Thursday, August 27, 2009

Solicitor-client privilege should be safeguarded in the interest of justice - Leonard Teoh case. Court of Appeal is wrong

It is very sad and distressing that the Court of Appeal has upheld the arrest and detention of lawyer Leonard Teoh who refused to breach solicitor-client privilege...

Solicitor-client privilege or legal professional privilege protects all communications between a professional legal adviser, i.e. a lawyer, and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer.

The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear that any disclosure of those communications may prejudice the client in the future.

A client can bravely tell his lawyer that he killed someone, and by reason of this Solicitor-client privilege or legal professional privilege, the lawyer cannot disclose this fact to anyone. A client should and does have the ability to tell his lawyer everything without fear that the lawyer will rat on him/her. Hence, when the police approached Leonard Teoh to tell them where his client was, he did fact, he could not, for that would have been a breach of the solicitor client privilege.

"The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection ... But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources, deprived of professional assistance, a man would not venture to consult any skilful person, or would only dare tell his counsellor half his case". - Greenough v. Gaskell [1833], 1 M & K 98

"In order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal advisers must be removed; hence the law must prohibit such disclosure except on the client's consent." - Berd v. Lovelace, Cary 88, 21 Eng. Rep. 33 (Ch. 1577)

A lawyer not disclosing what a client has told the lawyer should certainly not lead to a situation whereby the lawyer is arrested and detained by the police for days...

The Court of Appeal has upheld the detention of a lawyer by police 11 years ago to obtain information on the whereabouts of his client.

Judge Datuk Md Raus Sharif, in dismissing the appeal by Leonard Teoh Hooi Leong, said the magistrate who issued the remand order was correct in law.

"The High Court judge was also right in the exercise of his revisionary powers," Raus said in the unanimous ruling. Sitting with him were Datuk Sulong Matjeraie and Datuk Ahmad Maarop.

In an immediate reaction, Bar Council chairman Ragunath Kesavan said the decision was a serious dilution of the client-solicitor privilege and raised the question whether lawyers could mount a valid defence in a criminal case.

"It is implicit that lawyers can be arrested by police to obtain information," he said, adding that the ruling was regressive in the criminal justice system.

Lawyer G. Ragumaren held a watching brief for the council as the legal fraternity had awaited this decision following the High Court decision 11 years ago.

Teoh, in an affidavit, said he acted as lawyer for former Citibank executive Nor Aishah Bokhari who converted to Christianity in November 1997.

He was arrested on Jan 13, 1998, when he refused to reveal the whereabouts of Nor Aishah who went missing from her parents' home in Pontian, Johor, on Dec 30, 1997.

The police had told Teoh that he was arrested for aiding and abetting the kidnapping of Nor Aishah.

The Pontian magistrate's court, on Jan 14, 1998, ordered Teoh to be remanded for seven days following an application by the police. The remand was later extended another three days.

Teoh then applied to the Johor Baru High Court to revise the decision of the magistrate but it was dismissed on Jan 19, 1998.

At the Court of Appeal yesterday, Teoh's counsel Karpal Singh submitted that the information was a client-solicitor communication and the withholding of such information was not contrary to the Evidence Act.

"How could any information between a client and solicitor be in furtherance of a crime in which the client (Nor Aishah) was the victim," he asked.

Karpal said Teoh was only a witness but was made to look like a suspect although he had nothing to do with the kidnapping.

He said Teoh was held for 10 days under police custody and as a professional, his client wanted to clear his name as the matter was reported in law journals.

Deputy public prosecutor Ahmad Bache said the appeal should be dismissed as the subject matter was a remand order.

"It is academic because he had been released," he said.

Raus then asked Ahmad what remedy Teoh could resort to for unlawful detention.

Ahmad replied that Teoh could resort to civil action and this was not a forum to vindicate himself.

"The Court of Appeal will open the floodgates if the appeal is allowed. It will also amount to an abuse of court process," he said.

Ahmad said the magistrate had acted judiciously in issuing the remand order after having heard the investigating officer who had also produced his investigation diary. - NST, 27/8/2009, Court upholds detention of missing client's lawyer

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