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A person can refuse to talk to the police, but cannot refuse to appear before the court. The person can refuse to answer questions that he believes will incriminate him.

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Legal professional privilege protects all communications between a professional legal adviser (a solicitor, barrister or attorney) and his or her clients from being disclosed without the permission of the client.

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State privilege can be used by the State. In some circumstances, the State can refuse to disclose information or documents in order to protect the public interest.

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For example, documents about the structure and engineering of army equipment might be privileged in order to protect national security.

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The right of marital communications is intended to maintain the marital partnership and foster spouses' freedom to communicate openly with each other, without worrying that their private communications will come back to haunt them. It survives a marriage breakdown, and continues to secure communications made during the marriage.

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Privilege is a right granted to some, but not to all. Under law of evidence, the privilege is to protect a situation of confidence may sometimes be more important than the need to place all relevant information before the court. The  privilege remains an exception to the general duty to disclose.

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012018020047

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The court shall explain to the witness the purport of subsection (2) before compelling him to answer such a question.

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See Teow Chuan v Dato Authony See Teow Guan

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See Teow Chuan v Dato Authony See Teow Guan

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The judge said that the principle that a communication once privileged is always privileged.

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The court said that professional communication between a client and his solicitor or barrister is privileged. A communication once privileged is always privileged.

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Raja Azlan Shah J said that our law is no different from UP v Raj Narain. Whether or not whether these were class of documents and to claim under Section 123 depend on the facts. The courts still have to balance these two public interests.

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states that 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.

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states that a witness summoned to produce a document shall, if it is in his possession or power, bring it to the court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided by the court.

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Witness cannot refuse to answer any question on grounds that the answer may incriminate him.

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Court said that the protection by s.132(2) is to preclude the prosecution from using the evidence forced out of the witness under s.132(1) to incriminate himself. It does not preclude the prosecution from charging the witness, merely from using his testimony in the other case given under s.132(1) against him in the current charge against him.

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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 proceedings except in a prosecution for giving false evidence by that answer.

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SECTION 132

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Criminal Procedure tutorial: Privilege Against Self-Incrimination | quimbee.com

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1.      There must be a lawyer client relationship – Chua Su Yin & Co v Ng Sung Yee & Anor

2.      Certain matters cannot be disclosed without client’s consent

3.      Dato Anthony See Teow Guan – s.126 will not apply if communication is not intended to be confidential.

4.      Court will follow strictly express consent requirement – Dato Au Ba Chi

5.      Whether proviso (a) to s.126 applies:

a.       Leonard Teoh Hooi Leong – COA said that while A&S cannot be compelled to disclose legitimate communication between him and his client, the privilege does not extend to communications made in the furtherance of fraud or criminal act.

b.      If involves criminal investigation, communication no longer privileged.

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1.      Provision (a) and (b) to s.126

2.      Any such communication made in the furtherance of any illegal purpose – illus (b)

3.      Any fact observed by the advocate in the course of his employment as such showing any crime or fraud has been committed since the commencement of his employments – illus (c)

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a.      The only waiver accepted is express consent

b.      Express consent should be endorsed in/on the document itself, or given separately in writing to the effect that the client consented to the document being released.

c.       Express consent in s.126 imports the requirement that there must be an intentional and deliberate act to waive legal privilege by the holder.

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1.      Provides that s.126 shall apply to interpreters and the clerks or servants of advocates.

2.      Yeoh Ah Tee v Lee Chuan Meow – held that communications by a legally aided person to an investigator in Legal Aid Bureau would be privileged under s.127

3.      DSAI No. 3 – the position of a solicitor consulted by another solicitor on behalf of his client is governed by s.127

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1.      Lawyer client relationship then section 126 applies – Chua Su Yin

2.      Lawyer cannot be cross examined unless client expressly consents – Dato Au Ba Chi

3.      Dato Au Ba Chi – once privileged always privileged and the privilege can only be waived by the express consent of the client.

4.      Express consent in s.126 is an intentional and deliberate act to waive the legal privilege by the privilege holder.

5.      Exception to s.126 is exhaustive and cannot import common law exceptions.

6.      No waiver by implication or imputation under s.126

7.      Disclosure of legal opinion by client would not remove privilege

8.      Dato Anthony See Teow Guan – publication of the privilege document does not waive the privilege. The inclusion in the bundle of document too does not waive privilege. Privilege can only be waived by express consent.
9.      For example, a copy of a letter is made for use in commercial negotiations, privilege may be lost because the copy was not created for a privileged purpose

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SECTION 126 - 129

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What is LEGAL PROFESSIONAL PRIVILEGE? What does LEGAL PROFESSIONAL PRIVILEGE mean?

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Takong Tabari – the court held that s.16A OSA 1972 is not intended to prohibit the admissibility of a document certified as an official secret. The issue of admissibility of any piece of evidence in this country comes mainly within the purview of the Evidence Act 1950 namely s.123 and 162(2).

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It is not possible to read into the relevant section especially 162(2) a power to inspect the document which relates to affairs of state without straining the language to an intolerable extent.

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Court can keep watch over the executive to ensure that the privilege is not abused;

It makes the job of the judge easier because the judge can be looked at the document itself;

It brings law in line with most commonwealth countries.

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1. First position: There is an absolute prohibition on the inspection of the document and the taking of other evidence.

2. Second position: No inspection of the document is permitted, but the taking of other evidence is permitted.

3. Third position: Inspection of the document is permitted.

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a.   Section 162(1)
b.   Section 162(2)

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In deciding if a document relates to affairs of state:

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In deciding if a document relates to affairs of state:

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1. To look at the nature of the document – BA Rao v Sapuran Kaur

2. Look at the nature of the document as well as the effect of disclosure - Wix Corporation South East Asia

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S.123 and 162(2) generally provide for:

a.       The types of document that are within the privilege

b.      The discretion of the part of the officer to give or withhold permission regarding production

c.       The role (and limits) of the court to review the validity of any objection to produce.

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a.       To ensure the smooth running of the executive

b.      Owing to national security

c.       The interest of many override the interest of litigant

d.      Dangers posed to the public interest if these matters were disclosed

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SECTION 123

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In suits between married persons

Proceedings in which one married person is prosecuted for a crime committed against the other.

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First limb – no person shall be compelled to disclose any communication made to him by his spouse

Second limb – no person shall be permitted to disclose any such communication, unless the spouse who makes the communication or representative in interest consents.

Even if spouse is willing to give evidence, the second limb of s.122 provides that spouse not permitted to unless the other spouse gives consent

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a.       It must be a judicial proceeding –

Re Loh Kah Kheng: The court held that since an inquest is not a judicial proceeding, s.122 did not apply and as such, the spouse could be compelled to give evidence of the marital communication.

b.      Maker and recipient are have been married.

c.       Communication was made during marriage. Communication covers, oral, written or gestures but would not cover act.

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Privilege is the power to withhold evidence.

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The accused’s spouse is competent and compellable witness under s.120(1) and S.120(2). (Case:Ghouse bin Haji Kader Mustan)

If spouse does not want to give evidence she can be compelled.

If divorced then s.120(2) will not apply but she will still be competent and compellable under s.118 EA 1950

Marital communication privilege falls under s. 122.

Palldas a/l Arumugam v PP: The Court said that since the acts and the communication were inextricably connected and could not be separated, even evidence of the act was excluded.

For example: Privilege protects wife from disclosing the husband’s confession to her. Privilege does not protect if wife saw husband shoot John, or saw blood on husband’s hands after husband was said to have shot John.

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What is SPOUSAL PRIVILEGE? What does SPOUSAL PRIVILEGE mean? SPOUSAL PRIVILEGE meaning & explanation