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Malayan Law Journal Unreported/2009/Volume /Dato' Anthony See Teow Guan v See Teow Chuan & Anor -
[2009] MLJU 97 - 23 February 2009

[2009] MLJU 97

Dato' Anthony See Teow Guan v See Teow Chuan & Anor
FEDERAL COURT (PUTRAJAYA)
NIK HASHIM BIN NIK AB. RAHMAN, ABDUL AZIZ BIN MOHAMAD, HASHIM BIN DATO' YUSOFF,
HHMP
RAYUAN SIVIL NO 02-50-2006(W)
23 February 2009

Dato' Dr. Cyrus Das (Romesh Abraham & Mathevi Balakrishnan with him) (Shook Lin & Bok) for the
appellant

Dato' V. Sithambaran (Chong Chia Chi with him) (Sitham & Associates) for the respondents

Nik Hashim bin Nik Ab. Rahman,HMP

Judgment of Nik Hashim bin Nik Ab. Rahman, FCJ

This appeal raises important questions pertaining to the extent of professional privilege in section 126 of the
Evidence Act 1950 (the Act).

Factual background

Briefly, the facts are that the respondent-plaintiffs and appellant-defendant are the directors and
shareholders of Kian Joo Holdings Berhad (the company). The company owned 37% of the issued and
fully-paid shares in Kian Joo Can Factory Berhad (KJCF) which is a public-listed company. The 1st
respondent is the managing director of KJCF whilst the 2nd respondent is the executive director and factory
manager of KJCF. The appellant is the executive director and general manager of KJCF.

On 28 October 1996 the appellant and one Ms. Alice See, the financial controller of KJCF (Alice), met Ms.
Jeyanthini Kannaperan (the advocate), then a senior legal assistant in the law firm of Shearn Delamore &
Co. The appellant and Alice gave instructions and furnished information to the advocate about the
respondents operating a company known as K.L. Metal Printing (M) Sdn Bhd (KLMP).

Based on the instructions and information provided by the appellant and Alice, the advocate rendered a legal
opinion dated 14 November 1996 containing various allegations defamatory of the respondents that had
been communicated to her by the appellant and Alice. The legal opinion was addressed to KJCF, for the
attention of the appellant, and the appellant subsequently published the legal opinion to various persons. The
respondents were also given a copy of the legal opinion by the external auditors of KJCF. The respondents
pleaded in the statement of claim that the allegations in the legal opinion were defamatory of them and bore
the natural and ordinary meaning that they had dishonestly and in breach of their duties as directors of KJCF
used KLMP as a vehicle to siphon sums of money away from KJCF by, in particular, the raising of fictitious
invoices in favour of KLMP.

Hence the respondents brought an action for defamation against the appellant to vindicate their injured
reputation and integrity and seek damages as prayed for in their statement of claim dated 6 February 1997.

At the trial of the action, the respondents called the advocate as their first witness. In the course of the
examination of the advocate, the respondents sought to admit the legal opinion dated 14 November 1996 but
the advocate claimed that she was unable to answer any questions on the legal opinion by reason of
privilege under section 126 of the Act. The High Court then ordered a trial within a trial to determine the
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admissibility of the legal opinion.

Upon the conclusion of the trial within a trial, the learned judge (James Foong J, as he then was) held that
the advocate could not be compelled to disclose the communication she had received from the appellant and
to produce the legal opinion on the ground of advocate - client privilege as provided for under section 126 of
the Act. The judgment of the High Court is reported in [1999]4 MLJ 42.

On 24 March 2006 the Court of Appeal (Abdul Kadir Sulaiman JCA (later FCJ), Tengku Baharudin Shah JCA
and Azmel Maamor JCA (later FCJ) Reversed the decision and held that, on the facts, the appellant had
waived the confidentiality and the privilege attached to the legal opinion, and that the communication
between the appellant and the advocate was not protected under section 126 of the Act, and ordered that the
trial be continued at an early date. The judgment of the Court of Appeal is reported in [2006]2 CLJ 292.

Questions of Law

On 22 November 2006 this Court granted leave to the appellant to appeal against the decision of the Court
of Appeal on the following questions :

(1) Whether the principle at common law relating to legal professional privilege, namely, "once
privileged, always privileged" is recognized under the Act, and if so, to what extent.
(2) Whether the principle of confidentiality is co-extensive with that of legal professional privilege
under section 126 of the Act so that the privilege continues until there is a waiver.
(3) Whether the circumstances enumerated in sections 126 to 129 of when legal professional
privilege can be lost are exhaustive.
(4) Whether the term "express consent" in section 126 imports the requirement that there must be
an intentional and deliberate act to waive legal privilege by the privilege holder.
(5) Whether the Act recognizes the common law rule of loss of legal professional privilege by
implied waiver or that waiver could be imputed by the conduct of the holder.
(6) Where a corporation is the privilege holder, whether its directors and principal officials are
classifiable as third parties or outsiders for purposes of legal professional privilege.
(7) Where the privilege holder is a corporation, whether its professional advisers like accountants
or auditors, in particular its external auditors would be considered as third parties or outsiders
for the purposes of legal professional privilege.
(8) Whether the principle of a limited waiver by disclosure of a privileged document to specified
persons which at common law could not cause loss of legal privilege applies in Malaysia.
(9) Whether legal professional privilege over a document could be lost by disclosure in the List of
Documents under Order 24 r 5(1) in Part 1 of the Schedule when privilege is expressly claimed
in respect of the document in Part 2.

With regard to the questions, I would answer them in order of Questions (1) and (2) under privilege and
confidentiality; Questions (3), (4) and (5) under waiver and express consent; Question (6), (7) and (8) under
disclosure and third parties, and Question (9) under discovery under Order 24 of the Rules of the High
Court 1980 (the RHC).

General

For ease of reference, I reproduce section 126 of the Act which reads as follows :

(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 cause 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 -

(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."

Section 126 comes under Chapter IX of the Act under the heading "Witnesses" dealing with what witnesses
may or may not say and with their privileges and immunities. It is important to note that section 126 is aimed
at the advocate who is a witness. This section provides that no advocate shall at any time be permitted to
disclose any communication made to him by or on behalf of his client for the purpose of his employment
unless the client gives his express consent. It also extends to any advice given by him to his client. In the
case of Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore)
Pte Ltd and other appeals [2007] 2 SLR 367 the Singapore Court of Appeal observed on section 128 of the
Singapore Evidence Act (which is in pari materia with section 126 of the Act) as follows (as summarized in
the Head note):
"In Singapore, legal professional privilege was (sic) a statutory right enacted in ss 128 and 131 of the Act. As the Act
was modelled on the Indian Evidence Act 1872 (Act 1 of 1872), which itself had its roots in English law, the court would
need to refer to English decisions in order to determine the scope of the said provisions as well as the current state of
the law, while bearing in mind that not all English law principles could be used for this purpose as a result of s 2(2) of
the Act."

At p 382 para 32, the court commented :

"As is evident from its language, s 128 applies only to an advocate or solicitor, but not to the client. He
may not (a) disclose any communication made to him by or on behalf of his client, or (b) state the
contents or condition of any document of which he has become "acquainted", or (c) disclose any
advice given by him to his client, if all these 8 events occurred "in the course and for the purpose of
his employment as such advocate or solicitor"."

The importance of legal professional privilege in the administration of justice needs no emphasis. If
authorities are needed then I would quote the following cases.

In R v Derby Magistrates' Court, ex-parte B [1995] 4 All ER, Lord Taylor CJ, speaking in the House of Lords,
said at p 540:
"The principle which runs through all these cases, and the many other cases which were cited, is that a man must be
able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that
what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus
much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a
fundamental condition on which the administration of justice as a whole rests."

In endorsing the above passage in the Privy Council case of B v Auckland District Law Society [2003] 2 AC
736, Lord Millet said at p 756 para 44-45 :
"Some principles are well established and were confirmed by Lord Taylor CJ in R v Derby Magistrates' Court, ExpB
[1996] AC 487; 503 G-H. First, the privilege remains after the occasion for it has passed : unless waived "once
privileged, always privileged". Secondly, the privilege is the same whether the documents are sought for the purpose of
civil or criminal proceedings and whether by the prosecution or the defence. Thirdly, the refusal of the claimant to waive
his privilege for any reason or none cannot be questioned or investigated by the court. Fourthly, save in cases where
the privileged communication is itself the means of carrying out a fraud, the privilege is absolute. Once the privilege is
established, the lawyer's mouth is "shut for ever": see Wilson v Rastall [1792] 4 Durn & E 753; 759, per Buller J. The
society has not alleged that any of the documents fall within the excepted category, but if any of them does it retains
the right to make such a claim hereafter.
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It is, of course, well established that the privilege belongs to the client and not to his lawyer, and that it may not be
waived by the lawyer without his client's consent. But the privilege is available to the client whether he is a layman or a
lawyer; even a lawyer - perhaps especially a lawyer - has need of the services of another lawyer if he becomes
personally embroiled in legal proceedings."

In the Three Rivers DC v Bank of England [2005] 1 AC 610 Lord Scott of Foscote said at p 647 :
"... Why is it that the law has afforded this special privilege to communications between lawyers and their clients that it
has denied to all other confidential communications? In relation to all other confidential communications, whether
between doctor and patient, accountant and client, husband and wife, parent and child, priest and penitent, the
common law recognises the confidentiality of the communication, will protect the confidentiality up to a point, but
declines to allow the communication the absolute protection allowed to communications between lawyer and client
giving or seeking legal advice."

With the above principles in mind, I now proceed to answer the questions posed.

Questions (1) and (2): Privilege and Confidentiality

These two questions arose as a result of the findings of the Court of Appeal which held that the High Court
was erroneous to hold that once the legal opinion was privileged, it would remain so forever, even if it was
published to third parties. The Court of Appeal further ruled that confidentiality is an essential requirement in
section 126 (see para 33 of the judgment), and found on the facts of this case that the communication by the
appellant to the advocate was not intended to be confidential (see para 34-49) and therefore the privilege
under section 126 does not apply (see para 32) and cited Emperor v Mariane G Rodrigues [1903] 5 Bombay
L.R. 122 in support.

To lend support to the above findings the respondents submitted that the principle at common law "once
privileged, always privileged" does not extend the privilege to protect a communication which is not
confidential or has subsequently lost its confidentiality. The principle of confidentiality is co-extensive with
that of legal professional privilege under the section. There can be no privilege without confidentiality. Once
confidence ceases privilege ceases.

With respect, I do not agree. I agree with the appellant that the Court of Appeal, in taking the "loss of
confidentiality" approach to determine loss of privilege, had failed to recognise the common law maxim "once
privileged, always privileged" (see per Cockburn, CJ in Bullock & Co v Corry & Co [1878] 3 QBD 356 at p
358) as being embodied in sections 126 to 129 of the Act. This common law maxim has been endorsed and
approved by the high authority of the House of Lords and Privy Council in the cases quoted earlier where the
privilege was accepted as being absolute. The maxim has hitherto been followed in Malaysia as seen in the
High Court case of Dato'Au Ba Chi v Koh Keng Kheng [1989] 3 MLJ 445 which was adopted by the learned
trial judge in the present case. Relying on the wording of section 126 of the Act, Eusoff Chin J (as he then
was) in Dato' Au Ba's case held the maxim 'once privileged always privileged' applied. The court said at p
447:

"Section 126 also says that the legal adviser shall not be permitted at any time to disclose professional
communications. It is said that a communication once privileged is 'always privileged' (per Cockburn CJ in Bullock v
Corry & Co)."

It may be noted that Dato' Au Ba's case went on appeal to the then Supreme Court and the High Court's
decision was upheld but unfortunately there was no written judgment of the Supreme Court. Hence, the
importance of this decision.

The case of Emperor, relied upon by the respondents, is easily distinguishable. That case deals with a
communication from a client to a solicitor for the purpose of communicating to a third party, the complainant
(not the client). The solicitor had the client's instructions to make to the complainant the statements
communicated by the client to the solicitor. So there was nothing of a confidential nature in the
communication. Whereas our case concerns legal advice or communications made to an advocate with a
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view of obtaining legal advice, which would necessarily be privileged. Therefore, reliance on Emperor by the
Court of Appeal is misconceived.

Similarly, the Court of Appeal's finding at p 311 that "confidentiality is a characteristic that can be lost" with a
corresponding loss of privilege does not accord with the clear imperative terms of section 126 which makes
no such reference, either expressly or by implication, to such a contention.

It is true that a legal opinion sought is implicitly confidential but the exception under section 126 has nothing
to do with loss of confidentiality elsewhere but with whether the privilege holder i.e. the client is prepared to
waive the privilege for the court proceedings. It is the privilege that has to be waived and not the
confidentiality. Thus, the finding of the Court of Appeal in treating "privilege" as being co-extensive with
"confidentiality" is untenable.

Hence, I hold that the legal professional privilege under section 126 of the Act is absolute and it remains so
until waived by the privilege holder, i.e. the client.

Accordingly, my answer to Question (1) is in the affirmative while my answer to Question (2) is in the
negative.

Questions (3), (4) and (5): Waiver and Express Consent

The questions here concern the meaning and scope of the words "express consent" in section 126 of the
Act.

The Court of Appeal, in rejecting the appellant's argument that the "express consent" under section 126 must
be express and that the consent must be directed to the advocate, held that the following facts or points of
conduct constituted express consent on the part of the appellant thereby waiving the privilege that attached
to the legal opinion :

(i) By writing the words "Alice" "Tunku", dating them 14/11, and initialling on the legal opinion and
subsequently publishing it to other persons.
(ii) The respondents were given a copy of the legal opinion at the meeting held on 27.11.1996
with the external auditors, who received it from the appellant.
(iii) The legal opinion was exhibited under exhibit "STC-2" of the respondents' affidavit in reply to
the appellant's application for striking out and was read out by the respondents' counsel in the
striking out proceedings before the registrar and on appeal before the same judge, who
thereafter also heard the case.
(iv) By placing the legal opinion under Part 1 of Schedule 1 of the List of Documents under item
10.

In support of the above findings the Court of Appeal cited the following authorities :

(i) Daya Shanker Dubey v Subhas Kumar [1992] Cri. L.J. 319.
(ii) Legal Professional Privilege in Australia by Dr. Ronald J Desiatnik at pp 102 & 103.
(iii) Derby & Co Ltd and others v Weldon and others (No.10) [1991] AII ER 908.
(iv) Jaafar bin Shaari v Tan Lip Eng [1997] 3 MLJ 693.

Before us, learned counsel for the respondents argued that the Court of Appeal was right in adopting the
purposive approach in interpreting section 126 and held that the privilege had been waived by disclosing the
legal opinion to various third parties including the respondents. The appellant could not resist disclosure by
claiming privilege when the document had already been disclosed and in the possession of the respondents.

It must be noted that section 126 of the Act was enacted to give protection to legal communications and legal
advice between the advocate and his client from disclosure. The section uses strong language in imposing
the prohibition. No advocate "shall at any time be permitted" to disclose such communication "unless with his
client's express consent". By its terms, the section is quite straightforward. As such, the Court of Appeal had
no choice but to give effect to the plain meaning of the words used in section 126 of the Act rather than seek
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to expand or modify the statutory provisions by way of reference to common law principles. McDougall J, in
delivering the judgment of the Court of Appeal of New South Wales in Sugden v Sugden [2007] NSWCA
312, said at paragraph 34 :

"... the availability of client legal privilege was to be decided in accordance with the relevant provisions of the Evidence
Act."

Hence, the various authorities and tests on the common law principles of waiver or acquiescence relied on
by the respondents and adopted by the Court of Appeal cannot be taken to apply in the face of the specific
and singular statutory exception which is clearly set out in the section.

In the instant case, section 126 of the Act permits only one exception when 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. The case of
Dato' Au Ba supra, makes that clear at p 447 :
"... 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 plaintiff' (emphasis added).

Thus, the term "express consent" in section 126 imports the requirement that there must be an intentional
and deliberate act to waive the legal privilege by the privilege holder, i.e. the client.

The need for the client's express consent before the privilege can be waived is the same in Singapore. In
Yeo Ah Tee v Lee Chuan Meow [1962] 28 MLJ 413, the Singapore Court of Appeal held that the privilege
attaching to a statement supposedly made by the client to the Legal Aid Bureau, the client's solicitors, which
the client denied making, was not expressly waived by the client's saying that he would not object to the
statement being produced if he made it. Buttrose J, speaking for the Court, said at p 414 :
" I am unable to construe it as an express waiver by the plaintiff of the privilege and indeed, in my view, it falls short of
that express consent of the client which is required before any such disclosure can be made. His counsel objected
strongly to the evidence and claimed privilege throughout."

So also is the position in India. In Mandesan v State of Kerala 1995 CRI.L.J.61, the notion that in the
absence of "express consent" there could be loss of privilege by a failure to object or by waiver or
acquiescence on the part of the client was advocated. In that case 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 section 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 strong language in imposing the
prohibition. No advocate "shall at any time be permitted" to disclose such communication "unless with his client's
express consent". A failure on the part of the client to claim privilege cannot be stretched to the extent of amounting to
"express consent" envisaged in the provision (Bhagwani v Decoram, AIR [1933] Sind 47)."

Thus, the common law rule of waiver by implication or imputation is not recognized by the cases under either
the Malaysian, Singapore or Indian Evidence Act.

It was common ground that the client was the company KJCF and not the directors. Since KJCF was the
client of the advocate, the privilege holder was KJCF and not the advocate (see Minter v Priest [1930] AC
558 at p 579) of the individual directors. It is for KJCF whether to waive it and convey the consent to the
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advocate when called to give evidence. Augustine Paul J (now FCJ) in Public Prosecutor v Dato' Seri Anwar
bin Ibrahim (No 3) [1999] 2 MLJ 1 at p 179
"As the privilege is that of the client, he may expressly waive it under s 126 or impliedly under s 128 of the Evidence
Act 1950 by calling the advocate as his witness."

Since the trial judge found that no such consent was given, the notation of the words "Alice" Tunku" dated
14/11 and the initialling on the legal opinion by the appellant and his subsequently publishing it to other
persons hardly constitute express consent on the part of KJCF to its advocate, PW1. At most, the notation
was an internal communication within KJCF.

The disclosure of the legal opinion by the respondents would not remove the privilege attached to the legal
opinion.

Under section 126 of the Act the position is as stated in Dato' Au Ba's case which was a case where the
communication by the letters between client and advocate had been originally included by mistake in the
agreed bundle of documents. There was therefore disclosure to the opposite party. But the High Court
allowed the document to be removed or expunged from the agreed bundle on the ground of legal privilege.
The earlier disclosure was held not to be a disqualifying ground.

The Indian decision of Daya Shanker Dubey supra, relied on by the respondents seems to rest on the
peculiar facts of that case and the legal proposition itself is inconsistent with the decision in the above cases.

In the present case, it is KJCF's advocate, PW1, who claimed that she was unable to disclose the legal
opinion by reason of privilege under section 126 of the Act. The appellant, acting on behalf of KJCF, was
duty bound to support the privilege accorded to KJCF. Thus, the real issue before the court was whether or
not the refusal by the advocate PW1 to disclose the legal opinion on the ground of privilege was correct. The
question of legal professional privilege being raised by the appellant in the defamation proceedings as a
defence to the respondents' claim cannot be in issue. So, on the facts of this case, the High Court's decision
disallowing disclosure of the legal opinion through PW1 on the grounds of privilege and non-availability of
express consent by KJCF to the witness to waive the privilege is correct. The learned judge said :
"The client has every right to object since the opening phrase of this particular section reads : "No advocate shall be
permitted...." Thus unless express consent in writing by client is given to PW1 the legal opinion cannot be disclosed
through her."

Hence my answers to Questions (3) and (4) are in the affirmative while my answer to Question (5) is in the
negative.

Disclosure and Third Parties : Questions (6), (7) and (8)

These questions arose as a result of the finding of the Court of Appeal which ruled that the privilege was lost
by disclosure to 'third parties'. The Court said at p 311 para 52 :

"The conduct of the defendant (appellant) in expressly waiving the privilege by disclosing and publishing the legal
opinion to third parties is illustrative of the principle of express waiver."

By 'third parties' the Court of Appeal was evidently referring to the Chairman of the Board of Directors, the
Directors, the Financial Controller of KJCF and the two external auditors (Yap and Chew of Ernst & Young)
because they were the persons to whom the legal opinion was disclosed.

I agree with the appellant that the Court of Appeal had failed to appreciate that the privilege holder is a
corporation and that KJCF as an artificial entity has to function through its human agencies. This usually
would be its principal officials whether they are the directors or the top management personnel of the
company or its professional advisers. Thus, both the respondents and the appellant, as the directors of
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KJCF, would be entitled to see and have custody of any legal opinion obtained by KJCF.

In Woodhouse and Co. (Ltd) v Woodhouse [1914] 30 TLR 559, the English Court of Appeal held that where a
company obtains legal advice, a shareholder of the company has a right to see it except where the
shareholder is engaged in hostile litigation with the company. So, the right of directors of a company who are
in management is surely a stronger right than that of an ordinary shareholder (see also Re Hydrosan Ltd
[1991] BCLC 418). Therefore, it was erroneous for the Court of Appeal to consider Alice, the KJCF's financial
controller, as a "third party"; as KJCF's chief accounting official, she would surely be concerned with the legal
opinion over the funds of KJCF and to advise on the allegation that the funds were being diverted to KLMP
which was operated by the respondents.

Further, the Court of Appeal was also erroneous in classifying the two external auditors of KJCF from Ernst &
Young as "third parties". As auditors they were required by law to oversee the management of the finances
of KJCF. They would have to be informed of any financial mismanagement within KJCF and were entitled to
both enquire into and pursue such allegations. It is for this purpose that all companies are required by law to
employ external auditors who have to submit their independent report annually to the shareholders. It is all
the more important in the case of KJCF, a public-listed company.

In the present case the legal opinion had dealt with a serious allegation that "the directors (respondents) are
said to have used KLMP as a vehicle to siphon substantial sums of money from KJCF by way of sale of cans
from KJCF to KLMP at a loss to KJCF, raising fictitious invoices in favour of KLMP for work done/cans
supplied by KJCF,...". Surely this was a matter that must be brought to the attention of the external auditors.
For instance, in Harbour Inn Seafoods Ltd v Switzerland General Insurance Co. Ltd [1990] 2 NZLR 381, the
disclosure of privileged documents to the insurance broker who arranged the policy, the subject matter of the
claim, was held not to be a waiver. The broker was an agent of the party claiming privilege. Our case is even
stronger where the company KJCF was under a duty to notify the external auditors of the legal opinion it had
received on this serious allegation over its finances.

So, the persons concerned to whom disclosure was made were not "third parties" or outsiders for the
purpose of legal professional privilege. They are to be considered as insiders who would ordinarily be
concerned with the allegations mentioned in the legal opinion. They were the persons who had to decide on
the recommendations made in the legal opinion as to what action should be taken by KJCF.

However, it may be noted that the only "outsiders" would be:

(i) the respondents' lawyers brought in by the respondents themselves at the meeting on
27.11.1996 who had sight of the legal opinion. The respondents surely cannot complain about
this because it is not a "disclosure" by the appellant but by the respondents themselves.
(ii) the presence of Puan Misslee Harian, the legal adviser of Antah Holding, at the meeting on
4.12.1996. This legal adviser was present at Tunku's behest and was therefore his "agent". A
disclosure to an agent or representative would not be disclosure to a non-party (see Harbour
Inn Seafoods supra).

There is another matter which was referred to by the Court of Appeal which needs to be addressed. The
Court of Appeal at paragraphs 54 and 55 of the judgment ruled that privilege could not be claimed because
the legal opinion was now in the hands of the respondents, having been given to them by the external
auditors who received it from the appellant. The case of Daya Shanker Dubey supra, was cited in support to
say that privilege could not be claimed because it was already in the possession of the opposite party. It
must be noted that Daya Shanker Dubey was largely a contempt case which had stated the proposition on
legal privilege too broadly. The case failed to note that where legal professional privilege is claimed the rule
is one of admissibility of the document in whosesoever hand it is found. A document cannot be admitted as
evidence if it is privileged even if it is in the hands of the opposite party. For example, if it is privileged, a
document in the hands of an opposite party may be recovered back (see B v Auckland District Law Society
supra). If it has wrongly been released to the opposite side in discovery proceedings or otherwise, it may be
injuncted from use (see International Business Machines Corp supra).
 Page 9

Thus, the finding of the Court of Appeal that privilege was lost or could not be claimed because the legal
opinion was already in the hands of the opposite party is unsustainable.

Accordingly, my answers to Questions (6) and (7) are in the negative while my answer to Question (8) is in
the affirmative.

Discovery under Order 24 of the RHC : Question (9)

This last question arose as a result of the finding of the Court of Appeal which ruled that the disclosure of the
document in discovery proceedings under Order 24 r 5(1) of the RHC in the List of Documents was a waiver
of privilege. This is what the Court of Appeal said at paragraph 67 :

"In our judgment since the defendant (appellant) had placed the legal opinion under Part 1 of Schedule 1 under item
No. 10, the defendant (appellant) has expressly consented to produce the document and for which he claims no
privilege. Therefore the defendant (appellant) had waived the privilege to the legal opinion and it is admissible in
evidence at the trial." (emphasis added)

Under Order 24 r 5(1) the List of Documents must be in Form 40. The appellant had disclosed the legal
opinion in Part 1 of Schedule 1 under item No. 10. However, there was a rider claiming legal privilege in the
appellant's List of Documents at paragraph 2 which reads :
"The Defendant (appellant) objects to produce the documents enumerated in Part 2 of the said Schedule 1 on the
ground that they are privileged. The Defendant (appellant) further objects to produce the documents enumerated in
Part 1 of the said Schedule 1 Nos. 1 to 10 on the grounds set out in the Defence filed herein and in particular
paragraph 9 thereof."

The respondents argued that if the appellant had intended to claim privilege to the legal opinion he ought to
have placed it under Part 2 and not under Part 1 of Schedule 1 in the List of Documents. By placing the legal
opinion under Part 1 of Schedule 1 the appellant had chosen to waive the privilege attached to it.

It is true that the appellant had placed the legal opinion under Part 1 of Schedule 1 in the List of Documents
but he had raised specific objection to production of the legal opinion on the ground of legal privilege under
paragraph 2 in the List of Documents as stated above. This, in my view, is sufficient as it complies with
Order 24 r 5(2) of the RHC which states :
"If it is desired to claim that any documents are privileged from production, the claim must be made in the list of
documents with a sufficient statement of the grounds of the privilege."

Thus, the mere placement of the privileged document in Part 1 is not fatal and does not amount to waiver of
privilege. Therefore, the Court of Appeal's finding that the appellant "expressly consented" to production of
the legal opinion was unwarranted as such finding disregarded the specific objection taken by the appellant
in his List of Documents. Further, the Court of Appeal failed to appreciate that Order 24 of the RHC merely
provides a right of inspection of documents disclosed in the List of Documents and therefore cannot be taken
as overriding the substantive legal provisions governing legal professional privilege contained in section
126(1) of the Act.

Hence, my answer to Question (9) is in the negative.

Conclusion

All the nine questions of law have been answered. The decision of the learned High Court judge that PW1
could not be compelled to disclose the communication she had received from the appellant and to produce
the legal opinion dated 14 November 1996 at the trial is therefore correct. The communication and the legal
opinion are inadmissible. Accordingly, the appeal is allowed with costs. The orders of the Court of Appeal are
set aside. The orders of the learned High Court judge are restored and affirmed. The deposit is to be
returned to the appellant.
 Page 10

My learned brothers Aziz Mohamad FCJ and Hashim Yusoff FCJ have read this judgment in draft and have
expressed their agreement with it.