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Subpoenas

A writ of subpoena1, whether it be ad testificandum (to testify as a witness) or

duces tecum (to produce documents)2, or a combination of both3, is a commonlaw writ which cannot be abolished by rules of court and must be in the

prescribed form4. Issue of the writ of subpoena takes place upon its bein sealed

by an officer of the !eistry". Its ob#ects are to compel a person who is or may beotherwise unwillin, un$co$operati%e, or e%en merely neutral, to attend thespecified court at the specified date and time& to i%e oral e%idence or to producematerial documents or both. A subpoena must not be used for the purpose of

 'fishin for e%idence or be speculati%e or oppressi%e in nature. A subpoena is anorder to produce a document to the court and not to the other party andtechnically the other party has no riht to see the document without the lea%e of

the court. A witness may insist that the document should not be handed to theparties e%en at the trial but the #ude may, if satisfied that it is e%idence in the

case for either party, order that it be read*.

A subpoena is coerci%e in its operation, since disobedience to a subpoena

amounts to a contempt of court and obedience to it can be enforced bycommittal, e%en if the disobedience is not wilful+. or this reason, unless the court

orders otherwise, a writ of subpoena must be ser%ed personally1-. er%ice mustbe effected within 12 weeks after the date of its issue11.

A writ of subpoena must be ser%ed on the person subpoenaed12 and may beissued by a party at any stae of an action without the lea%e of the court13. /n the

other hand, a writ of subpoena to compel the attendance of a witness to testify orto produce documents for the purpose of proceedins in chambers will not be

issued out of the !eistry e0cept with lea%e, in the form of a note from a #ude orthe reistrar, as the case may be, authorisin its issue14.

efore a writ of subpoena is issued a praecipe1" for the issue of the writ must be

filed in the !eistry1&. he praecipe must contain the name and address of theparty issuin the writ, if he is actin in person, or the name of the firm andbusiness address of that partys solicitor1.

urther points of practice relatin to subpoenas are dealt with elsewhere of thiswork1*.

1 ! / 3* rr 141+ constitute a self$contained code relatin to writs of subpoena5 see

also 6"--7 89I:8;8 (2-11 !eissue). In ECM Libra Investment Bank Bhd v Foo Ai Meng 62-137 3 <=>

3", A, the court held that a litiant under the rules of court has a riht to issue a subpoena and

sustain the same pro%ided it is not oppressi%e or an abuse of process of court and is rele%ant and

material to the case and is not fri%olous or scandalous. It is e?ually well$settled in e%ery case that the

onus is on the party issuin the subpoena to show the materiality of the witness for the #ust decisionof the case, in that it outweihs any oppression that may be caused to the party ob#ectin. he test to

compel is a strict test. he witnesses who can be compelled are those 'who ha%e seen the facts or who

know the facts and this will usually relate to liability and rarely to ?uantum. uch strictures may not

be applicable if the witness %oluntarily i%es e%idence on the issue of liability or ?uantum.2 A person

ser%ed only with a writ of subpoena duces tecum will sufficiently comply with it if he causes the

document to be produced without attendin personally@ ! / 3* r 1&(2). he ! / 3* r 13(1)

(see 61+-.$--&7) pro%ides that the court may order any person to attend any proceedins and

produce any document specified or described in the order which appears necessary to the court for

the purposes of that proceedin. uch an order has the effect of a writ of subpoena ad testificandum

and duces tecum (see note 3 below) and not a mere 'duces tecum. he ! / 3* r 1&(2) specifically

deals with production of documents pursuant to a subpoena whereas ! / 3* r 13(1) in%ol%esproduction pursuant to a court order. A party who has recei%ed a subpoena duces tecum which is not

accompanied by a subpoena ad testificandum will normally produce the document without bein

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sworn and is not amenable to e0amination$in$chief or cross$e0amination but, if a ?uestion arises as to

his possession of the document he may be ?uestioned for this limited purpose@ Penn-Texas Corp v

Murat Anstalt !o "# 61+&47 2 &4, 61+&47 2 All 8! "+4, A (8n). A subpoena duces tecum can

only be issued for the purposes of the trial and cannot, therefore, be used as a means to secure pre$

trial disclosure of documents from a person who is not a party@ Penn-Texas Corp v Murat Anstalt !o

"# 61+&47 2 &4 (abo%e). he form of a subpoena ad testificandum is set out in ! App A orm

&3 and a subpoena duces tecum in ! App A orm &4.3 he prescribed form in ! App A orm &" is

such a combination, since the command is both to produce documents and to attend to i%e

e%idence.4 ! / 3* r 14(1) and ! App A orms &3, &4 and &"." ! / 3* r 14(2).& In 8nland,

althouh there is no e0press pro%ision for such practice in the rules, there is a de%elopin practice

whereby the court may re?uire a document to be produced by way of subpoena duces tecum on a

date prior to the trial of the action@ see $hanna v Lovell %hite &urrant a 'irm# 61++47 4 All 8! 2&,

61++"7 1 B=! 121. (enior v )olds*orth+ ex p Independent Television !e*s 61+&7 1 23, 61+"7

2 All 8! 1--+, A (8n). he court has inherent #urisdiction to set aside a subpoena which is issued on

the basis of an improper moti%e or not for the purposes of obtainin rele%ant e%idence to pre%ent an

abuse of process@ Pit (top Auto A,,essories v Tan $o,k (iang Minister o' Communi,ations 61+47 2

<=> +5 Ismail v )asnul Abdul .ha'ar v )asnul  61+&*7 1 <=> 1-*, , applyin /a0mond v

Tapson (1**2) 22 h : 43-, A (8n)5 %ong (in Chong v Bhag*an (ingh 61++37 3 <=> &+, .

ases where a subpoena has been set aside on the basis that it was an abuse of the courts process

include@ Pit (top Auto A,,essories v Tan $o,k (iang Minister o' Communi,ations (abo%e) (subpoena

not issued bona fide for the purpose of obtainin rele%ant e%idence and witnesses had no knowlede

of matters)5 %ong (in Chong v Bhag*an (ingh (abo%e) (subpoena issued aainst solicitor after delay

and for mala fide purpose to depri%e party of counsels ser%ices)5 Ismail v )asnul  , Abdul .ha'ar v

)asnul  (abo%e)(summons (now notice of application) not issued for purpose of obtainin rele%ant

e%idence)5 / v )urle-)obbs+ ex p (immons 61+4"7 C 1&", 61+4"7 1 All 8! 23, : (8n) (statute

pro%ided a different process to compel attendance of witness)5 (teele v (avor0  (1*+1) * =! +4

(oppressi%e subpoena duces tecum relatin to documents, disco%ery of which had already been

refused by the court)5 / v Baines 61+-+7 1 C 2"* (subpoena ad testificandum not issued bona fide to

obtain rele%ant e%idence and named witness not in fact able to i%e rele%ant e%idence)5 Morgan v

Morgan 61+7 am 122, 61+7 2 All 8! "1" (%iolation of witnesss pri%acy if particular e%idence

re%ealed could amount to oppression)5 see also /e Mundell+ Fenton v Cumberlege (1**3) "2 => h

"&5 London and .lobe Finan,e Corp v $au'man (1*++) &+ => h 1+&5 Farulli v Farulli and

Peder1oli  61+17 D 2*5 Ma,br0an v Brooke 61+4&7 2 All 8! &**, A (8n). It is for the party issuin

the subpoena to show on balance the materiality of the witness e%idence@ %ong (in Chong v

Bhag*an (ingh 61++37 3 <=> &+, .* Bur,hard v Ma,'arlane 61*+17 2 241 at 2424*.+ ee /

v &a0e 61+-*7 2 C 333, : (8n) (subpoena duces tecum). ee also /e Emma (iver Mining

Co (1*") h App 1+4. he court has power of its own motion to issue a subpoena when dealin with

committal proceedins for contempt of court, which partake of a ?uasi$criminal character@ see 2ianni

v 2ianni  61+&&7 1 All 8! 231n, 61+&&7 1 B=! 12-. As to committal and contempt of court for failure tocomply with a subpoena see enerally 624-7 !I<I;A= D!/8:E!8 (2-1- !eissue).1- ! / 3* r

1*(1). As to personal ser%ice see 61+-.2$-3*7. If it appears to the court impractical for any reason to

ser%e that document personally on that person, the court may make an order for substituted ser%ice

of the document@ ! / &2 r " (see 61+-.2$-427). er%ice of the writ of subpoena must be within the

 #urisdiction@ ! / 3* r 1*(2).11 ! / 3* r 1*(1).12 A writ of subpoena ad testificandum may include

the names of two or more persons (! / 3* r 1") but a writ of subpoena duces tecum must contain

the name of one person only (! / 3* r 1&(1)).13 Fowe%er, the court has the discretion to e0ercise a

control o%er the pri%ilee to pre%ent it from bein oppressi%ely used@ Ismail v )asnul  , Abdul .ha'ar v 

)asnul  61+&*7 1 <=> 1-*, 5 see also note abo%e.14 ! / 3* r 13(1).1" he praecipe must be in

! App A orm &&@ ! / 3* r 14(3).1& ! / 3* r 14(3). he fee for sealin a writ of subpoena ad

testificandum or duces tecum, other than an instanter subpoena (a subpoena issued less than three

days before the trial of the action), is !<* for each witness@ ! App 1 item 215 item 14. or sealin

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an instanter subpoena, the fee is !<24 for each witness@ ! App item 225 item 1".1 ! / 3* r

14(3).1* ee 6"--7 89I:8;8 (2-11 !eissue).