DISCOVERY OF DOCUMENTS AND PUBLIC INTEREST IMMUNITY
In the recent High Court decision of Mah Kiat Seng v Attorney General Chambers & 2 Ors [2021] SGC 202 (“Mah Kiat Seng”), the High Court dealt with the issue of whether video recordings that were made by and belong to the government could be withheld from discovery and production.
Brief background. In brief, the plaintiff, Mr. Mah Kiat Seng (“Mr Mah”), claimed that he was wrongfully arrested and falsely imprisoned and was subjected to assault ([7] Mah Kiat Seng). He sought discovery of various recordings made by closed-circuit television cameras (“CCTV”) and body-worn cameras (“BWC”) ([9] Mah Kiat Seng).
The Attorney-General (“AG”), representing the Singapore Police Force, initially argued that both the CCTV and BWC recordings were absolutely protected from disclosure by virtue of s 126 of the Evidence Act (Cap.. 97, 1997 Rev. Ed), which provides as follows ([6], [10] Mah Kiat Seng):
“Official communication
126.—(1) No public officer shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure.
(2) No person who is a member, an officer or an employee of, or who is seconded to, any organisation specified in the Schedule to the Official Secrets Act (Cap. 213) shall be compelled to disclose communications made to him in official confidence when he considers that the public interest would suffer by the disclosure.”
Nonetheless, the AG had agreed to permit inspection with restrictions, and had also confirmed that at any trial, it would make the footage available for admission into evidence by viewing in camera ([11] Mah Kiat Seng).
The assistant registrar agreed with the AG’s submissions, and it suffices to say that Mr. Mah was not allowed to take copies of the recordings and the identity of the complainants were “pixellated” ([12] Mah Kiat Seng). Dissatisfied, Mr. Mah appealed, seeking to have copies of both the CCTV and BWC recordings without any pixellation ([13] Mah Kiat Seng).
The AG’s position on appeal. On appeal, the AG’s position had shifted. The AG accepted that while the CCTV and BWC footages were not in and of themselves “communications” within s 126 Evidence Act, where they recorded communications, those parts of the footages would fall within s 126 Evidence Act. In addition, the AG also submitted that where s 126 Evidence Act does not apply, the government was entitled to rely on public interest immunity ([16] Mah Kiat Seng).
The High Court’s decision. After considering the history of the doctrine of public interest immunity ([24] – [30] Mah Kiat Seng), the High Court found that this doctrine should be characterized as a “rule of evidence” and is not inconsistent with the Evidence Act ([31] – [63] Mah Kiat Seng).
The High Court then found that the test that to be applied “need not differ in structure from the balancing test currently adopted in England” ([80] Mah Kiat Seng). In general, the High Court had summarized the position in England at [24] – [30] and [65] – [71] Mah Kiat Seng, and some key points to note are that:
The test is a balancing test that balances whether public interest in the administration of justice is outweighed by the public interest sought to be protected by withholding disclosure ([65] Mah Kiat Seng);
It is important to note that the court will consider what safeguards should be imposed to permit disclosure, and that even when a complete document cannot be disclosed, it may be possible to produce extracts or to summarise the relevant effect of the document ([30] Mah Kiat Seng);
A distinction is to be drawn between civil and criminal proceedings ([65] – [69] Mah Kiat Seng); and
In general, “information relating to sources and informants and information leading to the detection of crime” are subject to public interest immunity ([70] – [71] Mah Kiat Seng).
The High Court further held that there are no special policy reasons why law enforcement body camera footage and stationary law enforcement footage should, as a class, be withheld from disclosure ([81] Mah Kiat Seng): whether disclosure is to be permitted should be determined on a “case-by-case” basis upon consideration of the relevant facts ([82] Mah Kiat Seng).
In deciding the claim for public interest immunity, the court has the power to view the document or information in question ([83] – [85] Mah Kiat Seng), and the court is entitled to consider as part of the balancing exercise whether the risks to the public interest that disclosure may bring can be dealt with through the use of appropriate safeguards as such redaction or holding proceedings in camera ([86] Mah Kiat Seng).
Application to the facts. On the facts of the case, the High Court held that s 126 Evidence Act applies to the BWC footage, which records a communication to a public officer made by the complainant ([91] – [96]): the footage was made by the complainant face-to-face to the police officer who took Mr. Mah into custody, and it was made in the vicinity of the alleged incident and took place shortly after the complainant’s report to the Singapore Police Force via the Singapore Police Force’s emergency call line ([94] Mah Kiat Seng). Hence, the High Court upheld the decision below for inspection, which was limited to the terms of the limited waiver given by the AG to s 126 Evidence Act ([95] – [96] Mah Kiat Seng).
As for the CCTV footage, as the AG was prepared to waive s 126 subject to appropriate safeguards ([97] Mah Kiat Seng), the High Court focused on the issue of what safeguards should be adopted: the order was made for inspection to be given to Mr. Mah subject to safeguards such as, e.g., that Mr. Mah is not to be restricted to a single occasion for viewing the footage, and that liberty to apply is granted.
Conclusion. Mah Kiat Seng sheds light on a rarely touched upon aspect of evidence law. For this reason alone, it warrants careful reading. It is also an interesting illustration of how the law develops: while video recordings is unlikely something to have been envisaged by the original drafters of the Indian Evidence Act or the Evidence Ordinance as noted by the High Court in the starting passages of Mah Kiat Seng, the law can develop and does develop over time to cope with various advances in society, as can be seen from the developments in law traced by the High Court in the decision itself.
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