WITNESS

MARITAL
COMMUNICATION
PRIVILEGE

LEGAL PROFESSIONAL
PRIVILEGE

CROWN/ STATE/
PUBLIC INTEREST IMMUNITY
PRIVILEGE

PRIVILEGE AGAINST SELF INCRIMINATION

Witness
(Saksi)
 Witness
 Section 3 of EA 1950 provides
evidence includes (a) all statements
which the court permits or requires
to be made before it by witnesses in
relation to matters of fact under
inquiry: such statements are called
oral evidence (b) all documents
produced for the inspection of the
court: such documents are called
documentary evidence.
 Witness
 First, the witness must be a relevant
witness. (Section 5 of EA 1950)
 Second, the witness must be competent.
Section 118 of EA 1950 provides for “Who
may testify” which states: All persons shall
be competent to testify unless the court
considers that they are prevented from
understanding the questions put to them
or from giving rational answers to those
questions by tender years, extreme old
age, disease, whether of body or mind, or
any other cause of the same kind.
 Witness
 Section 119 of EA 1950
provide for “Dumb
witnesses” where it states
“A witness who is
unable to speak may
give his evidence in any
other manner in which
he can make it
intelligible, as, for
example, by writing or
by signs; but the writing
must be written and the
signs made in open
court”. (2) Evidence so
given shall be deemed to
be oral evidence
 PRIVILEGE
(PERLINDUNGAN/
KEISTIMEWAAN)
 Legal professional Privilege against
privilege self incrimination

Marital
communication State/Crown
privilege privilege

Happy Witness
Sad Witness
 Marital “communication" privilege
(Perlindungan terhadap komunikasi
dalam tempoh perkahwinan)
 Marital communication privilege
 The right given to a
husband and wife to
refuse to testify in a trial
as to confidential
statements (Orally or
written) made to each
other within and during
the framework of their
spousal relationship.
 The marital privilege is
an exception to the
general rule that all
relevant evidence is
admissible at trial.
 Marital communication privilege
 The marital communications
privilege is a right that only
legally married persons has in
court.
 Generally, the determination
of whether a marriage is legal
depends on state law.
 Courts will not permit its use
by partners who merely live
together or by those who have
a common law marriage or a
sham, or false, marriage.
Moreover, the communication
must have taken place while
the marriage existed, not after
a divorce.
Recognize same sex marriage No recognition of same sex marriage

Other types of partnership

Large penalty

Death penalty
 Marital communication privilege
 The privilege also cannot be
claimed in certain situations,
such as where one spouse is
subject to prosecution for
crimes committed against the
other or against the children
of the couple.
 In addition, the presence of
third persons at the time of
the communication usually
eliminates confidentiality
and thus destroys the
privilege, although courts
have granted exceptions for
the presence of children.
 Marital communication privilege
 Its origin: The marital
communications privilege
originated at common
law. It was made formal
in the English Evidence
Amendment Act of
1853, which said that
neither husbands nor
wives could be forced to
disclose any
communication made to
the other during the
marriage.
 Marital communication privilege
 In the United States, the
privilege came to be
recognized in state and Federal
Rules of Evidence. By the
twentieth century, the U.S.
Supreme Court said that it was
“regarded as so essential to
the preservation of the
marriage relationship as to
outweigh the disadvantages
to the administration of
justice” as stated in the case of
Wolfle v. United States, 291
U.S. 7, 54 S. Ct. 279, 78 L. Ed.
617 [1934].
 Marital communication privilege

Malaysian context

Section 120 Section 122

Section
120 of EA
1950
 Marital communication privilege
 Section 120 of EA provides for “Parties to civil suits and wives
and husbands” which states (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. (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”.
 Marital communication privilege
 Principles of the section:
This section deals with the
competence of witnesses in
civil and criminal
proceedings. The issue is
now whether the spouse of a
party or accused is
compellable (dipaksa) as a
witness.
 Ghouse Bin
Haji Kader
Mustan v R
[1946] MLJ
36
 Marital communication privilege
 Per McElwaine CJ in Ghouse Bin Haji Kader Mastan
v R [1946] MLJ 36 states “If a witness in this
Colony is competent and has been summoned he is
bound to give evidence, and to answer all relevant
questions. There is no class of witness who can be
called a compellable witness. The words
compellable when used in the Evidence Ordinance
relate not so much to a witness as to a type of
evidence; and in my opinion a witness may be
compelled to give any relevant evidence unless a
section enacts that he shall not be compelled to
give it. Such sections are 122-127 and 130”. The
District Judge was fully within his rights in
compelling the wife to give evidence, as her evidence
did not fall under any section which enacts that she
shall not be compelled to give such evidence.
 PP v Abdul
Majid
[1994] 3
MLJ 48
 Marital communication privilege
 In PP v Abdul Majid [1994] 3 MLJ 48, where the accused in
this case is charged for murder under section 302 of the Penal
Code. At the preliminary enquiry held before the learned
magistrate in Rawang, the public prosecutor attempted to call
the accused’s wife, Syarifah Marina bte Syed Hamzah
(Syarifah in short) as a witness for the prosecution. The
accused’s counsel objected to this on the ground that, though
she is a competent witness, she could not be compelled to
tender evidence against her own husband. At that stage,
Syarifah herself declared that she was unwilling to render
evidence against the accused in court. Upon this, the learned
magistrate then ruled that Syarifah, though a competent
witness could not be compelled to give any evidence in this
case against the accused, as he is her husband. The
magistrate in this case based his decision on the English
authority Hoskyn v Metropolitan Police Commissioner
[1979] AC 474; [1978] 2 All ER 136; [1978] 2 WLR 695.
Upon this decision, the learned deputy prosecutor immediately
referred to this matter to the High Court for determination while
the preliminary enquiry was put on hold.
 Marital communication privilege
 High Court held that “I find that the said
magistrate has erred in adopting the ruling in
Hoskyn’s case as law for this country. 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
section 122 of the Evidence Act 1950”.
 English position
The issue of
competency & compellability in
England?

SECOND APPROACH: FIRST APPROACH:

R v Lapworth [1931] 1 KB 117 R v Leach [1912] AC 305

Anyone who was a competent A competent witness not

witness was also a compellable witness. necessarily a compellable witness.

CURRENT APPROACH:
Hoskyn v Metropolitan Police
Commissioner [1979] AC 474
 Marital communication privilege
 Since the case of R v Lapworth [1931] 1 KB 117,
decided by the Court of Criminal Appeal in England,
the law on this matter seemed to rest on the principle
that anyone who was a competent witness was also a
compellable witness.
 This state of law went on for almost 40 years until
Hoskyn’s case where the House of Lords by a majority of
4:1 (with Lord Edmund-Davies dissenting), declared that
the decision in R v Lapworth was wrong. In its place, the
House of Lords restated one of their earlier decision, R v
Leach [1912] AC 305, to be the correct law. By this, a
spouse witness though a competent witness to testify
against each other, is not a compellable witness.
 Ghouse Bin
Haji Kader
Mustan v R
[1946] MLJ
36
 Marital communication privilege
 The judge in PP v Abdul Majid also referred to an early Straits
Settlements authority, Ghouse Bin Haji Kader Mustan v R [1946]
MLJ 36, decided by the then Chief Justice of the Straits
Settlements, Sir McElwaine which has some direct reference to this
point. In this case, the appellant was charged for kidnapping a girl
by the name of Isah then under the age of 16 from her lawful
guardian. A day after the kidnap, the appellant married Isah. Isah
must have testified against the appellant thus leading to his
conviction. One of the grounds of appeal by the appellant was that
Isah, being his wife could not be compelled to give evidence
against him. After considering various authorities, most of it from
Africa, the respected Chief Justice ruled as follows [at p 37]: “If a
witness in this colony [Colony of Singapore] is competent and
has been summoned he is bound to give evidence, and to answer
all relevant questions. There is no class of witness who can be
called a compellable witness. The words compellable when used
in the Evidence Ordinance relate not so much to a witness as to
a type of evidence; and in my opinion a witness may be
compelled to give any relevant evidence unless a section enacts
that he shall not be compelled to give it”.
 However, the appeal made by the accused was allowed on basis
that the girl had attained puberty, she had no guardian and therefore
she was not taken out of the keeping of the lawful guardian in the
first place.
  Gimbu Bin
Sangkaling v R
 [1958] SCR 114
 Marital communication privilege
 This decision seems to have found favour in the Borneo
States. In the case of Gimbu Bin Sangkaling v R [1958]
SCR 114, the Court of Appeal in the combined judiciary of
North Borneo, Sarawak and Brunei, decided to adopt the
principle that a competent witness is also a compellable
witness. In this case, Gimbu was charged for murdering his
father-in-law. Gimbu’s wife, the deceased’s daughter, was
asked to testify against Gimbu to the effect that she saw
Gimbu and his father go out on a frog hunting expedition
together and, how Gimbu returned alone. Though she was
unwilling to testify, she was compelled to do so by the trial
judge. In adopting the principle of compellability attached
to competency, Smith Ag CJ in this Court of Appeal has
this to say: “Unless the wife can point to any exception
in the law relieving her from the obligation to give
evidence, then she is bound to give evidence. The whole
process of law would be stultified if a witness could
without legal excuse decline to give evidence. This court
considers that references to the English common law
and to decisions under the Criminal Evidence Act 1898
[of England] are irrelevant”.
 Marital communication privilege
 As a conclusion: It was clear that the spouse
is a competent witness under section 120. It
was held that a witness if a spouse is a
competent and compellable witness unless in
section 122 the communication is a privilege
marital communication. In Abdul Majid on
appeal the judge refused to follow Hoskyn
and Leach, thus Lapworth is still good law in
Malaysia. If he/she is a competent witness,
he/she is also a compellable witness. If he/she
is unwilling to testify after he/she is given a
subpoena, he/she can also be held in
contempt. Section 120 makes spouses
competent witnesses in criminal and civil
proceedings.
Why the court in Malaysia followed
Lapworth
&
refused to follow Hoskyn and
Leach?
Section
122 of EA
1950
 Marital communication privilege
 Section 122 of EA 1950 provides
for Communications during marriage
(Komunikasi dalam tempoh perkahwinan). It
states that “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”.
 Marital communication privilege
 Principle and scope: Section 122
gives some form of privilege for
marital communication. Spouses
cannot be compelled to disclose
marital communication unless the
spouse consents or if there is an
action against each other such in the
case of wife battery. How to
determine marital communication
depends at the time the
communication was made the parties
were married to each other.
 Marital communication privilege

Privilege
under section 122

Such communication
Only applicable
made during
to communication
marriage
  Lim Lye
Hock
 v PP [1995]
1 SLR 238
 Marital communication privilege
 In Lim Lye Hock v PP [1995] 1 SLR 238, 246-247 the
appellant was charged with the murder of one Tan Hui Ngin
(the deceased), whose decomposed body was found at a
disused egg hatchery at 74P Ponggol Road, Track 13 on 16
October 1990. He was convicted by the High Court and
sentenced to suffer death. He appealed against his
conviction. In this case, the accused and the murdered girl
were workers of an egg hatchery. There was an argument
between the two, the accused lost his temper and murdered
the girl unintentionally. He came back home covered with
blood and this was noticed by the wife. The accused became
depressed for several days and eventually confessed to his
wife that he murdered a girl at his workplace. 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 the Singapore Evidence Act (Cap 97, 1990 Ed) (the
Act).
 Marital communication privilege
 Per LP Thean states “If the wife has seen her husband
committing the offence or returning home with blood stains
on his cloths, 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 cloths 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 i.e. the accused consent to such
disclosure”. Appeal dismissed. It is noted that section 122 has
two limbs. The first limb: A witness is not compellable to
disclose any communication (oral or written) made to him or
her by his or her spouse during the marriage & the second limb
contains a prohibition on the disclosure of any such
communication unless the spouse who made the
communication, or his or her representative in interest, consents
to the disclosure.
 Ghouse Bin
Haji Kader
Mustan v R
[1946] MLJ
36
 Marital communication privilege
 In Ghouse Bin Haji Kader Mustan
v R [1946] MLJ 36, where it is
respectfully submitted that this
decision is better understood in
the light of the fact that at the
time of the offence the parties
were not married thus the
privilege contained in section
122 did not apply. See PP v
Gurdial Singh Get Singh [2005] 6
CLJ 272.
 Marital communication privilege
 Although the privilege only
applies to communications, it
also applies to acts when they
are so inextricably interwoven
(closely connected/impossible
to differentiate) with
communications that it is
impossible to separate them.
 Marital communication privilege
 Per Mustapha Hussain J in Palldas a/l Arumugam v PP
[1988] 1 CLJ 661 states “From the record of appeal, the
appellant’s wife Gudi Kaur (PW3) had, in examination-in-
chief, given quite a lengthy evidence of all
communications between herself and her husband. Though
some of the evidence relates purely to acts, as distinct from
words spoken, i.e., what she saw appellant was doing, it
is so inextricably interwoven with what appellant had
said to her, that to separate each act from words spoken
by the appellant to her would be extremely difficult, if
not impossible. Even if extricable and rejecting the
words spoken, one would have their prejudicial effect
still lingering. Even though objection was not taken by
the defence, this silence cannot convert what the law
says is inadmissible evidence to be admissible. One
would expect the wife’s evidence to be led in such a way
as to confine such evidence to what she saw the
appellant doing. The wife should have been stopped the
moment she started uttering what her husband said to
her. From the record it would seem that nobody ever
bothered about this s. 122.
 Marital communication privilege
 In Verghese v Ponnan AIR 1970 SC 1876 where it was held that
“the bar to the admissibility in evidence of communications
made during marriage attaches at the time when the
communication is made, and its admissibility will be adjudged at
the status at that date and not the status at the date when the
evidence is sought to be given in court”.
 Whether or not the spouse is compellable to give evidence look at
the status of the parties were spouses when they make marital
communication. In Ram Chandra v Emperor AIR 1933 Bombay
1953 states that “The protection to marital communication is not
confined to confidential communication but it must be made
during the coverture of the marriage”.
 In Re Loh Kah Kheng (deceased)(No 2) [1990] 2 MLJ 237 the
deceased was found dead and there was suspicion that he was
murdered. The communication between his wife and himself was
objected to due to marital communication. The judge held that the
privilege marital communication in section 122 only applies to
court proceedings. This section has no application to a coroner’s
inquiry into the cause of death of a person, because an inquest is
an inquisitory procedure, not adversarial in nature. Look at
section 2, Evidence Act will not apply. Only principle of natural
justice will apply.
 WITNESS
MARITAL
FINISH COMMUNICATION
PRIVILEGE

LEGAL PROFESSIONAL
PRIVILEGE

CROWN/ STATE/
PUBLIC INTEREST IMMUNITY
PRIVILEGE

PRIVILEGE AGAINST SELF INCRIMINATION

 Legal professional privilege/
Client solicitor privilege
(Perlindungan keistimewaan profesional undang –
undang)
Section
126 of EA
1950
 Legal professional privilege
 Section 126 of EA 1950 provide for “Professional
communications” which states (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:
 To what extent
the privilege
can be use?
 Legal professional privilege
 Provided that nothing in this section shall protect from disclosure
(Dengan syarat bahawa tiada apa-apa jua dalm seksyen ini boleh
melindungi dari didedahkan)
 Section 126 (1) (a) any such communication made in furtherance
of any illegal purpose; (apa- apa komunikasi itu yang dibuat bagi
membolehkan tercapainya apa-apa maksud yang menyalahi undang-
unadng).
 Illustration (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 purposes this
communication is protected from disclosure. Illustration (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.
 Legal professional privilege
 Section 126 (1) (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. (apa-apa fakta yang diketahui oleh seseorang
peguambela dalam perjalanan pengkhidmatannya sedemikian yang
menunjukan bahawa sesuatu jenayah atau fraud telah dilakukan sejak
dia mula digunakhidmat).
 Illustration (c) A., being charged with embezzlement
(misappropriate), 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.
 Legal professional privilege
 Explanation to section 126 clearly
states “The obligation stated in
section 126 continues after the
employment has ceased”.
(Kewajiban yang dinyatakan dalam
seksyen ini berterusan walaupun
pengkhidmatan tersebut telah
terhenti)
Section
127 of EA
1950
 Legal professional privilege
 Section 127 of EA 1950 provides
“Section 126 to apply to
interpreters, etc” which states
“Section 126 shall apply to
interpreters and the clerks or
servants of advocates” (Seksyen 126
terpakai bagi jurubahasa dan bagi
kerani atau pengkhidmat peguambela)
 The idea of having
the privilege under
the Malaysian
Evidence Act 1950
 Legal professional privilege
 Per Augustine Paul J in PP v Dato’ Seri Anwar
Bin Ibrahim (No 3) [1999] 2 MLJ 1 states “This
rule is established for the protection of the
client, not of the advocate, and is founded on
the impossibility of conducting legal business
without professional assistance, and on the
necessities, in order to render that assistance
effectual, of securing full and unreserved
intercourse between the two…”
 Legal professional privilege
 Per Eusoff Chin J in Dato’ Au Ba Chi v Koh Keng Kheng
[1989] 3 MLJ 445 states “Sections 126 to 129 of the
Evidence Act 1950 deal with the law relating to
professional communication between clients and their
legal advisers or their clerks. 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”.
 Legal professional privilege
 In order to attract the privilege under the section, the
communication to the solicitor may also have been
made by an agent of his client: As Augustine Paul J said
in PP v Dato’ Seri Anwar Bin Ibrahim [1999] 2 MLJ 1 at
page 196 that “When learned counsel began to question
Nor Azman, I informed him that the line of questioning
may infringe section 126 of EA 1950 as Nor Azman was in
the position of an agent of Ummi. In saying that, I had in
mind Wheeler v Le Mervhant (1881) 17 Ch D 675 where
Jessel MR said “The actual communication to the solicitor
by the client is of course protected, and it is equally
protected whether it is made by the client in person or is
made by an agent on behalf of the client’”.
 In R v Chhoa Mui Sai [1937] MLJ 236 it was held that
evidence of a payment of $80 by the client to the
solicitor is not “communication” within the meaning of
section 126 of Evidence Ordinance”.
 Legal professional privilege
 Requirement of section 126: In Chua Su Yin v Ng Sung Yee
[1991] 2 MLJ 348, it was held that before this section can apply
there must be a prerequisite of solicitor and client relationship
and any disclosure, if it is to take place, must be with the
absolute consent of the client.
 In Chok Sin Fatt v Chew Thong [1954] SCR 15, Mr Chew was a
clerk/interpreter employed in government service and he could
not be termed as professional legal adviser. It was, however, part
of his duty to assist would be litigants to prepare their plaints in
civil cases. It was held that communications between a would
be litigant and his legal adviser made for the purpose of
preparing his case would be privileged and evidence
regarding them are inadmissible. However, it is not
necessarily all statements made by litigant to a court official
would be privilege, but it is necessary for the trial judge to
consider the circumstances of each case and decide the exact
function being performed by the official at the time the
communication was made.
 Legal professional privilege

Categories
of
legal professional privilege

Legal advise Litigation

privilege privilege
 Legal advise
privilege
 Legal advice privilege
protects confidential
communications between
lawyers and their clients
for the purposes of giving
or obtaining legal advice.
 Legal advise privilege
 For legal advice privilege to apply, the communications in
question must be with a professional legal adviser with the sole
or dominant purpose of giving or obtaining legal advice. See
Three Rivers District Council v Bank of England (No 5) [2004]
3 WLR 1274 where Lord Scott (at p.1287) highlighted the
necessity of a legal context for the communication: “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 ... In cases of doubt the judge ...
should ask whether the advice related to the rights,
liabilities, obligations or remedies of the client, either under
private law or under public law. If it does not, then, in my
opinion, legal advice privilege would not apply”.
 Legal advise privilege
 The test for legal advice privilege is to establish whether
the communication in question was made confidentially for
the purpose of legal advice – construing (interpret/read)
such purposes broadly.
 In Belabel v Air India [1988] Ch 317 where was stated that
legal advice could not be narrowly construed to be
limited to advice on the client’s legal rights and
liabilities. It would be broadly construed, to include
advice as to what should prudently and sensibly be
done in the relevant legal context. Where there was
doubt about the relevant legal context, the court should
ask (a) whether the advice related to the rights,
liabilities, obligations or remedies of the client under
either private or public law; and, if so, (b) whether the
communication fell within the policy justification for
the privilege
 Legal advice privilege extends to
advice from salaried (in-house)
legal advisers employed by
government departments or
commercial companies as much
as from barristers and solicitors
in private practice.

IIUM Legal Director

 Legal advise privilege
 See Alfred Crompton Amusement Machines Ltd v Customs
and Excise Comrs (No 2) [1972] 2 QB 102. The law does not
regard the position of these in-house legal advisors as being
different from those in private practice. In the judgment of
Lord Denning states “... They are, no doubt, servants or
agents of the employer. For that reason [the first-instance
judge] thought they were in a different position from other
legal advisers who are in private practice. I do not think
this is correct. They are regarded by the law as in every
respect in the same position as those who practice on their
own account. The only difference is that they act for one
client only, and not for several clients. They must uphold
the same standards of honour and etiquette. They are
subject to the same duties to their client and to the court.
They must respect the same confidences. Thy and their
clients have the same privileges. ... I speak, of course [only]
of their communications in the capacity of legal advisers”.
 Legal advice privilege also
applies to communications
with foreign lawyers, where
the necessary relationship
of lawyer and client exists.

Not needed: Cherie Blair

appears at the
Malaysian court
 Legal advise privilege
 Re Duncan, Garfield v Fay [1968] P 306 where in this case,
Ormrod J (as he then was) stated (at p.311): “There is
nothing [in the previous case law concerning privilege] to
suggest that [the judges] intended to limit the rule to legal
advisers whose names appear on the roll of Solicitors of
the Supreme Court or who are members of the English
Bar. The basis of the privilege is just as apt to cover
goreign legal advisers as English lawyers, provided only
that the relationship of lawyer and client subsists between
them. Any other conclusion would lead to an impossible
position for if this court were required to investigate the
position of such communications in foreign law, but what
law governs the relationship of English client and foreign
lawyer, at any rate, when no proceedings are in
contemplation? There is no forum and therefore no lex
fori. The nationality of the foreign lawyer is as irrelevant
as his address for this purpose”.
 It does not extend to advisors who
are not legally qualified. See New
Victoria Hospital v Ryan [1993] ICR
201, EAT nor does it extend to
communications with members of
other professions. See Slade v
Tucker [1880] 14 Ch D 824.
 Litigation
privilege
 Litigation privilege
 Litigation privilege protects confidential
communications between lawyers, clients and
third parties made for the purposes of
litigation. Unlike legal advice where it is only a
privilege from disclosure attaches to
communications for the purpose of giving and
obtaining legal advice and it is immaterial
whether or not the possibility of litigation were
even contemplated (consider). It is sufficient if
they pass as professional communications in a
professional capacity.
 Litigation privilege
 Litigation privilege is a type of immunity given
for certain acts and statements taken in
connection with the pursuit of litigation. This
rule covers communications with witnesses and
their proofs of evidence, and is important
respecting communications with potential expert
witnesses, whose opinions may be necessary, but
who are not legal advisers. The requirement that
the communication must have been made for the
purposes of pending or contemplated litigation.
 The touchstone of this
privilege is that the
prospect of litigation
should be the dominant
purpose (not a sole
purpose)
 Litigation privilege
 In the case Wheeter v Le Merchant (1881) 17 ChD 675
where the Court of Appeal ordered the defendant to
produce reports made to his solicitor by a surveyor,
because although the reports related to the subject
matter of the litigation they had been made when no
litigation was contemplated by the defendant. The
touchstone of this privilege is that the prospect of
litigation should be the dominant purpose, as apposed to
the stricter rule that legal professional privilege must be
confined to documents brought into existence for the sole
purpose of submission to legal advisers for advice or for
use in legal proceedings.
 Litigation privilege
 Dominant purpose has been an integral part of the
litigation privilege since the House of Lords
decision in Waugh v British Railway Board [1980]
AC 521 where the House of Lords established the
rule under English law that litigation privilege
attaches only if the communication was made for
the dominant purpose of preparing for litigation.
Thus, a party could not sustain a claim of privilege
over an accident report that had been commissioned
for the dual purposes of seeking legal advice and
studying railway safety issues, as the report had not
been prepared for the dominant purpose of litigation.
 Litigation privilege
 The dominant purpose requirement under the
advice head of litigation privilege was laid down by
the Judge in the unreported English case of Hellenic
Mutual War Risks Association v. Harrion (The
Sagheera), judgment delivered in 18 October 1996.
NLJ Nov. 22 (1996) p. 1687.
 The High Court of Australia has adopted the stricter
sole purpose test in Grant v Downs [1976] 135 CLR
674. New Zealand has adopted the dominant
purpose test not the stricter sole purpose test. See
Guardian Royal Exchange of New Zealand v Stuart
[1985] 1 NZLR 596 - at 602.
 The position
in Malaysia?
 Litigation privilege
 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 to compel the expert witness to
attend court, to give evidence and also to bring with him the medical
report. Held, allowing the application made by the defandant:
The medical report prepared by the expert witness was at the
instance of the first defendant’s solicitors for use in the pending
(awaiting) litigation. Therefore, the opinion and medical report
prepared by the expert witnesses was the subject of a pending or
existing litigation. The 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
 Litigation privilege
 In the instant case, it cannot be disputed that the medical
opinion of the expert witness which was sought by the
first defendant was for use in a pending litigation.
Therefore, in accordance with the principle laid in
Waugh v British Railways Board [1980] AC 521
which was applied in Yap Hong Choon v Dr Pritam
Singh [2006] 1 CLJ 842, this court is of the
considered view that on the facts in the instant case,
the medical report and the opinion of the expert
witness is protected by the Legal Professional
Privilege. The dominant purpose for which the
report was prepared by the expert witness was that
of submitting it to the defendant’s legal adviser for
an advise and if necessary for use in the pending
litigation. S
 ee also Faridah Ariffin v Dr Lee Hock Bee & Anor
[2006] 1 CLJ 660.
Exception to
the rule
 Section 126 has no
application when the
communication was made
in furtherance
of any illegal purpose

Sad Witness
 In Re The Detention
of Leonard Teoh
Hooi Leong
 [1998] 1 MLJ 757
 In Re The Detention of Leonard Teoh Hooi Leong [1998] 1 MLJ 757, a 25-year old
Nor’aishah bte Bokhari (Nor’aishah) in this case had wanted to renounce Islam and convert
to Christianity, and had retained an advocate and solicitor (‘Leonard’) to advise her. In
consequence, a statutory declaration adverting to the voluntary nature of the conversion
was prepared by Leonard, and on 22 October 1997 the declaration was affirmed by
Nor’aishah. Nor’aishah, however, was subsequently put under house confinement by her
parents, following which a writ of habeas corpus for her release was filed by Leonard on 28
November 1997. Nor’aishah, in the meanwhile, had escaped from her parents’s detention. A
police report was then lodged on her disappearance, in which it was alleged that she had
been kidnapped by her lover, one Joseph Arnold Lee (‘Lee’). The police believed that
Leonard knew about the whereabouts of Nor’aishah, but had not been able to obtain that
information from Leonard. Apparently, Leonard had refused to divulge the information to
the police on the ground that he had not been so authorised by Nor’aishah, and that, as
counsel to Nor’aishah, he was privileged in law to keep the information intact. The police in
the circumstances applied for a remand order of Leonard under s. 117 Criminal Procedure
Code, and on 14 January 1998, an order was issued by the learned magistrate, Pontian
ordering that Leonard be remanded for seven days beginning 14 January 1998. The legal
firm of M/s Lee Min Choon & Co sought to revoke the detention order aforesaid, and on 15
January 1998 it wrote to the learned judge herein applying for a revision of the magistrate’s
order under s. 323(1) Criminal Procedure Code. In the circumstances, an argument was put
forth that Leonard was only a potential witness and not a prime suspect, and it was
therefore improper of the learned magistrate to have issued the remand order. Held: [1] It
cannot be denied that as counsel to Nor’aishah, Leonard was privy to certain privileged
information. This privilege, however, does not extend to communications made in
furtherance of a fraud or a criminal act. [2] As the police was investigating a kidnapping
case involving Nor’aishah, Leonard’s refusal to inform the police of Nor’aishah’s
whereabouts made him a prime suspect and not a mere witness.
 Leonard clearly could not hide behind the ‘skirt of
privilege’ to say that he was not authorised to reveal
the whereabouts of Nor’aishah. [Application
dismissed.] Abdul Malik Ishak held that “Was Mr.
Leonard Teoh Hooi Leong a potential witness or a
prime suspect? It cannot be denied that as counsel for
Nor’aishah, Mr. Leonard Teoh Hooi Leong was privy
to certain privileged information. But the veil of
privilege may be set aside by the court on the
application of a solicitor who suspects that fraud or a
crime had been committed by his client: Finers (a
firm) v. Miro [1991] 1 All ER 182, [1991] 1 WLR 35
CA.
 A solicitor cannot be compelled to disclose legitimate
communications, whether oral or written, passing directly
between him and his client. This privilege, however, do not
extend to communications made in furtherance of a fraud
or a criminal act (Lawrence v Campbell [1859] 4 Drew 485;
O'Rourke v Darbishire [1920] AC 581 HL (which was
dutifully followed by Butler v Board of Trade [1971] Ch
680, [1970] 3 ALL ER 593); Minter v Priest [1930] AC 558
at 580-582, HL; Re Sarah C Getty Trust [1985] QB 956,
[1985] 2 ALL ER 809 and Balabel v Air India [1988] Ch
317, [1988] All ER 246 CA). As the police was investigating
a kidnapping case involving Nor'aishah, Mr. Leonard Teoh
Hooi Leong’s refusal to inform the police of Nor’aishah’s
whereabouts made him a prime suspect and the remand
order would therefore be appropriate. The
communications between Mr. Leonard Teoh Hooi Leong
and Nor’aishah were no longer privileged as it involved a
criminal investigation.
Waiver of
the privilege
 Per Eusoff Chin J in
Dato’ Au Ba Chi v Koh
Keng Kheng [1989] 3
MLJ 445 states “Unless
with his client’s
express consent,
appearing in s 126”.
 In Yeo Ah Tee v Lee Chuan Meow [1962] MLJ 413 the question
was whether the client had expressly waived the privilege from the
following evidence Yes, I said I did not make a statement at the
Legal Aid Bureau. I did not tell them of the matters stated in two
letters from Legal Aid Bureau. I cannot explain why the Director
should have written in those terms. If I made a statement to the Legal
Aid I would not object to it being produced. In fact I did not make
one. Buttrose J said “On the face of that evidence, I am unable to
construe it as an express waiver by the plaintiff of the privilege and
indeed, in my view, it falls short of that express consent of the client
which is required before any such disclosure can be made. I must
confess I am unable to see how the plaintiff could be said to
expressly consent to the production of a statement which he insists
he never made. In any event, I do not think the position was ever
made clear to him as to what his position was in the matter or what
was required of him”.
 Statements made by a legally-aided person to an investigator of
the Legal Aid Bureu and any evidence with regard to it are
privileged, under section 127 of the Evidence Ordinance in view
of section 27(1)(b) of the Legal Aid and Advice Ordinance, 1956.
The Court of Appeal allowed this appeal holding that the trial
Judge was wrong in compelling the plaintiff to disclose a
communication which took place between him and the Bureau as
the plaintiff did not expressly waive the privilege or consent to its
disclosure.
 In See Teow Chuan & Anor v Dato’
Anthony See Teow Guan [2006] 3
MLJ 97 where it was held that “Once
the confidential communications
contained in the legal opinion was
published by the defendant to various
persons and third parties, the
defendant could not claim privilege
since by disclosing the legal opinion to
third parties, the defendant had
waived the privilege attached to it”.
 In both categories of privilege (legal advice privilege and litigation
privilege) the privilege is that of the client - not of the lawyer or of
the third party. Thus, only the client may waive privilege. See
Anderson v Bank of British Columbia [1876] 2 Ch D 644. Legal
professional privilege may be waived unilaterally by the client. This
should be contrasted with the privilege which attaches to “without
prejudice communication”, which may not be waived without the
consent of both parties.
 The privilege under this section applies only to communications
between a solicitor and his client. Per Ong CJ in PP v Haji Kassim
[1971] 2 MLJ 115 states “Where the only relevant provision in our
Evidence Ordinance excluding professional confidences is s. 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 (priest) or
doctors..”.
 The privilege
continues even
after the death of
the client.
 A particular remark made by Lord Lindley in Bullivant
And Others v. The Attorney-General For Victoria (on
behalf of her Majesty) [1901] AC 196 at 206 is also of
relevance especially when His Lordship said: “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”. This
principle was followed in the Malaysian case of Tan Thian
Wah v Tan Tian Tok [1998] 5 MLJ 801.
 The issue pertaining to
secondary evidence.
 (How privilege is lost
through the process of
copying)
Calcraft v
Guest [1898]
1 QB 759
 The authority for this proposition is the decision of the English Court of
Appeal in Calcraft v Guest [1898] 1 QB 759 (“Calcraft”). This was an
action by the plaintiff Mr Calcraft against a defendant Mrs Drax for
trespass. Judgment was given against Mrs Drax, who appealed.
Mrs Drax gave notice that she intended to rely on some documents in the
appeal, including proofs of witnesses and rough notes of evidence in an
earlier action which were the plaintiff’s predecessor’s privileged
documents. When the defendants’ solicitors had knowledge of the
documents, they inspected and took copies of them. Under the threat of
legal proceedings, the solicitors then handed the documents to the
plaintiff, but retained the copies. The question was whether these copies
could be used by the defendant. Lindley MR, delivering the judgment of
the Court of Appeal started by on the basis that as a general rule, subject
to waiver, “one may say once privileged always privileged” and he cited
Parke B’s statement in Lloyd v Mostyn 10 M &W 478 that: “Where an
attorney intrusted confidentially with a document communicates the
contents of it, or suffers another to take a copy, surely the secondary
evidence so obtained may be produced”. In allowing the copies of the
documents to be used, neither Lindley MR nor Parke B explained how
privilege is lost through the process of copying. In as much as privilege
subsists in the content of the information, the rule has engendered
disagreement and controversy, leading Toulson & Phipps to call it “the
unfortunate decision of the Court of Appeal in Calcraft v Guest” (at
 Lord
Ashburto
n v Pape
[1913]
2 Ch 469
 The use of secondary evidence was refused in another important
decision of the Court of Appeal in this area of the law, Lord
Ashburton v Pape [1913] 2 Ch 469 (“Ashburton”). In this case, Pape
obtained letters written by Lord Ashburton to his solicitor, which
were admitted to be privileged. Pape’s solicitors had obtained them
from a clerk of the solicitor under questionable circumstances, made
copies of them, and delivered the original letters to Pape. Upon
demand, the letters were handed over to Lord Ashburton’s new
solicitor. Lord Ashburton applied successfully to restrain Pape and his
solicitors from making use of the copies of the letters. In the
judgments of the Court, Cozens-Hardy MR explained at p 473: “The
rule of evidence as explained in Calcraft v Guest [1898] 1 QB 759
merely amounts to this, that if a litigant wants to prove a
particular document which by reason of privilege or some
circumstance he cannot furnish by the production of the original,
he may produce a copy as secondary evidence although that copy
has been obtained by improper means, and even, it may be, by
criminal means. It may have been stolen, it may have been picked
up in the street, it may have improperly got into the possession of
the person who proposes to produce it, but that is not a matter
which the Court in the trial of the action can go into.”
 While Kennedy LJ stated at p 474: “[T]he
principle which is laid down in Calcraft v Guest
[1898] 1 QB 759 must be followed, yet, at the
same time, if, before the occasion of the trial
when a copy may be used, although a copy
improperly obtained, the owner of the original
can successfully promote proceedings against
the person who has improperly obtained the
copy to stop his using it, the owner is none the
less entitled to protection, because, if the
question had arisen in the course of a trial
before such proceedings, the holder of the copy
would not have been prevented from using it
on account of the illegitimacy of its origin”.
 WITNESS
MARITAL
FINISH COMMUNICATION
PRIVILEGE

LEGAL PROFESSIONAL

FINISH PRIVILEGE

CROWN/ STATE/
PUBLIC INTEREST IMMUNITY
PRIVILEGE

PRIVILEGE AGAINST SELF INCRIMINATION

 State/Crown/Executive/
Public interest immunity
privilege
(Perlindungan/ keistimewaan terhadap kepentigan awam)
Section
123 of EA
1950
 Public interest immunity privilege
 Section 123 provides for Evidence as to
affairs of State which states “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 withhold 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”.
 Principl
e and
scope of
section
123
 Public interest immunity privilege
 Principle and scope: This section deals with the
state/ crown/ executive/ public interest immunity
privilege.
 It provides that no person shall be permitted to
produce any unpublished official records relating to
affairs of state or give evidence derived therefrom.
However, he may do so with the permission of his
head of department, who shall give or withhold
permission as he thinks fit. The head of department
is subject to the control of a Minister in the case of
a Federal Department and the Chief Minister in the
case of a State Department.
 This section must be read with section 162 of the
Act.
Section
162 of EA
1950
 Public interest immunity privilege
 Section 162 provides for the Production of documents and
their translation which states:
 (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. (Mahkamah boleh, jika
difikirkannya patut, memeriksa dokumen itu melainkan
jika dokumen itu berkenaan dengan hal-ehwal Negara,
atau mengambil keterangan lain untuk membolehkannya
menentukan kebolehterimaan dokumen itu)
 (3) If for such a purpose it is necessary to cause any
document to be translated, the court may, if it thinks fit,
direct the translator to keep the contents secret unless the
document is to be given in evidence, and if the translator
disobeys the direction, he shall be held to have committed
an offence under section 166 of the Penal Code (F.M.S. Cap.
45).
 Principl
e and
scope of
section
162
 Public interest immunity privilege
 Principle and scope: This section deals with
the power of the court to compel the
production of a document. It provides that
a witness summoned to produce a
document must bring it to the court
notwithstanding any objection. The validity
of such objection shall be decided by the
court for which purpose the court may
inspect the document, unless it refers to
affairs of state, or take such other evidence
to rule on its admissibility.
 This section must be read with 123 and 124
of the Act.
 Reasons
for
having
the
privilege
 Reasons
for having
the
privilege

Smooth
Public interest Peace
running National
v &
of security
Private interest public order
executive
 Further
discussion
s involving
the
privilege
 Discussions

1. Nature 2. Executive 3. Inspection

of v of the
document Judiciary document
  No. 1:
 How to define
affairs of state?
 Look at the
nature of the
document
 Public interest immunity privilege
 The term “unpublished official records” is self-
explanatory. One of the main problems has been
what is meant by the term “affairs of state” (hal-
ehwal Negara). According to Raja Azlan Shah J in
BA Rao v Sapuran Kaur [1978] 2 MLJ 146 “In my
opinion, “affairs of State”, like an elephant, is
perhaps easier to recognise than to define, and
their existence must depend on the particular
facts of each case”. Obviously, it would cover
documents relating to public security such as
national defense and confidential government
documents including cabinet minutes, policy
documents, and documents the disclosure of
which would be detrimental (harmful/damaging)
to foreign relations.
In this regard there are
two approaches in
deciding whether the
document relates to affairs
of state:
 The first
approach is
to look at
the nature
of the
document.
 Public interest immunity privilege
 This first approach can be seen in BA Rao v Sapuran Kaur [1978]
2 MLJ 146 where in this case 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
hospitals. 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.
 Held, dismissing the appeal: “From the affidavit of the Deputy
Secretary-General of the Ministry of Health after applying the
principles of law as I understand them to be, I am not satisfied
that the notes and findings of the Committee are affairs of State.
They do not fall into the class of documents for instance police
information or military secrets or concerning diplomatic
relations…”
 The second approach
is that the courts will
look at the nature of
the document as well
as the effect of
disclosure, whether
the disclosure would
be injurious to the
public interest. IF IT
IS, then it relates to
affairs of state. IF IT
IS NOT, then it does
not relate to affairs of
state:
 Public interest immunity privilege
 This second approach can be seen in Wix Corporation South
East Asia Sdn Bhd v Minister of Labour & Manpower
[1980] 1 MLJ 224 where in this case the applicant had
applied for an order of certiorari (referring to a type of writ
seeking judicial review) to quash an order of Reference
made by the Minister of Labour to the Industrial Court. The
original dispute in this case related to dismissal and in
accordance with section 20 of the Industrial Relations Act
was referred to the Regional Director of Industrial Relations
(Selangor and Pahang) for conciliation. The Regional
Director made a report to the Director-General of Industrial
Relations who in turn made a report to the Minister of
Labour. In this application the applicant applied for a
subpoena directing the Director-General of Industrial
Relations to produce inter alia the two reports. Objection to
the production of the reports was made on the ground that
they related to affairs of state and privilege was claimed
under sections 123 and 162.
 Held: (1) the reports under section 20 of the Industrial
Relations Act 1967 are not official records relating to
affairs of state within the meaning of section 123 of the
Evidence Act, 1950.
 Public interest immunity privilege
 Harun J states “Affairs of State” is not defined
in the Evidence Act because each case has to
be decided on its merits. The primary
consideration is whether disclosure will be
injurious to the public interest. Obvious
examples where it is against the public
interest to disclose are Cabinet papers and
matters relating to national security or
diplomatic relations with foreign countries.
Prima facie a dispute between an employer
and employee arising out of a contract of
service could hardly be said to be an affair of
State within the meaning of section 123 of the
Evidence Act.
  No. 2:
 Executive
 v
 Judiciary
 Position
in
England?
 Public interest immunity privilege
 Prior to the case of Conway v
Rimmer [1968] 2 AC 910, the
position in England was that the
court could not go behind the
Minister’s certificate that
disclosure of a class of documents
or contents of particular
documents would be injurious to
the public interest. The Minister
certificate is conclusive.
 Public interest immunity privilege
 In the case of Duncan v. Cammell
Laird and Co. Ltd [1942] AC 624,
where the submarine HMS Thetis
sank on 1 June 1939 during sea
trials with the loss of 99 lives. The
families of the sailors who had been
killed in the disaster claimed
damages from the builders, Cammell
Laird. The appellants asked for an
order for the production of certain
documents from the First Lord of
the Admiralty. The First Lord of the
Admiralty had made an affidavit in
which he stated that such production
would be contrary to the public
interest. However, it was contended
that the court should have the
documents produced and exercise its
judgment upon the matter:- Held -
the affidavit by the First Lord of the
Admiralty was conclusive, and, in
such a case, the court should not
order the production of the
documents for its inspection.
 Public interest immunity privilege
 The decision in Duncan was followed in Ellis v
Home Office Co Ltd [1953] 2 QB 135 where it
was held: “It is clearly essential in the public
interest that responsible government departments
should be entitled to claim privilege for documents
the disclosure of which would be against the public
interest, and it is clearly right that the decision of
the responsible Minister on the question whether
privilege should be insisted on or not in respect of
any particular document should be final”. “A
Minister has the anxious and arduous (difficult) and
responsible task of deciding whether disclosure
would be against the public interest. When he
decides, his decision is final”.
 Public interest immunity privilege
 In Conway v Rimmer [1968] 2 AC 910,
the plaintiff, a former probationary police
constable, began an action for malicious
prosecution against his former
superintendent. In the course of
discovery, the defendant disclosed a list of
documents in his possession or power,
admittedly relevant to the plaintiff's
action, which included four reports made
by him about the plaintiff during his
period of probation, and a report by him
to his chief constable for transmission to
the Director of Public Prosecutions in
connection with the prosecution of the
plaintiff on the criminal charge, on which
he was acquitted, and on which his civil
action was based. The Secretary of State
for Home Affairs objected in proper form
to production of all five documents on the
ground that each fell within a class of
documents the production of which would
be injurious to the public interest:- Held,
that the documents should be produced
for inspection by the House of Lords, and
if it was then found that disclosure would
not be prejudicial to the public interest or
that any possibility of such prejudice was
insufficient to justify their being
withheld, disclosure should be ordered.
 In reviewing the state claim, the
court will need to balance the
competing two big public interests
 Preventing harm to the state by
disclosure (State interest)
 v
 Preventing frustration of the
administration of justice by
withholding/maintaining
disclosure (Justice interest)
 Public interest immunity privilege
 When there is a clash between the public interest (1)
that harm should not be done to the nation or the
public service by the disclosure of certain documents
and (2) that the administration of justice should not
be frustrated by the withholding of them.
 Their production will not be ordered if the possible
injury to the nation or the public service is so grave
that no other interest should be allowed to prevail
over it. But, where the possible injury is
substantially less, the court must balance against
each other the two public interests involved. In the
present case of Conway, it was improbable (unlikely)
that any harm would be done to the police service by
the disclosure of the documents in question, which
might prove vital to the litigation.
 Public interest immunity privilege
 Burmah Oil Co Ltd v Bank of England [1980] AC 1090 where it
was held (i) There was no rule of law that a claim by the Crown
on the grounds of public interest for immunity from production
of a class of documents of a high level of public importance was
conclusive. If it was likely, or was reasonably probable or (per
Lord Wilberforce) a strong positive case was made out, that the
documents in question contained matter which was material to
the issues arising in the case and if on consideration of the
ministerial certificate claiming immunity there was a doubt
whether the balance of the public interest lay against disclosure
(and not merely where it was established that the certificate was
probably inaccurate), the court had a discretion to review the
Crown’s claim that the withholding of documents was necessary
for the proper functioning of the public service. In reviewing the
Crown's claim to privilege in such a case the court had to balance
the competing interests of preventing harm to the state or the
public service by disclosure and preventing frustration of the
administration of justice by withholding disclosure, and could
inspect the documents concerned privately in order to determine
where the balance of public interest lay.
 Position in
 the United
States of
America?
 Public interest immunity privilege

 In the United States of

America the courts have
consistently refused to
recognise any absolute
power in the executive to
forbid disclosure of
evidence.
 Public interest immunity privilege
 In the leading case of United States v
Reynolds (1953) 35 US 1, several
civilian observers aboard a military
plane on a flight to test secret
electronic equipment were killed
when the said plane crashed and
their widows sued the Government.
The plaintiffs applied for discovery
of the accident investigation report
but the Government claimed
privilege and refused to produce the
report. The court rejected the view
that the assertion of executive
privilege was conclusive on the
question of production. The court
recognised that there are State
secrets which need not be produced
but held that the determination of
whether they are State secrets is a
judicial function and only when it is
satisfied that compulsion of the
evidence will expose military matters
which, in the interest of national
security, will it refuse to require
disclosure.
 Public interest immunity privilege
 The refusal of the United States courts
to allow the claim to executive privilege
received striking confirmation in the
case of New York Times Co v United
States (1971) 403 US 713 popularly
known as the Pentagon Paper case. In
that case the Supreme Court refused
an injunction sought by the
Government to restrain the New York
Times and Washington Post from
publishing the contents of a classified
study entitled “History of U.S.
Decision-Making Process on Vietnam
Policy” prepared within the Defence
Department. The U.S. President
Richard Nixon had claimed executive
authority to force the Times to suspend
publication of classified information in
its possession. The question before the
court was whether the constitutional
freedom of the press under the First
Amendment was subordinate to a
claimed Executive need to maintain the
secrecy of information. The Supreme
Court ruled that First Amendment did
protect the New York Times right to
print said materials.
 Position
 in
 Australia?
 Public interest immunity privilege
 In Australia, the courts had decided,
long before Conway v Rimmer,
supra, that an affidavit of the
Minister was not conclusive and that
the court had power to call for the
documents, examine them, and
determine the validity of the claim
for themselves. The decision of the
Privy Council in Robinson v South
Australia [1931] AC 704 was to this
effect.
 Position in
 New
Zealand?
 Public interest immunity privilege
 In New Zealand in the case of Corbett v
Social Security Commission [1962] NZLR
878 the courts refused to follow Duncan v.
Cammell, Laird & Co. Ltd., preferring
instead the earlier advice of the Privy
Council in Robinson v. South Australia,
supra and held: The Courts of New Zealand
still possess the power to overrule a
ministerial objection to the production of
documents in respect of which privilege is
claimed if they think it right to do so, but
this is a power to be held in reserve and not
to be lightly exercised.
 Position
 in
 Malaysia?
 Public interest immunity privilege
 Refer to the main case of BA
Rao v Sapuran Kaur [1978] 2
MLJ 146 where Mohd Zafir J
said: “The law on this aspect
as it appears to me is that it is
for the court to decide that
the document in question
relates to any affairs of
State…”
  No. 3:
 Inspection
of
document
 The role (and limits) of a court to review the validity of any objection to production of the document:
In other words, what can the courts take into account in deciding if it “really” relate to the affair of state?
  First school:
 There is an absolute
prohibition on the
inspection of the document
and the taking of other
evidence.
 Public interest immunity privilege
 This view was taken by Kapur J. his dissenting
judgement in Union of India v Sodhi Sukhdev
Singh AIR 1961 SC 493.
 This is very strict interpretation. If the court
cannot inspect the document or take secondary
evidence of its contents or look at other relevant
material which would indicate the injury to the
public interest, how the court going to decide
whether the document relates to affairs of state?
The logical conclusion of this position would be
that the court is debarred (exclude) from
overruling the discretion of the Head of
Department because the court cannot say
whether the disclosure or non-discloser would be
detrimental or not.
  Second school:
 No inspection of the
document is permitted, but
the taking of other
evidence is permitted.
 Public interest immunity privilege
 This view taken by the majority in Union of India v Sodhi
Sukhdev Singh AIR 1961 SC 493 and was also the approach
taken by Mohd Zafir J in the High Court in BA Rao v
Sapuran Kaur [1978] 2 MLJ 146 where he said that it is for
the court to decide whether a document relates to affairs of
state or not, and if it did, then the Head of Department must
decide on the risk of disclosure. In taking other evidence, the
type of further information that may be sought consists of the
apprehended injury to the public interest and the nature of the
affairs of state involved. One of the problems is what type of
other evidence can be taken into account? It cannot be
“photocopy”. Usually it includes affidavits from the Minister
or Head of Department concerned. This approach give more
power to the judge compare to first approach but it prevents
the judge from examine the very thing that he has a duty to
decide on, obviously making his job more difficult, and it will
requires the judge to more or less rely on circumstantial
evidence from a probably biased party (Head of Department)
even though the direct evidence is available. See Takung
Tabari v Government of Sarawak [1995] 1 CLJ 403
  Third school:
 Inspection of the said
document
 is permitted.
 Public interest immunity privilege
 In the State of Uttar Pradesh v Raj Narain AIR 1975 C 865
the Supreme Court took the following stand that the courts
can inspect the document and decide if it relates to affairs of
state or not. The court can examine the documents and can
override the Head of Department concerned if it comes to
conclusion that disclosure would not be harmful to the
public interest. This decision indirectly overrules Union of
India v Sodhi Sukhdev Singh AIR 1961 SC 493. The high-
water mark of Raj Narain's, supra, case is the clear
acceptance of the principle by the court that affidavit
evidence claiming privilege is not conclusive and the court
has power to inspect the document to satisfy itself that it
requires protection.
 By using this approach, the court can keep a watch over the
executive to ensure that the privilege is not being abused, it
make the job easier for the judge because they can look at
the document itself, and it brings the law in line with most
of Commonwealth countries.
 Favorite
approach taken in Malaysia?
 Public interest immunity privilege
 In Gurbachan Singh v PP [1966] 2 MLJ, 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. Held:
(1) 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
 Public interest immunity privilege
 In BA Rao v Sapuran Kaur [1978] 2 MLJ
146, Raja Azlan Shah in the Federal Court
adopted the third approach. He said: “In
this country, objection as to production as
well as admissibility contemplated in
sections 123 and 162 of the Evidence Act is
decided by the court in an enquiry of all
available evidence. This is because the court
understands better than all others the
process of balancing competing
considerations. It has power to call for the
documents, examine them, and determine
for itself the validity of the claim”.
 Waiver
of the
privilege
 Public interest immunity privilege
 Waiver for such privilege: Makers of
statements consenting to disclosure:
 In Makanjuola v Comr of Police of
Metropolice [1992] 3 All ER 617 where it was
held: Witness statements taken by the police in
the course of investigating a complaint under s
49 of the 1964 Act, including the complainant’s
own statements, were protected from
production or disclosure in civil proceedings
brought by the complainant against the police
on the ground of public interest immunity
notwithstanding that the makers of the
statements may have consented to their
disclosure.
 The issue
pertaining to
secondary
evidence.
 Public interest immunity privilege
 The issue pertaining to secondary evidence:
 Rogers v Secretary of State for Home Dept
[1972] 2 All ER 1057 where it was held that
neither the letter nor the chief constable’s
copy of it should be produced; both
belonged to a class of documents which
should be protected; the ground on which
protection could be claimed was not that
the Crown had any privilege in the matter
but that the public interest.
Section
124 of EA
1950
 Public interest immunity privilege
 Section 124 provides for Official
communications. (Komunikasi rasmi) where it
states “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”:
(Seseorang pegawai awam tidak boleh dipaksa
mendedahkan komunikasi yang dibuat kepadanya
secara rasmi dan sulit apabila difikirkannya
kepentigan awam akan terjejas dengan pendedahan
itu)
 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.
 Public interest immunity privilege
 Principle and scope: This section provides that
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. Under
the proviso to the section, the court may
require the head of department of the officer to
certify in writing whether or not such
disclosure would be detrimental to the public
interest. If he certifies that such disclosure
would not be prejudicial to the public interest
then the officer shall disclose the
communications. This section too must be read
with section 162 of the Act.
 Public interest immunity privilege
 In the case of Re Loh Kah Kheng [1990] 2 MLJ 126 where 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. Held, overruling the
magistrate’s ruling: (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. (4) These two conditions had
not been considered and the magistrate was ordered to record
further evidence in order to comply with s 124 of the Evidence
Act 1950 before making any ruling for non-disclosure.
 WITNESS
MARITAL
FINISH COMMUNICATION
PRIVILEGE

LEGAL PROFESSIONAL
FINISH PRIVILEGE

CROWN/ STATE/
PUBLIC INTEREST IMMUNITY
FINISH PRIVILEGE

PRIVILEGE AGAINST SELF INCRIMINATION

 Assalamualaikum & a very good morning.
I wish you & your family the best of health.
Welcome to the Evidence 2 (LAW 4111) class.
 WITNESS
MARITAL
FINISH COMMUNICATION
PRIVILEGE

LEGAL PROFESSIONAL
FINISH PRIVILEGE

CROWN/ STATE/
PUBLIC INTEREST IMMUNITY
FINISH PRIVILEGE

PRIVILEGE AGAINST SELF INCRIMINATION

 Privilege against self - incrimination
(Keistimewaan/ perlindungan terhadap
pembabitan diri sendiri)
  What is
 self-
incrimination?
 Privilege against self - incrimination
 Self- incrimination
is the act of
accusing oneself of
a crime for which a
person can then be
prosecuted.
 Available
maxims
 for
 PASI?
  “Nemo debet
prodere se ipsum”
 -No one can be
required to be his
own betrayer-
 “Nemo tenetur se
detegere”
 -Nobody has to
reveal oneself-
  “Nemo tenetur
seipsum accusare”
 -No one is bound to
accuse himself-
  PASI in
 the United
States of
America?
 Privilege against self - incrimination
 US Constitution: The
Fifth Amendment to
the United States
Constitution protects
witnesses from being
forced to incriminate
themselves. To “plead
the fifth” is a refusal
to answer a question
because the response
could form self
incriminating
evidence.
 Privilege against self - incrimination
 The text written as folows: “No
person shall be held to answer
for a capital, or otherwise
infamous crime, unless he or she
is on presentment or indictment
of a Grand Jury, except in cases
arising in the land or naval
forces, or in the Militia, when in
actual service in time of War or
public danger; nor shall any
person be subject for the same
offense to be twice put in
jeopardy of life or limb; nor
shall be compelled in any
criminal case to be a witness
against himself, nor be deprived
of life, liberty, or property,
without due process of law; nor
shall private property be taken
for public use, without just
compensation”.
  Miranda
 v.
 Arizona 384
U.S. 436 (1966)
 Privilege against self - incrimination
 Ernesto Miranda was a poor Mexican immigrant living in Phoenix, Arizona,
in 1963. Miranda was arrested after a crime victim identified him in a police
lineup. Miranda was charged with rape and kidnapping and interrogated for
two hours while in police custody. The police officers questioning him did not
inform him of his Fifth Amendment right against self-incrimination, or of his
Sixth Amendment right to the assistance of an attorney. As a result of the
interrogation, he confessed in writing to the crimes with which he was
charged. During his trial, the prosecution used his confession to obtain a
conviction, and he was sentenced to 20 to 30 years in prison on each count.
Miranda’s defense attorney appealed to the Arizona Supreme Court. His
attorney argued that his confession should have been excluded from trial
because he had not been informed of his rights, nor had an attorney been
present during his interrogation. The police officers involved admitted that
they had not given Miranda any explanation of his rights. They argued,
however, that because Miranda had been convicted of a crime in the past, he
must have been aware of his rights. The Arizona Supreme Court denied his
appeal and upheld his conviction.
 In 1965, the Supreme Court of the United States agreed to hear Miranda’s
case. The US Supreme Court set aside Miranda’s conviction, which was
tainted by the use of the confession that had been obtained through improper
interrogation. The state of Arizona retried him. At the second trial, his
confession was not introduced into evidence, but he was convicted again
anyway. He was sentenced to 20 to 30 years in prison. Miranda was paroled
in 1975 & died in 1976.
 Privilege against self - incrimination
 Because of the ruling, police departments
around the country started to issue “Miranda
Warning” cards to their officers to recite.
Typically, they read:
 “You have the right to remain silent. If you give
up that right, anything you say can and will be
used against you in a court of law. You have the
right to an attorney and to have an attorney
present during questioning. If you cannot afford
an attorney, one will be provided to you at no
cost. During any questioning, you may decide at
any time to exercise these rights, not answer any
questions or make any statements. Do you
understand these rights as I have read them to
you?”
 Privilege against self - incrimination
 In Miranda v. Arizona 384
U.S. 436 (1966) the United
States Supreme Court ruled
that the Fifth Amendment
privilege against self-
incrimination requires law
enforcement officials to
advise a suspect interrogated
in custody of his rights to
remain silent and to obtain
an attorney.
 The Fifth Amendment
protects witnesses from being
forced to incriminate
themselves. To “plead the
Fifth” is a refusal to answer
a question because the
response could form self-
incriminating evidence.
  PASI
 in
 Canada?
 In Canada,
similar rights
exist pursuant
to the Charter
of Rights and
Freedoms.
 Privilege against self - incrimination
 Section 11(c) states: “Any person charged with an
offence has the right … c) not to be compelled to be a
witness in proceedings against that person in respect of
the offence…”
 An important distinction in Canadian law is that this
does not apply to a person who is not charged in the
case in question. In this regard, a person issued
subpoena, who is not charged in respect of the offence
being considered, must give testimony.
 However, this testimony cannot later be used against
the person in another case. Section 13 of the Charter
states: “A witness who testifies in any proceedings has
the right not to have any incriminating evidence so
given used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for
the giving of contradictory evidence”.
 Position
in
England?
 Triplex Safety
Glass Co Ltd
 v
 Lancegaye
Safety Glass
(1934) Ltd
[1939] 2 KB 395
 Privilege against self - incrimination
 In Triplex Safety Glass Co Ltd v Lancegaye Safety Glass
(1934) Ltd [1939] 2 KB 395, where in an action brought
against a company and its director by another company
claiming damages for libels and slander, interrogatories
were administered to both the defendants directed to
obtaining admissions of the publication of the alleged
libels and slander. Both the defendant company and the
director refused to answer on the ground that to the best
of their knowledge, information, and belief, the answers
would tend to criminate them.
 Held:- the refusals were justified. A man could not be
compelled to answer a question directed to procuring his
confession of a criminal act merely because it was
unlikely that he would be prosecuted; and a company
was entitled to the same privilege. A company could be
prosecuted for libel, and there was no ground for limiting
the application of the privilege in question to natural
  Lamb
 v
 Munster
 (1882) 10 QBD
110, 111
 Privilege against self - incrimination
 In Lamb v Munster (1882) 10 QBD 110, 111
where in this case, the plaintiff in an action
for libel administered interrogatories to the
defendant relating to the writing and
publication of the alleged libel. The
defendant declined to answer all the
interrogatories upon the ground that his
answers “might tend to criminate” him.
The plaintiff took out a summons that the
defendant should be directed to make
further and better answers.
 Held:- the defendant was not bound to state
in precise words that to answer the
interrogatories would criminate him; to
answer the interrogatories fully would
clearly incriminate the defendant.
  Redfern
 v
 Redfern
 [1891] P 139
 Privilege against self - incrimination
 Bowen LJ as saying in Redfern v Redfern [1891]
P 139; “It is one of the inveterate (hardened)
principles of English law that a party cannot be
compelled to discover that, which, if answered,
would tend to subject him to any punishment,
penalty, forfeiture, no one is bound to criminate
himself”. Here, on a petition for divorce an
order for discovery by means of interrogatories
or by an affidavit of documents ought not to be
made against the respondent where the sole
object of discovery is to establish adultery
against that party. The doctrine that no one is
bound to incriminate himself applies to
questions tending to establish adultery, which
was an ecclesiastical (religious) offence.
  Blunt
 v
 Park Lane
Hotels Ltd
[1942] 2 KB 253
 Privilege against self - incrimination
 In Blunt v Park Lane Hotels Ltd [1942] 2 KB 253: On September 24, 1941,
the plaintiff, a married woman, brought proceedings against Park Lane
Hotel, Ld., and one Briscoe for damages for slander. By her statement of
claim she alleged that on April 19, 1941, at the Park Lane Hotel the
defendant, Briscoe, acting as manager of the hotel, falsely and maliciously
spoke and published to two persons concerning her these words: “If you
knew this woman as we do you would not have anything to do with her”. The
plaintiff alleged that by these words the defendant meant and was
understood to mean that she was a loose woman and was unchaste and
adulterous and not fit for decent society. By his defence, the defendant,
Briscoe, alleged (inter alia) that the words complained of were true in
substance and in fact, and, in support of that plea, alleged by way of
particulars a number of occurrences which, if proved, would show that the
plaintiff had been guilty of unchastity with numerous men. On April 9, 1942,
the defendant, Briscoe, applied for leave to administer to the plaintiff
interrogatories which substantially went to the matters in the particulars, all
the interrogatories except one being directed to establishing that on a number
of occasions the plaintiff had been guilty of unchaste conduct with different
men at the Park Lane Hotel and elsewhere. Master Horridge gave the
defendant leave to administer the material interrogatories. The plaintiff
appealed.
 Appeal was dismissed. It is only in proceedings for divorce on the ground of
adultery that the spouse will be protected from answering interrogatories if
 Rank Film
Distributors
Ltd v
 Video
Information
Centre [1981] 2
All ER 76,
[1982] AC 380
 Privilege against self - incrimination
 In Rank Film Distributors Ltd v Video Information Centre [1981] 2 All
ER 76, [1982] AC 380, which was a case concerned with an Anton Piller
order, dealing with video piracy, the plaintiffs in that particular case
were owners of copyright in certain films and, on the basis of evidence
that, in breach of that copyright, the defendants were making and selling
video cassette copies of those films, the plaintiffs obtained Anton Piller
orders requiring, amongst other things, that the defendants should give
immediate discovery of relevant documents and answers to
interrogatories relating to the supply of infringing copies. The defendants
applied to Whitford J unsuccessfully to have those orders discharged, on
the ground, inter alia, that, by disclosing the documents and answering
the interrogatories, the defendants might expose themselves to criminal
proceedings (see [1982] AC 380).
 That decision was set aside by a majority decision of the Court of Appeal
( [1980] 2 All ER 273, [1982] AC 380), and, on appeal to the House of
Lords, the House dismissed the plaintiffs’ appeal, holding that the
defendants were entitled to rely on privilege against self-incrimination by
discovery or by refusing to answer interrogatories, since, if they
complied with the orders, there was in the circumstances a real
appreciable risk of criminal proceedings for conspiracy to defraud being
taken against them under section 21 of the Copyright Act 1956.
 Position
 in
 Malaysia?
Section
132 of EA
1950
 Privilege against self - incrimination
 Section 132 provides “Witness not excused from answering on
ground that answer will criminate”. (Saksi tidak dikecualikan
daripada menjawab soalan atas alasan bahawa jawapan itu akan
melibatkannya dalam jenayah).
 (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.
 Seseorang saksi tidak boleh dikecualikan daripada menjawab apa-apa
soalan mengenai apa-apa perkara yang relevan dengan perkara isu
dalam sesuatu guaman, atau dalam sesuatu prosiding sivil atau
jenayah, atas alasan bahawa jawapan kepada soalan itu akan
melibatkannya dalam jenayah, atau bahawa jawapan itu akan
mendedahkan atau mungkin secara langsung atau secara tak langsung
mendedahkan saksi itu kepada apa jua jenis penalty atau lucukhak
atau bahawa jawapan itu akan membuktikan atau mingkim
membuktikan yang dia berhutang atau selainnya tertakluk kepada
guaman sivil oleh Kerajaan Malaysia atau oleh mana-mana Kerajaan
Negeri atau oleh seorang lain.
 Privilege against self - incrimination
 (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.
(Tiada apa-apa jawapan yang seseorang saksi dipaksa oleh
mahkamah supaya memberinya boleh menyebabkan dia
ditangkap atau didakwa, atau boleh dibuktikan terhadapnya
dalam sesuatu posiding jenayah, kecuali pendakwaan kerana
memberi keterangan palsu melalui jawapan itu).
 (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). (Sebelum memaksa
seseorang saksi menjawab sesuatu soalan yang jawapannya
akan melibatkannya dalam jenayah atau mungkin secara
langsung atau secara tak langsung melibatkannya dalm jenayah,
mahkamah hendaklah menghuraikan kepada saksi itu maksud
subseksyen (2)).
Differences
between
English
Law &
 Malaysian
Law?
 Privilege against self - incrimination
 Per Spenser Wilkinson J in Chye Ah San v R
[1954] MLJ 217 states “On this point I think that
the differences between the English law and
local law on the subject of incriminating
statements must be kept in mind. In England a
witness in a Court of Law is not bound to answer
questions which may tend to criminate him. In
this country, however, the maxim is enforced in
a different way, because under Section 132 of 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”.
  Question
 Does the idea on
having the privilege
(PASI) still exist
 in Malaysia?
 FIRST SCHOOL OF
THOUGHT
 PASI NO LONGER
EXIST IN
MALAYSIA
  Televisyen
Broadcasts Ltd
 v
 Mandarin Video
Holdings Sdn
Bhd [1983] 2
MLJ 346
 Privilege against self - incrimination
 In Televisyen Broadcasts Ltd v Mandarin Video Holdings Sdn Bhd
[1983] 2 MLJ 346 where the first 2 plaintiffs, TVB and RTV were
producers of the television series and programmes which were shown
on Hong Kong Television. TVB and RTV were owners of the
copyright in those television films or soap operas. The third plaintiff
Golden Star had the exclusive right from them to reproduce those
films on video cassettes for distribution to their dealers or outlets for
hiring out to the public. From investigations conducted by Golden
Star, the defendants had been hiring out pirated copies of their
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 therefore 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 plaintiffs therefore feared that unless
they obtain an Anton Piller order the defendants would easily remove,
destroy or erase incriminating documents and articles. The said order
was granted by the present court. The defendants objected on the
following grounds: (a) the defendants claimed privilege against self-
incrimination.
 Privilege against self - incrimination
 Held: Here was a strong prima facie case against the defendants
that the plaintiffs had been dealing in illicit films and that the
plaintiffs had satisfied the requirements for the making of an
Anton Piller order, the usefulness of the Anton Piller order is on
the element of surprise. This is so essential in cases of piracy. If
the pirates have been forewarned then vital documents and articles
would be lost, hidden or destroyed. Chan J states that: “Spenser
Wilkinson J.'s view that the maxim is enforced in a different
way in this country is erroneous. Section 132(1) has already
withdrawn or removed the privilege. It follows that the
privilege can no longer be enforced or invoked. It is not there
anymore. Also by section 132(2) first limb, there would no
longer be any risk of arrest or prosecution, so the privilege is
lost. There is no longer any question of enforcing or invoking
the privilege. It has gone”
 This decision was approved by the Court of Appeal in AG of
Hong Kong v Zauyah wan Chik [1995] 2 MLJ 620 by stating that
“In Malaysia, the common law privilege against self-
incrimination has been removed by s 132(1) of the Evidence
Act 1950 ('the Act')”.
 SECOND SCHOOL
OF THOUGHT
 PASI STILL EXIST
IN MALAYSIA
 PMK Rajah
 v
 Worldwide
Commodities
Sdn Bhd [1985]
1 MLJ 86
 Privilege against self - incrimination
 In PMK Rajah v Worldwide Commodities Sdn Bhd [1985] 1 MLJ
86 where the first, second, sixth and seventh defendants sought for
an order of the court to discharge an Anton Piller order granted on
December 30, 1982. The defendants contended that (a) the
plaintiff had misled the court by stating in his affidavit in support
of the ex-parte application that the first defendant was required by
law to keep a segregated bank account in respect of the plaintiff
and (b) 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. Held, allowing the defendant’s
application: (2) the principle laid down in Rank's case [1980]
2 All ER 273 (CA), [1981] 2 All ER 76 (HL) applies in this
case; (3) the defendants were entitled to the privilege not to
give discovery of documents, the disclosure of which would
incriminate them.
 Riedal-de Haen
AG
 v
 Liew Keng Pang
[1989] 2 MLJ
400
 Privilege against self - incrimination
 In Riedal-de Haen AG v Liew Keng Pang [1989]
2 MLJ 400 where the plaintiffs obtained an Anton
Piller order against the defendant ordering the
defendant inter alia to disclose the names of their
suppliers and customers of goods bearing the
plaintiffs trademarks. The defendant applied to
discharge the order on the ground that it infringed
the privilege against self-incrimination. Held:-
discharging the order: (3) The privilege was
received into Singapore by virtue of the
Charter of Justice 1826. In civil proceedings,
the privilege extends to the discovery of
documents which will tend to incriminate or
subject the defendant to a penalty of forfeiture.
 Our personal
view:
 PASI still
exist
however it
has been
“modified”
by virtue of
s. 132 EA
Some extra
points
regarding
PASI
 Privilege against self - incrimination
 The protection given by the section applies
only when a witness is compelled by the court
to answer a question. It must be noted that the
protection given by this section does not apply
to a witness who voluntarily answer such
questions as explained in R v GA Philips
[1936] MLJ 131. Per Whitley Ag J CJ states in
this case that “It is to be observed that the
section uses the world compelled and it would
appear that a distinction is drawn between
those cases in which a witness voluntarily
answers a question and those in which he is
compelled to answer, giving him a protection
in the latter of these cases only”.
 Privilege against self - incrimination
 In Chean Siong Guat v PP [1969] 2 MLj 63
Abdul Hamid J said that it is the duty of the
court before compelling a witness to answer
such questions to explain to him the
purport of subsection (2) of the section.
 In Muniandy v PP [1973] 1 MLJ 179, the
Federal Court held that “the failure of the
learned judge to comply with the provisions
of section 132 of the Evidence Ordinance
resulted in serious misdirections”.
 WITNESS
MARITAL
COMMUNICATION

…
PRIVILEGE

IS H
LEGAL PROFESSIONAL
PRIVILEGE

F IN CROWN/ STATE/
PUBLIC INTEREST IMMUNITY
PRIVILEGE

PRIVILEGE AGAINST SELF INCRIMINATION