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Section 90A Evidence Act 1950 of Malaysia: A Time for Review

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 Section 90A Evidence Act 1950 of Malaysia: A
Time for Review
Author: Gita Radhakrishna Proceedings at the 5th. Annual International Conference on Law Regulation and Public Policy
Faculty of Law 30 - 31 May 2016, Hotel Fort Canning Singapore
Multimedia University (MMU)
Melaka, Malaysia
gita@mmu.edu.my

Abstract— This paper examines the issues and challenges on the However amendments in 2012, 2 repealed the above
admissibility of ‘documents produced by a computer’ as definition to align it with the Malaysian Computer Crimes Act
provided in section 90A of Malaysia’s Evidence Act 1950 in the 1997 (CCA) which defines a ‘computer’ in terms of an
context of current technological developments and approaches electronic, magnetic, optical, electrochemical, or other data
taken in Singapore and England. processing device, or a group of such interconnected or related
devices, performing logical, arithmetic or storage functions,
Keywords- ‘documents produced by a computer’, admissibility, including a communications facility.
issues.
Though the key features in both definitions refer to the same
I. INTRODUCTION core functions of data storage, processing, recording and
retrieving tasks, the definition in the CCA1997 is wider, more
The Malaysian Evidence Act 1950 (EA1950) was amended technically specific and explicitly includes communication
in 1993 to facilitate the admission of computer generated facilities as opposed to only a recording of a communication.
evidence based on the prevalent belief that the unique nature of The amendment has brought necessary consistency to the
computer evidence necessitated special treatment under the law statutory definition of the term ‘computer’. Incidentally this
of evidence. The relevant provisions, sections 90A, 90B and was also the definition that was previously adopted in
90C EA1950 were based on the English section 5 Civil Singapore’s Evidence Act 8/1996 until amendments in 2012,3
Evidence Act 1968 (CEA1968). Section 90A with seven which repealed the terms ‘computer’ and ‘computer output in
subsections, is the principal section governing the admissibility favour of a more neutral term ‘electronic record’. The English
and proof of documents produced by a computer. Section 90B section 13 Civil evidence Act 1995 completely ceased the use
contains guidelines on the probative value to be attached to the of any technical terms and instead defined ‘document’ in the
evidence, while section 90C, stipulates that the provisions of widest possible terms such as to include the electronic media.4
sections 90A and 90B shall prevail over any contradictions in As for the question of admissibility, section 5 EA1950 provides
any other statutes. For over two decades these have not seen the general principle that evidence relating to facts in issue may
any major amendments. Before proceeding to review the be given so long as they are declared to be relevant.
specific provisions of section 90A EA1950 certain preliminary
definitions will be dealt with for completeness. A survey of Malaysian cases on ‘documents produced by a
computer’ shows that, ten issues have surfaced over the years
namely: (i) What constitutes a ‘computer’? (ii) when is a
II. DEFINITIONS
document ‘produced’ by a computer – is there a difference
First, section 3 EA1950 defines ‘evidence’ to include both between documents produced with and without human
oral and documentary statements of facts related to the issue intervention? (iii) hearsay and computer documents (iv)
under inquiry. Secondly, ‘documents’ is defined in the widest admissibility and authenticity; (v) what amounts to ‘course of
possible terms to include any manner of expression in any ordinary of use’? (vi) is a certificate mandatory? (vii) who
material or media including any matter recorded, stored, should attest the certificate?; (viii) what should be the contents
processed, retrieved or produced by a computer. The term of the certificate?; (ix) challenging the certificate and (x) what
‘computer’ was originally defined in section 3 EA1950 is the purpose of section 90A(6)? The provisions and issues
primarily as any device for performing the functions of pertaining to section 90A will now be considered in
recording, storing, processing, retrieving or producing any chronological sequence.
information.1
2
Evidence (Amendment) (No. 2) Act 2012.
1
Section 3 ‘computer’ Evidence (Amendment) Act 3
The Singapore Evidence (Amendment) Act 2012.
1993(Act A851). Further reading see: Gita Radhakrishna, <http://statutes.agc.gov.sg/aol/search/display/view>
Myint Zan and Dennis Khong Wye Keen, ‘Computer accessed 5 March 2016.
Evidence in Malaysia: Where are We?’[2013]3 Malayan 4
Section 13 Civil evidence Act 1995 <
Law Journal xxxiii. <http://www.legislation.gov.uk/ukpga/1995/38/contents>
accessed 5 March 2016.
 III Section 90A(1) Evidence Act 1950 in England and Wales,9 or ‘electronic’ as in Singapore,10 as the
term ‘computer’ is no longer an accurate description.
Section 90A(1) relaxes the direct evidence rule or rule
against hearsay as provided in section 60 EA1950 by expressly
permitting documents produced by a computer to be admitted
albeit with the proviso that it should be produced by the B. When is a document ‘produced’ by a computer?
computer ‘ in the course of its ordinary use’. In practice In Approfit Sdn. Bhd. v Kent Sing Construction Sdn. Bhd. &
computer generated documents are mostly confined to Ors.,11in determining whether an automated cashier’s receipt
computer printouts and rarely to documents in their ‘native’ was a document ‘produced’ by a Justice Richard Malanjum,
format i.e. in the format created by the authoring application, opined that only certain categories of documents where there is
like DOC or XLS with the metadata intact. 5 The main no human intervention such as bank statements as in
elements in the subsection are: Gnansegaran a/l Pararajasingam v PP, 12 were captured by
(i) document produced by a computer; section 90A.

(ii) or statement contained in such document; This followed the initial English common law approach
which distinguished between computer generated evidence that
(iii) shall be admissible as evidence of any fact stated therein was produced with and without human intervention. Where the
data input and output was the result of human intervention it
(iv) in the course of its ordinary use
would be inadmissible hearsay unless it qualified under any of
(v) whether or not the person tendering it is the maker. the hearsay exceptions. However it could be admitted as real
evidence but not for its truth unless properly proved as seen in
Once the above elements are satisfied the document shall be cases such as the Statute of Liberty, 13 Wood (Stanley
admitted as evidence of the facts stated therein i.e. as primary William),14 and Camden London Borough Council v. Hobson.15
evidence. The expression ‘shall’ denotes a mandatory as Where the data is processed by a computer software
opposed to a permissive direction. 6 As an exception to the programme then it was a document ‘produced’ by a
hearsay rule it does not require the testimony of the maker of computer.16
the document.
Printouts of digital photographs from a digital camera were
A. What qualifies as a Computer? accepted as ‘documents produced by a computer' in Bank
Pembangunan Malaysia Bhd v. Sasacom Sdn Bhd & Another
In PP v Hanafi Mat Hassan,7 an automated bus ticketing
Case,17
machine, a thermalcycler and a DNA analyser were found to be
‘devices for recording, storing, and producing information’ However in Avnet Azure Sdn Bhd v Eact Technologies Sdn
within the ambit of the definition of ‘computer’ in section 3 Bhd and Sapura Research Sdn Bhd.,18 the High Court rejected
EA1950. Where more than one computer was involved in its an email as a document ‘produced’ by a computer. ‘Produced’
production these were recognised and treated as a single by a computer, referred to input of data which would be
computer under section 3 EA1950. recorded, stored, analysed or processed through some software
programme as ‘computer output’. A computer was not just a
In the light of the continuous advancement in technology
device to receive messages sent by others. The recipient
providing multiple connected devices with seamless
computer would not have ‘produced’ the email message. 19
interoperability capabilities and the arrival of the ‘internet of
things’, 8 a more neutral expression such as ‘electronic’ is
advocated to reflect the changing trends. There is infact a
discernible trend to migrate from ‘computer’ specific 9
Section 13 Civil Evidence Act 1995
terminology to a more neutral expression such as ‘documents’ 10
Evidence (Amendment) Act 2012
<http://www.parliament.gov.sg/sites/default/files/Evidence
5
Christine Musil, ‘The Reality of Native Format, Production %20(Amendment)%20Bill%202-12.pdf> Accessed on 10
and Redaction’, EDRM White Paper Series 26 August 2010. March 2016.
11
<http://www.edrm.net/resources/edrm-white-paper- [2001]1 LNS 3.
12
series/the-reality-of-native-format> accessed on 9 Sept. [1997] 3 MLJ 1 CA.
13
2014. [1968]2 AER 195.
6 14
See Gnansegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, [1983] 76 Cr App R 23.
CA for the explanation on the terms ‘may’ and ‘shall’. 15
The Independent, 28 January, 1992, 24 (Clerkenwell
7
[2006] 3 CLJ 269. Magistrate's Court).
8 16
Internet of Things Global Standards Initiative: Mariette Peters, Law of Evidence in Malaysia (LexisNexis
Recommendation ITU-T Y.2060 (06/2012) defines Malaysia Sdn. Bhd. 2013) 195.
17
The Internet of Things (IoT) as a global infrastructure for [2011] 10 CLJ 51.
18
the information society, enabling advanced services by KL HC Com. Div. D-22NCC439-2011
interconnecting (physical and virtual) things based on < kl.kehakiman.gov.my/.../D-22NCC-4392011> accessed 5
existing and evolving interoperable information and March 2016.
19
communication technologies.< http://www.itu.int/en/ITU- Avnet Azure Sdn Bhd v Eact Technologies Sdn Bhd and
T/gsi/iot/Pages/default.aspx> accessed on 15 Sept. 2015. Sapura Research Sdn Bhd. KL HC Com. Div. D-
Regrettably no reference was made to the definition of authenticity of evidence, something which is not always
‘computer’ and ‘document’ in section 3 EA1950 and in section appreciated.
2 CCA1997 which specifically includes a communication
device, rendering such argument fallacious. Further section III. SECTION 90A (2): PROOF OF ‘ORDINARY USE’
90A (5) discussed below explicitly deems a document to have
been ‘produced’ by a computer whether or not there was any Although section 90A EA1950 does not explain what
‘direct or indirect human intervention’. The Court was instead amounts to ‘ordinary use’ section 90A(2) provides that this
referred to the then Singapore provision section 35(1) EA may be proved by a certificate from someone responsible for
8/1996 that ‘computer output is admissible in court as primary the management or conduct of activities on that computer that
evidence …’ Nevertheless, the court was of the opinion that the the document was produced in the ‘ordinary use’ of the
two expressions ‘computer output’ and ‘produced by a computer. It is for the declarant to describe what amounts to
computer’ were not in pari materia. Unfortunately, no ‘ordinary use’ in a given case Once this is satisfied, the
reference was made to the clarification provided in section 2 subsection provides a rebuttable presumption of fact that a
CCA1997 that a ‘document produced by a computer’ includes document was produced by a computer ‘in the course of its
‘computer output’. Be that as it may, the issue would not have ordinary use’. Contrary to the rule against hearsay, the
risen had there been consistency in the language of the statutes. provision does not require certification by the maker of the
For this and other reasons the email was held to be document. The phrase, ‘person responsible for….’ is
inadmissible and the certificate tendered under section ambiguous. Further, no standard format for the content of the
90A(2)EA 1950 was rejected. certificate has been provided leading to differences in content.
B. ‘Shall be admissible’ In PP v Ong Cheng Heong,22 two computer printouts from
Next, the document “shall be admissible as evidence of any the registration department for vehicles were rejected by the
fact stated therein….” This would imply that no further proof is High Court as the witness did not claim any responsibility “for
required and the burden of disproving its authenticity would the conduct of the activities of the computer’.
fall on the party challenging it. According to Hamid Sultan
JCA, 20 once the evidence is admitted it does not automatically Thus the issue of reliability of the document has to be
follow that the Court must be convinced of its integrity. Its addressed through the reliability of the system that produced it
probative value is for the Court to assess, as per the guidelines
which could be proved by either the contents of the certificate
provided in Section 90B EA1950.
or the oral testimony of a witness. Vincent Ng J opined that if
In Hanafi, the Court of Appeal explained that what was a certificate was tendered the opposing party should be
relevant for the prosecution was not that the document was entitled to cross-examine the certifier if it so desired. 23 This is
‘produced’ by the computer, but the statements contained in it. infact possible if the parties avail themselves of the procedural
Section 90A required proof of the correct working condition of rules that facilitate this. The questioned document itself could
the computers that produced the results as opposed to the be admitted with its probative value to be assessed by the
computer that merely recorded it. Although the prosecution did Judge.
not lead evidence on this, the cross-examination of witness
PW11 was sufficient to establish this issue. PW11 explained
the maintenance of the DNA analyser and the thermalcycler A. Is a Certificate mandatory?
ensuring their good working order, the method of sample This issue has generated a great deal of argument. The Court
analysis to avoid errors, and that the machines were also of Appeal in Gnanasegaran Pararajasingam v PP,24 went to
programmed for self-testing to ensure optimal operational great lengths to examine and clarify the provisions of section
efficiency. The requirements of section 90A(1) were thereby 90A EA1950. Shaik Daud Ismail JCA clarified that under
satisfied.
section 90(A)(1) there were two ways of proving ‘in the
In Microsoft Corporation v Conquest Computer Centre Sdn course of its ordinary use’ in order to admit ‘documents
Bhd.,21 a copyright infringement case, the defendant tendered produced by a computer’ into evidence:
certain Internet print-outs in reliance of its contention that it
had been given a 'trial version' of the software for free use over (i) it may be proved by the production of the
a period of time and submitted a certificate under section 90A certificate. This is permissive and not mandatory.
(2). Although the Court admitted the Internet printouts it found or
no evidence of the defendants’ contention of ‘right to free use’
indicating that the ‘weight’ is for the judge to assess. A (ii) by calling the maker of the document which is the
distinction was correctly drawn between the admissibility and usual method to admit and prove any form of
documentary evidence.
22NCC439-2011< kl.kehakiman.gov.my/.../D-22NCC-
4392011> accessed 5 March 2016.
20 22
Hamid Sultan bin Abu Backer, The Law of Evidence (Janab [1998] 6 MLJ 678.
(M) sdn. Bhd.4th. ed. 2014) 77. 23
Ibid.
21 24
[2014] 6 CLJ 876. [1997] 4CLJ 6.
 Therefore, a certificate is not required in every case. Infact witness was held admissible for lack of challenge at the
Mahadev Shankar JCA, clarified that section 90A was enacted material time.
‘to bring the "best evidence rule" up to date with the realities
of the electronic age’. Thus when a certificate is tendered the
C. Contents of the Certificate or Oral Testimony
maker of the certificate need not be called to testify, contrary
to the views of Vincent Ng J in PP v Ong Cheng Heong. The lack of clarity in the content requirement of the certificate
Further the certificate activates a presumption under section or oral testimony is reflected in a series of inconsistent
90A(4) that the computer referred to in the certificate was in judgments related to various electronic devices. The general
good working order and was operating properly in all respects rule as established in Ahmad Najib bin Aris has been that
throughout the material part of the period during which the ‘computer’ generated evidence can be adduced either by way
document was produced. 25 Likewise where oral evidence is of a certificate establishing the ‘course of ordinary use’ and
adduced the deeming provision in section 90A(6) is invoked to proper functioning of the device or alternatively through direct
deem the document to have been produced by a computer in oral evidence testifying to the same requirements. On a failure
the ‘course of its ordinary use’. to fulfil either criteria, the CCTV recordings were held
inadmissible.
In Ahmad Najib bin Aris v PP, 26 though no certificate was
tendered, a chemist report and a CCTV recording were both Nevertheless in the subsequent CCTV cases the reasons for
acknowledged to have been produced by a computer. The rejecting the evidence were not clear. In PP v Mohd Abdul
Federal Court endorsed Gnanasegaran and Hanafi that there Aziz Bin Ibrahim,33 the CCTV recordings capturing a fight in a
were two ways of tendering documents produced by a restaurant were held inadmissible despite detailed testimony
computer under section 90A(1). The chemist report was from the Investigating Officer (IO), the technician who had
admitted on the basis of detailed oral testimony on the course installed the CCTV at the premises and a Police forensics
of its ordinary use and maintenance thereby satisfying sections analyst pertaining to the viewing, and technical aspects of the
90A(3) and (4). However, the CCTV recordings were rejected installation of the cameras, downloading of the recordings into
as there was neither a certificate nor oral testimony on its a CD and the analysis of the recordings. The High Court
working. further rejected the deeming provision in section 90A(6) to
deem that the cameras were operating in the course of their
Contrarily in Bespile Sdn Bhd (in liquidation) v Asianshine ordinary use and were functioning well.
Sdn Bhd.,27 in the absence of a certificate or oral testimony on
the ‘ordinary course of use’ of the computer, the court took Contrarily, in Mohd Khayry bin Ismail v Public Prosecutor, 34
judicial notice under section 57 EA1957 of the fact that ‘bank in the absence of a certificate or requisite oral evidence,
statements in this era of computers and information Hamid Sultan Bin Abu Backer, JCA following the English
technology are invariably produced by computers’. 28 case of R v Maqsud Ali,35 found that the CCTV recordings
could be admitted under the 'res gestae' principle. He opined
B. When should the Certificate Be Tendered? that it would be wrong for the Court to deny the law the
advantages of advances in technology. What was important to
In Standard Chartered v Mukah Singh,29 the High Court held establish was the relevance and accuracy of the recordings.
that unless the admissibility of the documents were challenged
at the time of tendering, it was not necessary to produce the However in another 2014 case, PP v Lim Kang Wee,36 in the
certificate under section 90A(2) EA. 30 This was confirmed by absence of either a certificate or oral evidence on the proper
the Court of Appeal in Chua Boon Hong v PP.31 Similarly, in functioning of the CCTV the High Court ruled the CCTV
Schmidt Scientific Sdn Bhd v Ong Han Suan, 32 a certificate recordings inadmissible.
relating to computer-produced documents contained in a
party’s bundle of documents tendered subsequently through a As for call logs from a mobile phone, PP v Azilah Hadri &
Anor., 37 admitted this, based on the detailed explanation by
Celcom’s engineer on how the call logs were extracted.
25
It is not clear what ‘good working order’ and ‘operating Similarly in Lim Pang Cheong v Tan Sri Dato' Dr Rozali
properly’ mean, and for a discussion of this problem which Ismail & Yang Lain, 38 text messages confirmed by the oral
is also a problem in England & Wales, see Stephen Mason, testimony of relevant witnesses were found to fulfill the
general editor, Electronic Evidence (2nd edn, LexisNexis requirements of section 90A(1).
Butterworths, 2010), Chapter 5.
26
[2009] 2MLJ 613, FC.
27 33
[2010] 4 MLJ 824. [2014] 10 MLJ 824.
28 34
Ibid 522. [2014] MLJU 385.
29 35
[1996] 3 MLJ 240. [1965] 2 All ER 465.
30 36
Ibid 257. [2014] 1 LNS 1757.
31 37
[2011] MLJU 1332, [2011] 1 LNS 1773 CA. [2015] 1 MLRA 431, FC; [2015] MLJU 1.
32 38
[1997] 5 MLJ 632. [2011] 7 CLJ 645, HC [2010] MLJU 1760.
 Inconsistencies are again seen in two cases relating to airport the interests of justice and subsection (6) provides that the
check-in baggage tags. In PP v Goh Hoe Cheong & probative value of the admitted document will depend on all
Anor.,39the High Court in the absence of either oral evidence the circumstances from which inferences can be drawn on its
or any certificate under section 90A(2) refused to admit the accuracy or otherwise.
electronically produced baggage tags into evidence.
IV. SECTION 90A (3): THE CERTIFICATION
40
Contrarily in Mojtaba Moktarighahi Ali v Public Prosecutor, Under section 90A (3) there is no requirement for the maker
a baggage tag with the name of the accused and the flight of the document to provide the certification or for the person
numbers was attached to P12 a bag belonging to the accused. who gave the certificate to testify. It is sufficient for the
A Silk Air Customer Service Officer working at the Penang deponent to state matters to the best of his knowledge and
Bayan Lepas International Airport testified that baggage tags belief. Further on the strength of the contents of the certificate
were issued and printed by a computer by the check-in agent. any document ‘produced by a computer’ ‘shall’ be admitted as
The High Court following Gnanasegaran, found that ‘P12A’ primary evidence under section 90A(1). The reliability,
was produced by a computer and section 90A(6) EA 1950 integrity and authenticity of the document is for the judge to
applied to deem it to be produced by a computer in the course decide.
of its ordinary use. The Court went further to take judicial
notice under section 114(e) EA1950 of the ‘universal practice In M & A Securities Sdn Bhd v Tan Soong Ling,43 as well as
at airport check-in counters… baggage tags …with the Prabakaran Peraisamy v PP,44 certificates deposed to the bet
passenger, flight and luggage number, would be attached to of the knowledge and belief were accepted and the computer
the handle of the luggage…’. printouts were accepted as produced by computers in the
‘course of their ordinary use’ which were in good working
Different approaches taken by the courts in their readiness to order and operating properly at the time.
take cognizance of universal practices and developments have
resulted in disconcertingly inconsistent judgments. PB Securities S/B v Justin Ong Kian Kuok & Anor.,45 drives
home two points: (i) the need to dispute the monthly
D. ‘Maker of such document’: Hearsay statements at the relevant time and (ii) challenging the
certificate at the material time. In the absence of either all the
The provision ‘…whether or not the person tendering the same transaction records and statements were admitted as evidence
is the maker of such document or statement’ indicates again of the facts stated therein.
the exception to the hearsay rule. Consequently, greater
emphasis is given to the ‘ordinary use of the computer’ rather In contrast in Avnet, the certificate tendered under section
than the maker of the document who could attest to the 90A(2) was rejected even though the only rebuttal evidence on
veracity of its contents. Hearsay issues are inescapable when the part of Sapura was a bare denial of a confirmed order and
electronically generated evidence is introduced. 41 However receipt of the email and attachment without more.
over time there has been a general a dilution of the rule against Consequently, as the section 90A certificate was not accepted
hearsay. Sections 32 (1) and 73A EA1950 provide for various the court following the decision in Bank Pembangunan
exceptions to the rule against hearsay which are also Malaysia Bhd v. Sasacom Sdn Bhd & Another Case, 46 opined
recognised under the Singapore section 32 Evidence Act that reliance on an e-mail without the maker being called was
Cap.97 and the various English common law exceptions. In hearsay.
particular section 32(1)(b) EA1950 facilitates the admission
of records compiled in the ‘ordinary course of business’ In In this context it is interesting to note that in the American
Tan Mooi v Tengku Mohd. Saad & Ors and Other Appeals,42 case of In re Vee Vinhnee, debtor, American Express Travel
the Federal Court adopted a liberal approach and held that the Related Services Co. Inc. v Vee Vinhnee.47 American Express
phrase ‘ordinary course of business’ could apply to any claimed that Vinhnee failed to pay credit card debts. The court
business or professional employment in which the declarant found that American Express had failed to authenticate certain
was ‘ordinarily or habitually’ engaged in. However though digital records. Klien J pointed out that the focus was not the
admitted due consideration would have to be given to its circumstances of the creation of the records, but the
weight. Nonetheless, section 73A EA1950 imposes certain preservation of the record, so as to assure that the document
safeguards against abuse importantly, subsection (5) vests the
Court with discretion to either admit or reject any statement in

39
[2007] 7 CLJ 68.
40 43
[2012] 6 AMR 249, [2012] 6 CLJ 728 [HC]. [2011] 1 LNS 468.
41
John C. O’Brien, ‘The Hearsay Within 44
[2012] 8 CLJ 133 CA.
45
Confrontation’(2010) Saint Louis University Public Law KL HC [2007] 1 MLJ 153.
46
ReviewVol.XXIX:501. [2011] 10 CLJ 51
42 47
[2011] 2 CLJ145 FC. 336 B.R. 437 (9th. Cir. BAP 2005).
being proffered was the same as the document that was not tendered a certificate under s 90A(2) EA1950, it had not
originally created.48 proved the computer’s ‘course of ordinary use’. The Court of
Appeal following the earlier cases of Gnanasegaran, Hanafi
Petroliam Nasional Bhd (Petronas) & Ors v. Khoo Nee and Ahmad Najib Aris, held exhibit P71 to be admissible
Kiong, 49 concerned the infringement of intellectual property under s 90A. The testimony of PW16 had satisfied the
rights and ‘passing-off’ of Internet domain names with the requirements of section 90A(1) EA1950. Consequently this
name ‘petronas’ in them and certain defamatory emails was sufficient to invoke the presumption under s 90A(6).
published by the defendant. The plaintiffs tendered printouts
from the "Internet Archive" search engine "Wayback
A. Challenging the Certificate
Machine" that the disputed website had been changed. The
court had to consider:
Navi & Map Sdn. Bhd.v Twincie Sdn. Bhd. & Ors., 55
(i) whether the identity of the sender of the e-mail, the author illustrates the importance of the contents of the certificate in
of the webpage and the operator of the website had been challenging it successfully. The plaintiff attempted to establish
sufficiently established; infringement of its copyright, by tendering a ‘skype chat’
between the defendant witnesses. The plaintiff tendered a
(ii) whether a certificate was mandatory under section 90A(2). certificate (‘exhibit P29’) signed by a digital evidence
specialist from the Digital Forensic Department in Cyber
On the first issue, the High Court was referred to the cases Security (‘PW4’). However, exhibit P29 certified that PW4
of British Telecommunications plc and Another v. One In A was not the officer responsible for the management and
Million Ltd, and Ors and Other Actions,50 as well as Takenaka analysis process of the computer that produced the skype
(United Kingdom) Ltd, and Another v Frank, 51 on the chats. Furthermore, nothing was stated about the computer’s
evidentiary requirements to be satisfied. The court was also ‘course of ordinary use’ or that it was in good working order.
referred to USA v. Siddiqui, 52 and USA v Smith, 53 on the It was also evidenced that portions of the skype chat were
authentication of emails based on circumstantial evidence missing. Consequently, the certificate was successfully
including the document's own distinctive characteristics and challenged.
the circumstances surrounding its discovery. On the first issue,
the Court found that the plaintiff’s search results coupled with
V. SECTION 90A (4): PRESUMPTION OF ‘GOOD WORKING
the defendant’s reactions and other circumstantial evidence
ORDER’
sufficiently linked the defendant and his sole proprietorship
business as the owners of the disputed domain names and The subsection provides that once a certificate under section
impugned emails. On the second issue, since the defendant 90A (2) is tendered it shall be primary evidence under
had not challenged the plaintiffs' affidavit-in-support subsection (3) and subsection (4) activates a presumption that
deposing that the contents of the affidavit were within his the subject computer was working operating properly in all
personal knowledge, the Court ruled that a section 90A respects throughout the material time when the document in
EA1950 certificate was not mandatory in respect of the question was produced. If the contents of the certificate are to
computer printouts containing the impugned email and be challenged the evidential burden of disproving it would be
statements. on the party challenging its credibility.

In Lau Chee Kai v PP,54 the serial numbers of money that The Court of Appeal in Hanafi reiterated Gnanasegaran, that
were keyed into a computer were in issue. Counsel for the where computer generated evidence is tendered orally without
defendant challenged the admissibility of exhibit P71 (being a the certificate then matters presumed in subsection (4) must
computer printout) under s 90A EA1950 on the grounds that also be proved orally. This was followed in Lee Khai Sin and
first, the serial numbers of the money found in exhibit P12 Anor. v RHB Bank Bhd.56
were keyed in into the computer by two officers whereas only
one officer, PW16 testified. Further since the prosecution had Once again it is to be noted that no guidance has been
provided on the expression ‘good working order’ and
‘operating properly’ or in the ‘course of its ordinary use’.
48 There is also no distinction between the operation of the
For a comprehensive discussion on the tests for authenticity,
see Stephen Mason, general editor, Electronic Evidence, physical computer as opposed to the reliability of the software
pages 91-92. programmes used to operate it.
49
[2003] 4 CLJ 303.
50
[1998] 4 All ER 476 at pp. 480 and 481.
51
unreported, QB, Alliot J 11 October 2000 upheld on appeal
55
[2001] EWCA CIV 348. [2011] 7 CLJ 764.
52 56
U.S 11th Circuit Court of Appeals No. 98-6994. [CA-12-39-2007] High Court of Sabah & Sarawak at
53
918 F. 2d 1501, 1510. Kuching, July 2008.
54
[2011] 9 CLJ 619.
 VI. SECTION 90A (5): DEEMED TO BE PRODUCED BY A As for section 90A(6) the Federal Court confirmed that the
COMPUTER ‘deeming’ provisions herein was not an alternative route to
This is an important and often overlooked provision that circumvent the provisions of section 90A(1). Here they
explicitly states that a document ‘shall be deemed to have departed from the Court of Appeal in Gnanasegaran, thereby
been produced by a computer whether it was produced by it developing a second interpretation. Instead of connecting the
directly or by means of any appropriate equipment, and deeming provision to oral testimony given by witnesses, the
whether or not there was any direct or indirect human Federal Court endorsed the view of the Court of Appeal in
intervention’. This puts paid the fallacy in Approfit and Avnet, Hanafi, in that subsection (6) provided for the admissibility of
on a ‘document produced by a computer’ with or without documents that were not produced by a computer in the course
human intervention. of its ordinary use. This could arise for instance where a letter
is produced by a computer which has no bearing on the
VII. SECTION 90A (6): AN ALTERNATIVE ROUTE TO ordinary use of the computer. Yet it would still be a document
ADMISSIBILITY? produced by a computer and could then be ‘deemed’ to be
The presumption in this subsection has caused some produced in the ‘course of its ordinary use’ and admitted
conceptual problems of interpretation. It provides that: under section 90A(6).

A document produced by a computer, or a statement Mariette Peters, opines that the presumption refers to the time
contained in such document, shall be admissible in when the document was produced. The section deems the
evidence whether or not it was produced by the document to be produced by a computer in the course of its
computer after the commencement of the criminal or ordinary use irrespective of when it was produced.57
civil proceeding or after the commencement of any
investigation or inquiry in relation to the criminal or However, it is submitted that the objective of section 90A and
civil proceeding or such investigation or inquiry, and the elements of subsection (6) have to be understood before it
any document so produced by a computer shall be can be interpreted. The elements of subsection (6) are:
deemed to be produced by the computer in the course of (i) document produced by a computer;
its ordinary use. (ii) whether or not produced… after the commencement of …
(time of production)
Three different interpretations have emerged. First, the Court (iii) shall be deemed …produced in the course of its ordinary
of Appeal in Gnanasegaran established that: use.

(i) documents produced by a computer could be tendered Given that the objective of section 90A is to overcome the
either through the direct oral testimony of the maker or hearsay barrier, it is submitted that subsection (6) extends
through a certificate under section 90A (2) while, admissibility to a class of documents which would otherwise
be excluded where:
(ii) subsection (6) applied where a party opted to give oral
testimony in relation to documents produced by a (i) the maker of the document or manager of the computer is
computer. Such documents will be deemed to be unavailable,
produced by the computer in the course of its ordinary
use. (ii) oral evidence has to be tendered by a person unconnected
to the computer that produced the document and
However, despite this, subsequent cases continued to harp on
the same issues with good reason as the Court of Appeal did (iii) consequently it is not possible to furnish a certificate
not undertake a detailed analysis of subsection (6). On a declaring that the document was produced by a computer
cursory observation, subsections 90A(1) and (6) appear to be in the ‘course of its ordinary use’ or
prima facie incompatible and inconsistent with each other. The
‘deeming’ provision in subsection (6) was seen as a way of (iv) the document was not produced by a computer in the
circumventing the requirement for the certificate as stipulated ‘course of its ordinary use’.
in section 90A(2) until the Federal Court in Ahmad Najib Aris,
clarified the distinction between subsections (1) and (6). The This interpretation makes the need for a distinction between
Federal Court, concurred with the findings of the Court of section 90A (1) and (6) superfluous since the practical effect
Appeal in Gnansegaran, and Hanafi that under s.90A(1) would be to admit all computer generated documents whether
computer generated evidence could be admitted in either by ‘produced in the course of its ordinary use’ or otherwise.
way of a certificate or oral testimony. A certificate as specified Further the reference to the element of time should be read in
by section 90A(2) would trigger subsections (3) and (4).
Alternatively, oral evidence would have to prove that the 57
Mariette Peters Law of Evidence in Malaysia (LexisNexis
document produced by the computer was produced ‘in the
2013) pages 194 – 203.
course of its ordinary use’ thereby satisfying subsection (4).
the context of section 73A(3) EA1950 which expressly admitted by virtue of section 90A. The provision is important
prohibits in civil proceedings, statements to the correct understanding of section 90A’s function. As
observed above, issues of admissibility and authenticity of
by person interested at a time when proceedings were evidence were confused leading to inconsistencies in
pending or anticipated, involving a dispute as to any fact judgments. The court has the responsibility of assessing the
which the statement might tend to establish. weight of the evidence whilst the party proffering the evidence
has to lay the foundational evidence to establish its
Logically this prohibition against self-serving statements authenticity and integrity. In estimating its weight, the court
should also extend to computer generated documents. may draw any reasonable inference from circumstances
However section 90A(6) makes an exception to the general relating to the document or the statement, including the
rule. As such any documents produced by a computer, whether manner and purpose of its creation, or its accuracy or
in anticipation of or contemporaneously with any civil or otherwise. Section 90B therefore makes a clear distinction
criminal proceedings or investigations, would be admissible in between admissibility and the authenticity, reliability and
evidence. It will then be deemed to have been produced by the integrity of the evidence. Admissibility of the evidence is not
computer in the course of its ordinary use. Consequently, synonymous with its authenticity.
subsection (6) has a twofold purpose i.e. to extend
admissibility to different classes of documents produced by a X. SECTION 90C: GATEWAY FOR ADMISSIBILITY OF
computer: ‘ELECTRONIC’ EVIDENCE

(i) where oral evidence from the maker of the document or The section stipulates that the provisions of sections 90A and
manager of the computer is not available and it is not 90B shall prevail over any contradictions in any other statutes.
possible to tender a certificate declaring that the document This is important as it gives overriding credence to the
was produced by a computer in the ‘course of its ordinary presumptions raised in section 90A and will supersede any
use’ and specific or contradictory provisions in any other statute. It also
means that section 90A EA1950 is the only route to
(ii) irrespective of the time when it was produced. admissibility of any electronic evidence whether in civil or
criminal proceedings notwithstanding the particular statute
The deeming provision in subsection (6) shall deem the under which the charge is formulated or remedy sought. 58
document to have been produced by a computer in the ‘course However it is also noted that section 17 Security Offences
of its ordinary use’ thereby rendering it admissible regardless (Special Measures) Act 2012 (SOSMA) specifically overrides
of when or how it was produced. The combined practical the provisions of EA1950.59
effect of sections 90A(1) and (6) is to eliminate hearsay and
make all classes of relevant computer generated documents XI. CONCLUSION
admissible irrespective of time and manner of production.
However it also raises an interesting question as to whether Malaysia, has not reviewed its provisions on the admissibility
the special dispensation as to ‘time’ when a self-serving of ‘documents produced by a computer’ since its introduction
document was produced would also apply to documents in 1993. Unlike England and Wales, or Singapore, electronic
falling under section 90A (1)? A further question of serious evidence continues to be treated as a special genre. Section
concern is why if at all, should such dispensation, be given to 90A EA1950 is the gateway to admit electronic evidence in
computer generated documents which are the subject of much both civil and criminal proceedings in the Malaysian civil
authentication issues. courts. Ten issues have surfaced over the years as discussed
above. Gnanasegaran, Mat Hanafi and Ahmad Najib bin Aris.
established that computer generated documents could be
VIII. SECTION 90A (7): RULE AGAINST SELF- admitted in one of two ways; either through oral evidence or
CORROBORATION IN CRIMINAL PROCEEDINGS through a certificate under section 90A (2) certifying the
‘course of its ordinary use’ of the computer. However what
An accused in any criminal proceeding is precluded from amounts to ‘ordinary course of use’ or the objective of
using self-corroborating evidence generated by a computer establishing it, has not been clarified. Further no standard
under his own management or supervision. However self- format has been provided for the certificate. Case law has
serving statements in civil cases would be admissible under clarified that the certificate should address the dual issues of
section 90A(6). ‘ordinary use’ of the computer and its proper functioning. This
will trigger the presumption of reliability of the system and
IX. SECTION 90B: AUTHENTICITY AND WEIGHT OF
EVIDENCE 58
Hanafi bin Mat Hassan v PP [2006] 4 MLJ 134, 153-154 at
This section deals with the weight or probative value to be para [30] per Augustine Paul JCA.
59
attached to a document or statement contained in a document, Section 17 SOSMA 2012 .
process. Issues pertaining to authenticity continue to plague closely. 60 There was an initial distinction drawn documents
the admissibility of relevant evidence despite the provisions of produced with and without human intervention. These were
section 90B EA1950 providing guidelines on the weight to be amended in 1996 with more comprehensive provisions and
ascribed, leading to inconsistencies in judgments. Whilst guidelines which differed from the English CEA1995. Three
emails were admitted as computer generated documents in alternative modes for admissibility were introduced. 61
Petroliam Nasional Bhd (Petronas) & Ors v. Khoo Nee Kiong Documents subject to an imaging system required certification
it was rejected in Avnet despite the production of a section that the computer was operating properly, it was an ‘approved
90A(2) certificate. Confusion continues to persist on the issue process’ and reliable. The certifying authority was limited to
of documents ‘produced’ by a computer with human or an agency appointed by the Minister. These provisions were
without human intervention despite the clear provisions in found to be burdensome and expensive. The amendments in
section 90A(5) EA1950. CCTV recordings also pose 2012 embarked on a new approach. ‘Computer output’ or
challenges in terms of the foundational evidence to be laid as ‘electronic records’ were no longer treated as a special
seen in a series of cases. While Ahmad Najib bin Aris rejected category. The alternative modes of admissibility were
CCTV recordings for lack of either a section 90A(2) removed and replaced with a set of presumptions on
certificate or oral evidence, in PP v Mohd Abdul Aziz Bin reliability, integrating it into the traditional law of evidence.62
Ibrahim it was rejected despite detailed oral evidence on the Although the rule against hearsay had been diluted it was not
process and procedure adopted. Yet the Court of Appeal in abrogated unlike the CEA1995 since Singapore’s EA like
Mohd Khayry bin Ismail v Public Prosecutor held it Malaysia covers both civil and criminal proceedings. Lim
admissible under the 'res gestae' principle. Again in PP v Goh Mong Hong v PP, 63 clarified the need to authenticate
Hoe Cheong & Anor., airport baggage tags were ruled evidence, whether it was hearsay or otherwise to ensure
inadmissible due to lack of either a section 90A(2) certificate evidential integrity and reliability. While Singapore initially
or oral evidence. However, in striking contrast in Mojtaba had stringent requirements for certification by an agency
Moktarighahi Ali v Public Prosecutor the High Court was appointed by the Minister, this gave way to an affidavit by
prepared to take judicial notice of the universal practice that someone responsible for the production of the electronic
baggage tags were attached at airport check-in counters. record stated to the best of the person’s knowledge and belief.
Further the Singapore EA Cap.97 has also introduced the
The scope of section 90A(6), is unclear. Gnanasegaran, Mat presumptions on reliability of mechanical devices, process and
Hanafi and Ahmad Najib bin Aris ruled that section 90A(6) system. Nevertheless, Mitfam International Ltd v Motley
only applied where the document was not produced by a Resources Pte Ltd. 64 confirmed the need to lay cogent
computer in the course of its ordinary use. In such event the foundational evidence before presumptions of reliability could
deeming provision in the section operated to admit the be invoked. Singapore has come full circle in the realisation
documents without either a certificate or oral evidence. that evidential issues such as authenticity and integrity, could
However, two other elements have been overlooked. First it be dealt with by the general principles of evidence law. As in
admits documents produced by a computer whether before, England and Wales these issues now go towards weight rather
during or after the commencement of proceedings contrary to than admissibility.
the general principle against self-serving statements in section
73A(3). Secondly it raises the question as to whether such an In the light of the above, it is submitted that section 90A
exception would apply under section 90A(1) and why if at all EA1950 has served its initial purpose when ‘computer
should such an exception be granted to computer generated evidence’ was novel and viewed with suspicion. It is now time
documents which are the subject of authentication issues. to repeal it and move forward by accepting that the term
‘computer’ has outgrown its original meaning and should be
In England and Wales, ‘statements produced by computers’ replaced by the term ‘electronic’ or ‘document’ in the face of
have given way to the simple expression ‘document’ under the growing volume of electronic devices pervasive in society.
section 13 CEA 1995. This has paved the way for its Further electronic evidence need not be treated as a special
incorporation into the traditional rules of evidence. Further genre but can be successfully integrated into the mainstream
section 1 CEA1995 abrogated hearsay in civil cases without law of evidence as seen in England and Wales and Singapore.
detracting from the necessity to prove alleged facts. In What is important is that relevant evidence can be admitted
criminal proceedings, though the rule against hearsay was
diluted it was retained as a safeguard. Perhaps the fact that the
60
jury system continues to exist in criminal trials was a Daniel Seng and Sriram S. Chakravarthi, Computer Output
contributory factor since laymen could not be expected to as Evidence Final Report (Singapore Academy of Law 2004).
exercise the same degree of skill when evaluating its probative <http://www.sal.org.sg/Pdf/Computer_Output_as_Evidence_F
value. All evidence is subject to proof. inal_Report%2020050304.pdf> accessed on 2 March 2016.
61
See discussion 238 – 241.
62
Singapore legislated on the admissibility of computer Jeffrey Pinsler, Evidence and the Litigation Process (Lexis
documents as early as 1976 and followed section 5 CEA1968 Nexis 4th. Ed.2013).
63
[2003] 3 SLR 88 (HC).
64
[2014] 1 SLR 1253
subject to proof of its authenticity. Its probative value would Microsoft Corporation v Conquest Computer Centre Sdn Bhd.
be for the court to assess. The principles of proof have not [2014] 6 CLJ 876.
changed, only the method of authenticating has become more Lau Chee Kai v PP [2011] 9 CLJ 619.
technical, requiring at times expert evidence. Lee Khai Sin and Anor. v RHB Bank Bhd. [CA-12-39-2007]
High Court of Sabah & Sarawak at Kuching, July 2008.
Lim Mong Hong v PP [2003] 3 SLR 88 (HC).
Lim Pang Cheong v Tan Sri Dato' Dr Rozali Ismail & Yang
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August 2010. <http://www.edrm.net/resources/edrm-white- SLR 1253
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Ahmad Najib bin Aris v PP [2009] 2MLJ 613, FC. Tan Mooi v Tengku Mohd. Saad & Ors and Other Appeals
Approfit Sdn. Bhd. v Kent Sing Construction Sdn. Bhd. & [2011] 2 CLJ145 FC.
Ors. [2001]1 LNS 3. Takenaka (United Kingdom) Ltd, and Another v Frank,
Avnet Azure Sdn Bhd v Eact Technologies Sdn Bhd and unreported, QB, Alliot J 11 October 2000.
Sapura Research Sdn Bhd. KL HC Com. Div. D-22NCC439- USA v. Siddiqui U.S 11th Circuit Court of Appeals No. 98-
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Bespile Sdn Bhd (in liquidation) v Asianshine Sdn Bhd.
[2010] 4 MLJ 824. STATUTES
British Telecommunications plc and Another v. One In A Computer Crimes Act 1997 section 2
Million Ltd, and Ors and Other Actions [1998] 4 All ER 476 Malaysian Evidence Act 1950 sections 3, 32, 57, 73A, 90A,
Camden London Borough Council v. Hobson The 90B, 90C, 114E,
Independent, 28 January, 1992, 24 (Clerkenwell Magistrate's Evidence (Amendment) (No. 2) Act 2012.
Court). Civil Evidence Act 1968 section 5.
Chua Boon Hong v PP [2011] MLJU 1332, [2011] 1 LNS Civil Evidence Act 1995 section 1, 13.
1773 CA. Singapore Evidence Act 8/1996 section 35(1).
Gnansegaran a/l Pararajasingam v PP [1997] 3 MLJ 1 Singapore Evidence (Amendment) Act 2012.
In re Vee Vinhnee, debtor, American Express Travel Related Singapore Evidence Act Cap.97
Services Co. Inc. v Vee Vinhnee 336 B.R. 437 (9th. Cir. BAP Security Offences (Special Measures) Act 2012 section 17
2005).

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