Azlan Bin Alias v Public Prosecutor [2009] 4 MLJ 493

Case Review: Azlan Bin Alias v Public Prosecutor [2009] 4 MLJ 493

Court: Court of Appeal (Putrajaya)

Judges: Low Hop Bing, Abdull Hamid Embong, Ahmad Maarop JJCA

Date of Judgement: 26 June 2009

Topic: Admissibility of Computer-Generated Evidence

Facts 1.     The Appellant was charged for criminal breach of trust under Section 408 of Penal Code and was found guilty by the Magistrate Court. The provision read as follows:

“Whoever, being a clerk or servant or employed as a clerk or servant, an being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which shall not be less than one year and not more than fourteen years and with whipping and shall also be liable to fine.”

2.     As a matter of fact, the Appellant was a branch manager at Bank Pertanian Malaysia Machang (“the Bank”) and by definition was a servant to the Bank.

3.     The offence started when the Appellant had requested his subordinates, the administrative assistant (“SP6”) who was in charge of the financial unit of the Bank and the teller of the Bank (“SP7”) to process the Appellant’s personal MBB cheques for RM167,000.00 between 6 and 9 July 1997 to be further remitted into the Appellant’s Patriot Perdana Account.

4.     The learned deputy public prosecutor argued that on 9 July 1997 when the Appellant directed SP6 and SP7 to process his MBB cheque for RM167,000.00, there was a computer printout which showed that the transaction took place on 9 July 1997 at 10.59.03 hours and such computer-generated documents was admitted as evidence.

5.     The Appellant was then found guilty of the offence and convicted. His appeal against the conviction and sentence was later dismissed by the High Court.

6.     Pursuant to leave granted by the Court of Appeal, he had then appeal.

7.     In the appeal, the learned defence counsel argued among others that the computer-generated documents tendered through the internal auditor based at the Bank Pertanian Head Office in Kuala Lumpur (“SP4”) were inadmissible.

8.     This was on the ground that they had not satisfied the requirements of Section 90A of the Evidence Act 1950 (“Act 56”), and SP4 was not the person responsible for the computer that produced the documents but had merely examined them without explaining how and where he got the documents.

Issue 1.     Whether the computer-generated documents of the Bank can be admitted as evidence under Section 90A of Act 56?
Ratios 1.     To determine the issue at hand, the Court of Appeal took a look into the statutory exception to the common law hearsay rule and considered the documents produced by computers under Section 90A of Act 56 as the primary evidence as follows:

“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.”  [Emphasis Added]

2.     The Court of Appeal also cited the case of Gnanasegaran a /l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1 and it was decided that the computer printouts of the statements tendered by the bank officer in charge of the operations of the branch has actually fulfilled the requirements under Section 90A of Act 56.

3.     The Court of Appeal further cited the case of Hanafi bin Mat Hassan v Public Prosecutor [2006] 4 MLJ 134 where the defence counsel in the case argued that the ticket which was produced by the computer is not admissible as evidence on the ground that it was not proved by tendering the certificate pursuant to Section 90A (2) of Act 56.

4.     However, the Court in Hanafi’s case held that the ticket has been correctly admitted and that the principle of computer-generated document under Section 90A of Act 56 has also been discussed extensively in that case.

5.     The Court of Appeal in the present case took into account the principles of admissibility of the computer-generated documents which was delivered by the learned trial judge in Hanafi’s case as follows:

(a)    The documents must be produced by the computer in the course of its ordinary use and may be proved by tendering in evidence a certificate under Section 90A (2) read with subsection (3) of Act 56.

(b)   Once certificate is tendered as evidence, it has been established that the computer referred to in the certificate is operating properly during the production of documents under Section 90A (4) of Act 56.

(c)     The tendering of the certificate is not a compulsory requirement as the use of certificate can be substituted with oral evidence to the same effect.

(d)    The oral evidence is required to discharge the burden of showing that the computer which producing the documents is operating properly, by calling a witness who is familiar and has knowledge with the operation of computer.

6.     As a brief of fact for the present case, the computer-generated documents of the Bank that has been disputed include inter alia, the Appellant’s Patriot Perdana Statement of Account, Patriot Debit Instruction, Audit Report, General Journal Balancing, Cheque Pay-in Slip dated 7 July 1997 for RM 167,000.00 and other relating documents.

7.     Having correctly referred to the law of evidence and the above precedent cases, the Court of Appeal held that the SP4 who was the internal auditor of the Bank on the material date has given oral evidence to show to the Court that he has knowledge of the operations of and access to the Bank’s computer in order to tender the disputed computer-generated documents.

8.     The Court of Appeal found that SP4 could view and retrieve those documents which were the printouts from the computer in the course of its ordinary use.

Decision 1.     The computer-generated documents that has been tendered as exhibits have fulfilled the requirements of Section 90A of Act 56 and can be admitted as evidence under the same provision.

2.     The appeal was dismissed.

Key Take Away 1.     In accordance with Section 90A of Act 56, a printout generated by a computer must be produced in the course of its ordinary use, in order for it to be admitted as evidence.

2.     It also highlights the status or position of the person who prepares or tenders the document, as well as the requirement that the certificate must be signed by a person who is in charge of managing the use of the computer or performing the activities of the computer for which it was used.

3.     If the person in charge of that computer is present and provides oral evidence during the trial, then the certificate is not required because their oral testimony in the court alone suffices and shall be admissible as evidence.

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