by Choo Dee Wei
Published February 24, 2015
Imagine that you are at an event packed with people. Your attendance to this event is known by many as you had mentioned it on Facebook and Twitter.
At the event, your eyes search the room for a familiar face. You don’t see any. However, your attention is captured by an attractive person across the room. He / She looks at your direction and your eyes meet. He / She then smiles and walks up to you while at all times holding your gaze.
With only a few centimeters away, he / she then seductively asks you whether you are Mister / Miss so-and-so. You are surprised but flattered that this attractive person knows your name. Your heart starts racing. Your tongue is tied and after what feels like an eternity, you manage to stammer and confirm your name. He / She slowly reaches into a pocket, pulls out a document and tells you that you are being served with a subpoena.
Well the above scenario may be of added exaggeration but serving a subpoena generally must be upon him / her in person. In Malaysia, a subpoena can take on 3 forms. In the past, they were known as Writ of Subpoena Ad Testificandum, Writ of Subpoena Duces Tecum, and Writ of Subpoena Ad Testificandum and Duces Tecum. Yes, it does have a ring of a Harry Potter spell to it.
But in actuality, a Writ of Subpoena Ad Testificandum means that the person who is subpoenaed has to attend court to give evidence. A Writ of Subpoena Duces Tecum means that the person who is subpoenaed has to produce a document(s) and a Writ of Subpoena Ad Testificandum and Duces Tecum is a combination of both.
With the introduction of the Rules of Court 2012, the names of these Writ of Subpoenas have been changed to Subpoena to Testify, Subpoena to Produce Document, and Subpoena to Testify and Produce Document. These will be in large headings on a piece of paper so you will be sure not to miss it.
Below are some interesting points when it comes to subpoenas:-
A subpoena shall be served personally upon the intended recipient unless the Court orders otherwise. A very important point to note is that if that subpoena is not served personally within 12 weeks from its issuance, any service after that point isnot valid.
A subpoena cannot be served on any person outside Malaysia.
If it is a Subpoena to Testify, it can list the names of two or more persons in one subpoena. But if it is a Subpoena to Produce Document, the said subpoena shall only contain the name of one person only.
Any person served with a Subpoena to Produce Document can comply by just having the document listed in the said subpoena produced in court without him / her attending Court.
A subpoena will be in effect until the conclusion of the trial at which the attendance of the subpoenaed witness is required.
A subpoenaed witness is not compelled to attend unless a reasonable sum is given to cover his / her expenses of going to, remaining at, and returning from Court.
A subpoena can be revoked by the Registrar of the Court or upon an application by any person.
So going back to the scenario above, should you be faced with being served with a subpoena, firstly examine its contents. You may be asked to sign receipt of the subpoena. Regardless of whether you do or not, there will be an affidavit filed in Court detailing when, where, how and by whom the service was effected. If in doubt, seek legal advice.
Non-compliance with a properly served subpoena can bring adverse repercussions which may include being brought to Court to explain such non-compliance or worse, being in contempt. After all this is a document sealed by Court.
Perhaps in the future we’d be more cautious if a beautiful or handsome stranger comes up to us, strikes up a conversation while knowing exactly who we are. Or maybe not😉