ASSIGNMENT 3 - PRIVILEGE by Athira Shahira https://padlet.com/athirashahira97/1aemiwfgyp42rour Athira Shahira Binti Abd Samad (012017092030) en-us 2020-05-03 04:12:08 UTC 2020-06-16 02:19:30 UTC hello@padlet.com DEFINITION athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546229855 Privilege is a rule of evidence where it granted the holder of the privilege to refuse in providing evidence about certain subjects or deny evidence from being used in a proceeding. ]]> 2020-05-03 04:13:06 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546229855 MARITAL COMMUNICATION PRIVILEGE athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546230011 Section 120 of Evidence Act
Parties to civil suits and wives and husbands 
(1)    In all civil proceedings the parties to the suit, and the husband or wife of any
         party to the suit, shall be competent witnesses. 
(2)    In criminal proceedings against any person the husband or wife of that
         person respectively shall be a competent witness. 
(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.

This section is to deal with the competence of witnesses in civil and criminal proceedings whether the spouse or the accuses is compelled as a witness.
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Section 122 of Evidence Act 1950
Communications during marriage
No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person  who made it or his representative in interest consents, except in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other.

This section provides some form of privilege for marital communication. where spouses cannot be compelled unless there is consents for disclosing marital communication.
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CASE LAW
Ghouse Bin Haji Kader Mustan v R [1946] MLJ 36
  • The appellant was charged for kidnapping a girl name Isah then married Isah after a day of the kidnapping under the age of 16 from her lawful guardian.  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. 
  • 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.
]]> 2020-05-03 04:13:36 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546230011 EXAMPLE (Marital Communication Privilege) athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546230182 Murder Trial:
The prosecution would like to call the wife of the accused, because on the night of the murder the accused stormed out of the house with a knife and told the wife “I am going to settle this once and for all”.

Based on the situation above, it would be beneficial evidence for the prosecution but unfortunately  for the prosecution, the wife would not be allowed to tell the court what her husband said. According to Section 122 of Evidence Act 1950, the spouse cannot reveal communications she had with her spouse during their marriage, unless her spouse gives consent.

]]> 2020-05-03 04:14:04 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546230182 OPINION athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546230223 In my opinion, with allowing every individual to refuse in producing evidence in the form of documents from the individual who entitled to the privilege is usually a right on the part of witness to a case.
For example
  • The privilege belongs to the client and not the attorney where the client can prevent their attorney to testify about the legal relationship.
]]> 2020-05-03 04:14:10 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546230223 CONCLUSION athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546230260 When it comes to the protection of privileged information, the Malaysian courts have make sure that Malaysia is on equal footing with other commonwealth jurisdictions.]]> 2020-05-03 04:14:17 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546230260 LEGAL PROFESSIONAL PRIVILEGE athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546232919 There are 2 categories under legal professional privilege which are:-
  • Legal advice privilege 
        Protect confidential communication between lawyer and client for the
        purpose of giving and obtaining legal advice.

  •  Litigation privilege
         Protect confidential information between lawyer, client and third party for the
         purpose of litigation.

Section 126 of Evidence Act 1950
Professional communications
(1)    No advocate shall at any time be permitted, unless with his client’s express
         consent, to disclose any communication made to him in the course and for
         the purpose of his employment as such advocate by or on behalf of his
         client, or to state the contents or condition of any document with which he
         has become acquainted in the course and for the purpose of his professional
         employment, or to disclose any advice given by him to his client in the course
         and for the purpose of such employment:
         Provided that nothing in this section shall protect from disclosure—
         (a)    any such communication made in furtherance of any illegal purpose;
         (b)    any fact observed by any advocate in the course of his employment as
                  such showing that any crime or fraud has been committed since the
                  commencement of his employment.

(2)    It is immaterial whether the attention of the advocate was or was not
        directed to the fact by or on behalf of his client.

This section explained that the obligation stated under this section still continues even after the employment has ceased.
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CASE LAW
Chok Sin Fatt v Chew Thong [1954] SCR 15
  • Mr Chew was a clerk/interpreter  in a government service and he could not officially  termed as professional legal adviser. However, part of his duty to assist would be litigants to prepare their plaints in civil cases. 
  • The case was held that communications would be litigant and his legal adviser made for the purpose of preparing his case would be privileged and evidence regarding them are inadmissible. It is not necessarily all statements made by litigant to a court official would be privilege, but 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.
]]> 2020-05-03 04:20:40 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546232919 PRIVILEGE AGAINST SELF INCRIMINATION athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546233008 Self Incrimination is the act of accusing oneself of a crime which a person can be prosecuted.
Section 132 of Evidence Act 1950
Witness not excused from answering on ground that answer will criminate
(1)    A witness shall not be excused from answering any question as to any
        matter relevant to the matter in issue in any suit, or in any civil or criminal
        proceeding, upon the ground that the answer to that question will criminate
        or may tend directly or indirectly to criminate, him, or that it will expose, or
        tend directly or indirectly to expose, the witness to a penalty or forfeiture of
        any kind, or that it will establish or tend to establish that he owes a debt or is
        otherwise subject to a civil suit at the instance of the Government of
        Malaysia or of any State or of any other person.
(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.
(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).
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CASE LAW
PMK Rajah v Worldwide Commodities Sdn Bhd [1985] 1 MLJ 86
  • 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.

]]> 2020-05-03 04:20:53 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546233008 STATE/CROWN PRIVILEGE athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546233089 Section 123 of Evidence Act 1950
Evidence as to affairs of State
No one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or 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.

This section deals with the state/crown/executive/public interest immunity privilege where no one shall be permitted to produce any unpublished official records that relate to affairs of the state. The person may do so if he has the permission of his head department which are a subject to the control of a Minister in the case of Federal Department and Chief Minister for State Department.

Section 162 of Evidence Act 1950
Production of documents and their translation
(1)    A witness summoned to produce a document shall, if it is in his possession
         or power, bring it to court not withstanding 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.
(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.

This section deals with the power of the court to compel the production of a document which provides that a witness summoned to produce a document must bring it to the court notwithstanding any objection. The validity of the document 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.
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CASE LAW
Takung Tabari v Government of Sarawak & 3 Ors [1995] 1 CLJ] 403
  • The plaintiff's husband was killed in an explosion in the premises which consists of evidence that the premises was completed by shoddy work and contractor from JKR occupied by the forth defendant.
  • Documents that classified under OSA and certified by KSU were sought to be discovered but the government did not want to expose about this matter. Section 123 was relied on by the government as they did not want to expose the contents because it is against national interest.
  • The judge exercised his discretion and decided the defendant did not provide sufficient evidences on the report to be "affairs of state" therefore the court is entitle to invoke section 162(2) in the case.
]]> 2020-05-03 04:21:05 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546233089 EXAMPLE (Legal Professional Privilege) athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546313296 Section 126 of Evidence Act 1950  exists so that clients can provide all the details to their lawyers in order for them to solve and work the case properly. There must be a lawyer-client relationship when applying this provision. But if the individual has a friend who is a lawyer, and he casually tell him things without any lawyer-client relationship, then section 126 of Evidence Act 1950 would not be apply and the friend-lawyer can reveal what was said by this individual if he asked to testify.

One exception to this rule would be when the lawyer was informed when the individual is going to commit the crime.
The lawyer can reveal what have been said to court and inform to the authorities in order to prevent the crime from happening. Another exception would be when the individual give his consent to the lawyer that he may reveal whatever that he told. 
Situations:
  • If the individual already committed the crime, and told the lawyer, the lawyer must keep it as secret.
  • If the individual has not commit the crime but plan to, the individual will be in trouble.
]]> 2020-05-03 06:55:50 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546313296 EXAMPLE (State/Crown Privilege) athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546321213 This provision would only be applied when the court asks a witness to produce unpublished records concerning state affairs. If such evidence were to be presented in court, approval would be needed by the relevant minister. So let’s say the individual are asked to produce a document in court, and that document is a PDRM document concerning a state matter. For that document to be produced in court, the individual would need the approval of Minister of Home Affairs.]]> 2020-05-03 07:05:35 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546321213 Information about Self-Incrimination athirashahira97 https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546340467 2020-05-03 07:27:57 UTC https://padlet.com/athirashahira97/1aemiwfgyp42rour/wish/546340467