Privilege against disclosure under Section 124 of the Evidence Act protects communications made in official confidence when public interest is at stake.

JUDGMENT

Collin Lawrence Sequerah J:

A) Introduction

[1] This is an application made pursuant to s 51 of the Criminal Procedure Code (" CPC ") for an order that the Prosecution supply to the Defence statements recorded from witnesses of the Prosecution offered to the Defence.

[2] This application is made before the commencement of the defence case after this Court had called for the defence of the Applicant.

B) Analysis And Findings

[3] In support of the application, the Applicant places substantial reliance on the Court of Appeal case of Siti Aisyah v. PP , [2019] 4 MLJ 46 ("Siti Aisyah").

[4] The Respondent in objecting to the application submitted that witness statements are privileged, is a confidential communication under s 124 of the Evidence Act 1950 (" EA ") and that it also falls under the Official Secrets Act 1972 ("OSA").

[5] The Respondent also relied upon the case of Husdi v. PP , 1979 MarsdenLR 192 in the High Court and on Husdi v. PP , on appeal to the Federal Court.

[6] Although several arguments were raised during the course of submission, it is my view that this application principally falls to be determined upon a consideration of s 124 EA .

[7] The section reads as follows:

"124. Official communications.

No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure:

Provided that the Court may require the head of the department of the officer to certify in writing whether or not such disclosure would be detrimental to the public interest and, if the head of the department certifies that such disclosure would not be prejudicial to the public interest, then the officer shall disclose the communications."

[8] The leading decision on the subject is the Federal Court case of Suruhanjaya Sekuriti v. Datuk Ishak Ismail , [2016] 1 MLJ 733, where the apex Court dealt with statements made under s 134 Securities Commission Act 1993 and s 124 of the Evidence Act (" EA ") pursuant to the question of law posed, namely, having regard to the principle of law in criminal proceedings that all statements made to and recorded by an Investigating Officer of the Securities Commission pursuant to s 134(4) of the Securities Commission Act 1993 are not to be disclosed to the defence, whether the Court of Appeal was right in law in ruling that all such statements are, however, disclosable in civil proceedings.

[9] The material portion of the judgment in the case is reproduced as follows:

"[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?"

.......

"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