06 - Regulatory investigations
Can governmental regulators require a privileged document to be provided to them?

Aside from the observations of the Singapore High Court regarding documents lawfully seized by the police, the issue of whether governmental regulators can require a privileged document to be provided to them is unclear in Singapore. The Evidence Act is silent on the applicability of legal professional privilege outside the context of judicial proceedings, especially in the context of search and seizure by police and other regulatory authorities in the course of their investigations.

In July 2017, the Ministry of Law issued a public consultation on several proposed amendments to the Evidence Act and the Criminal Procedure Code, including amendments to clarify whether legal professional privilege can be asserted in the context of search and seizure by police and other regulatory authorities in the course of their investigations, and in cases where orders for production are issued under any written law. However, these amendments were not implemented in the final bill passed in March 2018. The Ministry of Law had announced that this issue would be dealt with by a Code of Practice agreed upon among the Attorney-General's Chambers, law enforcement agencies and the Criminal Bar to deal with legal professional privilege issues in criminal investigations.

However, it appears that this may have been superseded in light of the observations of the Singapore High Court regarding how potentially privileged materials seized by the police should be dealt with. It remains to be seen whether the Ministry of Law would consider it necessary to issue a further Code of Practice which may further clarify the Court's observations.

The specific legislation relevant to the investigations may, however, expressly deal with privilege. There are examples of legislation in Singapore that, while conferring coercive information-gathering powers on the relevant regulatory authorities, expressly provide that persons under statutory obligations to observe secrecy (such as advocates and solicitors) are not obliged to disclose such communications.

For instance, legal privilege is recognized under the Singapore Competition Act, and the regulatory body's investigative powers are curtailed so that privileged communications cannot be seized and need not be produced.

Communications with in-house lawyers and lawyers in private practice, including foreign lawyers, can benefit from the privilege. However, the Competition and Consumer Commission of Singapore is still given the power to require the details of the relevant persons to whom or by whom the communications were made to be given to the Commission to ascertain if the communications are indeed privileged.

Similarly, under the Singapore Companies Act, where the Minister directs that a company be investigated, an advocate and solicitor cannot be compelled to disclose any privileged communication.