Can an accused person get a copy of a witness’s statement recorded during an investigation? For decades, the answer in Malaysia was “no — it’s absolutely privileged.”
The High Court in Vasanta a/l Amarasekera v PP [2022] 9 MLJ 940 ordered the prosecution to hand over the s 112 CPC statement of a witness who had been offered to the defence. Here’s why this decision matters.
A 40-year-old assumption, re-examined
Most of us learned that Husdi v PP [1980] 2 MLJ 80 (Federal Court) settled the point: witness statements to the police during investigation are absolutely privileged. But on a closer reading, the High Court found that the privilege ruling actually came from the High Court stage of
Husdi. The Federal Court only dealt with a narrow impeachment question — it never truly decided whether the statements are privileged.
Why the High Court in Vasanta ordered disclosure
✅ The request came after the defence was called, for a witness the prosecution had offered — the same scenario as Siti Aisyah v PP [2019] 7 CLJ 27, which held such statements are not absolutely privileged.
✅ Parliament never listed police statements among the privileges in the Evidence Act 1950 (compare ss 122, 123, 124 and 126–129).
✅ Under s 51 CPC, production was “necessary and desirable”: the witness was 71 years old, the executor of the disputed will, and a defendant in related civil proceedings.
The catch
The Court was careful to say this creates no automatic right of access. In the judge’s view, that would need Parliament to act. And with another Court of Appeal panel in Dato’ Sri Mohd Najib Razak v PP [2022] 1 MLJ 137 taking the opposite position, the law remains unsettled.
