Privilege

Privilege
What is Privilege?
Senario
A was charged for causing grievious hurt to his sister-in-law. At the trial
the prosecution called upon A’s wife to testify what A had said to her
just before he committed the crime. A’s counsel objected. As the trial
judge how do you rule on the objection?
Is her testimony of what her husband told her of the incident relevant?
1
Privilege
When we learn about privilege, we have to understand what is the
meaning of these 2 phrases :-
1. Compellable witness; and

2. Competent witness.
What do you understand by these two phrases?
2
Privilege
What is Privilege?
It is a situation where although the testimony in question is relevant, it

is not admissible as it is privileged.
3
Privilege
Types of Privileged communication in the Evidence Act
1. Marital Communication Privilege (Section 122 EA)

2. State or Public Interest Privilege (Sections 123 - 125 EA)
3. Legal Professional Privilege (Sections 126 - 129 EA)
4. Self incrimination Privilege (Section 132 EA)
4
Marital Communication Privilege

Section 120 Evidence Act
5
When we talk about marital communication, remember the words

competent witness and compellable witness.
What do they mean?
6
Section 120 Evidence Act - Parties to civil suits and wives and
husbands
(1) In all civil proceedings the parties to the suit, and the husband or
wife of any party to the suit, shall be competent witnesses.
(2) In criminal proceedings against any person the husband or wife of

that person respectively shall be a competent witness.
7
Section 120 Evidence Act - Parties to civil suits and wives and husbands
(3) In criminal proceedings the accused shall be a competent witness in

his own behalf, and may give evidence in the same manner and with the
like effect and consequences as any other witness:
Provided that, so far as the cross-examination relates to the credit of the

accused, the court may limit the cross-examination to such extent as it
thinks proper, although the proposed cross examination might be
permissible in the case of any other witness.
8
Section 120 of the Evidence Act provides that husband and wives are
competent witness be it in civil or criminal cases. However they may
not be compellable. i.e they cannot be compelled to testify against
their spouse.
Although the testimony of the spouse may be relevant, it cannot be

admitted in evidence as it’s a privileged communication.
9
Section 122 Evidence Act - Communications during marriage
No person who is or has been married shall be compelled to disclose

any communication made to him during marriage by any person to
whom he is or has been married; nor shall he be permitted to disclose
any such communication unless the person who made it or his
representative in interest consents, except in suits between married
persons or proceedings in which one married person is prosecuted for
any crime committed against the other.
10
IBRAHIM BIN AWANG MAT v IBRAHIM BIN DOLLAH [1987] 2 MLJ 471
In this action under the Kelantan Land Settlement Ordinance, 1955, the
plaintiff, as administrator, sought a declaration inter alia he is entitled to the
21/84 undivided share ("the lot") of land known as Lot 1347 in the Mukim of
Cherang Ruku, District of Pasir Puteh, Kelantan. He also sought a declaratory
order that the possessory title to the lot granted to the defendant be set
aside and that it be confirmed in the name of the estate of the deceased.
The plaintiff contended that the defendant got the lot on a $200 mortgage
the deceased took on it. He had no direct knowledge on the matter. The
defendant said he had bought the lot for $600 from the deceased and he
went into possession.
11
No person who is married,
shall be compelled to disclose any communication,
made to him/her during marriage
by any person to whom he/she is or has been married;
unless the person who made it consents,
Except in suits between married persons or
proceedings in which one married person is prosecuted
for any crime committed against the other.
12
IBRAHIM BIN AWANG MAT v IBRAHIM BIN DOLLAH [1987] 2 MLJ 471
At the trial PW3, the ex-wife of the defendant stated that the
defendant had told her that the land was mortgaged by the deceased
to the defendant for $200/-. The defendant’s counsel objected to the
admissibility of the said testimony.
Held:
PW3 was not permitted to disclose the communication made by the
defendant in view of the second limb of section 122 of the Evidence Act
1950
13
PP v Abdul Majid [1994] 3 MLJ 457
The accused was charged for murder under s 302 of the Penal Code
(FMS Cap 45). At the preliminary inquiry, the prosecution attempted
to call the accused’s wife as a witness for the prosecution. The
accused’s counsel objected to this on the ground that although she
was a competent witness, she could not be compelled to tender
evidence against her own husband. The magistrate ruled that the
accused’s wife could not be compelled to give any evidence against her
husband. The prosecution then referred the matter to the High Court
for determination while the preliminary inquiry was put on hold.
14
Held: (1) the laws on the issue of spouse witness are governed by the Evidence Act
1950 (the Act) and the magistrate had erred in adopting English law. By s.120 of the
Act, a husband or wife is a competent witness in criminal proceedings against any
person although the question of compellability is not specifically stated;
(2) by virtue of s 122 of the Act however, no person who is or has been married to
him during marriage unless the person who made the communication consents.
The use of the word compelled in s 122 shows that it was the legislature’s intention
that a competent witness should generally also be a compellable one;
(3) therefore, the accused’s wife could be compelled to give evidence with the
exception of communications by the accused to her unless the consent of the
accused had been obtained as required under s 122 of the Act.
15
James Foong J : I therefore order the learned magistrate to proceed

with the enquiry and to record the evidence of Syarifah, and if she is
unwilling to testify, to compel her to do so. However, in the course of
her testimony, if there had been any communication by the accused to
her, such communication cannot be compelled to be disclosed by her
unless the consent of the accused is obtained as provided for under s
122 of the Evidence Act 1950.”
16
See the following cases:-
1. R v Lapworth [1931] 1 KB 117
2. Ghouse bin Haji Kader Mustan v R [1946] MLJ 36
3. Hoskyn v Metropolitan Police Commissioner [1979] AC 474
17
But in Lim Lye Hock v PP [1995] 1 SLR 238
The appellant was charged with the murder of one Tan (the deceased) whose decomposed
body was found at a disused egg hatchery At trial, the prosecution called the appellant’s
wife as a witness. Counsel for the appellant objected on the ground that communication
between the spouses was privileged under s 124 of the Evidence Act. The trial judge after
hearing arguments ruled that s 134(5) of the Act superseded s 124 of the Act in relation to
evidence of the wife of an accused in criminal proceedings. The appellant’s wife then
testified. Her testimony was that on the evening in question, the appellant had been
unable to touch his food, and that she had noticed at the time that there was blood on his
toes. The appellant’s wife also testified that whilst they were in Malaysia, the appellant had
confessed to her that he had killed the deceased by hitting her with a stick and later with
a big stone and thereafter he placed a chair over her head and left.
.
18
Lim Lye Hock v PP [1995] 1 SLR 238
Held:
The spouse of an accused is competent and compellable to testify, save
and except that, under s 124 of the Act, he or she is not compellable
to disclose any marital communication, whether oral or written, made
by the accused, and further if he or she is prepared to disclose it, he or
she is not permitted to do so without the consent of the accused.
19
Lim Lye Hock v PP [1995] 1 SLR 238
LP THEAN JJA:
“For instance, if the wife has seen her husband committing the offence or
returning home with blood stains on his clothes, in proceedings brought against
the husband she is both competent and compellable to testify on what she
saw. On the other hand, if the husband has confessed to her that he committed
the offence or has explained to her how the blood stains were splattered on his
clothes or has written to her a note or letter to that effect, she is not compellable
to disclose such communication or produce the note or letter and, if she is
prepared to disclose such communication or produce the note or letter, she is not
permitted to do so, unless he consents to such disclosure.”
20
The Position under English Law
R v Leach [1912] AC 305
The appellant was tried for an offence under the Punishment of Incest
Act, 1908, and was convicted. At the trial the wife of the appellant was
called by the prosecution, but she raised the objection that under s. 4
of the Criminal Evidence Act, 1898 (1), she could not be compelled to
give evidence against her husband. Pickford J. ruled that the wife was a
compellable witness, and directed her to give evidence, which she did,
and this ruling was affirmed by the Court of Criminal Appeal (Lord
Alverstone C.J., Hamilton and Bankes JJ.) and the conviction upheld.
21
R v Leach [1912] AC 305
Held: Under s. 4 of the Criminal Evidence Act, 1898, the wife of a

person charged with an offence to which the section applies is not
compellable to give evidence against her husband.
22
THE KING v. LAPWORTH. [1931] 1 K.B. 117
The appellant, John Henry Lapworth, was charged upon an indictment containing
counts: (1.) That he on July 4, 1930, attempted to strangle Beatrice Annie Lapworth
with intent to murder her; (2.) that he caused grievous bodily harm to Beatrice Annie
Lapworth with intent to do her some grievous bodily harm; (3.) that he maliciously
inflicted grievous bodily harm upon her. The appellant pleaded not guilty.
Beatrice Annie Lapworth, who was the wife of the appellant, was called as a witness by
the prosecution. When she had been sworn, counsel for the appellant, Mr. Douglas
Jenkins, said: "My Lord, this woman ought to be warned." Rowlatt J., addressing
Beatrice Annie Lapworth, said: "Do you mind giving evidence against your husband?"
and she replied: "I would rather not." Counsel for the appellant then submitted that
Beatrice Annie Lapworth, although a competent was not a compellable witness against
her husband.
23
THE KING v. LAPWORTH. [1931] 1 K.B. 117
Held by Avory J: “There is no doubt that at common law the husband or wife was
always a competent witness in such a case, and by the very nature of things it must
have been so, for otherwise, where the assault was committed in secret by one spouse
upon the other, there would be no means of proving it. Whatever the reason, we are
satisfied that at common law the wife was always a competent witness for the
prosecution when the charge against her husband was one of having assaulted her.
Once it is established that she is a competent witness, it follows that she is a
compellable witness; that is to say that she, having made her complaint of, or
independent evidence having been given of, an assault on her by her husband, and
she having been summoned, as she may be, she is, like all other witnesses, bound to
answer any questions put to her. In other words, she becomes a compellable
witness.”
24
Hoskyn v Metropolitan Police Comr [1979] AC 474
Appellant was charged with wounding a woman with intent to do her
grievous bodily harm. Two days before the trial appellant and the
woman were married. At the trial the woman was called by the
prosecution as a witness but was reluctant to give evidence against
her husband. The trial judge ruled that she was not only a competent
witness but also a compellable witness and he ordered her to give
evidence. Part of her evidence, if believed, was highly damaging to
appellant. Appellant was convicted of the offence charged and
appealed:
25
Hoskyn v Metropolitan Police Comr [1979] AC 474
Held : the wife of a defendant charged with a crime of violence against her was not a
compellable witness against him. Appeal allowed and conviction quashed.
Section 4 of the Criminal Evidence Act 1898
Calling of wife or husband in certain cases.
(1)The wife or husband of a person charged with an offence under any enactment
mentioned in the schedule to this Act may be called as a witness either for the
prosecution or defence and without the consent of the person charged.
(2)Nothing in this Act shall affect a case where the wife or husband of a person charged
with an offence may at common law be called as a witness without the consent of that
person.
26
Section 4 of The Criminal Evidence Act 1898 was repealed by the Police and
Criminal Evidence Act 1984 and section 80 (1) and (4) provides:-
80. Competence and compellability of accused’s spouse or civil partner.
(1) In any proceedings the wife or husband of the accused shall be
competent to give evidence—
(a) subject to subsection (4) below, for the prosecution; and
(b) on behalf of the accused or any person jointly charged with the
accused.
(4) No person who is charged in any proceedings shall be compellable by
virtue of subsection (2) or (2A) above to give evidence in the proceedings.
27
See the following cases:-
1. R v Lapworth [1931] 1 KB 117
2. Ghouse bin Haji Kader Mustan v R [1946] MLJ 36
3. Hoskyn v Metropolitan Police Commissioner [1979] AC 474
28
Does it cover marriage of same sexes?

Does it cover muslim marriage in Thailand but not registered in
Malaysia?
Does it cover customary marriage that is not registered with the civil
registry?
What if the communication is made during the eddah period?
What if the communication was uttered in the presence of a third
party?
29
State Affairs Privilege

30
Section 123 Evidence Act – Evidence as to affairs of State
No one shall be permitted to produce any unpublished official records
relating to affairs of State, or to give any evidence derived therefrom,
except with the permission of the officer at the head of the
department concerned, who shall give or withold permission as he
thinks fit, subject, however, to the control of a Minister in the case of a
department of the Government of Malaysia, and of the Chief Minister
in the case of a department of a State Government.
31
No one shall be permitted to produce
any unpublished official records
relating to affairs of State,
or to give any evidence derived therefrom,
except with the permission of the officer at the head of the department
concerned,
subject, however, to the control of a Minister
and of the Chief Minister in the case State Government.
32
What is unpublish official report?
Self-explanatory. It refers to a report relating to the affairs of State

which is not publish for the public. The report of document is strictly
for internal use.
33
What is affairs of state?
Dictionary definition : matters that the government is responsible for.
In the context of Evidence Act, the late Raja Azlan Shah FCJ (as he was
then) stated in the case of BA Rao & Ors v Sapuran Kaur & Anor
[1978] 2 MLJ 146 that affairs of state is like an elephant, i.e it is easier
to recognize than to define and their existence must depend on the
particular facts of the case.
34
Section 162 Evidence Act - Production of documents and their
translation
(1) A witness summoned to produce a document shall, if it is in his
possession or power, bring it to court notwithstanding any objection
which there may be to its production or to its admissibility. The validity
of any such objection shall be decided on by the court.
(2) The court, if it sees fit, may inspect the document unless it refers to
affairs of State, or take other evidence to enable it to determine on its
admissibility.
35
BA Rao & Ors v Sapuran Kaur & Anor [1978] 2 MLJ 146
The respondents had claimed damages on behalf of the estate of the
deceased for his death as a result of the negligence of the medical officers of
the district hospital. A Committee of Enquiry had been held into the death of
the deceased and the respondents had issued a notice to produce the reports
and findings of the Committee of Enquiry. The appellants objected on the
ground that the notes and findings of the Committee of Enquiry were
unpublished official records and therefore privileged from disclosure under
section 123 of the Evidence Act. The learned trial judge, after scrutinising the
affidavit of the Deputy Secretary General of the Ministry of Health objecting
to the production, disallowed the objection and ordered production of the
reports and findings of the Committee. The appellants appealed.
36
BA Rao & Ors v Sapuran Kaur & Anor [1978] 2 MLJ 146
Held:
(1) objection as to production and the question of admissibility under sections
123 and 162 of the Evidence Act should be decided by the court in an enquiry of all available
evidence. It was for the court, not the executive, ultimately to determine that there was a
real basis for the claim that "affairs of State is involved" before it could permit non-
disclosure;
(2) a mere assertion of confidentiality and that affairs of State were involved without
evidence in support, could not shut out relevant evidence;
(3) in this case the documents in question were not unpublished documents relating to affairs
of State and consequently where the Government or the doctor was sued for negligence the
Government could not screen the alleged wrongful act from the purview of the court on the
ground that it was an affair of State demanding protection;
37
Gurbachan Singh v PP [1966] 2 MLJ 125
The appellant had been convicted on a charge under section 4(a) of the
Prevention of Corruption Act, 1961. On the hearing of the appeal, the
appellant sought to introduce further evidence for the admission of a
police inquiry paper. A certificate had been issued by the Minister of
Home Affairs objecting to the production of the file and it was stated
that the objection to production was made only on principle..
38
Gurbachan Singh v PP [1966] 2 MLJ 125
Held:
In cases where the Minister claims privilege over a class of documents,
the court can inspect the document in question to ascertain whether
in point of fact its production in court would be injurious to the public
interest and as in this case the court after inspecting the contents of file
had come to the conclusion that they do not substantially relate to
affairs of State nor give any reasonable grounds for believing that the
production of the file would be injurious to the public interest, it would
order the production of the file;
39
State Affairs Privilege – Marked “Sulit”
Takung Tabari v Government of Sarawak & Ors [1994] MLJU 386
In this application the Plaintiff is seeking for an order that the
Defendant produces for inspection the document namely 'Department
Board of Inquiry Report marked "sulit" containing findings of the
Board, notes of interviews, relevant correspondence and document,
photographs and diagrams (hereafter referred to as "the Document")'
to the Plaintiff or her Advocates and to permit them to peruse such
Document and to make copies thereof at such place, time and manner
as may be stated in the order applied for.
40
Richard Melanjun: “And in this case it was contended that as the Document had
been classified as "official secret" it could not therefore be disclosed. Further, it
was also submitted that by virtue of Section 16A of the Act the certificate issued was
conclusive evidence of the Document being an official secret.
Section 16A reads:
"A certificate by a Minister or a public officer charged with any responsibility in
respect of any Ministry, department or any public service or the Menteri Besar or the
Chief Minister of a State or by the Principal officer in charge of the administrative
affairs of a State certifying to an official document, information or material that it is
an official secret and shall not be questioned in any court on any ground
whatsoever.“ (continue next slide)
41
“My reading of this section 16A is that it is not intended to probihit the
admissibility in the Court of Law of a document certified as an official
secret. Rather, it is only to ouster any action directed to question the
reason or ground for the classification of a document as an official
secret. Thus, it is not per se correct to say that once a certificate has
been issued certifying that a document is an official secret it is
completely excluded from being disclosed in court.”
42
Official Communication Privilege

43
Section 124 of the Evidence Act - Official communications
No public officer shall be compelled to disclose communications made
to him in official confidence when he considers that the public interest
would suffer by the disclosure:
Provided that the court may require the head of the department of
the officer to certify in writing whether or not such disclosure would
be detrimental to the public interest and, if the head of the
department certifies that such disclosure would not be prejudicial to
the public interest, then the officer shall disclose the communications.
44
Section 124
No public officer
shall be compelled
to disclose communications
made to him
in official confidence
when he considers that the public interest would suffer by the
disclosure:
45
Section 124
Provided
that the court may require
the head of the department of the officer
to certify in writing
whether or not such disclosure
would be detrimental to the public interest and,
if the head of the department
certifies that such disclosure
would not be prejudicial to the public interest,
then the officer shall disclose the communications
46
Re Loh Kah Kheng [1990] 2 MLJ 126
During the inquest into the death of one Loh Kah Kheng, the
investigating officer informed the court that he had received
information from an informer concerning the deceased's death, which
related to the commission of a crime. As the information was given in
official confidence, the police claimed privilege and the magistrate
ruled that the written information could not be disclosed at the
inquiry, but held that it should be shown to her.
47
Held inter alia:
(2) Before privilege under s 124 of the Evidence Act 1950 can apply, the
condition precedent that the information be communicated in official
confidence must be satisfied. The court is the sole judge of this question,
and in coming to its decision can not only inspect the document, but can
also take other evidence to determine its admissibility.
(3) The court may also require the head of department of the officer to
certify whether or not such disclosure would be detrimental to the public
interest.
48
Dzaiddin J (as he was then): “Therefore, the important question to be decided first by
the learned magistrate is whether or not the communication was made to DSP Foong
'in official confidence'. The court is the sole judge of this question. This she can decide
not only by inspecting the document, but can also take 'other evidence' to determine
on its admissibility (s 162(2)). If she determines that the communication was not made
'in official confidence', the occasion for claiming privilege is then non-existent.
Further, the proviso to our s 124 states that the court may require the head of the
department of the officer to certify in writing whether or not such disclosure would be
detrimental to public interest. If the court holds that the communication was made in
official confidence, it rests exclusively with the head of the police department to
withhold or allow disclosure depending on whether or not it would be prejudicial to
the public interest.”
49
Section 125 Evidence Act - Information as to commission of offences
No Sessions Court Judge, Magistrate or police officer shall be compelled

to say whence he got any information as to the commission of any
offence, and no revenue officer shall be compelled to say whence he got
any information as to the commission of any offence against the public
revenue or the excise laws.
Explanation—“revenue officer” in this section means any officer

employed in or about the business of any branch of the public revenue.
50
No Sessions Court Judge, Magistrate or police officer

shall be compelled to say
whence he got any information
as to the commission of any offence, and
no revenue officer shall be compelled to say
whence he got any information
as to the commission of any offence
against the public revenue or the excise laws.
51
Position Under English Law
Duncan v Cammell Laird & Co Ltd [1942] AC 624
On June 1, 1939, the submarine, Thetis, which had been built by the
respondents under contract with the Admiralty, was undergoing her
submergence tests in Liverpool Bay, and, while engaged in the operation of
a trial dive, sank to the bottom owing to the flooding of her two foremost
compartments and failed to return to the surface, with the result that all
who were in her, except four survivors, were overwhelmed. Ninety-nine
men lost their lives. A large number of actions were instituted by those
representing, or dependent on, some of the deceased, against the
respondents and three other persons, claiming damages for negligence.
52
Duncan v Cammell Laird & Co Ltd [1942] AC 624
The Appellant sought an order for the production of certain
documents from the First Lord of the Admiralty. This was objected on
the ground of contrary to public interest.
Held: The affidavit of the First Lord of Admiralty was conclusive, and in
such a case, the court should not order the production of such
documents for its inspection.
Please see the case of Ellis v Home Office [1953] 2 QB 135
53
Conway v Rimmer [1968] 2 AC 910
Conway was a probationer constable in the Cheshire Police and Rimmer was a
Superintendent in the force. Conway was prosecuted for theft of a torch
which had been found in the locker of another probationer constable.
Although Conway was acquitted he was nevertheless dismissed from the
police. Conway sued Rimmer for malicious prosecution and he wished to
obtain disclosure of documents including reports written about him when he
was in the police service. The Home Secretary - Roy Jenkins - claimed Crown
Privilege on the basis that the reports were within a CLASS of documents
comprising confidential reports to chief officers of police relating to the
conduct, efficiency and fitness for employment of individual police officers.
54
Held: It was for the court to decide whether Crown privilege should
apply and also it was for the court, not the Minister, to balance the
competing interests.
55
Lord Reid : "It is universally recognised that here there are two kinds of public interest which may
clash. There is the public interest that harm shall not be done to the nation or the public service by
disclosure of certain documents, and there is the public interest that the administration of justice shall
not be frustrated by the withholding of documents which must be produced if justice is to be done.
There are many cases where the nature of the injury which would or might be done to the nation or
the public service is of so grave a character that no other interest, public or private, can be allowed to
prevail over it. With regard to such cases it would be proper to say, as Lord Simon did, that to order
production of the document in question would put the interest of the state in jeopardy. But there are
many other cases where the possible injury to the public service is much less and there one would think
that it would be proper to balance the public interests involved. I do not believe that Lord Simon really
meant that the smallest probability of injury to the public service must always outweigh the gravest
frustration of the administration of justice."
56
Professional Communication Privilege

Sections 126 – 129 Evidence Act
57
Types of Professional Communication Privilege
1. Legal Advise Privilege
2. Litigation Privilege
58
What is Legal Advise Privilege?
The communication between a client and a professional legal adviser

with the sole or dominant purpose of giving or obtaining legal advise.
59
Section 126 Evidence Act - Professional communications
(1) No advocate shall at any time be permitted, unless with his client’s express consent, to
disclose any communication made to him in the course and for the purpose of his
employment as such advocate by or on behalf of his client, or to state the contents or
condition of any document with which he has become acquainted in the course and for
the purpose of his professional employment, or to disclose any advice given by him to
his client in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate in the course of his employment as such
showing that any crime or fraud has been committed since the
commencement of his employment.
60
Section 126 (1) Evidence Act - Professional communications
No advocate shall at any time be permitted,
unless with his client’s express consent,
to disclose any communication made to him
in the course and for the purpose of his employment
as such advocate by or on behalf of his client, or
to state the contents or condition of any document
with which he has become acquainted
in the course and for the purpose of his professional employment,
(continue next page)
61
or to disclose any advice given by him to his client
in the course and for the purpose of such employment:
Provided that nothing in this section shall protect from disclosure—
(a) any such communication made in furtherance of any illegal purpose;
(b) any fact observed by any advocate in the course of his employment as
such
showing that any crime or fraud has been committed
since the commencement of his employment.
62
(2) It is immaterial whether the attention of the advocate was or was

not directed to the fact by or on behalf of his client.
Explanation—The obligation stated in this section continues after the
employment has ceased.
63
ILLUSTRATIONS
(a) A, a client, says to B, an advocate: “I have committed forgery and I
wish you to defend me.” As the defence of a man known to be guilty is
not a criminal purpose this communication is protected from disclosure.
(b) A, a client, says to B, an advocate: “I wish to obtain possession of

property by the use of a forged deed on which I request you to sue.” This
communication being made in furtherance of a criminal purpose is not
protected from disclosure.
64
(c) A, being charged with embezzlement, retains B, an advocate, to
defend him. In the course of the proceedings B observes that an entry
has been made in A’s account book, charging A with the sum said to
have been embezzled, which entry was not in the book at the
commencement of his employment.
This being a fact observed by B in the course of his employment,
showing that a fraud has been committed since the commencement of
the proceedings, it is not protected from disclosure.
65
What’s the rationale?
Justice is best served if full disclosure is made by the client without having
to be worried of any prosecution or prejudice his case.
To protect an individual’s ability to access the justice system by encouraging

complete disclosure to legal advisers without the fear that any disclosure of
those communication may incriminate or adversely affect the client in the
future.
Take note that the privilege is conferred to the Client and not the lawyer.
66
PP V Haji Kassim [1971] 2MLJ 115 – Rationale behind Professional
Communication Privilege
The following question inter alia was referred to the Federal Court
under the provision of section 65(1) of the Courts of Judicature Act,
1964:
Can an incriminating statement made by an accused to a psychiatrist or
a medical officer be admissible against the accused and especially when
it springs from the existence of the highest degree of confidence
between the psychiatrist and the patient? Does this special relationship
affect its admissibility?
67
PP V Haji Kassim [1971] 2MLJ 115
Ong CJ : “The only relevant provision in our Evidence Ordinance excluding
professional confidences is section 126, which states that no advocate
and solicitor shall at any time be permitted, unless with his client's
express consent, to disclose any communication made to him and in the
course of his employment as such. This rule is founded on the principle
that the conduct of legal business without professional assistance is
impossible and on the necessity, in order to render such assistance
effectual, of securing full and unreserved intercourse between the two.
This privilege does not protect professional disclosures made to
clergymen or doctors.”
68
Dato Au Ba Chi & Ors v Koh Kheng & Ors [1989] 3 MLJ 445
In the course of the trial of this suit, the first plaintiff in his evidence referred to
a document found at p 13 of the agreed bundle of documents. The document
was a communication between the first ten defendants and their original
solicitors and had been included in the bundle due apparently to an oversight
by the previous solicitors who had taken over the case from the original
solicitors. During the adjournment the 14 defendants filed a joint interlocutory
application to have the document removed from the bundle and all references
to the said document by the first plaintiff in the notes of evidence taken at the
hearing expunged on the grounds that the document was a privileged
communication between solicitor and client and no express consent had been
given by the defendants to disclose the contents of the document.
69
HELD:
(1) The document, being a document containing instructions from the
defendants to their solicitors, is a privileged document and cannot be disclosed
to anyone except with the express consent given by each of the defendants.
(2) Even if the defendants' solicitors had given the document to the first plaintiff
in the presence of all the defendants (which was disputed by the defendants),
the fact that none of the defendants had objected to it, or that all had
remained silent, did not constitute waiver of the privilege since the law
requires that the defendants must give their express consent to their solicitors
before the document could be disclosed to anyone.
70
Further held:
(3) Since the document is a privileged document being communication
between solicitors and clients and express consent for its release to
anyone had not been given by the defendants to their solicitors, the
document could not be released to the first plaintiff, and it should be
excluded from the bundle of documents, and any evidence relating to
its contents so far adduced in court should be expunged from the
court record.
71
Eusoff Chin (as he was then): “As regards professional communications, the
rule is now well settled that where a barrister or solicitor is professionally
employed by a client, all communication which passes between them in
the course and for the purpose of that employment are so far privileged,
that the legal adviser, when called as a witness, cannot be permitted to
disclose them whether they be in the form of title deeds, wills, documents,
or other papers delivered, or statements made, to him, or of letters, entries,
or statements, written or made by him in that capacity, and this even
though third persons were present. “
72
See Teow Chuan v Dato Anthony See Teow Chuan [1999] 4 MLJ 42
The plaintiffs’ claim against the defendant is for defamation on a legal opinion issued by a firm of
solicitors, M/s Shearn Delamore & Co (‘the solicitors’). The plaintiffs have alleged that the defendant had
falsely and maliciously provided the solicitors defamatory information to formulate the legal opinion. It is
claimed that the defendant was responsible for the publication of this legal opinion to various people. The
first witness to be called by the plaintiffs — Ms Jeyanthini, the senior legal assistant who took instructions
from the defendant and drew up the legal opinion — was asked questions which she responded that she
was unable to answer because of legal professional privilege. The defence counsel objected to the
admissibility of conversation between the solicitors and client and the legal opinion on the basis s 126 of
the Evidence Act 1950 (‘the Act’). Counsel for the plaintiffs, inter alia, argued that: (i) consent of the client
to dictate this communication and document could have been endorsed in the document itself, or given
separately in writing; (ii) a document already in possession of the opposite party and contained in the
documents filed in court is exempted from a claim of legal professional privilege; (iii) the communication
by the defendant and the solicitors was not intended to be confidential; (iv) the plaintiffs alleged that
there was furtherance of an illegal purpose and proviso (a) of s 126 of the Act applies; and (v) since the
plaintiffs were given the legal opinion because they have an interest therein, such privilege is removed.
73
Held: (1) express consent set out in s 126 of the Act must be in writing.
Disclosures to the officers of the company cannot be considered a
consent by the company to disclose it to the world at large;
(2) the view that a privilege cannot be claimed in respect of a document
which has already come in possession of the opposite party and has filed
on record can be exceedingly dangerous. To allow this to be admitted,
when neither client nor solicitor consented to its disclosure, would make
the provision of s 126 of the Act completely vulnerable and ineffective;
(
74
Further held:
3) there is no express requirement in s 126 of the Act that the element
of confidentiality must be attached to this privilege.
(4) once privileged, it will always be privilege. It does not matter

whether the subject matter concerns the plaintiffs or they obtained it
from whom. But as far as PW1 is concerned, she does not need to
disclose the instruction given to her by the defendant or tender the legal
opinion she prepared on ground of legal professional privilege
75
Chua Su Yin & Co v Ng Sung Yee & Anor [1991] 2 MLJ 348
The appellant was a solicitor for a housing developer. Pursuant to the Housing Developers
(Control and Licensing) Regulations 1982, the developer had deposited with the appellant
as stakeholder retention money equivalent to 5% of the purchase price of properties
received from purchasers for the purpose of making good any defect arising within the
defect liability period of 12 months. Certain judgment creditors of the developer brought
garnishee proceedings in the magistrate's court in respect of these moneys. The
appellant's preliminary objection that she was not in a position to say whether in fact
there was or there was no money belonging to the developer was overruled. The
appellant appealed. The only question in the appeals was whether a client's money held in
trust by a solicitor in his client account could be an appropriate subject of garnishee
proceedings in view of the provisions of s 126 of the Evidence Act 1950 which relates to
the privilege accorded to communications between a solicitor and his client.
76
Chua Su Yin & Co v Ng Sung Yee & Anor [1991] 2 MLJ 348
Held:
(1) The appellant was solicitor for the developer. The persons who made the
payments, ie the purchasers, were not the agents or clients of the appellant.
There was an absence of communication or any relationship between the appellant
and the purchasers. The privileged communication, if any, that the appellant was
required to protect, was the communication of her client, the developer, to her.
(2) In the present case, the communication was one which the purchasers would
want to be made public and on the face of it should and ought to be published as
suppressing it would result in no proof that the purchasers had paid the moneys
and of how much they had paid.
77
Section 127 Evidence Act - Section 126 to apply to interpreters, etc.
Section 126 shall apply to interpreters and the clerks or servants of advocates.
Section 128 Evidence Act - Privilege not waived by volunteering evidence

If any party to a suit gives evidence therein at his own instance or otherwise,
he shall not be deemed to have consented thereby to such disclosure as is
mentioned in section 126; and if any party to a suit or proceeding calls any
such advocate as a witness, he shall be deemed to have consented to the
disclosure, only if he questions the advocate on matters which but for such
question he would not be at liberty to disclose.
78
If any party to a suit gives evidence therein
at his own instance or otherwise,
he shall not be deemed to have consented thereby
to such disclosure as is mentioned in section 126;
and if any party to a suit or proceeding
calls any such advocate as a witness,
he shall be deemed to have consented to the disclosure,
only if he questions the advocate
on matters which but for such question
he would not be at liberty to disclose.
79
Section 129 Evidence Act - Confidential communications with legal
advisers
No one shall be compelled to disclose to the court any confidential
communication which has taken place between him and his legal
professional adviser unless he offers himself as a witness, in which case
he may be compelled to disclose any such communications as may
appear to the court necessary to be known in order to explain any
evidence which he has given, but no others.
80
Section 129 Evidence Act - Confidential communications with legal advisers
No one shall be compelled
to disclose to the court
any confidential communication
which has taken place between him and his legal professional adviser
unless he offers himself as a witness,
in which case he may be compelled
to disclose any such communications
as may appear to the court necessary to be known
in order to explain any evidence which he has given, but no others.
81
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia
Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR 367
On 2 September 2003, officers from the Commercial Affairs Department
of the Singapore Police Force ("CAD") visited the premises of Asia Pacific
Breweries Limited ("APBL"), the parent company of APBS, to meet with
senior officers of APBL. CAD informed them that its Finance Manager had
used bank accounts fraudulently opened in the name of APBS by using
forged documents and resolutions to borrow money for his own use.
82
Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR
367
On 4 September 2003, APBL Board formed a special committee which
appointed PricewaterhouseCoopers ("PWC") and Drew and Napier LLC
("D&N") to investigate and to identify the nature of the unauthorised
transactions, quantify their financial impact, assist the company in taking
the necessary action to prevent such unauthorised transactions and to
conduct a review of the system of internal control and procedures to
prevent the occurrence of such unauthorised transactions in the future.
83
On 24 September 2003, the special committee had sought legal advice on
the claims and had been advised that it had legal defences, and
accordingly had instructed D&N to contest the claims by the appellant
banks vigorously. Preparation of the PWC draft reports ceased sometime
in late 2003 and a final report was never issued.
In early March 2004, the appellant banks made an unsuccessful
application for pre-action discovery against APBS, seeking disclosure of
documents including the PWC draft reports.
84
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific
Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR 367
In September 2004, the appellant banks commenced this action against
APBS and subsequently made applications for specific discovery. The
assistant registrar ordered that the PWC draft reports be produced by
APBS as they were not privileged information.
On appeal, the High Court reversed the assistant registrar's decision on the
ground that the PWC draft reports were protected by both legal advice
privilege and litigation privilege.
The appellant banks appealed against the High Court's decision.
85
Pacific Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR
367
Held: (1)Section 128 of the Evidence Act (Cap 97, 1997 Rev Ed) ("the
Act") read with s 131 of the Act made it clear that the full effect of the
legal advice privilege was that the client was protected from having to
disclose to any other party any legal advice which he had obtained
from his legal adviser, whether he was an advocate or a solicitor.
86
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd
and other appeals [2007] 2 SLR 367
Held further: (3) As legal advice privilege was concerned with protecting confidential communications
between lawyers and clients, and litigation privilege was concerned with protecting information and
materials created and collected for the dominant purpose of litigation, there were a number of
operational differences between the two. First, legal advice privilege existed regardless of whether
litigation was contemplated, though it did not apply to communications by third parties to the solicitor
unless they were made to the solicitor as agent, as a conduit, for the client. Second, litigation privilege
applied to every communication, whether confidential or otherwise, as long as it was for the purpose of
litigation, including communications from third parties, whether or not they were made as an agent of the
client. However, as the two forms of privilege overlapped, in that if legal advice was sought or given in
connection with current or contemplated litigation, the advice would fall into both of the two categories, if
it was proved that the communications made by APBS to PWC and D&N (and vice versa) in connection with
the joint undertaking under the terms of the first MASNET announcement, were related to contemplated
or imminent litigation, then it would follow that such communications would be covered by both legal
advice privilege and litigation privilege.
87
(4)There were two requirements to litigation privilege. First, the
threshold question was whether litigation must have been
contemplated. For this purpose, it was clear that there was no
requirement that the chance of litigation had to be higher than 50% and
that satisfaction of the general criterion of a "reasonable prospect" of
litigation was sufficient to raise the privilege. The second requirement,
related to the purpose for which legal advice had been sought, namely
that the dominant purpose for which legal advice had been sought and
obtained was for anticipation or contemplation of litigation.
88
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries
(Singapore) Pte Ltd and other appeals [2007] 2 SLR 367
(5)On the evidence, the first draft report could only have been created within a reasonable
period after 4 September 2003. In the court's view, the facts of the case supported the
factual finding that the dominant purpose of the reports at the time they had been created
had been in aid of litigation as there would have been little point in appointing D&N to
undertake jointly with PWC the work that was referred to in the first MASNET
announcement. Indeed, given that from 4 September 2003, demands and disavowals flew
fast and furious between the parties and/or their respective solicitors, it would be reasonable
to conclude that by the time PWC and D&N set to work, litigation had gone beyond a
reasonable prospect and had become a reality. In this respect, by the time the joint
investigation by PWC and D&N really got going, the prospect of litigation and the need to get
the best legal advice to mount the best defence in court would have been foremost in the
mind of the respondent.
89
Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific
Breweries (Singapore) Pte Ltd and other appeals [2007] 2 SLR 367
(6)While parties should be slow to claim privilege for entire documents where
there was only partial or even trifling reference to legal advice or
communications leading to the giving or obtaining of legal advice, and/or where
the ostensibly non-privileged parts did not play an integral role in the context of
the relevant legal analysis, in this case, the legal advice was so embedded or had
become such an integral part of the reports that it could not be redacted from
them. This was because even if the PWC draft reports did, literally, contain
ostensibly non-privileged material, such material would only form the backdrop
for the legal advice as to how the respondent should mount the best legal
defence against the appellants' claims.
90
Does it cover communication between lawyers or his staff and the client’s agent or
representative?
PUBLIC PROSECUTOR v DATO’ SERI ANWAR BIN IBRAHIM (NO 3) [1999] 2MLJ 1
Held by Augustine Paul J inter alia : “I shall now consider the position of Mohd Faiz.
He was the solicitor for the accused in respect of a defamation suit regarding Buku
50 Dalil. He had a meeting with Azizan and Sukdev Singh at the request of the latter.
Both solicitors assisted each other with mutual offers of further assistance in the
affairs of their respective clients. That has made them agents of each other. Insofar
as the issue before me is concerned, Mohd Faiz has become the agent of Sukdev
Singh. His position is therefore governed by s 127 of the Evidence Act 1950 which
reads as follows:
91
PUBLIC PROSECUTOR v DATO’ SERI ANWAR BIN IBRAHIM (NO 3) [1999] 2MLJ 1
“Section 126 shall apply to interpreters and the clerks or servants of advocates.In
commenting on this section, Sarkar on Evidence (15th Ed) Vol II says at p 2046:
As it is not possible for lawyers to transact all their business in person and they
have to employ clerks or agents, the privilege necessarily extends to facts coming
to their knowledge in the course of their employment. The protection extends to all
the necessary organs by which such communications are effected and therefore an
interpreter, or an intermediate agent is under the same obligations as the legal
adviser himself. The rule also extends to a solicitor's town or local agent (Tay s
920). It has never been questioned that the privilege protects communications to
the attorney's clerks and his other agents for rendering his services (Wig s 230).”
92
PUBLIC PROSECUTOR v DATO’ SERI ANWAR BIN IBRAHIM (NO 3)
[1999] 2MLJ 1
“Mohd Faiz is therefore in the same position as Sukdev Singh and may
disclose communications made to him by Azizan only with the express
consent of the latter.”
93
Categories of Professional Privilege
1. Legal Advise Privilege
2. Litigation Privilege
94
Legal Advise Privilege
What is Legal Advise Privilege?
The communication between a client and a professional legal adviser

with the sole or dominant purpose of giving or obtaining legal advise.
95
Balabel v Air India [1988] Ch 317
The appellant was the lessee of commercial premises. The respondents were the underlessees
of the premises and claimed that, following negotiations, an oral agreement had been
reached for the grant of a new underlease on the expiration of their existing underlease. The
appellant disputed that agreement had been reached and the respondents brought an action
for specific performance. In order to obtain the note or memorandum required by s 40 of the
Law of Property Act 1925 the respondents sought discovery of (i) communications between
the appellant and its solicitors other than those seeking or giving legal advice, (ii) drafts,
working papers, attendance notes and memoranda of the appellant's solicitors relating to
the proposed new underlease and (iii) internal communications of the appellant other than
from its foreign legal advisers. The appellant and its solicitors refused to disclose the
requested documents on the ground of legal professional privilege and that claim was upheld
by the master. On appeal, the judge allowed the appeal and ordered that certain specified
documents be disclosed. The appellant appealed to the Court of Appeal.
96
Balabel v Air India [1988] Ch 317
Held : Communications passing between solicitor and client in the
course of a conveyancing transaction were privileged if the broad
purpose of the communications was the obtaining of legal advice by
the client as and when appropriate during and throughout the course
of the transaction. It was not necessary for a document specifically to
seek or contain advice in order to be privileged. On the other hand, not
all communications in the ordinary business of a solicitor were
privileged. On the facts, the documents were privileged and the appeal
would be allowed.
97
Smith-Bird v Blower [1939] 2 All ER 406
The defendant offered two houses for sale by auction early in 1938, but the
reserve was not reached. Later the plaintiffs, authorised Mr Harry Brown, to
buy the houses for them, and with this object in view he called on the
auctioneer. By way of introduction of Mr Brown to the defendant, the
auctioneer wrote the defendant's name and address on the back of a slip of
paper on which his own name and address were printed, and informed Mr
Brown that, in the event of a sale, the deposit should be paid to Mr Brown's
solicitors. Mr Brown then called on the defendant, who eventually agreed to
sell him the houses for £510, and in proof of this the defendant wrote on the
back of the above-mentioned slip of paper: “Let bearer, Mr Brown, have
property 74 and 76, Midland Road, Ellistown, for £510.
98
D Blower.” Nothing was said about the deposit. Mr Brown went to his solicitors,
produced the document, and paid a deposit of £60, receiving a receipt. On 23
February 1938, the defendant, in reply to a letter from his solicitors, wrote to
them confirming the note of authority given by him to Mr Brown “to convey
the above property to him for £510.” Subsequently the defendant instructed
his solicitors to return the deposit of £60 to Mr Brown, as he was not
prepared to proceed with the sale. The plaintiffs instituted proceedings for
specific performance of the agreement for sale. The letter written by the
defendant to his solicitors was not disclosed, being thought to be a privileged
document, but, being mentioned at the trial by the defendant, was then
produced.
99
Held inter alia : the letter written by the defendant to his solicitors was
not privileged from disclosure, as it was not written for the purpose of
obtaining legal advice.
The slip of paper which Mr Brown had received from the defendant did not
itself constitute a memorandum of any agreement for sale of the two
houses in question, but the letter of 23 February 1938, from the defendant
to his solicitors, referring to the agreement for sale of the property to Mr
Brown, was a sufficient memorandum of the contract relied on by the
plaintiffs to satisfy the requirements of the statute, and they were,
therefore, entitled to succeed in the action.
100
Conlon v Conlons Ltd [1952] 2 All ER 462
The plaintiff having claimed damages from the defendants for personal injuries, his solicitors
wrote to the defendants' insurers offering terms of settlement. Later the plaintiff issued a
writ, and in their defence the defendants pleaded that the terms of settlement offered by
the plaintiff's solicitors had been accepted and that the plaintiff's claim had thus been
compromised by way of accord and satisfaction. In his reply the plaintiff denied having made
any agreement to compromise his claim, and pleaded that, if any such agreement purported
to have been entered into, his solicitors had no authority to enter into it. The defendants
administered interrogatories asking whether the plaintiff had not authorised his solicitors
to negotiate for the settlement of his claim or to hold themselves out as having authority to
do so, and whether he had not authorised them to offer terms of settlement. The plaintiff
declined to answer the interogatories in the ground that they were inquiries as to
communications passing between him and his solicitors confidentially and in their
professional character, and were, therefore, privileged.
101
Conlon v Conlons Ltd [1952] 2 All ER 462
Held – The rule as to privilege did not extend to communications

between a client and his solicitor which the client instructed his
solicitor to repeat to the other party, for such communications were
not confidential, and, therefore, the plaintiff was bound to answer the
interrogatories.
102
Litigation Privilege
What is Litigation Privilege
Litigation privilege extends further than legal advice privilege, to
communications which is for the purposes of or leading to evidence for
use in legal proceedings. This applies to such communications with
third parties as well.
103
Waugh v British Railways Board [1980] AC 521
The plaintiff's husband was employed by the defendant railways board. In a collision
between locomotives, he received injuries from which he died. The practice of the
board when an accident occurred was that on the day of the accident a brief report
was made to the railway inspectorate, soon afterwards a joint internal report ("the
joint inquiry report") was prepared incorporating statements of witnesses, which
was also sent to the inspectorate, and in due course a report was made by the
inspectorate for the Department of the Environment. The heading of the joint inquiry
report stated that it had finally to be sent to the board's solicitor for the purpose of
enabling him to advise the board. The plaintiff brought an action against the board
under the Fatal Accidents Acts, alleging that the collision had been caused by their
negligence, and sought discovery of, inter alia, the joint inquiry report.
104
The Defendant refused to disclose the report on the ground, as stated
in an affidavit sworn on their behalf, that one of the principal purposes
of preparing it had been so that it could be passed to their chief
solicitor to enable him to advise the board on its legal liability and, if
necessary, conduct their defence to the proceedings, and that it was
accordingly the subject of legal professional privilege.
105
Held: That the due administration of justice strongly required that a document
such as the internal inquiry report, which was contemporary, contained
statements by witnesses on the spot and would almost certainly be the best
evidence as to the cause of the accident, should be disclosed; that for that
important public interest to be overridden by a claim of privilege the purpose
of submission to the party's legal advisers in anticipation of litigation must be
at least the dominant purpose for which it had been prepared; and that, in
the present case, the purpose of obtaining legal advice in anticipation of
litigation having been no more than of equal rank and weight with the purpose
of railway operation and safety, the board's claim for privilege failed and the
report should be disclosed
106
Dea Ai Eng (P) v Dr Wong Seak Shoon & Anor [2007] 2 MLJ 357
The plaintiff filed an action for damages against the defendants for
medical negligence. The defendants have filed a statement of defence
resisting the plaintiff's claim. This was an application filed by the first
defendant to set aside the subpoena served on Dato' (Dr) P
Kandasamy who was the expert witness of the first defendant ('the
expert witness'). The subpoena which was issued to compel the expert
witness to attend court, to give evidence and also to bring with him the
medical report which had been specified in the subpoena.
107
Dea Ai Eng (P) v Dr Wong Seak Shoon & Anor [2007] 2 MLJ 357
Held: The medical report prepared by the expert witness was at the
instance of the first defendant's solicitors for use in the pending
litigation. Therefore, the opinion and medical report prepared by the
expert witnesses was the subject of a pending or existing litigation. The
first defendant therefore, was entitled to object to the expert witness
giving evidence to express his opinion for the plaintiff. In other words,
reports which are prepared by experts for the purpose of litigation are
privileged and therefore parties are not obliged to disclose them to each
other. This safeguard against an expert witness giving evidence on more
than one side is protected by the existence of legal professional privilege.
108
Please read the following cases

1. Yap Hong Choon v Dr Pritam Singh [2006] CLJ 842
109
Does the privilege terminates with the client’s demise?
Bullivant & Ors v The Attorney General for Victoria (on behalf of Her
Majesty) [1901] AC 196
An information against executors claimed duties under a Colonial statute,
alleging that the defendants' testator had some time before his death executed
voluntary conveyances of Colonial property "with intent to evade the payment
of duty" under the statute. One of the defendants, a member of the firm of
solicitors whom the testator had instructed to prepare the conveyances, was
ordered to produce the notes and records of these instructions, but objected to
do so on the ground that they were privileged communications between
solicitor and client for the purpose of obtaining advice
110
Bullivant & Ors v The Attorney General for Victoria (on behalf of Her
Majesty) [1901] AC 196
Lord Lindley : “It is said that, the testator being dead, the privilege is
gone. My Lords, I am satisfied that that answer is insufficient. I never
heard it before; … The mere fact that a testator is dead does not
destroy the privilege. The privilege is founded upon the views which are
taken in this country of public policy, and that privilege has to be
weighed, and unless the people concerned in the case of an ordinary
controversy like this waive it, the privilege is not gone — it remains.”
111
Does the privilege terminates with the client’s demise?
Tan Thian Wah v Tan Tian Tock [1998] 5 MLJ 801
The applicant, son of the late Tan Hon Huah ('the deceased'), by virtue
of being a beneficiary, wrote to the defendant legal firm — whom the
former believed was in possession of a will made by the deceased ('the
will') — for a copy of the will but did not receive any positive response.
Subsequently, the applicant applied by virtue of s 41 under Pt III of the
Probate and Administration Act 1959 ('the Act') for a copy of his
father’s will.
112
Tan Thian Wah v Tan Tian Tock [1998] 5 MLJ 801
The proviso of s 126(1)(a) and (b) of the Evidence Act 1950 provides that any papers including
any correspondence, communication or matters relating to them would be privileged from
discovery and thus disentitle strangers from inspecting them. In the present case, the
applicant was not the client of the solicitor and merely a possible beneficiary of the estate.
With the death of the client, the executors of the estate stepped into the shoes of the late
client with the solicitors now subject to the administrative instructions of the executors and
the prevailing legal interest. On that score, even though the applicant was one of the
possible beneficiaries, with the testator dead, that did not automatically mean he had
acquired certain rights that could circumvent s 126 of the Evidence Act 1950 nor had the
privilege been terminated by that death. Moreover, there was no legal impediment as to
why the applicant should not request the trustees or executors of the estate of the deceased
for a copy of the will, or to request them to permit their solicitors to release a copy of the
will. Thus, the application of the applicant pursuant to s 41 of the Act was rejected
113
Three Rivers District Council v Governor and Company of the Bank of England
The claimants, the liquidators and creditors of a bank (“BCCI”), brought an action
against the Bank of England for misfeasance in public office in respect of its
supervision of BCCI before its collapse. They sought an order for inspection and
disclosure of communications passing between the Bank's “inquiry unit” and its
solicitors during the course of an inquiry set up to inquire into its supervision.
The Bank claimed legal advice privilege in respect of all solicitor/client
communications. The judge held that it was entitled to claim privilege only in
respect of communications for the purpose of seeking or obtaining advice as to
its legal rights and obligations, not communications relating to presentation of its
evidence to the inquiry so as to be least likely to attract criticism. The Court of
Appeal dismissed an appeal by the Bank from his order.
114
Three Rivers District Council v Governor and Company of the Bank of England
Held by : “That there must be a “relevant legal context” in order for the advice to attract
legal professional privilege should not be in doubt. Taylor LJ said, at p 331, that
“to extend privilege without limit to all solicitor and client communication upon
matters within the ordinary business of a solicitor and referable to that relationship
[would be] too wide”.
This remark is, in my respectful opinion, plainly correct. If a solicitor becomes the client's
“man of business”, and some solicitors do, responsible for advising the client on all matters
of business, including investment policy, finance policy and other business matters, the
advice may lack a relevant legal context. There is, in my opinion, no way of avoiding
difficulty in deciding in marginal cases whether the seeking of advice from or the giving of
advice by lawyers does or does not take place in a relevant legal context so as to attract
legal advice privilege.
115
Please read the following cases:
1. Chok Sin Fatt v Chew Thong [1954] SCR 15
116
Self incrimination Privilege
117
Section 132 Evidence Act - Witness not excused from answering on
ground that answer will criminate
(1) A witness shall not be excused from answering any question as to any
matter relevant to the matter in issue in any suit, or in any civil or
criminal proceeding, upon the ground that the answer to that question
will criminate or may tend directly or indirectly to criminate, him, or that
it will expose, or tend directly or indirectly to expose, the witness to a
penalty or forfeiture of any kind, or that it will establish or tend to
establish that he owes a debt or is otherwise subject to a civil suit at the
instance of the Government of Malaysia or of any State or of any other
person.
118
Section 132 (1) Evidence Act
A witness shall not be excused from answering any question,
as to any matter relevant to the matter in issue
in any suit, or in any civil or criminal proceeding,
upon the ground that the answer to that question
will criminate or may tend directly or indirectly to criminate him, or
that it will expose, or tend directly or indirectly to expose,
the witness to a penalty or forfeiture of any kind, or
that it will establish or tend to establish
that he owes a debt or
is otherwise subject to a civil suit
at the instance of the Government of Malaysia or of any State or of any other person.
119
(2) No answer which a witness shall be compelled by the court to give
shall subject him to any arrest or prosecution, or be proved against him
in any criminal proceeding, except a prosecution for giving false
evidence by that answer.
120
No answer which a witness shall be compelled
by the court to give
shall subject him to any arrest or prosecution, or
be proved against him in any criminal proceeding,
except a prosecution for giving false evidence by that answer.
121
(3) Before compelling a witness to answer a question the answer to
which will criminate or may tend directly or indirectly to criminate him
the court shall explain to the witness the purport of subsection (2).
122
Before compelling a witness to answer a question
the answer to which will criminate or
may tend directly or indirectly to criminate him
the court shall explain to the witness
the purport of subsection (2).
123
Prabah A/L Sinnathamby v Pendakwa Raya [2010] 5 MLJ 252
The appellant (hereinafter the "accused") was charged with the offence
of kidnapping under s 3 of the Kidnapping Act 1961 jointly and with
common intention with four other persons still at large. He was
convicted and he appealed. One of the ground of appeal is the failure
of the trial judge to provide a witness called by the defence the
protection under Section 132(2) of the Evidence Act 1950 and to
compel the said witness to answer an incriminating question that may
expose him to prosecution which the trial judge was under a duty to do
pursuant to Section 132(3);
124
The notes of evidence at page 279 of the Appeal Record indicate that counsel for the defence
had examined DW2 by asking him the following question:
Adakah kamu pada 7.1.2001 jam lebih kurang 11.45 di hadapan Hotel Grade, Jalan Petaling
Utama 6, Petaling Jaya bersama-sama dengan (4) orang lagi menahan atau menculik seorang
China?
(Translation: Did you on 7.1.2001 at about 11.45 in front of Hotel Grade, Jalan Petaling Utama 6,
Petaling Jaya together with 4 other persons detained or kidnapped a Chinese person?)
The record shows that DW2 replied that he was afraid to answer the question for fear that he
may be arrested by the police and punished by the court.
Counsel then sought an order from the court to compel the witness to answer the question and
requested the court to assure him of the protection afforded under s 132(2) on the ground that
the court was bound to do so under s 132(3) of the Evidence Act 1950.
125
Kang JCA : “We are of the view that the trial judge was wrong in ruling
that the court was not obliged to compel the witness DW2 to answer
the question asked by counsel for the defence which may incriminate
him and to explain the purport of s 132(2) to him. The ruling it is clear
to us, flies in the face of the cold print of s 132(1). It follows as a matter
of common sense that if DW2 refuses to answer, he must be compelled
and s 132(3) clearly imposes a duty on the trial judge to explain to
him the purport of s 132(2) before compelling him to do so.”
126
Further held: “The approach that a trial judge ought to take when faced with a
situation where a witness hesitate to answer a question which may criminate him
is to determine firstly whether that question relates to any matter relevant to the
matter in issue. A question is relevant to a matter in issue if it is required to prove
the existence or non-existence of a fact in issue, and the fact in issue in the instant
case would be the act of kidnapping at the place and time specified in the charge.
If the question is determined to be relevant to a matter in issue, then it would be
next necessary for the judge to act under s 132(3) to compel the witness to
answer the question and to explain to the witness the purport of s 132(2).”
127
PMK Rajah v Worldwide Commodities Sdn Bhd & Ors [1985] 1 MLJ 86
The first, second, sixth and seventh defendants sought an order of the
court to discharge an Anton Piller order granted on 30 December
1982. The defendants contended inter alia that it was not possible to
show the trading statements to the solicitors of the plaintiff without
disclosing particulars of other clients which were confidential in
nature. The production of the documents referred to in the order
would incriminate the defendants by providing evidence on which
they could be prosecuted for offences under the Commodities Trading
Act 1980 and for conspiracy and fraud.
128
PMK Rajah v Worldwide Commodities Sdn Bhd & Ors [1985] 1 MLJ 86
Held inter alia: the defendants are entitled to the privilege not to
disclose documents relating to other clients which are confidential in
nature and documents which may incriminate them, since the persons
required to give discovery of the relevant documents in compliance
with an Anton Piller order are not witnesses within the meaning of s
132 of the Evidence Act 1950. The Anton Piller order requiring the
disclosure of certain incriminating evidence was contrary to the well-
established principle of privilege against self-incrimination and should
be discharged.
129
Television Broadcasts Ltd & Ors v Mandarin Video Holdings Sdn Bhd [1983] 2
MLJ 346
From investigations conducted by the 3rd. Plaintiff, the defendants had been
hiring out pirated copies of the Plaintiffs television series on the black
market. They had not given permission to the defendants to make copies of or
put on video cassettes their films. The plaintiffs therefor sought for an ex-
parte order, the Anton Piller order before the Writ was even served against the
defendants. The plaintiffs wanted to take the defendants by surprise so that
they could not get rid of incriminating evidence and their stock of infringing
video cassettes. The said order was granted by the present court. The
defendants objected on the ground inter alia the defendants claimed privilege
against self-incrimination.
130
Television Broadcasts Ltd & Ors v Mandarin Video Holdings Sdn Bhd
[1983] 2 MLJ 346
Held inter alia : In this country the privilege against self-incrimination
has been withdrawn: section 132 of the Evidence Act 1950. In view of
section 132(3), the Anton Piller order had to be modified to carry a
statement in the terms of section 132(2). The defendants must be
informed that the answers given by them in response of the order will
not subject them to the risk of arrest or prosecution and that their
evidence will not be used in any criminal proceedings, except a
prosecution for giving false evidence by their answers.
131
Chye Ah San v R [1954] 1 MLJ 217
The appellant was charged for selling liquor without paying levy under
section 62(d) of the Excise Enactment. The case for the prosecution was
that the appellant received from a certain Chinese the two tins of liquor
referred to in the charge and then gave that liquor to another Chinese
for sale on his behalf. The evidence in support of this charge consisted
solely of certain statements made by the appellant to Customs
Officers and proof, by analysis, that the contents of the two tins
(which the appellant in one of those statements admitted he had
dealt with) was intoxicating liquor.
132
Chye Ah San v R [1954] 1 MLJ 217
Held: The maxim nemo tenetur seipsum accusare in this country is
enforced in a different way from that in England. In England a witness
in a Court of Law is not bound to answer questions which may tend to
criminate him. In Malaya under the Evidence Ordinance a witness is
bound to answer all questions even though they may tend to criminate
him, but if he is forced to answer such questions then no proceedings
can be taken against him based upon his answers except proceedings
for perjury.
133
Please read the following cases
1. Muniandy & Anor v PP [1973] 1 MLJ 179

2. Attorney General of Hong Kong v Zauyan Wan Chik [1995] 2 MLJ
620
134
Privilege
The End
Next Topic : Estoppel
135

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1. Compellable witness; and

What do you understand by these two phrases?

It is a situation where although the testimony in question is relevant, it

1. Marital Communication Privilege (Section 122 EA)

Marital Communication Privilege

When we talk about marital communication, remember the words

What do they mean?

(2) In criminal proceedings against any person the husband or wife of

(3) In criminal proceedings the accused shall be a competent witness in

Provided that, so far as the cross-examination relates to the credit of the

Although the testimony of the spouse may be relevant, it cannot be

No person who is or has been married shall be compelled to disclose

James Foong J : I therefore order the learned magistrate to proceed

Held: Under s. 4 of the Criminal Evidence Act, 1898, the wife of a

Does it cover marriage of same sexes?

State Affairs Privilege

Self-explanatory. It refers to a report relating to the affairs of State

Official Communication Privilege

No Sessions Court Judge, Magistrate or police officer shall be compelled

Explanation—“revenue officer” in this section means any officer

No Sessions Court Judge, Magistrate or police officer

Please see the case of Ellis v Home Office [1953] 2 QB 135

Professional Communication Privilege

1. Legal Advise Privilege

The communication between a client and a professional legal adviser

(2) It is immaterial whether the attention of the advocate was or was

(b) A, a client, says to B, an advocate: “I wish to obtain possession of

To protect an individual’s ability to access the justice system by encouraging

(4) once privileged, it will always be privilege. It does not matter

Section 128 Evidence Act - Privilege not waived by volunteering evidence

1. Legal Advise Privilege

What is Legal Advise Privilege?

The communication between a client and a professional legal adviser

Held – The rule as to privilege did not extend to communications

Please read the following cases

Self incrimination Privilege

Please read the following cases

1. Muniandy & Anor v PP [1973] 1 MLJ 179

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