AYUNI&ASSOCIATES

An uncautioned statement isnt a document made in official confidence [Huzir bin Hassan v Ketua Polis Daerah JB]

PRINCIPLE & SCOPE

Its for the court to decide whether communication was made in official confidence.

S 124
(read together with s162)

NO public officer (PO) shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure.

Whether a communication was made in official confidence?

Re Loh Kah Keng

The court may require the head of department of the officer to certify in writing whether or not such disclosure would be detrimental to public interest

The withholding of information under this section will not constitute a breach of natural justice

If Head of Department at the request of the court certifies such disclosure wouldnt be detrimental to public, then the officer must disclose such communications.

Court is the sole judge of this question. This she can decide not only by inspecting documents, but can also take other evidence to determine its admissibility (s162(2)).

If he certifies that such disclosure would not be prejudicial to the public interest then the PO shall disclose the communications.

AYUNI&ASSOCIATES
CASE SUMMARY Re Loh Kah Keng (deceased) [1990] 2 MLJ 126 Held: Before privilege under s 124 of the Evidence Act 1950 can apply, the condition precedent that the information be communicated in official confidence must be satisfied. The court is the sole judge of this question, and in coming to its decision can not only inspect the document, but can also take other evidence to determine its admissibility. The court may also require the head of department of the officer to certify whether or not such disclosure would be detrimental to the public interest. These two conditions had not been considered and the magistrate was ordered to record further evidence in order to comply with s 124 of the Evidence Act 1950 before making any ruling for non-disclosure. During the inquest into the death of one Loh Kah Kheng, the investigating officer informed the court that he had received information from an informer concerning the deceased's death, which related to the commission of a crime. As the information was given in official confidence, the police objected to its disclosure on the ground of privilege under section 123 & 124 of Evidence Act 1950. The learned magistrate ruled that the said written information could not be disclosed at the inquest, but held that it should be shown to her for her own consumption.

Huzir bin Hassan v Ketua Polis Daerah JB [1994] 2 MLJ 385 The applicant was arrested and charged with trafficking in dangerous drugs under s 39B(1)(a) of the Dangerous Drugs Act 1952. During his detention under s 117 of the CPC he made two statements, one cautioned and the other uncautioned. The cautioned statement was supplied to the applicant by the Ketua Polis Daerah, Johor Bahru but the uncautioned statement was refused. The applicant sought an order from the court that the respondent do furnish to the applicant or his solicitors the uncautioned statement which was recorded under s 4 of the Dangerous Drugs (Special Preventive Measures) Act 1985 Counsel for the applicant submitted that so long as the applicant could prove that the statement was a public document under s 74 of the Evidence Act 1950 and that he has a right to it under s 76 of the Evidence Act 1950, he was entitled to it, irrespective of the law under which the statement was recorded. Section 76 of the Evidence Act 1950 does not expressly confer the right to inspect a public document. Although the applicant may have an interest in the uncautioned statement, it is not admissible in evidence and, as such, cannot be relevant for the purpose of his defence in the pending drug trafficking charge. I would even go one step further to say that the uncautioned statement is not a document made in 'official confidence' within the meaning of s 124 of the Evidence Act 1950.

Held: