Mohamed Zahir J:

[1] In the course of trial of the above suit, the plaintiffs sought the production of certain documents under Notice to Produce Documents including all notes and findings of the Committee of Enquiry set up by the Ministry of Health to inquire into the death of the deceased abovenamed [Siminder Singh s/o Lall Singh] held at the Hospital Daerah, Mentakab, on 1 June 1973. The defendants did not object to the production of other documents listed under the Notice except for these documents.

[2] The defence counsel objected to the production of the notes of the Committee of Enquiry and claimed privilege under s 123 of the Evidence Act. He filed an affidavit sworn by the Deputy Secretary-General of the Ministry of Health claiming such privilege. In para 3 of the affidavit the Deputy Secretary-General stated the purpose of the inquiry was to investigate into matters relating to medical facilities and services and hospital administration existing in the Hospital Daerah, Mentakab in 1973 with a view to make such comments and recommendations as the said Committee deemed fit to enable the Ministry to carry out its policy of promoting greater efficiency in hospital administration and the provision of medical services not only in respect of the Hospital Daerah, Mentakab but also in respect of all hospitals throughout the country.

[3] Clause 4 of the affidavit states that the documents comprise of a report dated 3 October 1973 and notes of evidence containing statements of facts, remarks, opinions and recommendations of witnesses and members of the said Committee, all given in strict confidence to the Ministry.

[4] Under para 5 of the affidavit, the defendants in seeking privilege under s 123 of the Evidence Act set out two reasons:

(a) that disclosure will be detrimental to public interest as the notes were compiled and furnished for the guidance of the Ministry and in policy making relating to medical services and hospital administration.

(b) that disclosure will be prejudicial to the public service in that the maintenance of secrecy of such documents is necessary for the proper function of departmental inquiries.

[5]Section 123 of the Evidence Act reads as follows:

"No one shall be permitted to produce any unpublished official records relating to affairs of State, or to given any evidence derived therefrom, except with the permission of the officer at the head of the department concerned, who shall give or withhold permission as he thinks fit, subject, however, to the control of a Minister in the case of a department of the Federal Government, and of the Chief Minister in the case of a department of a State Government."

[6] The law on this aspect as it appears to me is that it is for the court to decide that the document in question relates to any affairs of State, and if the court so decides, it will then be for the departmental head to decide whether disclosure of its contents will be against public interest and his decision on the point is conclusive (see Sarkar on Evidence, 12th Edn p 1162).

[7] It appears to me that there is a difference of approach in deciding this issue in our country from that in England where it is provided that evidence of the following matters is excluded on grounds of public policy:

(i) Affairs of State;

(ii) Information given for the detection of crime, and

(iii) Judicial disclosures.

[8] There, it would appear that in deciding whether a claim of Crown privilege should apply to a document, two kinds of public interest are to be considered by the court. These are:

(i) the public interest that harm shall not be done to the nation or the public service; and

(ii) the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.

(see Phipson on Evidence, 11th Edn p 240). [See also 12th Edn p 231.]