala fide by conducting "forum shopping" for whether a contempt matter is heard before Kuala Lumpur High Court judge Mohd Firuz Jaffril or before judge Mohd Nazlan Mohd Ghazali.

The "forum shopping" assertion was made by Shafee's lawyer David Mathews on May 27 before Firuz' court, during submission on Shafee's bid to set aside the leave granted to the AGC to proceed with a contempt case against him.

This over Shafee's Feb 7 media statement outside Nazlan's court in regards to his client and former prime minister Najib Abdul Razak's ongoing criminal case. 

Najib is undergoing trial in Nazlan's court for alleged abuse of power, graft and money-laundering involving over RM42 million from a former 1MDB subsidiary, SRC International.

"We refer to the assertion that the (contempt) bid should have been referred to Justice Nazlan, claiming mala fide on the plaintiff's (AGC) part in filing the application in this court (Firuz's).

"We submit this is just a red herring as the real issue is whether this court (Firuz's) has jurisdiction to hear the contempt proceedings and it does.

"It makes no difference where the (contempt application) was filed as this jurisdiction is laid out under Article 126 of the Federal Constitution as well as Courts of Judicature Act.

"Any High Court of Malaya can hear this contempt proceeding and it is not necessary to hear it at the court where the defendant (allegedly uttered the contemptuous statement).

"Therefore, the issue of the plaintiff being mala fide is irrelevant via the defendant's claim of 'forum shopping' by the plaintiff (AGC)," Loke said.

She also submitted that the contempt application has sufficient particulars of the alleged contempt as it properly stated Shafee as the person being sought, details on Attorney-General Tommy Thomas, a description of the applicant and grounds of committal against Shafee, among others.

"The defendant is complaining about the lack of particulars in the statement (court papers). These particulars are not necessary.

"They complained that the exact proceedings that day (need to be stated). But there is no need to state what were the exact proceedings when the date (of proceedings) is already stated.

Loke also said that it was not material for the plaintiff to state how the alleged contemptuous statement would specifically undermine the judiciary as the whole objective of the particulars in the court papers was to allow Shafee to know what the contempt case was about so that he has the opportunity to defend himself.

She reiterated that even if the contempt application had a few non-compliance issues with the Rules of Court 2012, these non-compliances were merely technical and would not prejudice Shafee in defending himself.

She said Shafee, therefore, had to answer a prima facie case of contempt successfully made out against him per the court's ruling issued on March 1.

“I reiterate ultimately that the court has already decided that a prima facie case for contempt was made out (against Shafee) and that this was decided after looking at the statement (contained in court papers to seek leave to commence contempt proceedings) and the affidavit to affirm the statement.

“There is no reason for the court to review the decision of whether we (the AGC) should have been granted leave unless the defendant could show some reason or basis to say that the prima facie case had not been (properly) made out when we say it has been properly made out,” Loke submitted.

Hearing before Firuz will resume on June 21 with Mathews expected to reply to the above arguments raised by the prosecution.

On March 1, Firuz had granted leave to the prosecution to proceed with contempt proceedings against Shafee over comments Shafee made in the KiniTV video below.