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2011 MarsdenLR 1521
HIGH COURT MALAYA, KUALA LUMPUR
BERJAYA LAND BERHAD – Appellant
Versus
WONG CHEE HIE & ORS – Respondent
[Civil Suit No. D-22Ncc-929-2010]
The issuance of a subpoena is valid unless it is proven to be oppressive or irrelevant; privilege in solicitor-client communications can be lifted if made for an illegal purpose.
Headnote:(A) Evidence Act 1950 - Section 126 - Subpoena - Application to set aside subpoena to compel an advocate to testify in a breach of confidentiality case - Defendants claim necessity of solicitor’s testimony regarding 2nd email to prove the alleged illegal purpose of correspondence - Plaintiff contests, asserting solicitor-client privilege under s. 126. Court assesses the materiality of the witness and the relevance of the privileged communication, deciding that the issue be resolved at trial rather than at the interlocutory stage. (Paras 47-80)
(B) Legal Professional Privilege - The privilege protects communications between solicitors and clients unless made for an illegal purpose - The court's role is to ensure that any subpoena issued serves its intended purpose without abuse. (Paras 3, 10, 37)
Facts of the case:
The Plaintiff applied to set aside a writ of subpoena compelling the solicitor’s testimony regarding confidential emails exchanged with the Defendants concerning a corporate dispute over the management of Absolute Prestige Sdn. Bhd. The Defendants maintained that the 2nd email contained legal advice furthering an illegal objective.
Findings of Court:
Court emphasizes that the solicitor's evidence is pivotal to determining the applicability of the privilege at trial; subpoena not set aside to avoid breach of natural justice for the Defendants.
Issues: Key issues involve whether the 2nd email is privileged or serves an illegal purpose, and the necessity of the solicitor's evidence.
Ratio Decidendi: The court ruled that the solicitor’s testimony is necessary, and that the resolution of whether the email's communications were in furtherance of an illegal purpose should occur at trial instead of at the interlocutory stage, thereby avoiding premature adjudication.
Result: Application to set aside the subpoena dismissed.
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| 1. application to set aside a subpoena. (Para 1 , 2 , 3) |
DECISION
Introduction
This is an application by the Plaintiff to set aside a writ of subpoena ad testificandum and duces tecum dated 26 November 2010 seeking to compel one Woon Huei Chin, an advocate and solicitor ('the solicitor') to testify at the trial of this matter, at the behest of the Defendants. The Defendants oppose this application to set aside the subpoena, contending that the solicitor is an important and material witness, whom the Defendants require to testify, in order that a just decision in this case is arrived at.
The Claim
The Plaintiff founds its action against the Defendants in breach of confidentiality, seeking, inter alia , an order that the Defendants be restrained from disclosing the Plaintiff's confidential information in a series of emails. In their pleadings, the parties have categorised these emails in the following manner:-
(1) A series of emails which consist of an email from one Foo Toon Kee to Joseph K. Won dated 14-9-2000 entitled "RE: Cash Flow@ Sept'09" - the 1st Email;
(2) An email from the solicitor to one Derek Chin dated 25 November 2009 entitled "RE: Piccolo Hotel - CF- Bomba Inspection" - the 2nd Email;
(3) A series of emails which comprise an email from Foo Toon Kee to Puvanes dated 28 December 2009 entitled "RE: TTG Asia: Request for an update on Piccolo Hotel Kuala Lumpur" - the 3rd Email.
For the purposes of this application, only the 2nd email is relevant as the solicitor is sought to be subpoenaed in relation to its contents. In essence the Defendants maintain that they require the presence of the solicitor to explain the contents of the 2nd Email, and more significantly, to enable a determination of the issue of whether the legal advice in the 2nd email is in furtherance of an illegal purpose.
The Plaintiffs maintain that:-
(a) the witness is not a material witness for the just decision of this case,
(b) the witness, being an advocate and solicitor is neither compellable, nor a competent witness by reason of the prohibition (or privilege afforded to solicitor-client communications) under s. 126 of the Evidence Act 1950 .
(c) The proviso to s. 126 is inapplicable because there is no evidence of a furtherance of an illegal purpose.
Background
By way of background, it is relevant that the current suit is the third in a series of suits between the parties. The Plaintiff and the Defendants had been involved in a dispute regarding management control of one Absolute Prestige Sdn. Bhd. ('APSB'), which owns and operates a hotel known as 'The Piccolo Hotel'. I shall not set out the background facts relating to this corporate dispute because they comprise the subject matter of the earlier suits and are not strictly relevant for the purposes of this application (or even the action). The two suits initiated in this context by the Defendants were D-22NCC-83-2009 and S22-21-2010. The first suit was dismissed with costs and the second suit was struck out under Order 18 Rule 19 .
In the course of the second suit, the three emails comprising the subject matter of this suit surfaced, as exhibits in an affidavit filed on behalf of the Defendants. The Plaintiff claimed that the emails were unlawfully obtained, used and disseminated as the contents of the emails are confidential in nature as well as being privileged. This suit was then initiated seeking, inter alia , an injunction to restrain the further disclosure, use or dissemination of the emails, as well as damages. An interim injunction to this effect was granted on 3 September 2010.
The Law relating to the Setting Aside of Subpoenas
The leading case in relation to this issue is Wong Sin Chong & Anor. v. Bhagwan Singh & Anor, where the Supreme Court held, inter alia that:-
".. The right of a party to the attendance of witnesses is a crucial part of our judicial system but the right must be protected against any oppression or abuse. Thus in Raymond v. Tapson [1993] 22 Ch D 430 it was h
