Malaysia-whether the privilege under s 124 of the Evidence Act 1950 is applicable

In the Federal Court case of Suruhanjaya Sekuriti v Datuk Ishak bin Ismail [2016] 1 MLJ 733, it was held that:-

"...[48] Reverting to the present appeal, the issue we have to consider is whether the privilege under s 124 of the Evidence Act 1950 is applicable? Applying the law which we have just set out, in considering this pivotal issue, the court would have first to determine whether the communication in question had been made to a public officer in official confidence. If the answer is in the negative, then the s 134 statements will have to be disclosed. If the answer is in the affirmative, then it is for the officer concern to decide whether the statements should be disclosed or not? From the affidavit filed by Mohd Rizal bin Mohamad @ Harun, an investigation officer of the appellant in opposing the respondent's application for discovery, it is revealed that in June 2010, the appellant commenced investigation into suspected offences committed under the securities law in respect of Kenmark. Mohd Rizal was appointed as the investigation officer of the said investigation. Under s 144 of the SCA, Mohd Rizal, while discharging his duties as an officer of the appellant, shall be deemed to be a public servant within the meaning of the Penal Code, and more importantly, a public officer for the purpose of the Evidence Act 1950. So, the element of public officer under s 124 of the Evidence Act 1950 has been established. According to Mohd Rizal, as an investigation officer appointed under s 125 of the SCA, he is empowered to carry out investigation of any offence under the securities law which include the CMSA. Under s 134 of the SCA, if an investigation officer carrying out an investigation under securities law, suspects or believes on reasonable grounds that any person can give information relevant to a matter which he is investigating, the investigation officer may require such person to appear before an investigation officer of the appellant to be examined orally in which case the investigation officer shall reduce into writing any statement made by such person. The CMSA also provides the appellant with powers to institute either civil or criminal proceedings or both, against a person suspected to be committing any offence under the securities law. According to Mohd Rizal, the appellant's investigations are crucial to the fulfilment of the appellant's statutory duties to prevent and investigate breaches of the securities laws by instituting civil or criminal proceedings or both, against persons suspected of violating the securities laws. According to Mohd Rizal, for this purpose all the documents, and particularly the s 134 statements can be utilised by the appellant in civil or criminal proceedings or both. Full discovery of those documents in this case, would gravely prejudice the appellant's conduct of subsequent proceeding against him. Furthermore, the respondent has yet to be examined orally by the appellant pursuant to s 134 of the SCA. The s 134 statements sought by the respondent are actually statements given by 38 other persons interviewed by the appellant in the course of the Kenmark investigations. According to Mohd Rizal, those 38 persons came in and provided the information which was recorded in their statements to the appellant on the basis that the statements were confidential. On the affidavit given, it is clear to us that the s 134 statements of the 38 persons were communication made by each of them to the investigation officer of the appellant in the course of their official duties as public officers under the SCA, and that the communications by the 38 persons were made to them in official confidence. Mohd Rizal deposed that if the s 134 statements were ordered to be disclosed, future witnesses will not give their information to the appellant with the assurance that their statement will be confidential. This, according to him will greatly prejudice the appellant's ability to carry out its future investigations into offences under the securities law, not just into Kenmark, but into any other company. In other words, public interest would suffer by the disclosure of the s 134 statements. As we have decided that the communications were made in official confidence, it is for the officer to determine whether public interests would suffer by the disclosure of the s 134 statements. He had determined that it would. We will not interfere. Thus, the Court of Appeal erred in ordering the disclosure of the s 134 statements pursuant to the respondent's application in encl 38. What we have decided thus far is sufficient to dispose of the present appeal. In the circumstances we find it unnecessary to answer the question of law on which leave to appeal was granted."

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