DECEMBER 3 — An interesting case came before the Singapore High Court in Ravi s/o Madasamy v Attorney-General in 2020.

The case involved a situation where electronic devices of an advocate and solicitor (the lawyer) had been seized by the Singapore Police Force (the Police) for investigations into offences allegedly committed by the lawyer. 

However, the lawyer said that the items could not be reviewed by the Police or the Attorney-General’s Chambers (AGC) as they contained communications between him and his clients that were protected by legal professional privilege.

In the course of its investigation of the lawyer for the alleged commission of offences under Section 3(1)(b) of the Administration of Justice (Protection) Act 2016 (AJPA), three police officers entered the lawyer’s office on March 13, 2020 and seized, among others, the lawyer’s mobile phone and laptop (the seized items).

The lawyer alleged that he had informed the police officers then that the contents of the seized items were confidential and protected by legal professional privilege, and that it would be a breach of Section 128 of the Evidence Act (EA) (similar to Section 126 of the Malaysian Evidence Act 1950) if the Police officers were to intrude into this information. This was denied by the Attorney-General (AG).

On April 2, 2020, the lawyer applied for leave under Order 53 rule 1(b) of the Rules of Court to commence judicial review so that he could be granted a prohibiting order to prohibit the AG and the Police from reviewing the contents of the electronic devices until the court determined the lawfulness, nature and extent of the alleged legal professional privilege. The AG objected to the application.

The lawyer submitted, among others, that the contents of the seized items were protected by legal professional privilege under Section 128 of the EA. 

The AG contended that the police was not bound to accept an assertion of privilege at face value, and the police could examine the seized items to some extent to test the assertion of privilege. 

The AG also proposed a framework by which the contents of the seized items would be reviewed by a team of officers from the AGC who were not involved in the ongoing investigations.

High Court Judge Ang Cheng Hock dismissed the lawyer’s application for judicial review. The learned judge held, among others, as follows:

(1)  The duty of the lawyer after his items were seized was to cooperate with the AGC by identifying to the AGC the specific material within the seized items that he claimed was protected by legal professional privilege belonging to his clients. 

The reason for this assistance was to allow the AGC to quickly sift out the allegedly privileged material. If the AGC did not accept that the material was properly claimed to be privileged, the AGC might wish to turn over the materials to the police for their investigation or to the prosecutorial team. 

Once informed of this, it was for the lawyer’s client to decide whether to insist on their claim to legal privilege and/or take out legal proceedings to prohibit the AGC from turning over the allegedly privileged material to the police for their further investigations, or to the prosecutorial team.

(2)  It was only after the specific privileged material had been identified by the lawyer, and the claim to privilege was disputed by the AGC, and the affected client started legal proceedings in relation to that dispute, did the question of privilege arise for the court to determine.

(3)  The court could not assume that privileged material existed in the seized items just because they were seized from the lawyer. 

Given the lack of any evidence as to the identity or nature of the allegedly privileged material, the evidence before the court did not disclose a prima facie case of reasonable suspicion in favour of granting the prohibiting order sought by the lawyer, which was entirely premised on the fact that the seized items contained legally privileged material of the lawyer’s clients.

Crucially the learned judge also held that the lawyer lacked standing to bring the application. Legal professional privilege belonged to the legal professional’s client, not the legal professional himself. 

Therefore, only the client could invoke the privilege and it was not open to the legal professional to do so, unless acting on behalf of the client.

The above is instructive on legal professional privilege. A lawyer has a duty to cooperate with investigating authorities to identify specific material which is legal professional privilege belonging to his clients.

The lawyer can assert: this is privileged; that is privileged. But the privilege belongs to the client not to the lawyer. 

It is for the clients to decide whether to insist on their claim to legal privilege and/or take out legal proceedings to prohibit the authorities from accessing allegedly privileged material.

It is for the court to determine which is legally privileged material.

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