High Court holds evidence leading to amicable settlement not privileged from disclosure

15 October 2021

Government of State of Sarawak v Dato’ Sri Wong Soon Koh [2021] 6 CLJ 587

In Government of State of Sarawak v Dato’ Sri Wong Soon Koh, the President of an opposition political party (“Defendant”) had published several statements on Facebook suggesting that an amicable settlement between the State Government of Sarawak (“Plaintiff”) and Petroliam Nasional Bhd (“Petronas”) was a deal struck “behind closed doors” (“Statements”). In viewing the Statements as defamatory, the Plaintiff commenced a suit for defamation against the Defendant.

The Defendant served a subpoena on the Chairman of Petronas (“Chairman”) to give evidence and provide documents relating to the negotiations between the Plaintiff and Petronas leading to the entering of the amicable settlement on behalf of the Defendant (“Subpoena”). The Plaintiff and the Chairman both filed notices of application under enclosures 79 and 92 respectively, for an order of the court to set aside the Subpoena. Among the grounds relied on were the fact that the evidence sought by the Defendant was related to “affairs of State” and therefore privileged under sections 123 and 162 of the Evidence Act 1950 (“EA”) from disclosure.

The High Court in Sabah & Sarawak at Sibu held, among other things:

• The Plaintiff was seeking to prevent disclosure to the court by relying on sections 123 and 162 of the EA and in so doing risks the possibility of the court inferring that there was indeed a deal “behind closed doors”.
• Sections 123 and 162 of the EA must be looked from the perspective that only the Plaintiff themselves could authorise the disclosure of the privileged information or documents in possession of the Chairman, which they ought to do if they wished to prove their case against the Defendant.
• The subpoena served on the Chairman by the Defendant is not oppressive on him, neither is it frivolous, vexation nor constitute an abuse of court process. As Petronas was a party to the joint statement, the Chairman’s evidence would be material to this suit.