Tan Chong Kean v (1) Yeoh Tai Chuan (02(f)-77-10/2016(P))

This appeal deals with one but an important issue, that is, the scope of solicitor-client professional privilege as stipulated in 3 section 126 and section 128 of the Evidence Act 1950 (‘section 126’ and ‘section 128’ respectively).

On 11.10.2016 this Court granted leave to appeal on the following questions: i. ‘Whether a breach of section 126 of the Evidence Act 1950 on legal professional privilege by a solicitor gives rise to a cause of action against him by the client to obtain an injunction to restrain any disclosure of confidential information by him or whether, as stated by the Court of Appeal, the client is confined to a complaint to the Advocates and Solicitors Disciplinary Board for breach of solicitor-client privilege? ii. Whether a solicitor sued in his personal capacity for a debt could rely on confidential information reposed in him in his capacity as solicitor as a defence to the debt? iii. Whether for the purposes of an action in court for breach of solicitor/client privilege it is sufficient for the 4 client to plead the breach without disclosing the contents of the privileged document? iv. Whether section 126 by the use of the words ‘unless with the client’s express consent’ rejects the concept of an implied waiver at common law?’

In this Judgment unless otherwise stated the Appellant is referred to as the Plaintiff while the two Respondents as the Defendants collectively or the 1st and 2nd Defendant respectively.

The Plaintiff commenced an action against the Defendants who were sued as partners in the legal firm of Messrs T.C. Yeoh & Co (‘the legal firm’) alleging breach of their responsibility as solicitors under section 126. The High Court decided in favour of the Plaintiff but the Court of Appeal reversed that decision. Hence this appeal before this Court.

We heard the appeal on 12.07.2017 and 30.08.2017 and reserved our judgment. This is the unanimous Judgment of the Court. 5 Background Facts 6. The Plaintiff was a shareholder of a company, Pan Palace Holdings Sdn. Bhd., the registered owner of a piece of land situated at Sungai Dua, Penang (‘the said Land’). The Plaintiff wanted to develop the said Land. A company, Bukit Gambier Land Sdn. Bhd. (‘Bukit Gambier’) whose shareholders were Chow Yu Teck (‘Chow’), Lim Kim Huat (‘Lim’) and Cheong Ho Kuan (‘Cheong’) agreed to undertake the development by way of a joint venture. The development project was known as Pan Palace Plaza.

In order to ensure that he would not lose the said Land in case Bukit Gambier failed to carry out the development, the Plaintiff was advised by the 1st Defendant to get the shareholders of Bukit Gambier execute three Trust Deeds (‘the Trust Deeds’) with the Plaintiff as the beneficiary. The advice was followed and the legal firm prepared the documents and had them duly executed. Legal fee in the preparation was charged to the Plaintiff. 6

It was agreed between the Plaintiff and the legal firm that upon the successful completion of the development the Trust Deeds would be destroyed.

Bukit Gambier successfully developed the said Land and the Plaintiff assumed that all copies of the Trust Deeds were destroyed.

The Defendants purchased one unit of shop-house in Pan Palace Plaza at the purchase price of RM605,000.00 (‘the purchase price’). The Defendants financed it by way of 80% bank loan and the balance of RM121,000.00 (‘the said sum’) was payable by them.

Apart from preparing the Trust Deeds, the legal firm had done other legal works for the Plaintiff and the total legal fees came up to RM183,050.00.

The Defendants did not pay the said sum. Bukit Gambier therefore commenced an action in the Sessions Court in Georgetown, Penang to recover the said sum. 7

The Defendants disputed the claim and also applied for a Third Party notice to issue to the Plaintiff in relation to the unpaid legal fees including the fee for preparing the Trust Deeds. It was in relation to the Third Party notice and the reference to the Trust Deeds that this present suit was filed relying on section 126.

Basically, the Defendants denied any breach of section 126. They averred that there was no issue of breach of confidentiality since it was the Plaintiff who first disclosed the existence of the Trust Deeds in another court case before the Magistrate’s Court in Penang (vide summons No. 72-3367- 2009) (‘the Magistrate’s Court case’). As such it was contended that there was already an express or implied waiver made by the Plaintiff in respect of the Trust Deeds. Before The High Court 15. In relation to section 126 this is what the High Court said, inter alia: 8 ‘The Defendants had used this information for their own benefit. The Defendants tried to escape liability to pay the balance purchased price as claimed by Bukit Gambier. To my mind, the Defendants owed a professional duty to preserve the confidential information imparted during the subsistence and after the relationship. The Trust Deeds were generated during the solicitor-client relationship between the Plaintiff and the Defendants. The Plaintiff' had clearly expressed that he refuse to answer whether there is a trust deed because of the solicitor-client privilege. I do not see how the Plaintiff had waived his right to privilege. In my view, the Plaintiff did come to Court with clean hands when he applied for an injunction. The Defendants are the ones who had misused the confidential information which they kept and had as a solicitors for the Plaintiff.’ 9

Hence, the High Court found in favour of the Plaintiff and made the following orders: ‘In the circumstances, the Plaintiff's claim is allowed with cost of RM30,000.00. For exemplary damages, I am awarding RM50,000.00 as a reminder to the Defendants that they should not breach their fiduciary duty and professional duty as stated in section 126 of the Evidence. Act 1950. I am also awarding general damages which is to be assessed before the Registrar. Interest of 5% on general damages after assessment of damages by the Registrar. No interest as to the exemplary damages.’ Before The Court Of Appeal 17. In reversing the judgment of the High Court the Court of Appeal said these, inter alia: ‘[3] We have perused the statement of claim several times but were not able to find any statement in the pleading which can sustain a cause of action under section 126 of the Evidence Act 1950. A claim for 10 confidential information is different from the protection given to client and solicitors under section 126 of the Evidence Act 1950. The difference is not even like of an apple to an orange but the distinction is that of a rock and a fruit. Breach of confidential information can form a cause of action. However, we were doubtful whether section 126 of the Evidence Act 1950 can give rise to a cause of action. On the date of hearing, we found the submission was not satisfactory and directed parties to submit further, on this issue. [4] At the outset we must say that the Evidence Act 1950 (EA 1950) is a procedural law related to trial in this country. As a general rule, a breach of any of the sections under the Evidence Act will not give rise to a cause of action per se. Section 126 is meant to be a protection given to the solicitors not to disclose information between solicitors and clients as stated in the section to third parties and not among themselves. It has nothing to do with confidential information or the definition or jurisprudence thereof. ……… 11 [5]….. The phrase, "No advocate shall at any time be permitted", clearly shows that a solicitor is not allowed to disclose any information relating to clients in the course of his professional employment without the client's consent. That is to say, a third party to the trial cannot force disclosure and/or the solicitor will be protected by the court to refuse disclosure. If not for the existence of section 126, solicitors may be liable for contempt if the courts order disclosure and the solicitors fail to do so or failure to disclose may trigger section 114(g) of EA 1950 which relates to adverse inference. ……….. [11] We have read the memorandum of appeal, the record of appeal and the able submission of the parties. After giving much consideration to the submission of the learned counsel for the defendants, we take the view that the appeal must be allowed. Our reasons inter alia are as follows: 12

(i) We note that the plaintiff and the defendants were not parties to the Trust Deed and in consequence there could not be a cause of action for breach of confidential information per se as per the pleadings.

(v) It is a wrong exercise of discretion for the trial court to order assessment of damages in the instant case when there was no finding that the plaintiff suffered injury. In addition, it will be a wrong exercise of discretion to order assessment of general damages only before the Registrar when parties have not requested the court to deal with 15 liability only. Even if parties had requested the court to deal with the issue of liability only, unless they intend to settle the matter amicably on the issue of quantum, the court is obliged to hear the issue as to liability as well as quantum. The issue of liability as well as quantum is part and parcel of the obligation of trial court.’ Before This Court Submissions Of Parties 18. In his submission learned counsel for the Plaintiff dealt with the first two Leave Questions together. But before addressing them specifically he made the following points, namely, that: a. there was no basis for the Defendants to disclose the Trust Deeds since the claim against them personally was made by Bukit Gambier and not by the Plaintiff; b. there was no piercing of veil of incorporation applied for in the action by Bukit Gambier against the Defendants; 16 c. the Defendants could have sued for the legal fees allegedly owed by the Plaintiff personally and which had nothing to do with Bukit Gambier; d. there was no nexus between the alleged legal fees and the balance of the purchase price of the unit bought by the Defendants from Bukit Gambier. The Defendants had therefore mixed their professional and private roles; e. the Trust Deeds were related to a collateral private arrangement between the owner of the said Land and the shareholders of Bukit Gambier; f. the Defendants in their capacity as solicitors were not entitled for any purpose to rely on any information obtained from their clients as solicitors. Any information obtained through solicitor/client relationship is privileged information to be treated as absolute unless there was an express waiver by their clients; g. the privilege is absolute and belongs to the client. It applies to the full unless there is fraud. And there is no 17 issue of any enquiry to be held in balancing between the public interest in disclosure and the private rights of protection enjoyed by the client; h. the Trust Deeds were not pleaded by the Defendants in their Statement of Defence in the action by Bukit Gambier; i. section 126 is a statutory protection given to a client and not to his or her solicitor; and j. the Defendants are ‘accountable for their admitted breach of section 126 which is a mandatory obligation imposed on them as solicitors’.

Specifically for Leave Questions 1 and 2 learned counsel submitted that: a. the Court of Appeal made a fundamental error in construing section 126 as ‘protections given to solicitors’ when in law ‘the privilege belongs to the client and not to his lawyer’ citing the case of B v Auckland District Law 18 Society (2003) 2 AC 736 and Sarkar’s Law of Evidence (Malaysian Edition) (2016) Vol. 3 page 3210; b. the principle of solicitor/client privilege or legal professional privilege is not ‘merely as a shield against discovery but as affording the right to mount a cause of action to restrain its breach’. A ‘breach of solicitor/client privilege by a solicitor or a third party is actionable by an injured client’. The cases cited are Lord Ashburton v Pape (1913) 2 Ch.469; B v Auckland District Law Society (supra); Dato’ Au Ba Chi v Koh Keng Kheng Society (1987) 1 QB 670; Tentat Singapore Pte. Ltd. v Multiple Grantie Pte. Ltd.

In respect of Leave Question 3 learned counsel for the Plaintiff submitted that: a. the Plaintiff was wholly right in not pleading the contents of the Trust Deeds as he would then run the risk of 20 express waiver of the privilege claimed-Buttes Gas and Oil v Hammer (No.3) (1981) QB 223; and b. the Court of Appeal erred in ‘equating solicitor/client privilege exclusively with confidentiality’ and then erroneously ‘applied the principles relating to the law of confidentiality to decide if the pleading was sufficient’

For Leave Question 4 learned counsel for the Plaintiff argued that there could not have been any express waiver given because: a. it is an established principle that ‘there could be no waiver of privilege except with the express consent of the client. The doctrine of implied waiver at common law is not statutorily recognized under section 126’ – Dato’ Anthony See Teow Guan v See Teow Chuan (2009) 3 MLJ 14; b. section 128 (2nd limb) of the Evidence Act 1950 does not apply in this case since the client has not called upon the 21 solicitor to give evidence. As such implied waiver does not arise; c. the Court of Appeal misread the Magistrate’s Court case Notes of Proceedings where it was clearly recorded the Plaintiff refused to answer a question on a trust deed on the ground of solicitor/client privilege. Further, the issue of legal fees has nothing to do with the contents of the Trust Deeds; d. the Court of Appeal failed to invoke or apply section 128 of the Evidence Act 1950 where it is stated expressly that ‘If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126’; and e. in mere one sentence the Court of Appeal ruled that there was a waiver by the Plaintiff of the solicitor/client privilege. 22

In response to the above learned counsel for the Defendants submitted that: a. the Plaintiff and the Defendants were in a solicitor-client relationship. But the Plaintiff ‘is seeking to prevent’ the Defendants from revealing the Trust Deeds ‘that establish and/or prove’ that the Plaintiff ‘had been lying and/or misleading the Court in his claim’ against the Defendants. To allow him to do so would enable the Plaintiff to unfairly profit using his lies; b. the Trust Deeds are already within the public domain. The Plaintiff had expressly, deliberately and intentionally waived the privilege during the trial, as recorded in the Magistrate Court's case Notes of Proceedings’. There was no appeal. The Trust Deeds ‘are revealed and open to the public as they are henceforth contained in Public Court Records’; c. ‘by the 3rd party proceedings in Sessions Court summons no. 52-3367-2008, against which there is no pending appeal’, the Plaintiff ‘did not raise confidentiality 23 or privilege and the Penang High Court on 30-06-2010 in appeal no 12A-270-2010, the Trust Deeds, ‘are now within the public domain’; d. there was non-disclosure of material facts by the Plaintiff when he applied for interim injunction, namely, (i) the Trust Deeds were already included in the Agreed Bundle of Documents in the preparation of trial in the Sessions Court and the Plaintiff did not seek to have them removed during the injunction application in the High Court; (ii) the Plaintiff was brought in as a third party for indemnity in relation to the Trust Deeds and Bukit Gambier; and (iii) that the Plaintiff had deliberately and intentionally and expressly waived his privilege through his counsel in the Magistrate’s Court case brought by the Plaintiff against the Defendants; e. having failed in his appeal before the High Court to set aside the Third Party notice which has connection with the Trust Deeds and Bukit Gambier the Plaintiff did not further appeal; 24 f. the contents of the Trust Deeds do not meet the requirements of confidentiality. Further, the Plaintiff had already intentionally and deliberately waived any confidentiality in those documents during the Magistrate’s Court case between the same parties. As such the Plaintiff is no longer entitled to rely on privileged communication; g. the Plaintiff does not satisfy the necessary legal principles required to apply for injunction. The Plaintiff has come to Court with unclean hands having failed to disclose material facts and perjured including his witness Chow Yu Tek. As such the balance should be in favour of not granting the injunction applied for; h. section 126 does not give rise to a cause of action but may only provide for qualified defence; i. in respect to Leave Question 1 the ‘Court of Appeal had rightly decided’ that section 126 does not give rise to an independent cause of action but merely entitled the Plaintiff to complain before the Advocates and Solicitors 25 Disciplinary Board. ‘To date, there has been no case law and or authorities in support’ of section 126 being relied upon to mount a cause of action. It only ‘gives rise to a qualified defence’; j. for Leave Question 2 ‘the parties to the so called confidential information are the same parties in this action hence there is no breach of so called confidential information to third parties. As such the Defendants by virtue of not being third parties should on a balance be entitled to disclose the so called confidential information to court’; k. for Leave Question 3 the ‘failure and for omission and/or neglect’ of the Plaintiff ‘in merely pleading the breach and in not disclosing the contents of the breach ie the privileged document goes against the laws governing pleadings’; l. for Leave Question 4 it is not relevant in this appeal whether section 126 rejects the concept of implied waiver at common law. The Plaintiff had expressly given waiver 26 when his counsel cross-examined the 1st Defendant during the hearing in the Magistrate’s Court case on matters which but for such question he ‘would not be at liberty to disclose. The ‘fact that the said Trust Deeds by virtue of being contained in court records automatically render them public domain’; m. the Court of Appeal ‘had rightly decided that Section 126 of the Evidence Act 1950 was a procedural privilege to be used as a shield and not a sword, ie not relied upon to mount a cause of action but rather as a qualified defence. The confidentiality exist for the protection of the information given by the client to the solicitor so that the solicitor cannot be compelled to reveal those confidential information that would be detrimental to his client, to 3rd parties. The confidentiality is not for the purpose of allowing the client to perjure in order to gain benefit from his solicitor’; n. the issue of the ‘Trust Deeds as alleged’ by the Plaintiff as being privileged document protected by solicitor/client privilege or client confidentiality does not arise as the 27 disclosure was not to 3rd parties. As such there was no breach of section 126; and o. the ‘Court of Appeal had rightly held that the failure and /or omission and/or neglect’ by the Plaintiff in pleading or disclosing the contents of the Trust Deeds went against the laws governing pleadings. Decision Of This Court 23. Section 126 reads: ‘(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: 28 Provided that nothing in this section shall protect from disclosure –

(a) any such communication made in furtherance of any illegal purpose; Explanation - The obligation stated in this section continues after the employment has ceased’.

On plain reading of section 26 it is clear that in order for it to apply the following prerequisites must be present, namely: 29 a) there must exist a solicitor-client relationship between the parties; and b) there exist communication in any manner or of any subject made by the client to the solicitor in the course and for the purpose of the employment of the solicitor and/or advice given by the solicitor to the client.

The privilege belongs to the client and not that of the solicitor. (See: B v Auckland District Law Society [supra]). As such in Australia it is now statutorily called the ‘client legal privilege’ instead of ‘legal professional privilege’. (See: Australia Evidence Act 1995 (Commonwealth). The solicitor is therefore legally obliged to protect not only any form of information he has obtained from the client but also all the advice he has given to the client.

But the privilege may be waived only with the express consent given by the client. Further, the privilege does not cover any communication between the client and the solicitor that is for the furtherance of any illegal purpose or any fact tantamount to 30 commission of fraud or crime as observed by the solicitor in the course of his employment.

The principle in section 126 was postulated centuries ago as an English common law principle in the case of Berd v Lovelace 1576) 21 ER 33 (E) in which the full report reads: ‘Thomas Hawtry, gentleman, was served with a subpoena to testify his knowledge touching the cause in variance; and made oath that he hath been, and yet is a solicitor in this suit, and hath received several fees of the defendant; which being informed to the Master of the Rolls, it is ordered that the said Thomas Hawtry shall not be compelled to be deposed, touching the same; and that he shall be in no danger of any contempt, touching the not executing of the same process.’

The rationale in the principle is to enable and protect an individual's ability to access to the justice system with complete disclosure of all necessary information to his legal adviser free from any hindrance in the form of fear that any disclosure by him of any communication may prejudice him in the future. 31

The courts regard client legal privilege as a "substantive general principle which plays an important role in the effective and efficient administration of justice by the courts". (See: Goldberg v Ng (1995) 185 CLR 83).

In R v. Secretary of State for the Home Department, ex p Leech [1994] QB 198 Steyn LJ said this at page 211: “Legal professional privilege is therefore based on an important auxiliary principle which serves to buttress the cardinal principles of unimpeded access to the court and to legal advice. It is not without significance that counsel could not refer us to a single instance where subordinate legislation was employed, let alone successfully employed, to abolish a common law privilege where the enabling legislation failed to authorise the abolition expressly.”

In the Canadian case of Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401 the Supreme Court (per LeBel, Abella, Cromwell, 32 Karakatsanis and Wagner JJ and delivered by Cromwell J) held that ‘Lawyers must keep their clients’ confidences and act with commitment to serving and protecting their clients’ legitimate interests. Both of these duties are essential to the due administration of justice.’ ………………

…‘The expectation of privacy in solicitor-client privileged communications is invariably high regardless of the context and nothing about the regulatory context of the Act or the fact that a regulatory agency undertakes the searches diminishes that expectation’…. ‘Solicitor-client privilege must remain as close to absolute as possible. There must be a stringent norm to ensure protection and legislative provisions must interfere with the privilege no more than absolutely necessary.’ …. ‘It should be recognized as a principle of fundamental justice that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ causes. Principles of fundamental justice have three characteristics. They must be a legal principle; there must be significant societal consensus that they are fundamental to the way in which the legal system ought fairly to operate; and, they must be sufficiently precise so 33 as to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. The lawyer’s duty of commitment to the client’s cause meets this test. First, it is a normative legal principle and a basic tenet of our legal system. It has been recognized as a distinct element of a lawyer’s broader common law duty of loyalty. Second, jurisprudence demonstrates that the principle is sufficiently precise to provide a workable standard. It does not countenance a lawyer’s involvement in, or facilitation of, illegal activities and it is consistent with a lawyer taking appropriate steps to ensure that his or her services are not used for improper ends. Third, there is overwhelming evidence of a strong and wide-spread consensus concerning the fundamental importance in democratic states of protection against state interference with the lawyer’s commitment to his or her client’s cause. The duty is fundamental to the solicitor-client relationship and how the state and the citizen interact in legal matters. The lawyer’s duty of commitment to the client’s cause is essential to maintaining confidence in the integrity of the administration of justice.’ 34

Nearer home in the Singapore case of Re Lee Wah Cane Furniture Pte. Ltd. (supra) cited by learned counsel for the Plaintiff the court acknowledged the sanctity of client legal privilege. It was held that in law a court order could not be sustained which compelled a solicitor to disclose or be examined on information obtained while acting for a client. A solicitor may assist in providing information which he has become acquainted in the course of his professional employment so long as it is ‘within his capacity and within the bounds of professional privilege’ unless he has been expressly instructed or authorised by his client to do so.

In the present case there is no denial that the relationship between the Plaintiff and the Defendants at the material time was one of client-solicitor. It is also not in dispute that arising from that relationship and on the advice of the 1st Defendant given when sought for by the Plaintiff the Trust Deeds were prepared and executed. It was also the instruction of the Plaintiff to the Defendants and not denied that the Trust Deeds must remain confidential and to be destroyed upon the successful completion of the development of the said Land by Bukit Gambier. 35

Unfortunately, the Defendants disclosed the existence of the Trust Deeds without obtaining an express consent from the Plaintiff. The copies the Defendants kept were used when all should have been destroyed upon the successful completion of the development in the said Land.

Moreover the Defendants utilised the Trust Deeds for their own advantage. They used them to seek for indemnity from the Plaintiff by way of a Third Party notice application in relation to a monetary claim made against them by Bukit Gambier. The claim by the Defendants that there was no disclosure of the Trust Deeds to a third party is also contrary to the fact that indeed those documents were used and filed in court in relation to application by the Defendants for Third Party notice.

Thus, in our view there was a clear violation by the Defendants of the prohibition stipulated in section 126.

The next issue is whether such a breach is actionable by an aggrieved client? In this case the use and disclosure of the information was for the benefit of the Defendants. Learned 36 counsel for the Defendants submitted that the Plaintiff has no cause of action under section 126. It merely enables him to lodge a complaint with the relevant disciplinary body.

With respect, we are not inclined to agree with learned counsel for the Defendants. Section 126 is not a mere rule of evidence. It is a principle of fundamental justice. Surely a breach of such principle entitles an aggrieved party to commence an action including a prayer for an injunction to safeguard the confidentiality of the client-solicitor communication. It is even more critical when such confidential communication is used to the advantage of the solicitors who are legally obliged to protect it. Hence, the principle of law as submitted by learned counsel for the Plaintiff is the correct proposition of law on this issue.

We are therefore of the view that the Court of Appeal erred in its finding on the foregoing issue.

As regards the pleadings point, we find there is no merit in the submission of learned counsel for the Defendants. If the Plaintiff had disclosed the contents of the Trust Deeds in his 37 pleadings it would have been construed as him having abandoned his privilege. As such it was sufficient that the Plaintiff merely mentioned in his pleadings those documents in which he claimed to be covered by client legal privilege.

In Buttes Gas and Oil Co v. Hammer (No 3) [1981] 1 QB 223 Donaldson LJ said this at page 252 E-F: “It must be right that a bare reference to a document in a pleading does not waive any privilege attaching to it as otherwise there would be no scope for taking objection under R.S.C., Ord. 24, r. 11(i), when a notice was served under rule 10(1). If, on the other hand, a document is reproduced in full in the pleading, its confidentiality is gone and no question of privilege could arise. Where the line is to be drawn between these two extremes may be a matter of some nicety, but I do not think that it is necessary to reach a conclusion in the present case which does not, in my judgment, turn on so narrow an issue as waiver in relation to the few documents which are referred to in the pleadings.” 38 (See also: Expandable Limited & Anor. v Rubin [2008] EWCA Civ 59).

On the issue of waiver learned counsel for the Defendants relied heavily on the Magistrate’s Court case in particular on the cross-examination of the 1st Defendant by counsel for the Plaintiff in that proceeding. He submitted that it was an express waiver and if not, an implied waiver under section 128.

Section 126 dictates that an express consent must be given by a client before the client legal privilege is considered waived. In Low Chi Yong v Low Chi Hong & Anor [2017] MLJU 1657 this Court opined the meaning of express consent at paragraph 46 thus: ‘Black’s Law Dictionary (Edited by Bryana A. Garner, Deluxe Ninth Edition) states that “consent” means “Agreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person; legally effective assent. “Express consent” means “Consent that is clearly and unmistakably stated”

In this instant case there is no evidence to show that the Plaintiff gave a clear and unmistakable consent which tantamount to an express consent for the Trust Deeds to be disclosed. Hence, the condition precedent as stipulated in section 126 was never met. (See: Yeoh Ah Tee v Lee Chuen Meow [1962] MLJ at page 413).

As to the reliance on implied consent under section 128 by learned counsel for the Defendants we also find it to be without any merit.

Section 128 reads: ‘If any party to a suit gives evidence therein at his own instance or otherwise, he shall not be deemed to have consented thereby to such disclosure as is mentioned in section 126; and if any party to a suit or proceeding calls 40 any such advocate as a witness, he shall be deemed to have consented to the disclosure, only if he questions the advocate on matters which but for such question he would not be at liberty to disclose.’

An implied consent has to be ‘inferred from one’s conduct rather than from one’s direct expression’. In this case learned counsel for the Defendants argued that there was evidence. However, his reliance on section 128 appears to be misconceived. There are two limbs in section 128. Learned counsel is relying on the second limb, that is, ‘…if any party to a suit or proceeding calls any such advocate as a witness, he shall be deemed to have consented to the disclosure, only if he questions the advocate on matters which but for such question he would not be at liberty to disclose.’ But even in the second limb there are also condition precedents stipulated. Firstly, the client must be the party calling the advocate as a witness in a suit or proceeding. Secondly, the client ‘questions the advocate on matters which but for such question he would not be at liberty to disclose’. 41

In the Magistrate’s Court case the Plaintiff did not call the 1st Defendant as a witness. He was the defendant in that suit. He gave evidence on his own behalf. Thus, even the first condition precedent was not satisfied. And although the counsel for the Plaintiff in that case cross-examined the 1st Defendant it was not within the ambit of the second limb of section 128. Indeed based on the submission of learned counsel for the Defendants the learned Magistrate was only concerned on the point of pleading and not on client legal privilege issue. In fact it was the Plaintiff when questioned earlier on refused to answer about the Trust Deeds on the ground of client legal privilege.

Meanwhile, the Court of Appeal found there was a disclosure when it said this: ‘It is important to note that the plaintiff in a civil suit Magistrates Court vide Summons No. 72-3437-2009 had by himself disclosed the existence of the Trust Deeds’.

Unfortunately, there was no discussion or analysis on whether the Court of Appeal was relying on section 126 or section 128 in coming to such a finding. 42

In respect of the other points raised by learned counsel for the Defendants in his submissions such as the Plaintiff did not disclose all material facts when he applied for an interim injunction and that he came to court with unclean hands thereby the balance of convenience should be to refuse an injunction as prayed for, we find that these points are not relevant in answering any of the Leave Questions. And even if we were to deal with each of them our findings would not make any difference to our conclusion in this appeal. Conclusion 53. Our answer to Leave Question 1 is that in respect of the first part it is in the affirmative and for the second part it is in the negative. Our answer to Leave Question 2 is in the negative. For Leave Question 3 our answer is in the affirmative and for Leave Question 4 our answer is also in the affirmative.

In the upshot we allow with costs this appeal and set aside the judgment and orders of the Court of Appeal. We hereby make the following orders: 43 a. An injunction to restrain the Defendants from disclosure and use of the Trust Deeds in their possession; b. All copies of the Trust Deeds in the possession of the Defendants be delivered up to the Plaintiff within seven