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 common
law 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 being sealed
by an officer of the Registry5. Its objects are to compel a person who is or may be
otherwise unwilling, un-co-operative, or even merely neutral, to attend the
specified court at the specified date and time6 to give oral evidence or to produce
material documents or both. A subpoena must not be used for the purpose of
fishing for evidence or be speculative or oppressive in nature7. A subpoena is an
order to produce a document to the court and not to the other party and
technically the other party has no right to see the document without the leave of
the court. A witness may insist that the document should not be handed to the
parties even at the trial but the judge may, if satisfied that it is evidence in the
case for either party, order that it be read8.
A subpoena is coercive in its operation, since disobedience to a subpoena
amounts to a contempt of court and obedience to it can be enforced by
committal, even if the disobedience is not wilful9. For this reason, unless the court
orders otherwise, a writ of subpoena must be served personally 10. Service must
be effected within 12 weeks after the date of its issue 11.
A writ of subpoena must be served on the person subpoenaed12 and may be
issued by a party at any stage of an action without the leave of the court13. On the
other hand, a writ of subpoena to compel the attendance of a witness to testify or
to produce documents for the purpose of proceedings in chambers will not be
issued out of the Registry except with leave, in the form of a note from a judge or
the registrar, as the case may be, authorising its issue14.
Before a writ of subpoena is issued a praecipe15 for the issue of the writ must be
filed in the Registry16. The praecipe must contain the name and address of the
party issuing the writ, if he is acting in person, or the name of the firm and
business address of that partys solicitor17.
Further points of practice relating to subpoenas are dealt with elsewhere of this
work18.
1 RC O 38 rr 1419 constitute a self-contained code relating to writs of subpoena; see
also [500] EVIDENCE (2011 Reissue). In ECM Libra Investment Bank Bhd v Foo Ai Meng [2013] 3 MLJ
35, CA, the court held that a litigant under the rules of court has a right to issue a subpoena and
sustain the same provided it is not oppressive or an abuse of process of court and is relevant and
material to the case and is not frivolous or scandalous. It is equally well-settled in every case that the
onus is on the party issuing the subpoena to show the materiality of the witness for the just decision
of the case, in that it outweighs any oppression that may be caused to the party objecting. The test to
compel is a strict test. The witnesses who can be compelled are those who have seen the facts or who
know the facts and this will usually relate to liability and rarely to quantum. Such strictures may not
be applicable if the witness voluntarily gives evidence on the issue of liability or quantum.2 A person
served only with a writ of subpoena duces tecum will sufficiently comply with it if he causes the
document to be produced without attending personally: RC O 38 r 16(2). The RC O 38 r 13(1)
(see [190.7-006]) provides that the court may order any person to attend any proceedings and
produce any document specified or described in the order which appears necessary to the court for
the purposes of that proceeding. Such 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. The RC O 38 r 16(2) specifically
deals with production of documents pursuant to a subpoena whereas RC O 38 r 13(1) involves
production pursuant to a court order. A party who has received a subpoena duces tecum which is not
accompanied by a subpoena ad testificandum will normally produce the document without being

sworn and is not amenable to examination-in-chief or cross-examination but, if a question arises as to

his possession of the document he may be questioned for this limited purpose: Penn-Texas Corp v
Murat Anstalt (No 2) [1964] 2 QB 647, [1964] 2 All ER 594, CA (Eng). A subpoena duces tecum can
only be issued for the purposes of the trial and cannot, therefore, be used as a means to secure pretrial disclosure of documents from a person who is not a party: Penn-Texas Corp v Murat Anstalt (No
2) [1964] 2 QB 647 (above). The form of a subpoena ad testificandum is set out in RC App A Form
63 and a subpoena duces tecum in RC App A Form 64.3 The prescribed form in RC App A Form 65 is
such a combination, since the command is both to produce documents and to attend to give
evidence.4 RC O 38 r 14(1) and RC App A Forms 63, 64 and 65.5 RC O 38 r 14(2).6 In England,
although there is no express provision for such practice in the rules, there is a developing practice
whereby the court may require a document to be produced by way of subpoena duces tecum on a
date prior to the trial of the action: see Khanna v Lovell White Durrant (a firm) [1994] 4 All ER 267,
[1995] 1 WLR 121.7 Senior v Holdsworth, ex p Independent Television News [1976] 1 QB 23, [1975]
2 All ER 1009, CA (Eng). The court has inherent jurisdiction to set aside a subpoena which is issued on
the basis of an improper motive or not for the purposes of obtaining relevant evidence to prevent an
abuse of process: Pit Stop Auto Accessories v Tan Kock Siang; Minister of Communications [1974] 2
MLJ 79; Ismail v Hasnul Abdul Ghafar v Hasnul [1968] 1 MLJ 108, FC, applying Raymond v
Tapson (1882) 22 Ch D 430, CA (Eng); Wong Sin Chong v Bhagwan Singh [1993] 3 MLJ 679, SC.
Cases where a subpoena has been set aside on the basis that it was an abuse of the courts process
include: Pit Stop Auto Accessories v Tan Kock Siang; Minister of Communications (above) (subpoena
not issued bona fide for the purpose of obtaining relevant evidence and witnesses had no knowledge
of matters); Wong Sin Chong v Bhagwan Singh (above) (subpoena issued against solicitor after delay
and for mala fide purpose to deprive party of counsels services); Ismail v Hasnul , Abdul Ghafar v
Hasnul (above)(summons (now notice of application) not issued for purpose of obtaining relevant
evidence); R v Hurle-Hobbs, ex p Simmons [1945] KB 165, [1945] 1 All ER 273, DC (Eng) (statute
provided a different process to compel attendance of witness); Steele v Savory (1891) 8 TLR 94
(oppressive subpoena duces tecum relating to documents, discovery of which had already been
refused by the court); R v Baines [1909] 1 KB 258 (subpoena ad testificandum not issued bona fide to
obtain relevant evidence and named witness not in fact able to give relevant evidence); Morgan v
Morgan [1977] Fam 122, [1977] 2 All ER 515 (violation of witnesss privacy if particular evidence
revealed could amount to oppression); see also Re Mundell, Fenton v Cumberlege (1883) 52 LJ Ch
756; London and Globe Finance Corp v Kaufman (1899) 69 LJ Ch 196; Farulli v Farulli and
Pederzoli [1917] P 28; Macbryan v Brooke [1946] 2 All ER 688, CA (Eng). It is for the party issuing
the subpoena to show on balance the materiality of the witness evidence: Wong Sin Chong v
Bhagwan Singh [1993] 3 MLJ 679, SC.8 Burchard v Macfarlane [1891] 2 QB 241 at 247248.9 See R
v Daye [1908] 2 KB 333, DC (Eng) (subpoena duces tecum). See also Re Emma Siver Mining
Co (1875) Ch App 194. The court has power of its own motion to issue a subpoena when dealing with
committal proceedings for contempt of court, which partake of a quasi-criminal character: see Yianni
v Yianni [1966] 1 All ER 231n, [1966] 1 WLR 120. As to committal and contempt of court for failure to
comply with a subpoena see generally [240] CRIMINAL PROCEDURE (2010 Reissue).10 RC O 38 r
18(1). As to personal service see [190.2-038]. If it appears to the court impractical for any reason to
serve that document personally on that person, the court may make an order for substituted service
of the document: RC O 62 r 5 (see [190.2-042]). Service of the writ of subpoena must be within the
jurisdiction: RC O 38 r 18(2).11 RC O 38 r 18(1).12 A writ of subpoena ad testificandum may include
the names of two or more persons (RC O 38 r 15) but a writ of subpoena duces tecum must contain
the name of one person only (RC O 38 r 16(1)).13 However, the court has the discretion to exercise a
control over the privilege to prevent it from being oppressively used: Ismail v Hasnul , Abdul Ghafar v
Hasnul [1968] 1 MLJ 108, FC; see also note 7 above.14 RC O 38 r 13(1).15 The praecipe must be in
RC App A Form 66: RC O 38 r 14(3).16 RC O 38 r 14(3). The fee for sealing 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 RM8 for each witness: RC App B1 item 21; item 14. For sealing

an instanter subpoena, the fee is RM24 for each witness: RC App B item 22; item 15.17 RC O 38 r
14(3).18 See [500] EVIDENCE (2011 Reissue).