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Setting-aside a subpoena

Writer's picture: Gavin JayapalGavin Jayapal


Subpoenas are a commonplace document in civil litigation. They are utilised to compel the attendance of a witness (or to compel the production of documents).


A subpoena may be issued to anyone within the realm. In Ismail v Hasnul [1968] 1 MLJ 108, the FC emphasised:

The practice in all courts has been that a subpoena may be issued against anybody, be he a Minister of the Government or a nonentity. It cannot be gainsaid that a Minister has any more privilege than that enjoyed by a member of the public. Injustice will arise if equals are treated unequally. But the court possesses inherent jurisdiction to see that this privilege is properly exercised and in a proper case can restrain its abuse 

ROC 2012


Applications to set-aside are governed by O. 38, r. 14(4) ROC 2012.


In some situations, a subpoena may be unjust. Simple examples of such a situation would be where the witness is irrelevant.


In Wong Sin Chong v Bhagwan Singh [1993] 3 MLJ 679, the Supreme Court stated that a subpoena may be issued without leave. However, the right to have a subpoena issued is not unfettered. The attending witness must be one who can assist the Court with relevant evidence:

The right of a party to the attendance of witnesses is a crucial part of our judicial system, but the right must be protected against any oppression or abuse. Thus in Raymond v Tapson 1, it was held that any party may, without leave of the court, issue a subpoena for the examination of a witness at any stage of an action; but the court will exercise a control over the privilege to prevent it being oppressively used.
An oppressive subpoena (for purposes of annoyance, or in spite, to a man's wife or unmarried daughters and the like) will be set aside by the court, on application on behalf of the witness, as being an abuse of the party's privilege to issue a subpoena without leave.
It is further stated at p 453 that:
The court has inherent jurisdiction to set aside a subpoena which is issued from an improper motive and not for obtaining relevant evidence, and there is no distinction, on the point, between civil and criminal proceedings: R v Baines [1909] 1 KB 258.

Refer also:

  • 1 Malaysia Development v Tan Jiak Chye [2022] MLJU 3590

  • Tan Sri Awang v Pantai Support [2011] MLJU 692

  • ECM Libra v Foo Ai Meng [2013] 3 MLJ 35 (CA)


The burden of proving that a witness will be able to testify on relevant facts will lie on the person issuing the subpoena.


The issuing party will also have to show that the subpoena is not frivolous/vexatious and does not constitute an abuse of the Court process (Celcom v Tan Sri Tajudin [2018] MLJU 18). This would be achieved by demonstrating the materiality of the witness.


Refer also:

  • Senja Cerah v Sisprop [2008] 6 MLJ 581


Legal professional privilege


In certain situations, it may be necessary to subpoena a solicitor. This might be due to some part of the solicitor’s conduct being relevant to the suit (e.g., where the solicitor was involved in a fraudulent conveyancing transaction, etc.).


Solicitors may attempt to raise legal professional privilege as a grounds to set-aside the subpoena. This is not available to them. S. 126(1) of the Evidence Act 1950 makes it clear that any communication from a client that is in furtherance of an illegal purpose, crime or fraud will not be covered by privilege.


In The AG of HK v Lorrain Esme Osman [1993] 2 MLJ 347, Abu Mansor J held that a solicitor would be required to testify in the following manner:

I am persuaded by the above cited case of Derby & Co Ltd & Ors v Weldon & Ors (No 7) 3 which also held, inter alia, that although the order of disclosure must be sparingly given, nevertheless, since the creation of the trusts and the transfer of the assets to them, steps were taken in furtherance of the initial fraud alleged, in the sense that they were taken to conceal or render irrecoverable profits made by LMFE, the plaintiffs had asserted a proprietary claim and were able to establish a strong prima facie case of fraud and as a result were entitled to the disclosure sought.
In this decision I am also persuaded by the judgment in Baker v Campbell 3 where Deane J held:
The privilege does not extend to protect communications which are in themselves part of a criminal or fraudulent proceeding or course of conduct or which constitute the whole or part of an actual dealing or transaction (see O'Reilly's case). Nor does it extend to protect things lodged with a legal adviser for the purpose of obtaining immunity from production.
Fortified by the authorities cited above and in the public interest I duly order that Mr Narayanan do take the stand to give evidence of whatever transactions that occurred between Lorrain and his firm and whatever solicitor and client communication will cease to be confidential. In so ordering I make no imputation that the firm of Ng Ek Tiong & Co was in anyway implicated; in carrying out the client's instruction the firm may well be blameless.

 

Similarly in Berjaya Land v Wong Chee Hie [2012] 4 CLJ 356, Nallini J (presiding FCJ) determined that the issue of whether the privilege would extend to the purported illegal matter would be a matter to be determined at trial (and not on affidavits):

 

[28] As such the issue before the court is whether or not the privilege and thereby confidentiality that exists in respect of solicitor-client communications is lifted by reason of an illegal purpose. In order to decide whether the purpose is illegal or otherwise, is it permissible for this court to determine that issue on a perusal of the 2nd email and on the basis of the affidavits and submissions filed by the parties? Is the court to make a determination of whether or not the 2nd email was made or written in furtherance of an illegal purpose at this interlocutory stage in a summary fashion on the basis of conflicting affidavits?
[35] It appears to this court that the most appropriate course to adopt would be for the solicitor to attend as a witness pursuant to the subpoena and to invoke the privilege under s126 of the Evidence Act 1950, at that stage. It would then be open to the parties to take up the arguments now set out and for the court to make a determination then. The court might well allow or disallow certain questions in order that it may determine the legality or otherwise of the 2nd email. The court will then be in a position to make a ruling on the matter more fully.

 

Simply put, the Court will not make a determination as to whether a communication is illegal or not at the interlocutory stage. That is a matter for trial and it will be a solicitor’s duty to attend and give evidence. If a matter is privileged, the solicitor and refuse to answer on the basis of S. 126 but this will be subject to the control of the Court.

 

The Court may also hold a “trial within a trial” to determine whether a solicitor's evidence is covered by legal privilege (Dato' Anthony See Teow Guan v See Teow Chuan & Anor [2009] 3 MLJ 14 (FC); Toralf Mueller v ALCIM Holding Sdn Bhd & Ors [2015] AMEJ 1432)


Refer also:

  • Ranjeet Singh v Zavarco [2015] MLJU 638

 

Medical reports prepared for the purposes of litigation


Medical reports prepared for litigation are slightly different. In Dea Ai Eng (P) v Wong Seak Shoon [2007] 2 MLJ 357, P was injured. Dr Kandasamy examined him and prepared a medical report for D1. This medical report was conveyed to D1’s solicitors. P then sought to issue a subpoena to Dr Kandasamy, to compel him to produce his report.


The HC held that in such a situation, the report would be covered by legal professional privilege and would not be disclosed: 

In conclusion, on the facts and circumstances referred to above, and considering the principles applicable to setting aside a subpoena and coupled with the doctrine of legal professional privilege as raised by learned counsel for the first defendant, and the submissions and the authorities cited, this court is of the considered view and is satisfied that the subpoena dated 28 August 2006 (encl 58) which was served on the expert witness Dato’ Dr P Kandasamy should be aside for the reasons referred above. Accordingly the subpoena dated 28 August 2006 (encl 58) served on Dato’ Dr P Kandasamy is set aside and order in terms of the summons in chambers (encl 64) is granted.

 

Banking documents

In Maju Holdings v Kamala Devi [2003] 2 MLJ 36, the CA noted that a subpoena to testify and produce banking documents (which ran contrary to disclosure resrictions under BAFIA 1989, the forerunner to the FSA 2013) would be liable to be set-aside:

Now, coming back to the present appeal before us and in answer to the appellant’s grounds of appeal we would say this. If the appellant merely requires the first respondent to testify on what appears on the face of the said documents, then the first respondent may do so without breaching the secrecy provision of s 97(1) of BAFIA. But this is not the case here. Here, the appellant, as stated at p 162 of the appeal record, wanted to examine the first respondent as to who the beneficial owner of 1,646,000 shares in Ipmuda Bhd is and not merely what appears on the face of the Forms 29. They wanted the first respondent to testify on matters beyond what appears on the face of the documents. 
This, in our view, would clearly be in breach of s 97(1) of BAFIA. The appellant’s contention is that s 97(2) permits such evidence to be given. With due respect to the appellant, we must say that their contention is totally misconceived because the testimony so required of the first respondent goes far beyond what appears on the face of the documents, ie Forms 29, in that such testimony would enable information relating to a particular customer of the bank to be ascertained from it. Certainly, both s 97(1) and (2) of BAFIA prohibit this. Section 97(2) only opens the way for the admission of Forms 29 under the writ of subpoena duces tecum. 
Further, we find that the other exceptions to s 97(1) of BAFIA, namely ss 98 and 99 are also not applicable on the facts of the present appeal. In the circumstances, the first respondent is absolutely prohibited from giving oral testimony on matters relating to the accounts of a customer of the bank. We may add that such being the situation, the learned judge does not have any discretionary power to allow disclosure of information if such information is prohibited under s 97(1) of BAFIA. In the absence of such discretionary power on the part of the learned judge, it would be wrong for the appellant to suggest that s 97(1) of BAFIA affords a privilege to information and documents as mentioned in their grounds of appeal.

From the above, it is clear that where disclosure is prohibited by statute, a subpoena will be set-aside.

 

Conclusion

 

One pesky final matter that may arise would be the costs payable to a witness. Does one cover their opportunity costs or just their travel expenses (e.g., a professional witness may claim that a day in Court costs them tens of thousands).

 

O. 38, r. 22 ROC 2012 states, unequivocally, that only the travelling costs need to be satisfied. The bill of costs would be a separate matter. In Lam Hwa Engineering v Yang Qiang [2013] 2 SLR 524, the Singaporean HC considered their O. 38, r. 22 (which is in pari materia with our ROC) and stated: 

[20] Secondly, O 38 r 22 of the Rules is a provision which stipulates the rights of a witness vis-à-vis the litigant who subpoenas him or her to attend court. It is part of O 38 of the Rules, which deals with how evidence is to be led in court in general. I therefore agree with the Respondent that O 38 r 22 is not a provision stipulating who amongst the parties in a courtroom are entitled to claim disbursements. The litigant who subpoenas the witness would be obliged, under O 38 r 22, to compensate the witness’s travel expenses; but the issue of whether the said litigant is entitled to then claim for and recover such expenses in a standard bill of costs is an entirely separate matter not governed by O 38 r 22 of the Rules.

The SGCA affirmed this decision (Lam Hwa v Yang Qiang [2014] 2 SLR 191, see also CGU Workers v Thelma Grace Rees [2003] VSCA 18). 


A subpoena can be a very powerful tool that will aid litigation. However, when used in an unwieldy fashion, it may detract from the core issues at-hand. It may also distract the proceedings and lead to inadmissible evidence being brought in. 


Whilst that evidence may seem beneficial at the first instance, it would be a solid grounds for appeal. The appellate Courts would not be as forgiving and may peg an appeal solely to the HC’s error for considering inadmissible evidence (that was brought-about by a misplaced subpoena). Solicitors would do well to carefully consider the issuance of subpoenas.  


GAVIN JAYAPAL

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