L A W OF E V I D E N C E

DIGITAL EVIDENCE ADMISSIBILITY

FOR LEGAL PROCEEDINGS IN
MALAYSIA
A PRESENTATION B Y :
S E LVA K U M A R B A L A K R I S H N A N
M A S T E R OF C R I M I N A L JUSTICE
 C O N T EN T S
• INTRODUCTION
• DOCUMENTARY EVIDENCE
• DOCUMENT PRODUCED BY COMPUTER
• ADMISSIBILITY OF THE EVIDENCE
• CHALLENGES ON THE ADMISSIBILITY OF COMPUTER GENERATED EVIDENCE
• DIGITAL FORENSIC EXPERT
• CONCLUSION
 INTRODUCTION

• Technology advancement has driven the utilization of digital evidence during legal
proceedings in the court.
• Digital Evidence also categorized as Electronic/Computer Evidence, Computer
associated evidence and Computer generated Evidence. Example of Digital Evidence
are Computer, Photograph, Mobile Phones, Tablets/I pads. GPS Devices, Computer Hard
Drives and so on.
• Data/Evidence obtained can prove crucial to the outcome in all forms of criminal
activities as well as for cases such as Homicide, Rape, Breach of trust, Conspiracy,
Murder, Drug Trafficking and etc.
 INTRODUCTION
(CONT)
• For evidence to be deemed admissible, it must be obtained with reasonable and
least intrusive means so that it’s physical characteristics abides by the rules of
digital evidence.
 DOCUMENTARY EVIDENCE

 Under Section 3 of the Evidence Act 1950, Document is defined as:

• “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),
 DOCUMENTARY EVIDENCE
(CONT)
• 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;

 Further, computer is defined as:

• “computer” means an electronic, magnetic, optical, electrochemical, or other
data processing device, or a group of such interconnected or related devices,
performing logical, arithmetic, storage and display functions, and includes any
data storage facility or communications facility directly related to or operating
in conjunction with such device or group of such interconnected or related
devices, but does not include an automated typewriter or typesetter, or a
portable hand held calculator or other similar device which is non-programmable
or which does not contain any data storage facility;
 DOCUMENT PRODUCED BY A
COMPUTER
• Document generated by a computer and statement contained in particular is
admissible under section 90A, 90B and 90C of the Evidence Act 1950.
• Section 90A  sets the requirements for admissibility and proof
• Section 90B  deals with the probative value to be attached to the evidence
• Section 90C  stipulates that the provisions of Section 90A and 90B shall prevail
over any other provisions in any other statues
• All these Sections [90A,90B,90C] are applicable to criminal and civil proceedings.
• Section 90A,90B and 90C are considered as exceptions to the hearsay rule because
the computer-generated are admissible in Malaysia courts without requiring
testimony from the original maker of the documents over the content of the
documents.
 ADMISSIBILITY OF THE EVIDENCE

• Digital Evidence obtained is legally admissible when it is presented to prove the

facts of a case.
• The court will determine whether the rendered evidence is relevant, reliable and
authentic to the disputed facts of the case in proceedings.
• If a doubt arises, the evidence in a criminal trial will be excluded as it needs to
be proven beyond a reasonable doubt.
• In practice, admissibility is a set of legal tests carried out by a judge to assess an
item of evidence according to the following criteria.
 ADMISSIBILITY OF THE EVIDENCE
(CONT)
 Relevance and Reliability
• Traces of tampering, deletion or other changes over the digital evidence should be
examined. The content of digital data involved and the process through which it
was made must produce accurate and relevant results.
 Authenticity of evidence
• The evidence that was acquired from a particular system or location should satisfy
the court. A precise and complete copy of digital evidence is required. The
evidence should be preserved and unchanged from when it was collected.
• For an example, when a Digital Forensic Analyst seized a hard drive from a crime
spot, he/she need to make a copy of the hard drive using computer forensic tools
like EnCase, Forensic Tool Kit, DEFT Linux and etc.
 ADMISSIBILITY OF THE EVIDENCE
(CONT)
• Before copying the seized hard drive, the seized hard drive need to be
connected to a forensic disk controller or hardware write-block device to gain
read-only access to computer hard drives without the risk of damaging the
drive's contents.
 Copy of the hard drive is required for
• To prevent damage/tampering of the original content [the source of evidence]
in the hard drive
• Analysis/Investigation purpose
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE
• Case Study 1  Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997]
• Case Study 2  Bank Bumiputra Malaysia Berhad v Emas Bestari Sdn Bhd & Anor [2014]
• Case Study 3  Hanafi bin Mat Hassan v Public Prosecutor [2006]
• Case Study 4  Ahmad Najib bin Aris v Public Prosecutor [2009]
• Case Study 5  PP v Goh Hoe Cheong & Anor [2006]
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE ( C O N T )
Case Study 1: Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997]
• Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] was of the early
cases where direction was sought from the court of appeal on the admissibility
and probative value of computer generated documents.
• The appellant argued the computer print out evidence was inadmissible because
Section 90A required that a certificate had to be produced to authenticate the
computer records.
• Shaik Daud Ismail JCA further clarified that there were two ways of proving ‘in
the course of its ordinary use’
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE ( C O N T )
• (I) it may be proved by the production of the certificate as required by sub-s.
(2). – This 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-s. (2)…..
• (II) calling the maker of the document
• In this case, a certificate is not required to be produced as the bank officer was
able to testify with regard to the documents because he was in charge of the
operation of current accounts. Thus, the appeal was dismissed.
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE ( C O N T )
Case Study 2: Bank Bumiputra Malaysia Berhad v Emas Bestari Sdn Bhd & Anor [2014]
• In cases where computer-based evidence is tendered in court, failure to
procedure the certificate might even end up as evidence inadmissible as the
evidence is lack of authenticity.
• An example is shown in the case of Bank Bumiputra Malaysia Berhad v Emas
Bestari Sdn Bhd & Anor [2014]
• The computer-based document at issue was an exhibit of a bank statement
showing the defendant had paid instalments to the financing centre even after
the disbursement. In this situation, the court reigned such statement was
inadmissible due to unavailability of related certificate by the bank officer who
made the statement.
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE ( C O N T )
Case Study 3: Hanafi bin Mat Hassan v Public Prosecutor [2006]
• In this case, the prosecutor provided the bus ticket as a proof but the defense
argued that the proof which was presented was inadmissible.
• The defense argued that the ticket generated by a ticket machine is a digital
record and will be considered as inadmissible if the prosecution fails to tender a
certificate and a review of the DNA profiling of the semen which is additionally a
digital record where it is inadmissible for failure to comply with Section 90A.
• However, in deciding the court had waived the necessity to tender the certificate
needed under Section 90A [2] when submitted evidence demonstrates the ticket
machine was a computer while the bus ticket was generated by the ticket
machine during the ordinary course of the business.
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE ( C O N T )
• Even if the witness failed to provide evidence, the assumption in Section 90A [6]
was sufficient to determine the latter element to indicate that the ticket was
issued in the ordinary course by the machine.
• All the digital evidence presented by the defense have been acknowledged and
accepted in this case.
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE ( C O N T )
Case Study 4: Ahmad Najib bin Aris v Public Prosecutor [2009]
• In Ahmad Najib Bin Aris v Public Prosecutor [2009], Both chemist’s report and
CCTV recording were accepted [no certificate has been issued] as it has been
generated by a computer. Federal court stated there were two ways of
submitting and providing the documents generated by a computer according to
Section 90A [1] in conjunction with supporting Gnanasegaran and Hanafi.
• The chemist’s report was accepted based on extensive oral evidence in the
course of its regular use and preservation as stated in Section 90A [3] and
Section 90A [4]. However, the recordings of the CCTV were denied because there
was neither a certificate nor oral evidence about its operation.
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE ( C O N T )
• This is due to the general rule as established that the ‘computer’ generated
evidence can be derived either using a certificate establishment of the ‘course
of ordinary use’ and the proper functioning of the device or using direct oral
evidence attesting to the same requirements.
• In the event of failure to meet any of the conditions, the recordings of the CCTV
were adhered to be inadmissible.
 CHALLENGES ON THE ADMISSSIBILITY OF
COMPUTER GENERATED EVIDENCE ( C O N T )
Case Study 5: PP v Goh Hoe Cheong & Anor [2006]
• The prosecution ineffectively sought to present evidence in the form of digitally
generated check-in baggage tags.
• The judge determined that the electronic baggage tags will not be accepted as
evidence due to absence of both oral evidence and any certificate under Section
90A [1] for establishing the chain of custody and control of the checked-in bags.
• Consequently, the prosecution failed to prove the allegations against the
offender.
 DIGITAL FORENSIC EXPERT

• Malaysia court agrees that oral testimony and certificate submission are two ways of
authenticating digital evidence, but that methods are not adequate to ensure the
credibility and originality of digital evidence submitted.
• Apart from presenting maker or witness to the court to authenticate digital evidence
submitted, another authentication method used in court is by getting an expert opinion
from digital forensics experts.
• Under section 45 of the Evidence Act, the expert opinion rule is applicable where the
evidence obtained requires a computer forensic specialist to validate it rather than
calling a maker or a witness before the trial.
 DIGITAL FORENSIC EXPERT
(CONT)
• Although there is no particular provision to cater for digital forensics evidence
admissibility in court, Malaysia court has agreed upon the admissibility of digital
forensics evidence as a form of expert opinion on the condition that expert follows the
rules and procedures during the submission of evidence. The Malaysian court
acknowledges all reports and testimonials from them [Digital Forensic Expert].
• To secure it as authentic content, the court must evaluate the collection, preservation
and discovery of the evidence.
• In Malaysia, Cybersecurity Malaysia agency [consist of digital forensic experts] has been
established under the Malaysian Government to handle digital forensics affairs.
• This experts help to preserve the custody chain in its original and authentic form from
its collection time until it is produced in court.
 CONCLUSION

• In a nutshell, Digital Evidence must be authentic to be used as evidence in Malaysia

court of law.
• The provisions of Section 90A of Evidence Act 1950 have facilitated the use of
computer generated evidence.
• However, despite the recent amendments to the Evidence Act in 2012, It is noted
that the legislature has not seen the need to amend the term “computer” to
electronic or digital. As such questions of whether documents from particular
equipment are computer generated will continue to emerge.
• This is because technology has been evolving in a fast manner and there might be
more complicated cases in future. Thus, the laws need to be reviewed over time
and updated with certain modification if needed.
 REFERENCES

• Mohamed, D., & Ramlee, Z. (2013). Cases of electronic evidence in Malaysian courts: the civil and Syariah perspective.

• Brett Shavers, in Placing the Suspect Behind the Keyboard, 2013 EvidenceAct 1950 (Act 56)

• Anushia Kandasivam (2016, October 11).Understanding Digital Evidence in Malaysian Courts. Retrieved from
https://www.digitalnewsasia.com/digital-economy/understanding-digital-evidence-malaysian-courts

• [2015] 1 MLJ 617

• [2013] 5 MLJ 867

• Malayan Law Journal Articles/2013/Volume 3/Computer Evidence in Malaysia: Where are We?

• Christine Sgarlata, Chung and David J Byer, 'The Electronic Paper Trail: Evidentiary Obstacles to Discovery and
Admission electronic Evidence', 4 BU J SCI & TECH L 5, 22 September 1998

• [1937] MLJ 38

• [1975] 2 MLJ 106

 REFERENCES ( C O N T )

• Paul Hartman (1965). Illegally Obtained Evidence in the USA.

• [1975] 1 All ER 70
• Brenner, Susan W. (2005). US digital evidence: Simulations and animations, Computer and Telecommunications Law Review 2005
(C.T.L.R. 2005, 11(2), 38-39).
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Ramlee, Z. (2013). Cases of electronic evidence in Malaysian courts: the civil and Syariah perspective.
• [1997] 3 MLJ 1.
• [2014] 1 CLJ 316
• It is not clear what 'good working order' and 'operating properly' means; for a discussion of this problem that is also a problem in
England & Wales, see Stephen Mason, general editor, Electronic Evidence (2nd Ed), LexisNexis Butterworth, 2010, Chapter 5.
• [1996] 3 MLJ 240
• [2009] 2 CLJ 800
 REFERENCES ( C O N T )

• Malaysia, C. L. J. L. (2006, July 28). Bulletin_27_2006. Retrieved May 23, 2020, from
https://www.cljlaw.com/others/clj_bulletin/Bulletin_27_2006.htm?fbclid=IwAR2F4dLlmcHlvwbrpzKhi7Bp1kx5uyr1dGTDBGflM2JU
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• Nurainolmardhiah Binti Abdul Halim, Setra Ginsim and Siti Khadijah Binti Baharuddin. (2015). CASE STUDIES: ADMISSIBILITY OF
DIGITAL RECORDS AS LEGAL EVIDENCE IN MALAYSIA. National Archives of Malaysia
• Charles Ramendran. (2019, November 1). Raped, murdered by a beast. The Sun Daily. Retrieved from
https://www.thesundaily.my/local/raped-murdered-by-a-beast-XY1562462
• Dr Duryana Mohamed and Dr Zulfakar Ramlee. (2014). CASES OF ELECTRONIC EVIDENCE IN MALAYSIAN. COURTS: THE CIVIL AND
SYARIAH PERSPECTIVE. E-Journal of Social Science Research. No1 (2), page 4.
• Ibid at p 7.
 REFERENCES ( C O N T )

• Mohamad, A. M. (2019). Admissibility and Authenticity of Electronic Evidence in the Courts of Malaysia and United Kingdom.
International Journal of Law, Government and Communication, 4(15), 121-129.
• [2007] 7 CLJ 68
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• John C. O’Brien, ‘The Hearsay Within Confrontation’ (2010) Saint Louis University Public Law Review Vol.XXIX:501
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THANK YOU