The Malaysian Bar’s International Malaysia Law Conference (“IMLC”) 2026 takes place from 27 to 30 Oct 2026 at MITEC, Kuala Lumpur.
By Vanessa Yeong Yen Zan, Ng Choo Beng R Naidu & Partners
The morning segment of the first day of the International Malaysia Law Conference (“IMLC”) 2026 on 28 Oct 2026 included a breakout session on a subject of growing practical concern to Members of the Bar, titled “Legal Professional Privilege and Regulatory Authorities: Where is the Line in Modern Legal Practice?”. The session examined the shifting boundary between a client’s right to confidential legal advice and the statutory powers of investigating authorities.
The session was moderated by Babu Raj Raja Gopal, who is the Co-Chairperson of the Bar Council Committee on AMLA and a partner of Kean Chye & Sivalingam. The session also featured speakers from Malaysia, Hong Kong and Singapore.
The first speaker was The Honourable Justice Dato’ Faizah bt Jamaludin, Judge of the Court of Appeal of Malaysia, who opened with a scenario in which officers of the Inland Revenue Board of Malaysia arrived at a law firm and demanded a client’s entire file, while only a pupil in chambers was in the office. If the officers were left to decide which documents were privileged, the privilege would be destroyed the moment they looked at them. Justice Faizah asked how the lawyer should deal with such a demand and stressed that legal professional privilege (“LPP”) is not secrecy for lawyers but a right belonging to the client, and that the line runs through the file, not around the law firm.
Justice Faizah explained that regulatory statutes in Malaysia do not use a single formula. The Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”), the Competition Act 2010 and the Anti-Money Laundering, Anti-Terrorism Financing, Anti-Restricted Activity Financing and Proceeds of Unlawful Activities Act 2001 (“AMLA”) each treat privilege differently and those differences in language matter. The court must therefore construe the exact demand against the exact privilege clause in the governing statute. Justice Faizah noted that this was a live issue in Malaysia, with a pending appeal concerning the privilege provisions of the MACC Act, in which the Malaysian Bar has been allowed to intervene. Justice Faizah also proposed that lawyers ask six questions: (i) who the client was; (ii) whether the lawyer acted in a legal capacity; (iii) whether the purpose was legal advice, litigation or ordinary business; (iv) whether the material was a communication or merely an underlying fact; (v) whether any exclusion or waiver applied; and (vi) whether the governing statute preserved privilege or made an incursion into it. She concluded that the Malaysian answer was exacting rather than categorical, as the line was drawn item by item and before disclosure, because disclosure is irreversible.
The next speaker was Alexander K M Tang, Deputy Honorary Secretary of the Hong Kong Bar Association, who explained that although LPP was not codified in Hong Kong, it was constitutionally protected by article 35 of the Basic Law, which guarantees the right to confidential legal advice. Once regarded as a procedural defence against compulsory disclosure, LPP was now seen as a positive right and any statute seeking to abrogate it had to do so by express words or necessary implication and also had to satisfy a proportionality test. He pointed out that statutory abrogation is extremely rare in Hong Kong, with most regulatory regimes, including those of the Securities and Futures Commission and the Independent Commission Against Corruption, expressly preserving LPP. The only two instances of abrogation concerned the Law Society’s power to compel production from solicitors under investigation and disclosure to the Director of Legal Aid, both of which are narrow and subject to purpose limitations. Otherwise, LPP was generally absolute, save for the crime / fraud exception, which required a strong prima facie case.
The final speaker of the session was Colin Liew, Director and Head of International Litigation, Providence Law Asia, Singapore, who noted that Singapore, like Malaysia, has an Evidence Act based on the Indian Evidence Act. Privilege under that Act was an evidential doctrine designed for the courtroom, yet many regulatory statutes imported it through their savings provisions, even though the common law rule that a statute overrides privilege only by express words or necessary implication was not found in the Act. This, coupled with inconsistent drafting across different statutes, has created considerable uncertainty and he suspected that similar inconsistencies existed in Malaysian legislation. He highlighted a protocol laid down by the Singapore High Court for criminal investigations, under which the lawyer worked with the Attorney-General’s Chambers to identify privileged documents; an independent privilege team was set up to prevent cross-contamination with the investigation team; and the Court was approached only as a last resort. He suggested that this was the kind of protocol on which Malaysia and Singapore might well align.
During the panel discussion, Justice Faizah stated that it would be wrong to speak of regulators infringing privilege, as the exercise was one of balancing the client’s right to privilege against the regulator’s right to investigate. Lawyers therefore had to go through every document, whether physical or stored on the firm’s servers, and there was no shortcut.
On electronic documents, Colin Liew explained that the same tests applied, but the sharper question was whether privilege had been lost. He referred to a Singapore case in which privileged documents had been uploaded to the internet, where the Court of Appeal held that confidentiality was not lost, as the documents had not been meaningfully accessed and could not reasonably be found without knowing where to look.
*This article reports on Breakout Session 1, Stream B: Legal Profession and Professional Practice.