Kuala Lumpur, 27 January 2016
Federal Court Rules in favour of SC to Protect Witness Statements

On 19 January 2016, in a unanimous decision, the Federal Court held that statements recorded by an investigating officer of the Securities Commission Malaysia (SC) in the course of its investigation are protected from disclosure in both civil and criminal proceedings as a matter of public interest.

The Federal Court in overruling the decision of the Court of Appeal held that section 134(4) of the Securities Commission Act must be read subject to the rules of privilege and public policy. In a written decision released by the Federal Court, Justice Tan Sri Ahmad Haji Maarop held that these rules of privilege and public policy apply to civil as well as criminal proceedings.

According to the judgment, disclosure of documents in civil proceedings may be withheld on the ground that such disclosure would be injurious to the public interest. It further held that statements given by individuals to the SC were considered to be communications made to a public officer in official confidence and if the witness statements were ordered to be disclosed, future witnesses would not give information to the SC and this would greatly prejudice the SC’s ability to carry out future investigations into offences under the securities laws.

The decision was made following civil proceedings that the SC commenced at the Kuala Lumpur High Court in 2010 against Datuk Ishak Ismail for alleged breaches of the securities laws. After the initial suit was filed, Datuk Ishak Ismail made an application to the High Court for an order that the SC disclose documents and witness statements pertaining to SC’s investigation against him. The Court of Appeal in affirming the earlier decision of the High Court ruled that statements made by persons to the SC under section 134 of the Securities Commission Act 1993 must be disclosed in civil proceedings. The SC then appealed to the Federal Court against the decision.