Shook Lin & Bo v Zul Rafique & Partnerszul Rafique & Partners Denice Tan Tan Sri Cecil Abraham Sunil Abraham Grace Tan

• Judge: HASNAH BINTI DATO’ MOHAMMED HASHIM
• Judgment Date: NULL
• Court: High Court (Malaysia)
• Record Number: 22NCC-438-06/2013
• Respondent: Zul Rafique & Partners Denice Tan Tan Sri Cecil Abraham Sunil Abraham Grace Tan

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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

(COMMERCIAL DIVISION)

SUIT NO. 22NCC-438-06/2013

PKNS HOLDINGS SDN. BHD.

v.

NUSA GAPURNA DEVELOPMENT SDN. BHD. & ANOR

GROUNDS OF JUDGMENT

Enclosure 38 and 39

By two notices to produce dated 3.9.2013 and 4.9.2013 the Plaintiff sought production of various documents referred to in the 2^nd Defendant’s amended Statement of Defence dated 20.8.2013.

By a letter dated 5.9.2013 the 2^nd Respondent refused the production of the two documents i.e. advice by the 2^nd Defendant’s legal adviser dated 3.2.2013 and 26.4.2013. The 2^nd Defendant claimed legal professional privilege in respect of the Advice given.

Background

At the continued hearing on 1.10.2013 Dato’ Abdul Rahman bin Ahmad (DW4) was again asked to produce the 2 documents but refused to do so on the grounds of privilege.

The Plaintiff’s cause of action against the 2^nd Defendant is in tort for procurement of breach of contract.

lssue

Whether the 2^nd Defendant has waived privilege and should be compelled to disclose legal advice pursuant to section 126 or section 129 Evidence Act.

The Plaintiff’s application pursuant to section 126 and/or 129 Evidence Act 1950 to compel the 2^nd Defendant to disclose confidential an privileged communications and/or documents and/or legal advice on the grounds that there has been an implied waiver of the privilege by the 2^nd Defendant through the evidence given by DW4, Dato’ Abdul Rahman Ahmad.

Section 126 of the Evidence Act (EA) reads as follow,

“ (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-

1. any such communication made in furtherance of any illegal purpose;

2. 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.”.

Three categories or situations where the privilege applies, i.e. any communication, document or advice. Protect the confidentiality of information or legal advice or documents exchanged between a client and his or her solicitor. In Wheeler v. Le Merchant [1881] 17 Ch. D 675 Jessel M.R said at p. 682,

“ It is a rule established and maintained solely for the purpose of enabling a man to obtain legal advice with safety.”.

The protection covered by section 126 is basically to refer to the communication between solicitor and client and must necessarily be for the purpose of enabling the client to communicate with his or her solicitor and obtain the necessary advice in respect of the brief intended or handed to the solicitor. The said section refers to solicitors who cannot be compelled to provide disclose or divulge any information which has transpired or communicated between solicitors and client in the course.

Section 126 EA permits only one exception when the privilege no longer applies i.e. upon the express consent of the client given and directed to the advocate who is called to Court to disclose the professional communication made to him by his client or the advice

given by the advocate. Therefore the term “express consent” as stipulated in the aforesaid section imports the requirement that there must be an intentional and deliberate act to waive the legal privilege by the client (the Federal Court case of See Teow Guan)

In the case of Dato’ Au Ba Chi & Ors. v. Koh Keng Kheng & Ors [1988] 1 LNS 188; [1989] 3 MJL 445 it was held ,

“ ...since the law requires the defendants must first give their express consent to their solicitors before the document could be released to anyone Such consent could have been endorsed in the document itself, or given separately in writing to the effect that they consented to the document being released to the first plain.”.

It was also held that,

“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. (See Sarkar on Evidence (10th Ed) p 1080.)”.

The spirit and object of the provision of the aforesaid provision is to protect the confidentiality of information or legal advice or documents exchanged between a client and his or her solicitor Therefore in order for litigation privilege to apply, there must be confidential communication between client and solicitor made for the dominant purpose of the case in litigation.

Section 129 of the same Act sets out the rights of client to retain privilege and confidential communications and must be read together with section 126.

The Federal Court in Dato' Anthony See Teow Guan v. See Teow Chuan & Anor [2009] 3 CLJ 405 referred to Mandesan v. State of Kerala [1995] CLJ 61, where the advocate had already given evidence of the communication between him and the client and no objection had been raised on the part of the client but the High Court ruled that such communication was inadmissible under s.126. Thomas J said at p 62:

“ ...But failure to raise objection would not remove the lid of confidentiality attached to such communication between the advocate and his client. The privilege embodied in Section 126 of the Evidence Act is not liable to melt down on the principle of waiver or acquiescence. This can be more understood from Section 128 of the Act which says that by giving evidence, a party shall not be deemed to have consented to such disclosure as is mentioned in Section 126. It is only when the party calls such advocates as a witness that the party shall be deemed to have consented to such disclosure, that too only if he questions the witness about it. Section 126 uses...