The court affirmed that documents related to fraud do not benefit from solicitor-client privilege, allowing their production in disciplinary proceedings.

Background

[1] The pertinent facts of the present appeal are as follows:

(a) On 30 April 2015, Dato Azizi bin Yom Ahmad (the Complainant) lodged a complaint to the Advocates & Solicitors Disciplinary Board (ASDB) against the Respondent/Plaintiff for making false representation to his company, Newlake Development Sdn Bhd ("Newlake") and induced the Complainant to enter into an agreement with Zenith Delight Sdn Bhd ('Zenith Delight'), to purchase a piece of land for the sum of RM9,056,124.00 (Payment) which was subsequently found to be a sham transaction;

(b) The said sum of RM9,056,124.00 or Payment was paid by Newlake to the Respondent/Plaintiff's legal firm, namely Messrs Kumar Jaspal Quah & Aishah, where the Respondent/Plaintiff, was an advocate and solicitor and the managing partner of the legal firm. Zenith Delight is the client of the Respondent/Plaintiff's legal firm;

(c) The ASDB then, established a Disciplinary Committee (DC) to investigate the complaint lodged by the Complainant against the Respondent/ Plaintiff;

(d) On 20 April 2017, the Complainant made an application to the DC for cheques, payment vouchers, bank statements, letter and other documents of the Respondent/Plaintiff and/or his legal firm in regards to the Payment, to be produced for the DC's inspection;

(e) On 2 June 2017, the DC ordered the Respondent/Plaintiff to produce the

said documents requested by the Complainant during the hearing of the disciplinary proceedings against the Respondent/Plaintiff;

(f) The Respondent/Plaintiff then, on 21 June 2017 filed a judicial review application which was later withdrawn by the Respondent/Plaintiff;

(g) Then, the DC, by letter dated 28 August 2017 fixed the hearing of the disciplinary proceedings on 24 December 2017 and directed the Respondent/Plaintiff to deliver the said documents to the Appellant's/ Defendant's and the Complainant's solicitor, 14 days before the hearing date.

[2] On 6 September 2017, the Respondent/Plaintiff filed an Originating Summons in the High Court, seeking for inter alia, the following reliefs:

(a) A declaration that the Appellant's/Defendant's direction vide their letter dated 25 July 2017 to the Respondent/Plaintiff to comply with the directions given on 2 June 2017, would require the Respondent/Plaintiff to breach solicitor and client privillege and is contrary to ss 126 and 129 of the Evidence Act 1950 and/or the common law of solicitor and client privilege.

(b) A declaration that the Appellant's/Defendant's statement in the letter dated 25 July 2017 in para 40 therein that the Respondent/Plaintiff had not raised the issue of client and solicitor privilege is misguided and incorrect as the Respondent/Plaintiff had stated that the documents were confidential but was denied an opportunity to orally submit on the same as requested.

(c) That notwithstanding the above, a declaration that the documents ordered to be produced by the Appellants/Defendants vide Order dated 2 June 2017 and the Order dated 25 July 2017 are documents which are covered by solicitor's and client's privilege.

(d) That, in the event the High Court holds that the documents required to be produced pursuant to the orders dated 2 June 2017 and 25 July 2017 are confidential documents covered under solicitor's and client's privilege that the Respondent/Plaintiff need not produce the same in the proceedings before the Appellants/Defendants.

[3] The learned High Court judge allowed the Plaintiff's Originating Summons.

[4] Parties shall be referred to, in their respective capacities before the High Court.

Findings Of The High Court

[5] The learned High Court Judge (the Learned Hig