MAHAJOTH SINGH A/L DARSHAN SINGH v Suruhanjaya Pencegahan Rasuah Malaysia (SPRM) (WA-25-419-12/2025)

The Applicant applies for leave to commence judicial review proceedings for the following orders:

(i) An order of Certiorari to quash the Order to Attend an Examination against the Applicant pursuant to Section 30(1)(a) and the Order to Produce Documents pursuant to Section 30(1)(b) of the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”) dated 29.11.2025 and 30.11.2025;

The factual matrix upon which the application for leave is made are as follows.

The Applicant is an Advocate and Solicitor of the High Court of Malaya. On 11.3.2025, he was appointed to act as advocate and solicitor by an individual named Dato’ Tei Jiann Cheing (“the Applicant’s Client”).

On 28.11.2025, the Applicant’s Client was detained by the Respondent. The following day, the Applicant received an Order to Produce Documents under Section 30(1)(b) of the MACC Act. The Applicant was ordered to attend the MACC Headquarters in Putrajaya on 30.11.2025.

On 30.11.2025, the Applicant was served with 2 new orders namely:

(i) An order to Attend an Examination under Section 30(1)(a) of the MACC Act; and

The Applicant was directed to produce the following documents and items:

(i) The mobile phone of the Applicant’s Client;

The Applicant contends that said Orders under the MACC Act contravene the statutory protection of privileged communication between solicitor and client as provided under Section 126 of the Evidence Act 1950.

The Applicant also contends that the Respondents failed to obtain a High Court order as required under section 46(1) of the MACC Act prior to the issuance of the Orders under sections 30(1)(a) and 30(1)(b) of the MACC Act. Section 46(2) protects the High Court order from requiring the disclosure of any privileged communication between a solicitor and client.

The Applicant further contends that the said Orders constitute an abuse of power by the Respondent, given that the documents and items sought by the Respondent were provided to the Applicant for the purpose of enabling the Client to seek legal advice and to be used generally for obtaining legal advice and specifically for representing the Applicant’s Client in the ongoing investigative proceedings under the MACC Act. AGC’s objection

AGC objects to the grant of leave on the primary ground that the Orders issued under sections 30(1)(a) and 30(1)(b) of the MACC Act were acts done pursuant to investigative powers. They are not decisions that are amenable to judicial review. The issue has been well settled by decided authorities. Analysis and findings AGC’s role in leave applications

The AGC’s position in leave applications and his right to be heard cannot be disputed. His right to be heard arises from the fact of service of the cause papers as mandated by O. 53 r 3(2) of the Rules of Court 2012. When the Attorney General appears, he assists the court by advancing arguments to oppose leave if there is an unarguable case. (See: Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544 (Federal Court), Messrs Tai Choi Yu & Co., (suing as a firm and Tai Choi Yu as sole proprietor) v Arifin bin Zakaria & Anor [2020] 5 MLJ 207 (Court of Appeal)). The test for the grant of leave

In determining if leave should be granted, the Applicant must demonstrate he has an arguable case or that his application for judicial review is not frivolous nor vexatious. (See: WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2012] 4 CLJ 478 (Federal Court), Ahli-Ahli Suruhanjaya Yang Membentuk Suruhanjaya Siasatan Mengenai Rakaman Klip Video Yang Mengandungi Imej Seorang Yang Dikatakan Peguambela Dan Peguamcara Berbual Melalui Telefon Mengenai Urusan Pelantikan Hakim-Hakim vs Tun Dato’ Seri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim [2012] 1 CLJ 805 (Federal Court)). Orders under sections 30(1)(a) and (1)(b) of MACC Act

The relevant provisions read as follows: Power to examine persons

(1) An officer of the Commission investigating an offence under this Act may—

(a) order any person to attend before him for the purpose of being examined orally in relation to any matter which may, in his opinion, assist in the investigation into the offence;

(b) order any person, to produce before him, within the time specified by such officer, any book, document, records, accounts or computerized data, or any certified copy thereof, or any other article which may, in his opinion, assist in the investigation into the offence; ….

The operative words in the provision are “investigating an offence.” The Orders issued and which is sought to be impugned were issued in the course of and for the purpose of an investigation into an offence.

The question whether actions taken in the exercise of the powers of investigation can be subject to judicial review is one that has been settled in several cases, including that of the apex court.

In Empayar Canggih Sdn Bhd v Ketua Pengarah Bahagian Penguatkuasa Kementerian Perdagangan Dalam Negeri Dan Hal Ehwal Pengguna Malaysia & Anor [2018] Supp MLJ 16 the Applicant was in the business of manufacturing video compact discs. A raid was conducted at the new office of the Applicant based on information that an offence under Act 606 could have been committed. During the raid, certain machines and equipment were seized and removed from the premises, causing some damage to the machines and equipment. The Applicant filed judicial review proceedings for a declaration that the seizure of the machines and equipment was done without reasonable cause. The Federal Court held, [24] Thus it is clear to us that the seizure challenged by the Appellant in its judicial review application was an act done by the Respondents’ officers in the exercise of a function in relation to a criminal investigation for an offence under Act 606. In our view such an exercise of power in the course of a criminal investigation is not open to review under O. RHC. To hold otherwise would, to our mind, be exposing the criminal investigative process of all law enforcement agencies in the country to constant judicial review which surely could not have been the intention of Parliament. A balance has to be struck between the right of disgruntled persons such as the Appellant, to seek redress in the form of damages for the alleged wrongful seizure of its property and the duty of the investigative agency through its officers to bring wrongdoers to face justice by arresting them and collecting, in the course of investigation, whatever evidence against them. ….If decisions made and actions taken in the process of criminal investigation pursuant to the power given by law, such as the impugned seizure in this case are amenable to judicial review, then criminal investigative machinery may not function smoothly and efficiently as it should be.

In Suruhanjaya Pencegahan Rasuah Malaysia & Ors v Latheefa Beebi Koya & Anor [2017] 5 MLJ 349, the Applicant was served with a notice under section 30(1)(a) of the MACC Act. She refused to present herself at the office of the MACC. Instead, a judicial review application was filed to quash the notice.

The Federal Court held, [42] The general conclusion that can be drawn from the cases referred to above is that the actions or decisions of a public authority in exercise of its powers in the course of criminal investigation or enquiry is not open to judicial review. Therefore the answer to the question posed to this court is that the exercise of legitimate power, namely, the issuance of the notice pursuant to s 30(1)(a) of the Act by the first appellant through the third appellant is not amenable to judicial review. The notice was issued in order to assist the appellants in the investigation of a corruption offence under s 16(b) of the Act. To hold otherwise, would expose the criminal investigative processes of all law enforcement agencies to constant judicial review. On the facts of this case, the respondents failed to establish that the notice was issued mala fide or in bad faith.

The apex courts have thus held that investigative actions are not amenable to judicial review; the rationale being that the machinery of the enforcement agencies would not function smoothly if it is to be subject to review now and then.

The Applicant contends that whilst that may be the general principle, where bad faith is established, the investigative powers are not shielded from scrutiny. Mala fide here is established when the provisions of sections 46 of the MACC Act and section 126 of the Evidence Act were ignored. Section 46(1) and (2)

The Applicant submits that the notice in sections 30 (1)(a) and (b) was never intended to apply to an advocate and solicitor. Instead, the MACC must first resort to section 46 of the MACC Act which requires an application to be made to the High Court where the information is sought to be obtained from an advocate and solicitor.

Section 46 reads: Advocates and solicitors may be required to disclose information

(1) Notwithstanding any other written law, a Judge of the High Court may, on application being made to him in relation to an investigation into any offence under this Act, order an advocate and solicitor to disclose information available to him in respect of any transaction or dealing relating to any property which is liable to seizure under this Act.

To my mind, the Applicant is misconceived in the position taken. Section 30 is a general provision giving MACC the power to examine persons. There is nothing to suggest that section 30 is not applicable to advocates and solicitors by the mere fact that there is a section 46.

Reading section 46 (1), I am of the view that section 46 applies only to a specific type of information. It is only where the information to be disclosed was that made available to the advocate and solicitor “in respect of any transaction or dealing relating to any property which is liable to seizure under this Act.” Therefore, it is not all information that is sought from a lawyer that must be preceded with a High Court order. Where the information falls within subsection (1) and an order from the court is sought, then the non-disclosure of privileged information protection in subsection (2) can be invoked. Section 126 of the Evidence Act 1950

The Applicant also contends that bad faith was demonstrated in issuing the Orders as section 126 of the Evidence Act 1950 was not considered. The section provides as follows: Professional communications

(1) No advocate shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such advocate by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure-

(a) any such communication made in furtherance of any illegal purpose;

(b) any fact observed by any advocate in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment.

In my view, the Applicant has jumped the gun by pre-maturely relying on s.126 of the Evidence Act. Section 126 is not to be invoked as a shield the minute any information is sought from a lawyer in the course of investigation. It is only if the information sought falls within the scope of paragraph (1) that it is privileged, and the Applicant is entitled to claim that he need not disclose.

In any event, the wordings in the proviso is significant. It limits the privilege claimed in respect of professional communication between an advocate and solicitor and his client. The privilege cannot be invoked when the communication falls within the circumstances stated in paragraph (a) and (b) in the proviso.

Therefore, to rely on section 126 of the Evidence Act upon being served with the Orders in section 30(1)(a) and (1)(b) of the MACC Act, is akin to saying that an advocate and solicitor can never be compelled to disclose any information pertaining to a client he represents.

That is not the correct legal position to take. Conclusion

Premised on the foregoing reasons, I am of the view that the Applicant’s case does not satisfy the legal requirements for leave to be granted. The application in enclosure 1 is hereby dismissed with no order as to costs. Dated: 30th March 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsels for Applicant: En. Rajesh Nagarajan (En. N. Surendran, En. Shahid Ali Kamaruddin, En. Zaid Malek, Pn. Reenajit Kaur Golam, Pn. Wan Nabilah Dina and Pn. Amanda Sonia Mathew together with him) Tetuan Raj & Sach For the Attorney General: En. Shamsul Bohassan Senior Federal Counsel (Pn. Nurhafizza Hassan, Senior Federal Counsel and Pn. Krishna Priya a/p Veenagopal @ Venugopal, Federal Counsel together with him) Jabatan Peguam Negara