QUESTION 2

Amagados is a legal practitioner in Kuala Lumpur. One day, Kathy, a businesswoman, engaged her
to prepare a will. Kathy instructed Amagados to find a handwriting expert who can forge her
father’s signature and to claim that was the last will of her father. In consideration, Amagados will
receive RM100,000. Amagados refused to act as instructed. Kathy engaged another advocate, Mr.
Sam to prepare the will and forged her father’s signature. Kathy and Sam are now charged for the
offence under Section 467 of the Penal Code. The prosecution called Amagados and asked him
question in relation to Kathy’s instruction to him. Counsel for Kathy objected to the question being
asked on the ground of legal professional privilege. Advise the prosecution to counter the
argument of Kathy’s counsel.

ISSUE:

Whether Kathy should be allowed to give evidence in as a witness?

LAW:

1) Privilege is the right of witness to refuse giving his evidence in court as a witness. It entitles a
witness to withhold information, decline to give an answer to a question and to refuse to produce
certain evidence.

2) There are several persons or situations that are protected by this privilege. One of them is legal
professional communication provided under s126. This privilege belongs to the advocate and
solicitors, which means the advocates’ and solicitors’ may refuse to testify against their client when
called in court. As in PP v Haji Kasim, only professional communication between an advocate and
solicitor and its client is protected under s126. A psychiatrist, who was the witness in this case, is not
covered under this privilege as the court held that he must answer questions regarding his patient.

3) This privilege includes all communication, documents and advice involved during all interactions
between a lawyer and their clients. This privilege exists until the death of both client and solicitor, as
per Melvin v Law Society of Singapore.

4) It is important to establish that client-solicitor relationship exist, meaning that the advocate is
indeed acting for the person whose information is in relation to for this privilege to be applicable. In
Chua Su Yin v Ng Sang Yee, the solicitor was acting for the developer. The plaintiff, being part of the
transaction, also solicited the advice of the same lawyer. In trial, the issue was whether there exist a
client-solicitor relationship between the lawyer and the plaintiff. The court held that the lawyer was
only the solicitor for the developer, not the plaintiff. As such, the privilege only applies to the
advocate on information regarding the developer, not the plaintiff.

5) However, this privilege is subject to a few exceptions. One of these exceptions is provided under
s126 (1)(a), where the advocate may not be subject to this privilege if the information that he holds
is made with regards to furtherance of any illegal purpose. In AG of Hong Kong v Lorraine Esme
Osman, the solicitor who was the previous solicitor for the defendant was called to give evidence
with regards to several transactions that occurred in his firm which was instructed by Mr Lorraine.
This was contested by the defendant’s current solicitor, claiming that it would be in breach of the
privilege under s126. The court held that since the information held by the previous solicitor was
with regards to the act of corruption, embezzlement and receiving corrupt money, accepting such
request would be furthering an illegal act, hence it falls under exception of s126(1)(a), which means
that the information held by solicitor is not protected under this privilege.

6) Also, in Leonard Teoh Hooi Leong v PP (2010): the appellant (the lawyer) was retained to act for a
client in a religious conversion matter. The client also disappeared for his parent’s home and the
police carried out extensive investigation into alleged kidnapping and subsequently arrested the
appellant and remanded him. The appellant knew of his whereabouts but submitted that he was
protected by the privilege under Section 126 and that detention was an abuse of police power and
applied for the revocation of the remand order. Court of Appeal declined to accept the argument
and stated that he has no such privilege due to the fact that it was a communication made in
furtherance of illegal purpose.

APPLICATION:

1) In application, generally any communication, advice, or documents between Amagados and his
client, Kathy, are to be kept confidential as provided under the statutory provision Sec 126. By right,
Amagados is not allowed to spill any form of information within the course of their interaction as
there exists client-solicitors relationship between them and this type of privilege will continue to
exist until they die as mentioned in Melvin’s case.

2) Therefore, from the outlook, it seems fitting for Kathy’s counsel to object to the question asked to
Amagados relating to Kathy’s instruction to him as there is a shield protecting their legal professional
communication in the past.

3) Nevertheless, the prosecution is asking in regards to Kathy’s previous instruction to Amagados

4) Forgery is an illegal act that is punishable under Section 467 of the Penal Code. Here, Kathy cannot
hide behind the skirt of privilege as the communication between her and Amagados is a
“communication made in furtherance” of forging her dad’s signature for the unfair enjoyment of his
estate. Thus, in accordance to AG of Hong Kong v Lorraine Esme Osman’s case, accepting the offer
will be furthering the illegal act, and as it falls under exception of s126(1)(a) Amagados is exempted
from withholding any information that can help corroborate the prosecution’s case in sentencing
Kathy for the illegal act done by her and Sam.

CONCLUSION:

In conclusion, the prosecution is entitled to enquire Amagados of Kathy’s previous instruction as the
veil of privilege for solicitor-client relationship has been lifted.
 QUESTION 6
With reference to statutory provisions and judicial precedents, answer the following questions.
Treat all questions as independent from each other.

a) Mimi is married to Dollah. Dollah was sued by Nani for breach of promise to marry her. Dollah
wishes to proof that he is happily married to Mimi and called Mimi as his character witness. Nani’s
counsel objected on the ground that Mimi was not a competent witness being the wife of the
defendant. Consider whether Mimi was a competent witness.

ISSUE:

Whether Mimi was a competent witness.

LAW:

1. Competency – Section 118 of EA

a. GR: all people are competent to testify.

b. Section 120(1) of EA:

This section states that in civil proceedings, the husband or wife of any parties to the suit shall be a
competent witness.

This section enables a husband and wife to be a competent witness for and against each other. They
may also be compelled to give evidence against each other. In instances where they are competent
and compellable witness and wish to be relieved of the obligation to testify against each other, the
parties may raise a spousal privilege under section 122. Spouses are given privileges against
testifying on certain communication.

2. Compellability

a. GR: when a witness is competent to give evidence in court under Section 118, but has refused, he
may be compelled to testify. If he is compelled and testify, his action can be regarded as a contempt
of court.

b. Syed Abd Aziz v PP – it was held that once the witness is competent he is compellable unless he
falls under the privilege under section 121 until section 132 of EA. If he still refuse the court can
draw presumption of adverse inference under section 114(h) and section 148(2)(d).

c. Ghouse bin Haji Kader Mustan v R – a husband or wife is competent to testify as a witness in any
proceedings against his or her spouse. The act does not differentiate a spouse from any other
witness, however, this is subject to Section 122 which enumerates the instances when a spouse,
though competent is not compellable.
3. Privilege

a. Section 122 of EA: under this section, the communication between married persons to a certain
extent is protected from disclosure.

This section is based on public policy as the admission of such testimony may disturb the peace of
family institution and destroy the feeling of mutual confidence among married couples.

A married person shall not be

(1) compelled to disclose any communication made to him during marriage by any person to
whom he is or has been married (refers to non-willing spouse)
(2) permitted to disclose any such communication; (refers to willing spouse) except
a. when the person who made it or his representatives in interest consents; or
b. in suits between married persons; or
c. in proceedings in which one married person is prosecuted for a crime against the
other

Communication between marriage person will only be protected by the privilege during the
continuance of marriage but not before the marriage or after the termination of the marriage.

On the contrary, Ibrahim bin Awang Mat v Ibrahim bin Dollah – in the case of communication
during marriage, privilege will continue even after the termination of marriage.

Communication exists: orally, writing, sign language. Act of a spouse is not a communication.

However in Palldas a/l Arumugam v PP – the privilege also applies to acts when they are inextricably
interwoven with the communications that it is impossible to separate them.

Gimbu bin Sangkaling v R – accused when hunting with father-in-law but came home without him.
The wife gave evidence on that conduct. The defence counsel objected it arguing that it was
protected by the privilege. However, the court held that it was not communication since it does not
fall within any form of it.

APPLICATION:

1) In application, spouses are generally competent to be a witness. In this present case, Dollah
wishes for Mimi to give testimony of his good character and by virtue of Section 120(1), it is
permissible for Mimi to become a competent witness for her spouse in civil suit for breach of
promise to marry.

2) As the competency of Mimi is already established, it is important to ascertain whether the things
that Mimi will testify are subjected to marital privilege in accordance to Section 122.

3) It is safe to presume that Mimi is a willing spouse as she was already ready to be Dollah’s witness
but was objected by Nina’s counsel. Therefore, in the case of willing spouse, Section 122(2)(a) is
applicable. In applying that provision, Mimi is not allowed to give evidence of good character if
Dollah has not given his consent for the testimony to be made. Nevertheless, it is apparent that
here, Dollah has consented to it as he was the one that wished for Mimi to tender good character
evidence of him to support his case against Nani.

4) Regardless, it is to be noted that only communication made to him during marriage is applicable
under this provision but not Dollah’s act. Therefore, Mimi might want to consider tendering positive
communication that reflects her husband’s character. Examples of communication between the
spouses that Mimi might want to consider tendering could be any marital communication when
Mimi was sick and Dollah was enquiring in the most caring way or any form of marital
communication about Dollah advising Mimi in practising her religion piously, or any other relevant
and actual interactions. All of these positive communications tendered are to prove that Dollah is a
good husband and that they are happily married.

5) This is important to ascertain because if Mimi were to tender the act of Dollah throughout their
marriage, the court will not consider that as communication, and thus, it is not admissible under
Section 122(2)(a) as stated in Gimbu bin Sangkaling v R.

CONCLUSION:

In conclusion, Mimi is a competent witness and that the veil of marital communication privilege can
be lifted by way of Dollah’s consent.

b) ABC Sdn Bhd was sued by DEF Bhd for infringements of copyrights materials. It was served with
an Anton Piller order directing them to disclose information as to the identity of its supplier. ABC
Sdn Bhd applied to the court to strike out the said order as the disclosure of the information will
incriminate them. Advise DEF Bhd as to the basis on which it could oppose the application.

ISSUE:

Whether DEF Bhd could oppose the application made by ABC Sdn Bhd to strike out Anton Pillar
order.

LAW:

Based on common law position, a witness may refuse a question that will incriminate them as they
are conferred with an absolute privilege not to answer such questions. In US, an accused can plead
the 5th.

In Malaysia, under Sec. 132(1) of Evidence Act: A witness may be compelled to answer, even if the
answer to the question put to him has a tendency to incriminate him. However, where the question
asked is not relevant to the fact in issue, the person cannot be compelled to answer the question
where the answer will incriminate him.

The privilege of self incrimination is governed under Sec. 132(2): Self-incriminating answers cannot
be used against the witness which will subject him to any arrest of prosecution.
Sec. 132(3): Before allowing a witness to answer a question, it is the duty of the court to explain the
effect of self-incriminating questions. The effect of not complying to sec 132(3) is presumption of
adverse inference can be taken against him.

In order to invoke Section 132 of Evidence Act, there are two elements that need to be fulfilled
which are first, witness must refer to a witness giving oral testimony in judicial proceedings.
Secondly, the witness is compelled by the court to answer the questions which may incriminate him.

In Attorney General of Hong Kong v Zauyah Wan Chik, the court held that although a witness can be
compelled by the court to answer to the questions put to him even though the answer will criminate
him, he will be protected under sub - section (2) from arrest and prosecution or his answer being
used in criminal proceedings brought against him.

In Chai Ah Sam v PP, he referred to the common law position as the witness refused to answer but
the Malaysian court rejected as the practice of common law is inapplicable.

However, Section 132 does not apply to discovery in respect of an Anton Piller Order as illustrated in
PMK Rajah v Worldwide Commodities Sdn Bhd & Ors.

Anton Pillar is an order that can compel a defendant to disclose incriminating documents to plaintiff
before trial even starts. However, when the defendant claimed the privilege against self-
incriminating order especially under Section 132, it does not apply to Anton Piller Order.

In PMK Rajah, the defendant was served with an Anton Pillar Order. Anton Pillar order is the
discovery before the trial even starts. Objective of this order is for the defendant to give
incriminating documents to the plaintiff. Defendant’s solicitor apply for setting aside on the grounds
that privilege of self incriminating does not apply to a discovery in relation to Anton Piller order.
They will not get immunity. But the plaintiff referred to the case of TV Broadcasts Ltd v Mandarin
Video Sdn Bhd where the court actually held privilege of self incrimination applies to witnesses
giving evidence in an affidavit or Anton Pillar order.

But PMK Rajah overrule the case and was confirmed in Meridian Asset Management Sdn Bhd v Ong
Kheng Hoe and Others where the court held that privilege of self incrimination does not apply to
witnesses giving documents under Anton Pillar order. Must be a witness in the witness box who has
to undergo the three examination which are examination-in-chief, cross examination and re-
examination according to Section 138 and 139 of Evidence Act in the event he wants to set aside.

APPLICATION:

According to Section 132(1), if ABC Berhad is a witness during a trial, giving evidence from the
witness box, ABC is compelled to answer the question imposed to them even if the question may
incriminate them. Nevertheless, any answers given by ABC may not be used against them which will
subject them to any arrest or prosecution as stated under Section 132(2) of the Act.
The elements required under section 132 is not fulfilled because firstly, ABC Bhd is not a witness
giving oral testimony in judicial proceedings. Secondly, ABC Bhd is compelled by the court to answer
questions that may incriminate them as they have been served with an Anton Pillar Order. Since one
of the elements is not fulfilled, ABC Bhd cannot invoke Section 132 as a shield against Anton Pillar
Order.

By virtue of PMK Rajah, which also confirmed in Meridian Asset Management Sdn Bhd v Ong Kheng
Hoe and Others, the privilege of self incrimination does not apply to ABC Bhd when they are giving
documents under Anton Pillar Order. ABC Bhd does not fall under Section 138 and 139 because they
did not undergo the three examination which qualify them as a witness in the witness box.

CONCLUSION:

In conclusion, DEF Bhd can oppose to the application made by ABC Sdn Bhd to strike out Anton Pillar
order.