Low Hop Bing JCA:

Appeals

[1] These two related appeals concern the appellant ("the plaintiff") and two witnesses only, but not the defendants. They arose from the concurrent decisions of the learned High Court judge and the learned registrar of the same court. Both of them had allowed the applications by two witnesses viz Tan Sri Aseh bin Haji Che Mat and Tan Sri Abdul Aziz bin Mohd Yusof to set aside the Writs of Subpoena Ad Testificandum ("the subpoenas") which were issued at the behest of the plaintiff to compel them to attend as witnesses.

[2] We had on 31 March 2009 dismissed the plaintiff's appeals. As leave to appeal was granted by the Federal Court on 9 September 2009, we now give our grounds.

Factual Background

[3] The plaintiff was arrested and subsequently put under restricted residence in the district of Kuala Lipis, Pahang for a period of two years commencing 23 February 1993, pursuant to an order issued by the Minister of Home Affairs, under s. 2(i) of the Restricted Residence Act 1933 (s. 2(i)).

[4] Subsequently, upon the plaintiff's representation, the Minister gave instructions for an inquiry to be conducted. The inquiry was chaired by the Ministry's Senior Federal Counsel, together with two members viz a senior police officer and a senior officer from the Security & Public Order Division of the Ministry (collectively, the "inquiry committee").

[5] After deliberations, the inquiry committee recommended to the Minister that the restricted residence order issued by the minister under s. 2(i) be revoked, which the Minister did on 9 April 1985.

[6] On 13 April 1990, the plaintiff filed a writ of summons against the defendants for malicious prosecution, conspiracy and false imprisonment. In their statement of defence, the defendants denied all these allegations, adding that:

(1) the police had taken action based on investigations carried out by them;

(2) the defendants were not privy; and

(3) that the information or statements given to the police are private and confidential.

[7] On 3 September 2004, the plaintiff filed the subpoena against Tan Sri Abdul Aziz bin Mohd Yusof, who was the senior officer in charge of the Ministry, for the purpose of procuring documents pertaining to the inquiry committee that deliberated upon the plaintiff's representation.

[8] On 20 January 2006, the plaintiff filed the subpoena against Tan Sri Aseh bin Haji Che Mat, the senior officer from the Security & Public Order Division of the Ministry, as a member of the inquiry committee, so as to give evidence relating thereto and reveal the evidence involving investigations carried out by the police against the plaintiff.

[9] On 8 February 2006 and 15 February 2006, the Ministry's applications vide summonses in chambers, viz encl. (123) and (127), to set aside the respective subpoenas issued against the two witnesses, were allowed by the High Court. Hence this appeal.

Official Secrets Act 1972

[10] The core issue submitted by learned Senior Federal Counsel Najib bin Zakaria, assisted by Ms Munahza bt Mustapha, was that the documents sought in encl. (123) and (127) are privileged documents and protected under the Official Secrets Act 1972.

[11] Learned counsel Ms Vasanthi Rasathurai argued that the documents are material and relevant to prove the plaintiff's claim against the defendants, and that the plaintiff has the right to inspect such documents.

[12] From the appeal record, we found that the subpoenas require the witnesses to testify and make available the following documents for disclosure:

(1) Case File Reference No. KHEDN.O.RR 1392 and all documents contained therein;

(2) Police reports made in 1984 by all the defendants;

(3) The records and minutes for the months of February to May 1985 in the plaintiff's file; and

(4) Other documents related to any of the above.

[13] We also found that the affidavits affirmed by the said witnesses reveal that the documents sought by the plaintiff had been classified as official secrets u