31 January, 2020
A subpoena is issued by the Court at the request of parties in civil proceedings to compel a person to attend Court as a witness. In such a situation, the witness will be required to testify or to produce certain documents which are relevant to the proceedings.
Types of Subpoenas
There are 3 types of subpoenas:
- subpoena to testify (also known as subpoena ad testificandum);
- subpoena to produce documents (also known as subpoena duces tecum); and
- subpoena to testify and produce documents.
A subpoena to testify requires a person to attend Court to give evidence on relevant facts. For example, in a claim where one party is saying they did not sign a particular document, a witness can be called to testify that they did in fact see that person signing that document.
A subpoena to produce documents requires a person to bring to Court certain documents which would normally be in their possession. It does not require the witness to give any testimony, save for confirming the documents.
A subpoena to testify and produce documents is a combination of the above two subpoena, whereby the witness must bring / produce documents and also testify.
Service of subpoena
A subpoena in order to be valid must be served personally on the person intended to be subpoenaed and this must be done within 12 weeks from the date the subpoena is issued. A person not served personally is technically not compelled to attend Court as service is considered not effective. A subpoena for Malaysian court proceedings cannot be served outside of Malaysia.
Tender of expenses
A person served with a subpoena is also entitled to be paid a reasonable sum to cover his expenses of going to, remaining at, and returning from Court. Though how much is “reasonable” may differ from person to person, it is not advisable to just ignore a subpoena on the basis that the sum given / offered is not sufficient. It is more appropriate to discuss the sum with the lawyers of the party who have issued you the subpoena.
Consequences of not complying with subpoena
If a subpoenaed witness, having been properly served with a valid subpoena, fails to attend Court on the stated date, said witness can be liable for contempt of Court. In such a situation, the witness can be fined or sent to prison.
A witness served with a subpoena to produce documents does not necessarily have to attend Court if the document is nevertheless produced in Court.
Setting aside of subpoenas
In some circumstances, an individual may feel that they should not have been served with a subpoena. Subpoenas can be set aside by applying to the Court which involves filing a notice of application supported by an affidavit. Once an application to set aside is made, the burden falls on the party who requested for the issue of the subpoena to justify the subpoena.
Some of the most common grounds to set aside a subpoena are: where the witness does not have any material evidence to provide the Court; the subpoena was not issued bona fide, for example, to deprive a party of its counsel by creating an embarrassing scenario; or the request for testimony or document is irrelevant to the claim, is a fishing expedition, speculative or oppressive.
For further information, please contact:
Donovan Cheah, Partner, Donovan & Ho
donovan@dnh.com.my
