Telekom Malaysia Bhd v KLK Electronic Sdn Bhd [2019] 4 MLJ 631

 

TELEKOM MALAYSIA BHD V KLK ELECTRONIC SDN BHD [2019] 4 MLJ 631

Court of Appeal (Putrajaya)

Contract – Admissibility of computer generated documents under Section 90A of the Evidence Act 1950

Facts

1.     The Appellant (‘Telekom Malaysia Bhd’) engaged the Respondent (‘KLK Electronic’) for engineering services.

2.     Based on the agreement and deed of assignment, the Respondent assigned all its rights to the proceed of its contract with TMB to Affin Bank Bhd (‘Affin’) as one of the contracts with TMB which was financed by Affin Bank Bhd.

3.           The Respondent instructed TMB to credit all payments due into a designated account but it was informed by Affin Bank Bhd that it had not received payments in the designated account.

4.         Therefore, the Respondent sued the Appellant in the High Court for the unpaid amounts.

5.             At the High Court, the Appellant argued that they had made the payments into other accounts held by the Respondent as there was no specific instruction by the Appellant that the payment need to be made into a designated account.

6.          The Appellant also contended that they had paid all invoices issued by the Respondent amounting to RM6,749,864.52.

7.        During the trial, the Appellant sought to admit computer-generated documentary evidence to support their argument.  The said documents were computer generated printouts details of payments that had been credited.

8.      However, the Appellant did not succeed in admitting such documents as the trial judge ruled that the documents were inadmissible in the absence of production of certificate as provided under Section 90A of the Evidence Act 1950 (‘Act 56’).

9.        Such rule was made despite the Appellant had informed the court that the person in charge of the computer was present to testify in the court.

10.    The court allowed the Respondent’s claim for the sum of RM5,533,072.25.

11.         The Respondent appealed to the Court of Appeal.

Issue

 1.     Whether the trial judge had erred in refusing to admit the computer generated documents under Section 90A of Act 56.

Ratios

1.     Section 90A of Act 56 provides for the admissibility of documents generated by computers.

2.         The Court of Appeal found that the learned trial judge took a narrow approach by making the ruling that the documents were only admissible upon proof of certificate even in the presence of the person with authority to verify the documents in court.

3.        It was held by the Court of Appeal that such certificate is not the only method to verify computer generated documents to be admissible as evidence under Section 90A.

4.       The person with authority to verified the documents (DW3) had testified in the court that he had the control over the computer system.  However, he was stopped by the learned trial judge who insisted the production of certificate to be produced.

5.         Therefore, it was ruled that the learned trial judge had made an error of law in holding that the documents as inadmissible.

6.       It is ruled by the Court of Appeal that certificate is not a conclusive way to prove the authenticity of a document.

Decision

1.    The appeal was allowed.

Key Take Away

1.      Section 90A of the Act 56 provides the exception to the hearsay rule.

2.      The principle on adducing evidence in the form of documents can only be invoked when the maker of the documents are called to prove the content of the statement or the document.  However, Section 90A is an exception to this principle.

3.      It is not necessary to call the maker of a document to the Court to testify the document.  Based on Section 90A(1) of the Act 56, a document can be admitted as long as it is produced in its ordinary use.

4.      Under S90A(2), it states that a certificate “may” be tendered to prove that a document was produced by a computer in its course of ordinary use. However, this requirement is not mandatory due to the word “may” which is why another way of proving it is by way of oral evidence instead of the certificate itself.

5.      Therefore, it can be concluded that such certificate is not the only way to prove the authenticity of a computer-generated document and it is not the only method to prove its authenticity.

 

 

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