DECEMBER 2 — Legal professional privilege has rightly been described as “the cornerstone of a fair and just legal system, ensuring that individuals can seek and receive confidential legal advice without fear of reprisal or breach of confidentiality”. (See the statement in a press release issued by Mohamad Ezri b Abdul Wahab, President of the Malaysian Bar)

The privilege allows clients to speak openly with their lawyers and to disclose sensitive information in confidence, so that proper legal advice can be given.

If the privilege is eroded, public confidence in the justice system and the legal profession would inevitably deteriorate.  

The fact that a request comes from an enforcement authority does not dilute or change the nature of privilege.  

This principle has been affirmed by the Federal Court in Tan Chong Kean v Yeoh Tai Chuan & Anor [2018].

The privilege is enshrined in Section 126 of the Evidence Act 1950.

Chief Justice of Sabah and Sarawak Richard Malanjum (as he then was), who delivered the judgment of the Federal Court in Tan Chong Kean’s case explained Section 126 as follows:

“On plain reading of Section 126 it is clear that in order for it to apply the following prerequisites must be present, namely:

(a)  there must exist a solicitor-client relationship between the parties; and

(b)  there exists communication in any manner or of any subject made by the client to the solicitor in the course and for the purpose of the employment of the solicitor and/or advice given by the solicitor to the client.

“The privilege belongs to the client and not that of the solicitor …. [In] Australia it is now statutorily called the ‘client legal privilege’ instead of ‘legal professional privilege’. The solicitor is therefore legally obliged to protect not only any form of information he has obtained from the client but also all the advice he has given to the client.

“[T]he privilege may be waived only with the express consent given by the client. Further, the privilege does not cover any communication between the client and the solicitor that is for the furtherance of any illegal purpose or any fact tantamount to commission of fraud or crime as observed by the solicitor in the course of his employment. (Emphases added)

There are therefore so-called exceptions to the privilege, which are spelt out in the proviso to Section 126 itself

Proviso (a) reads as follows: ‘Provided that nothing in this section shall protect from disclosure any such communication made in furtherance of any illegal purpose’.

In simple words, any communication in furtherance of a crime is not protected by legal privilege. This is because the privilege was never attached to them, in the first place.

A much-respected expert on the topic and the law of evidence generally, the late Prof Dr Mohd Akram Shair Mohamad, wrote ten years ago as follows:

“While such communications are described as ‘exceptions’ to legal professional privilege, they are not exceptions at all. Their illegal object prevents them becoming the subject matter of the privilege.” (See “Should Legal Professional Privilege Be Absolute: A Comparative Appraisal” [2015] 4 MLJ cxvi)

The upshot is this: legal professional privilege cannot be used as a means of concealing a crime.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.