Richard Malanjum J:

[1] In this application the plaintiff is seeking for an order that the defendant (and I take it to be the 1st defendant as the affidavit in support states so) produces for inspection the document namely 'Department Board of Inquiry Report marked "suit" containing findings of the Board, notes of interviews, relevant correspondence and document, photographs and diagrams (hereafter referred to as "the document")' to the plaintiff or her advocates and to permit them to peruse such document and to make copies thereof at such place, time and manner as may be stated in the order applied for.

[2] Briefly, the action of the plaintiff is connected with the explosion and fire on 16 February 1990 in the premises occupied by the 4th defendant whereby her husband suffered severe burns and died as a result.

[3] In its List of Documents dated 29 June 1994 the 1st defendant admitted having the document but has claimed privilege. And in the affidavit in opposition to this application (hereinafter called "the affidavit in opposition") sworn to by Benard @ Bernard ak Philip Lanat, a certificate signed by Datuk Michael Parker, the Director of the Sarawak Public Works Department, was exhibited wherein it was certified that the document is an official secret as defined under the Official Secrets Act 1972 (hereinafter referred to as "the Act"). In short, it is the contention of the 1st defendant that since the document is within the category of an official secret as defined under the Act it cannot be produced in this Court in connection with the action of the plaintiff and that to do so would be an offence under the Act.

[4] Foremost, it must be recognised that the issue of admissibility of any piece of evidence in a Court of law in this country comes mainly within the purview of the Evidence Act 1950. I find nothing expressed or implied that the Act should be taken as a statute governing admissibility of evidence.

[6] Accordingly, where a claim for privilege from disclosure of certain documents is made as in this case, ss 123 and 162 of the Evidence Act 1950 should be considered.

[7]Section 123 reads:

No one shall be permitted to produce any unpublished official records relating to affairs of States, or to give any evidence derived there from, except with the permission of the officer at the head of the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.

[8]Section 162 reads:

(1) A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.

(2) The Court, if it sees fit, may inspect the document unless it refers to affairs of States, or take other evidence to enable it to determine on its admissibility.

(3)........

[9] In the case of B A Rao & Others v. Sapuran Kaur & Anor, [1978] 2 MLJ 146 his Lordship Raja Azlan Shah FJ (as he then was) in considering ss 123 and 162 said this at p 150 E (right):

In this country, objection as to production as well as admissibility contemplated in s 123 and 162 of the Evidence Act is decided by the Court in an enquiry of all available evidence. This is because the Court understands better than all others the process of ba