5.0 Computer Evidence in Malaysia

5.1 INTRODUCTION

In 1991, the Working Paper, The Way Forward – Vision 2020, was presented by His Excellency YAB Tun Dr Mahathir Mohamad at the Malaysian Business Council; when he was the Prime Minister of Malaysia. The ultimate objective of this paper is for Malaysia to be a fully developed country by the year 2020.1

In his speech, he had laid-out the nine central strategic challenges that Malaysians have to overcome in order to reach the objective of the paper. The sixth challenge is to establish a scientific, progressive; innovative and forward-looking society who is not only a consumer of technology but also a contributor to the scientific and technological civilisation of the future.2

5.1.1 Evidence Act 1950 (Act 56)

Evidence Act 1950 governs the matters pertaining to evidence, whether in criminal or civil cases, which proceedings took place in or before the Malaysian courts, as according to Section 2 of the discussed Act.

Following the launch of Vision 2020 by the former Prime Minister, the Evidence Act 1950 has been amended to adept to computer-related crimes and online environment. Major amendement was made by the promulgation of Evidence (Amendment) Act 1993 to aid the rising need to officially acknowledge computer evidence in judicial proceedings.3

The Evidence (Amendment) Act 1993 consists of eight amendments to the Evidence Act 1950. However, not all amendments are relevant to computer evidence.4

The amendments related to computer evidence are:

Section 3

Definition of "computer" and "document" was inserted into Section 3 along with Illustrations for the word "document".

“computer” means any device for recording, storing, processing, retrieving or producing any information or other matter, or for performing any one or more of those functions, by whatever name or description such device is called; and where two or more computers carry out any one or more of those functions in combination or in succession or otherwise howsoever conjointly, they shall be treated as a single computer;

“document” means any matter expressed, described, or howsoever represented, upon any substance, material, thing or article, including any matter embodied in a disc, tape, film, sound track or other device whatsoever, by means of—

(a) letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or

representation whatsoever;

(b) any visual recording (whether of still or moving images);

(c) any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and howsoever made, or any sounds, electronic impulses, or other data whatsoever;

(d) a recording, or transmission, over a distance of any matter by any, or any combination, of the means mentioned in paragraph (a), (b) or (c), or by more than one of the means mentioned in paragraphs (a), (b), (c) and (d), intended to be used or which may be used for the purpose of expressing, describing, or howsoever representing, that matter;

ILLUSTRATIONS

A writing is a document.

Words printed, lithographed or photographed are documents.

A map, plan, graph or sketch is a document.

An inscription on wood, metal, stone or any other substance, material or thing is a document.

A drawing, painting, picture or caricature is a document.

A photograph or a negative is a document.

A tape recording of a telephonic communication, including a recording of such communication transmitted over distance, is a document.

A photographic or other visual recording, including a recording of a photographic or other visual transmission over a distance, is a document.

A matter recorded, stored, processed, retrieved or produced by a computer is a document.

Section 60(3)

Recognition of computer related evidence as documentary evidence.

60. (3) If oral evidence refers to the existence or condition of any material thing including a document, the court may, if it thinks fit, require the production of that material thing or the document for its inspection.

Explaination 3, Section 62

Recognition of evidence produced by a computer as a primary evidence.

Explanation 3—A document produced by a computer is primary evidence.

Section 90A

Regarding admissibality of documents produced by a computer and everything within the documents as a valid evidence in civil and criminal proceedings if it was produced by the computer in the course of it's ordinary use.5 The person who is responsible to the use of the computer that produced the evidence must signed a certificate that the computer was used in the course of it's ordinary use.

90A. Admissibility of documents produced by computers, and of statements contained therein

(1) In any criminal or civil proceeding a document produced by a computer, or a statement contained in such document, shall be admissible as evidence of any fact stated therein if the document was produced by the computer in the course of its ordinary use, whether or not the person tendering the same is the maker of such document or statement.

(2) For the purposes of this section it may be proved that a document was produced by a computer in the course of its ordinary use by tendering to the court a certificate signed by a person who either before or after the production of the document by the computer is responsible for the management of the operation of that computer, or for the conduct of the activities for which that computer was used.

(3) (a) It shall be sufficient, in a certificate given under subsection (2), for a matter to be stated to the best of the

knowledge and belief of the person stating it.

(b) A certificate given under subsection (2) shall be admissible in evidence as prima facie proof of all matters stated in it without proof of signature of the person who gave the certificate.

(4) Where a certificate is given under subsection (2), it shall be presumed that the computer referred to in the certificate was in good working order and was operating properly in all respects throughout the material part of the period during which the document was produced.

(5) A document shall be deemed to have been produced by a computer whether it was produced by it directly or by means of any appropriate equipment, and whether or not there was any direct or indirect human intervention.

(6) A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.

(7) Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such document, shall not be admissible in evidence in any criminal proceeding, where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was—

(a) responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or

(b) in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer.

Section 90B

Regarding weight of the document or statement in the document as evidence that was accepted in virtue of Section 90A.

90B. Weight to be attached to document, or statement contained in document, admitted by virtue of section 90A

In estimating the weight, if any, to be attached to a document, or a statement contained in a document, admitted by virtue of section 90A, the court—

(a) may draw any reasonable inference from circumstances relating to the document or the statement, including the manner and purpose of its creation, or its accuracy or otherwise:

(b) shall have regard to—

(i) the interval of time between the occurrence or existence of the facts stated in the document or statement, and the supply of the relevant information or matter into the computer; and

(ii) whether or not the person who supplies, or any person concerned with the supply of, such information or the custody of the document, or the document containing the statement, had any incentive to conceal or misrepresent all or

any of the facts stated in the document or statement.

Section 90C

Section 90A and 90B prevails over Bankers' Book (Evidence) Act 1949 and all other written law.

90C. Sections 90A and 90B to prevail over other provisions of this Act, the Bankers’ Books (Evidence) Act 1949, and any written law

The provisions of sections 90A and 90B shall prevail and have full force and effect notwithstanding anything inconsistent therewith, or contrary thereto, contained in any other provision of this Act, or in the Bankers’ Books (Evidence) Act 1949 [Act 33], or in any provision of any written law relating to certification, production or extraction of documents or in any rule of law or practice relating to production, admission, or proof, of evidence in any criminal or civil proceeding.

SOURCE

1. 
   
   
   1996. Complete Text of the Working Paper - The Way Forward presented by His Excellency YAB Dato' Seri Dr Mahathir Mohamad at the Malaysian Business Council. The Way Forward - Vision 2020. 1. (online) http://www.wawasan2020.com/vision/index.html (20 August 2009).
   
   
   
2. 
   
   
   1996. Malaysia As A Fully Developed Country - One Definition. The Way Forward - Vision 2020. 4. (online) http://www.wawasan2020.com/vision/p2.html (20 August 2009)
   
   
   
3. 
   
   
   Mohamad Rizal bin Abd Rahman. 2009. RELEVANT ICT LEGAL MECHANISMS IN MALAYSIA. <i>Dr Shimaa Atallah, Forum for All Lawyers. 1. (online) http://www.shaimaaatalla.com/vb/showthread.php?p=9294 (20 August 2009).
   
   
   
4. 
   
   
   ibid.
   
   
   
5. 
   
   
   ibid.
   
   
   
   
   POSTED BY NADHIRAH NA’IEMAH