Malaysia: I've Been Served A Subpoenasubpoena!

Last Updated: 23 February 2016
Article by Jesrin Kaur

Imagine the following scenario - you are a HR Manager and you have been served with a subpoena to appear in Court to produce documents and to give evidence in relation to a former employee. Now what? Must you abide by the subpoena? Do you really have to go to Court? The answer is yes, unless there are suffi-cient grounds to support otherwise, which will be dis-cussed below.

Introduction

A subpoena is a summons issued by the Court based on the request of a party whereby the person named in the subpoena would be required to produce rele-vant documents and/or to give evidence in Court. The purpose of a subpoena is clearly explained in the case of Lucas Industries Limited v Hewitt & Ors (1978) 18 ALR 555, FC at 570 as follows:

"The purpose of the process of the subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering togeth-er relevant documents and bringing them to Court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to Court and required to give evi-dence."

Types of Subpoena

With the recent amendments to the Rules of Court 2012, the names of the Writ of Subpoenas are known as a Subpoena to Testify, a Subpoena to Pro-duce Document and a Subpoena to Testify and Pro-duce Document and this is seen under Order 38 Rule 14 of the Rules of Court 2012.

A Subpoena to Testify may contain the names of two or more persons, however a Subpoena to Produce Document, can only contain the name of one person.

Two persons can be called to give evidence under one Subpoena but two persons cannot be called to produce documents under one Subpoena for other-wise, each would leave it to the other to comply and in the end the documents might not be produced. Under a Subpoena to Produce Documents, the per-son may not even have to attend Court but is per-mitted merely to cause the documents to be pro-duced in Court.

Service of Subpoena

Each and every Writ of Subpoena must be served personally on the recipient within 12 weeks of it be-ing issued. Once a subpoena is properly served, the subpoena has full effect until the conclusion of the trial, at which, the witness' attendance is required unless the witness is released sooner.

Do you have to accept a subpoena?

The answer is certainly yes. If a subpoena is properly addressed to you and you are the person named in the said subpoena, then you have to accept the said subpoena. It is important for you to check the name on the subpoena in order for you to confirm that you have been correctly named in the subpoena. In the event you had accepted the subpoena without ensuring that you are the person named and only realised the mistake subsequently, you should imme-diately hand the subpoena to the correct person or inform the relevant authority that you are not the person named in the subpoena.

What do you do upon receiving a subpoe-na?

At first, you need to identify the type of subpoena served on you; i.e. to produce documents or to give evidence in Court or both. If it is for you to produce documents, then you should make copies of the said documents and produce it in Court on the day of the trial. This would mean that you would need to have proper document retention whereby the entire doc-ument must be produced in full. If you try to selec-tively produce only certain documents, then it might look like you are trying to hide certain evidence from the Court.

For those who have never given evidence in Court, it is important to bear in mind that you can take your time in answering the questions and when you do, speak slowly and clearly. If you do not understand or cannot hear the question, then ask for the question to be repeated. If you are not sure of the answer, you are permitted to say so because it is important that you do not mislead the Court with false state-ments or answers.

Next, you will need to determine the date and time in order to comply with the subpoena. This is to en-sure that you have enough time to produce the re-quired documents and/or attend Court on the trial date. Alternatively, do contact the relevant lawyer upon receipt of the subpoena in order for you to seek more time to comply with the subpoena or fix another time for you to attend Court.

Finally, you should confirm with the relevant lawyer on the cost or payment that you are entitled to re-ceive for complying with the subpoena. It would be to your benefit if such confirmation is produced in writing. If you are attending Court as a witness of fact as opposed to an expert witness, you are not entitled to claim loss of time in attending the trial as a witness.

It is essential to note that if you do not attend Court after being served with a subpoena, the Court may issue a warrant of arrest against you. Before the issu-ance of a warrant of arrest, the Court will have to be satisfied that the person has been served with the subpoena and that a reasonable sum has been ex-tended to cover the cost of complying with the sub-poena.

Can you set aside a subpoena?

A subpoena may be issued against anyone including a minister. However, the Court will prevent the use of its practices and processes which includes subpoena if it is misconceived or not for purposes of justice. In the case of Wong Sin Chong & Anor v Bhagwan Singh & Anor [1993] 2 AMR 3351; [1993] 3 MLJ 679, sc, the Respondents being the former so-licitors for the Appellants were sued for professional negligence. At the hearing of the suit, the First Re-spondent issued a subpoena against the counsel act-ing for the Appellants to give evidence for the de-fence and to produce documents. The Appellants applied to set aside the subpoena which was dis-missed. On appeal to the Supreme Court, it was held that the onus is on the party issuing the subpoena to show the materiality of the witness on a balance of probabilities, in that it outweighs any oppression that may be caused to the objecting party. If indeed it can be established that no useful result would be ob-tained by the attendance of a witness in Court, the subpoena can be set aside.

Conclusion

In conclusion, fret not when you are served with a subpoena. It is part of a legal procedure. Pay atten-tion to the details of the subpoena, take it seriously, but do not stress yourself out over it.

Thus, regardless the reason for the subpoena being issued, remember that your duty is to provide the Court with truthful evidence free from prejudice and embellishment and/or produce complete documents in Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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