Mah Kiat Seng v Attorney-General: Discovery, Evidence Act s 126, Public Interest Immunity
In Mah Kiat Seng v Attorney-General, the General Division of the High Court of Singapore addressed the Plaintiff's appeal for discovery of CCTV and body-worn camera (BWC) footage related to his arrest and detention. The Attorney-General (AG) initially claimed absolute protection under Section 126 of the Evidence Act, then invoked public interest immunity. The court, with amicus curiae assistance, ruled that common law public interest immunity exists in Singapore, requiring a balancing test. The court allowed inspection of CCTV footage but upheld restrictions on BWC footage due to Section 126. The Plaintiff's claim included wrongful arrest and false imprisonment.
1. Case Overview
1.1 Court
General Division of the High Court of the Republic of Singapore1.2 Outcome
Appeal dismissed in part. Inspection of CCTV footage ordered, subject to court's control. Section 126 of the Evidence Act applies to BWC footage.
1.3 Case Type
Civil
1.4 Judgment Type
Judgment
1.5 Jurisdiction
Singapore
1.6 Description
Singapore court case regarding discovery of CCTV and body-worn camera footage. The court balanced public interest immunity with the administration of justice.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Mah Kiat Seng | Plaintiff, Appellant | Individual | Appeal dismissed in part | Partial | |
| Attorney-General | Defendant, Respondent | Government Agency | Partial victory | Partial | Joel Chen Zhi’en, Beulah Li Sile, Timothy Ashby Straughan |
| Mohamed Rosli bin Mohamed | Defendant | Individual | Neutral | Neutral | Joel Chen Zhi’en, Beulah Li Sile, Timothy Ashby Straughan |
| Tan Thiam Chin Lawrence | Defendant | Individual | Neutral | Neutral | Joel Chen Zhi’en, Beulah Li Sile, Timothy Ashby Straughan |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| Philip Jeyaretnam | Judicial Commissioner | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Joel Chen Zhi’en | Attorney-General’s Chambers |
| Beulah Li Sile | Attorney-General’s Chambers |
| Timothy Ashby Straughan | Attorney-General’s Chambers |
| Zeslene Mao Huijing | Allen & Gledhill LLP |
4. Facts
- Mr. Mah was taken into custody on 7 July 2017 under s 7 of the Mental Health (Care and Treatment) Act.
- The second defendant, a police officer, formed the view that Mr. Mah was mentally disordered and posed a danger.
- Mr. Mah claims he was wrongfully arrested, falsely imprisoned, and subjected to assault.
- Mr. Mah sought discovery of CCTV and body-worn camera recordings.
- The Attorney-General initially claimed absolute protection under s 126 of the Evidence Act.
- The Attorney-General later invoked public interest immunity for the footage.
- The AG agreed to permit inspection of the footage at the Police Cantonment Complex, but not the taking of copies.
5. Formal Citations
- Mah Kiat Seng v Attorney-General and others, Suit No 256 of 2020 (Registrar’s Appeal No 34 of 2021), [2021] SGHC 202
6. Timeline
| Date | Event |
|---|---|
| Mr. Mah taken into custody under s 7 of the Mental Health (Care and Treatment) Act. | |
| Court of Appeal granted leave to Mr. Mah to commence action under s 25 of the MHCTA. | |
| First affidavit of Seah Kah Weng Daniel filed. | |
| Hearing date. | |
| Resumed hearing date; Second affidavit of Seah Kah Weng Daniel filed. | |
| Mr. Mah given liberty to respond to additional authorities raised by the AG. | |
| Judgment reserved. |
7. Legal Issues
- Discovery of Documents
- Outcome: The court ordered inspection of CCTV footage but upheld restrictions on BWC footage based on s 126 of the Evidence Act and public interest immunity.
- Category: Procedural
- Sub-Issues:
- Access to CCTV footage
- Access to body-worn camera footage
- Public interest immunity
- Public Interest Immunity
- Outcome: The court held that common law public interest immunity is part of Singapore law and requires a balancing test. The court must weigh the public interest in the administration of justice against the public interest in withholding disclosure.
- Category: Substantive
- Sub-Issues:
- Balancing public interest in disclosure versus non-disclosure
- Application of common law public interest immunity
- Protection of informants
- Security risks
- Interpretation of Evidence Act Section 126
- Outcome: The court held that s 126 applies to communications made to a public officer in official confidence. The court is bound by the public officer's determination that disclosure would harm the public interest, absent bad faith or unreasonableness.
- Category: Substantive
- Sub-Issues:
- Definition of 'communications' under s 126
- Applicability of s 126 to video recordings
- Conclusiveness of public officer's determination
8. Remedies Sought
- Damages for wrongful arrest
- Damages for false imprisonment
- Damages for assault
- Damages for negligence
9. Cause of Actions
- Wrongful Arrest
- False Imprisonment
- Assault
- Negligence
10. Practice Areas
- Litigation
- Civil Litigation
11. Industries
- Government
- Law Enforcement
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Zainal bin Kuning and others v Chan Sin Mian Michael and another | Court of Appeal | Yes | [1996] 2 SLR(R) 858 | Singapore | Cited to support the argument that the public officer's determination that the public interest would suffer by disclosure is conclusive pursuant to s 126 of the EA. |
| BSD v Attorney-General and other matters | High Court | Yes | [2019] SGHC 118 | Singapore | Cited for the obiter remark that common law public interest immunity does not apply in Singapore; the current judgment disagrees with this view. |
| Duncan and another v Cammell, Laird and Company Limited | House of Lords | Yes | [1942] 1 AC 624 | England | Cited for its historical summary of Crown privilege and the principle that documents must not be produced if the public interest requires they be withheld; later departed from in Conway v Rimmer. |
| Conway v Rimmer and another | House of Lords | Yes | [1968] 1 AC 910 | England | Cited for departing from the holding in Duncan and holding that the court is to balance the public interests involved in deciding whether discovery will be ordered. |
| Rogers v Home Secretary | House of Lords | Yes | [1973] 1 AC 388 | England | Cited for the explanation that the claim that documents ought not to be disclosed in the public interest was not a privilege as it did not operate to favor any party. |
| Al Rawi and others v Security Service and others (JUSTICE and others intervening) | UK Supreme Court | Yes | [2012] 1 AC 531 | England | Cited for summarizing the current state of the law in England on the doctrine of public interest immunity. |
| Deepak Sharma v Law Society of Singapore | Court of Appeal | Yes | [2017] 2 SLR 672 | Singapore | Cited for tracing the legislative history of the GPA in Singapore. |
| Re Fong Thin Choo | N/A | Yes | [1991] 1 SLR(R) 774 | Singapore | Cited for the proposition that the Malaysian Government Proceedings Ordinance 1956 derived from the CPA 1947. |
| JD Ltd v Comptroller of Income Tax | N/A | Yes | [2006] 1 SLR 484 | Singapore | Cited for the principle of statutory interpretation that Parliament shuns tautology and does not legislate in vain. |
| Tan Cheng Bock v Attorney-General | N/A | Yes | [2017] 2 SLR 850 | Singapore | Cited for the principle of statutory interpretation that Parliament shuns tautology and does not legislate in vain. |
| Law Society of Singapore v Tan Guat Neo Phyllis | N/A | Yes | [2008] 2 SLR(R) 239 | Singapore | Cited for the proposition that common law rules of evidence continue to apply so long as they are not inconsistent with the EA. |
| Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacific Breweries (Singapore) Pte Ltd and other appeals | Court of Appeal | Yes | [2007] 2 SLR(R) 367 | Singapore | Cited for holding that the concept of litigation privilege, which existed by virtue of the common law, was not inconsistent with the provisions of the EA. |
| Mariwu Industrial Co (S) Pte Ltd v Dextra Asia Co Ltd and another | Court of Appeal | Yes | [2006] 4 SLR(R) 807 | Singapore | Cited for holding that as the rationale of the “without prejudice” privilege found in s 23 of the EA is to encourage settlements, it was not inconsistent to recognise the common law rule that prevented “without prejudice” communications being adduced in civil proceedings involving third parties. |
| ARX v Comptroller of Income Tax | Court of Appeal | Yes | [2016] 5 SLR 590 | Singapore | Cited for holding that a common law rule relating to the privilege conferred upon advice proffered by in-house counsel is not inconsistent with any of the provisions of the EA. |
| ARW v Comptroller of Income Tax and another and another appeal | Court of Appeal | Yes | [2019] 1 SLR 499 | Singapore | Cited for supporting the view that the common law doctrine of public interest immunity continues to exist and that the AG retained a common law right to object to disclosure of information by public officers on the ground of “public interest privilege”. |
| D v National Society for the Prevention of Cruelty to Children | House of Lords | Yes | [1978] 1 AC 171 | England | Cited for the rationale of the rule as it applies to police informers and the public interest in preserving their anonymity. |
| R v Rankine | English Court of Appeal | Yes | [1986] 1 QB 861 | England | Cited for holding that the rule protecting the identity of informers similarly supported a rule protecting the location of premises used for surveillance. |
| R v John Allan Robertson | N/A | Yes | [2009] NZCA 154 | New Zealand | Cited as an example of a common law jurisdiction recognizing the public interest in protecting informants and surveillance premises. |
| Iser v Canada (Attorney-General) | N/A | Yes | [2017] BCJ No 2316 | Canada | Cited as an example of a common law jurisdiction recognizing the public interest in protecting informants and surveillance premises. |
| Director of Public Prosecutions v Mustafa Zogheib (Ruling No 2) | Supreme Court of Victoria | Yes | [2014] VSC 550 | Australia | Cited for considering whether to allow public interest immunity under s 130 of the Evidence Act 2008 (Vic) in respect of CCTV footage. |
| Director of Public Prosecutions v Mustafa Zogheib (Ruling No 3) | Supreme Court of Victoria | Yes | [2014] VSC 559 | Australia | Cited for reversing the earlier decision in Mustafa Zogheib (Ruling No 2) and holding that the CCTV footage added something significant to the question of the accused’s guilt, tipping the balance in favor of disclosure. |
| Cheung v Commissioner of Police | N/A | Yes | [2019] NSWCATAD 249 | New South Wales | Cited for considering the relationship between the NSW SDA and the GIPA in the context of an application for access to body-worn camera footage. |
| Kunjanam Antony C. Kalliath v State of Kerala | N/A | Yes | AIR 1964 Ker 274 | India | Cited for a dictum in an Indian case concerning the equivalent of s 126 in the Indian Evidence Act, regarding communications made under process of law. |
| Suruhanjaya Sekuriti v Datuk Ishak bin Ismail | Federal Court | Yes | [2016] 1 MLJ 733 | Malaysia | Cited for the interpretation of the Malaysian equivalent of EA s 126, stating that communications treated as confidential and made to a public officer are within the ambit of the section. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Evidence Act (Cap 97, 1997 Rev Ed) s 126 | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) s 2(2) | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) s 125 | Singapore |
| Evidence Act (Cap 97, 1997 Rev Ed) s 127 | Singapore |
| Government Proceedings Act (Cap 121, 1985 Rev Ed) s 34(1) | Singapore |
| Government Proceedings Act (Cap 121, 1985 Rev Ed) s 19(3) | Singapore |
| Mental Health (Care and Treatment) Act (Cap 178A, 2012 Rev Ed) s 7 | Singapore |
| Mental Health (Care and Treatment) Act (Cap 178A, 2012 Rev Ed) s 25 | Singapore |
| Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 8 | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 14 | Singapore |
| Evidence Act 1995 (Cth) (No 2) (Aust) s 130 | Australia |
| Surveillance Devices Act 2007 (No 64) (NSW) s 39(d) | New South Wales |
| Surveillance Devices Act 2007 (No 64) (NSW) ss 40(4) and 40(4A) | New South Wales |
| Government Information (Public Access) Act 2009 (No 52) (NSW) s 5 | New South Wales |
| Government Information (Public Access) Act 2009 (No 52) (NSW) s 13 | New South Wales |
| Government Information (Public Access) Act 2009 (No 52) (NSW) s 14 | New South Wales |
15. Key Terms and Keywords
15.1 Key Terms
- Public interest immunity
- Discovery
- Evidence Act
- Body-worn camera
- Closed-circuit television
- Official confidence
- Affairs of State
- Balancing test
- Government Proceedings Act
- Mental Health (Care and Treatment) Act
15.2 Keywords
- Public interest immunity
- Discovery
- Evidence Act
- CCTV
- Body-worn camera
- Singapore
- Attorney-General
- Police
- Footage
- Disclosure
16. Subjects
- Evidence
- Civil Procedure
- Public Interest
- Discovery
17. Areas of Law
- Civil Procedure
- Evidence Law
- Public Interest Immunity
- Discovery of Documents