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COURT OF APPEAL PUTRAJAYA
GIDEON TAN – Appellant
Versus
TEY POR YEE & ANOTHER APPEAL – Respondent
[Civil Appeal Nos: W-02(IM)(NCC)-1322-08-2015 & W-02(IM)(NCC)-1323-08-2015]
Legal professional privilege is generally considered absolute and covers communications between a client and their legal representative, including related documents and information. The privilege is designed to protect the confidentiality of such communications to ensure open and honest dialogue between clients and their lawyers.
Based on the provided document, the privilege extends to the communications and information that originated from the client, which would naturally include the client's identity, such as their name. The court reaffirmed that privilege is protected from public interest considerations and can only be waived by the client. The document emphasizes that the privilege applies to information and communications originating from the client, and it is protected unless explicitly waived by the client (!) (!) (!) (!) .
Therefore, the name of the client, being part of the communication or information originating from the client, is included within the scope of legal professional privilege as per the principles outlined in the document.
| Table of Content |
|---|
| 1. overview of appeals arising from a high court ruling on legal privilege. (Para 1 , 2 , 5 , 6) |
| 2. understanding the foundation of the appeal based on privilege and representation. (Para 4) |
| 3. key findings on legal professional privilege as per malaysian law. (Para 16) |
| 4. arguments against the applicability of legal professional privilege in committal proceedings. (Para 18 , 19 , 20) |
| 5. arguments against application of privilege raised in context of alleged wrongdoing. (Para 22) |
[1] There are two interrelated appeals before us: Civil Appeal No: W-02(IM) (NCC)-1322-08-2015 and Civil Appeal No: W-02(IM)(NCC)-1323-08-2015. Both appeals arose out of the Kuala Lumpur High Courts decision given on 5 August 2015 (Abu Bakar Jais JC presiding), allowing the respondents two separate applications (encls 82 and 75) to expunge certain paragraphs and exhibits in the affidavit in support affirmed by the appellant.
[2] The appellant in both these appeals is Gideon Tan. He is an advocate and solicitor of the High Court of Malaya. The respondents are, respectively, Tey Por Yee and Ooi Kock Aun. They were the appellants former clients.
[3] At the conclusion of the hearing, we were satisfied that the learned JC had been correct in his decision and consequently, we dismissed both appeals with no order as to costs. We now set out the detailed reasons for our decision.
Background Facts
[4] The background facts relating to these appeals have been set out in the decision of the learned JC. We do not propose to repeat them in their entirety, save to highlight the facts that are germane to these appeals.
[5] On 22 September 2014, the plaintiff, Protasco Berhad, commenced an action against the respondents in Suit No: 22 NCC-362-09-2014. In that action, Tey Por Yee was the 2nd defendant and Ooi Kock Aun was named as the 3rd defendant. They engaged the appellant as their solicitor.
[6] On or about 4 October 2014, the appellant was informed by the respondents that one Tjoe Yudhis Gathrie ("Tjoe") had affirmed several statutory declarations and that Tjoe did not sign the said statutory declarations voluntarily but had been coerced and/or threatened to affirm the same. As a result, the appellant and the respondents went to Jakarta between 15 October 2014 and 17 October 2014 to meet Tjoe in order to investigate the matter.
[7] On 24 November 2014, the appellants firm filed a notice of application to withdraw itself from action as the solicitors for the respondents in this suit, inter alia, due to various differences which caused the firm to be unable to represent them.
[8] On 13 November 2014, the plaintiff obtained leave to initiate committal proceedings against the appellant and the respondents. In the committal proceedings, Tey Por Yee is the 1st respondent; Ooi Kock Aun is the 2nd respondent and the appellant is the 3rd respondent.
[9] The appellant, in his written submission at p 7, summarised the grounds relied upon by the plaintiff in the application for leave to apply for an order of committal against the appellant and the respondents. We can do no better than to reproduce the same hereunder:-
"4.1. The plaintiff alleged that the appellant was in Contempt of Court on 15 October 2014 at the Ritz Carlton Hotel, Jakarta, Indonesia and/or on 16 October 2014 at the Mulia Hotel, Jakarta, Indonesia, in attempting to pervert and/or obstruct and/or defeat the course of justice by interfering with the evidence of Tjoe, a potential witness to the matter pending determination of this Honourable Court. The appellant, Tey & Ooi are alleged to have by attempting to persuade the said Tjoe to revoke the statutory declarations affirmed by him on 7 August 2014, 29 August 2014 and 26 September 2014 ("the Statutory Declarations") and/or to dissuade the said Tjoe from giving evidence in the matter pending determination of this Honourable Court in accordance with the statements made in his Statutory Declarations.
4.2. The plaintiff also alleges that the appellant is in cont
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