MALAYSIA-COMPUTER EVIDENCE

In the Court of Appeal case of Lau Chee Kai v Pendakwa Raya [2011] MLJU 1492, it was held that:-

"...[24] Learned counsel for the appellant further submitted that PW16 did not compare and check the seized money with Ex. P12 (1-5). What she did was to compare and check the seized money with Ex. P71 to find out whether the seized money was part of the ransom money. It was contended by the defence that Ex. P71 was not admissible as the provision of s 90A of the Evidence Act 1950 had not been complied with. Firstly, the serial numbers of the money found in Ex. P12 (1-5) were keyed in into the computer by PW16 and one Inspector Salwani. They took about 2 months to do that. Only PW16 gave evidence. Inspector Salwani was not called to give evidence. Secondly, the prosecution had not tendered a certificate under s 90A (2) of the Evidence Act 1950. The prosecution had not proved that the computer used by PW16 and Inspector Salwani was in the course of its ordinary use.

[25] S 90A of the Evidence Act 1950 provides:

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    (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. 
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    (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. 
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    (3)(a) It shall be sufficient, in a certificate given under sub section (2), for a matter to be stated to the best of the knowledge and belief of the person stating it. 
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    (b) A certificate given under sub section (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. 
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    (4) Where a certificate is given under sub section (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. 
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    (5) A document shall be deemed to have been produced by a computer whether it was produced by it directly by means of any appropriate equipment, and whether or not there was any direct or indirect human intervention. 
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    (6) A document produced by a computer, or a statement contained in such documents, 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. 
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    (7) Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such documents, 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. 
[26] The provision of s 90A of the Evidence Act 1950 was considered by this court in the case of Gnanasegaran a/l Parajasingam v Public Prosecutor [1997] 3 MLJ 1 where Shaik Daud JCA, at p 11, had this to say :

On reading through s 90A of the Act, we are unable to agree with the construction placed by learned counsel. First and foremost, s 90A which has seven subsections should not be read disjointedly. They should be read together as they form one whole provision for the admissibility of documents produced by computers. As stated earlier, s 90A was added to the Act in 1993 in order to provide for the admission of computer-produced documents and statements as in this case. On our reading of this section, we find that under sub-s (1), the law allows the production of such computer-generated documents or statements if there is evidence, firstly, that they were produced by a computer. Secondly, it is necessary also to prove that the computer is in the course of its ordinary use. On our view, there are two ways of proving this. One way is that it 'may' be proved by the production of the certificate as required by sub-s (2). Thus, sub-s (2) is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words 'Where a certificate is given under sub section (2)'. These words show that a certificate is not required to be produced in every case. It is our view that once the prosecution adduces evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-s (2) as sub-s (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. It is also our view that the prosecution can tender the computer printout through the investigating officer without calling any bank officer. Therefore, when they adopt this way of proof, then it would be incumbent upon them to establish that the document is produced by a computer in the course of its ordinary use by producing the certificate under sub-s (2). The reason seems to me to be obvious as the investigating officer will be in no position to say that the printout is produced by a computer in the course of its ordinary use, as he is not an officer of the bank.
In the present case, Zainal - the person in charge of the operations of current accounts - testified that the statement of accounts was a computer printout. Therefore, in our view, the first part of sub-s (1) has been proved, ie that the document is a computer printout. It would be superfluous for him to issue a certificate under sub-s (2) when firsthand evidence that 'the document so were produced by a computer' was given by Zainal. It would be superfluous to have a provision such as in sub-s (6) if in every case a certificate must be produced. It follows, therefore, that such a certificate need only be tendered if an officer like Zainal is not called to testify that the statement is produced by a computer. Then the certificate becomes relevant to establish that the document is produced by a computer in the course of its ordinary use. It is our view that when such an officer is not called, the court cannot rely on the deeming provision of sub-s (6). Once the court accepts the evidence of Zainal - and in this case we cannot see any reason whatsoever for the court not to as there was no challenge by cross-examination - the prosecution has succeeded in proving what s 90A (1) requires them to prove: that such document was produced by the computer and in view of the deeming provision of sub-s (6), the second part is also proved.

[27] In Ahmad Najib Aris v PP [2009] 2 CLJ 800 Zulkefli Makinudin FCJ, after referring to the decisions of this court in Gnanasegaran Parajasingam and Hanapi Mat Hassan v PP [2006] 3 CLJ 269, had this to say :

[33] I agree with the views expressed in the above passages from Hanafi Mat Hassan v Public Prosecutor in the analysis of s 90A. In substance therefore the fact that a document was produced by a computer in the course of its ordinary use may be proved by the tendering in evidence of a certificate under s 90A (2) or by way of oral evidence. Such oral evidence must consist not only a statement that the document was produced by a computer in the course of its ordinary use but also the matters presumed under s 90A (4). On the other hand the presumption contained in s 90A (6) can be resorted to only when the document was not produced by a computer in the course of its ordinary use.

[34] In this case no certificate was tendered as required by s 90A (2) for proof of the chemist report (P83). Neither was any oral evidence adduced to show that the report was produced by a computer in the course of its ordinary use. It therefore remains that the only evidence available is that the report was produced by a computer. It is thus appropriate to resort to s 90A (6) to presume that the report was produced by the computer in the course of its ordinary use. .....................

[28] In the instant appeal PW16 had testified that Ex P71 was a document produced by a computer. In fact she and Inspector Salwani had keyed in the data into the computer. It is true that the prosecution had not tendered a certificate under s 90A (2) of the Evidence Act and PW16 did not say whether Ex P71 was produced by a computer in the course of its ordinary use. However, by proving that Ex P71 was produced by a computer the prosecution, in view of the authorities cited earlier, could resort to the presumption under s 90A (6) which provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. We are of the view that Ex P71 was rightly admitted in evidence by the learned trial judge...."

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