Nik Hashim FCJ:

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

Factual Background

[2] 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.

[3] 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).

[4] 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.

[5] 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.

[6] 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 s 126 of the Act. The High Court then ordered a trial within a trial to determine the admissibility of the legal opinion.

[7] 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 s 126 of the Act. The judgment of the High Court is reported in [1999] 4 CLJ 333.

[8] 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 s 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

[9] 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:

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(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 coextensive with that of legal professional privilege under s 126 of the Act s