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Tendering Digitally Recorded Evidence in Criminal Trials: 21 Sep - Written by Arik Zakri
Tendering Digitally Recorded Evidence in Criminal Trials: 21 Sep - Written by Arik Zakri
Tendering Digitally Recorded Evidence in Criminal Trials: 21 Sep - Written by Arik Zakri
’ Alexander ×
Hamilton, Malcolm X
Arik's Writings
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21 Sep
- Written By Arik Zakri Contact
TENDERING
DIGITALLY RECORDED
EVIDENCE IN
CRIMINAL TRIALS
“Nadar Elevating Photography to the Height of an Art”
Many people record videos, still frames and audio recordings in their mobile
devices. You can use it in a court case if you follow certain procedural rules in our
Evidence Act 1950. If you do not follow the correct procedure, the Court can reject
it on the basis of documentary hearsay, relevancy or some other reason
depending on the defect. I have done this write-up to show what has worked for
me and what has not. If you have not seen one before, or forgotten how they look
like, I have also shared some scans of actual 90A certificates that have been
exhibited in Court, objected and otherwise. In day to day criminal practice, 90A is
generally a mundane thing that is seldom the determining factor of guilt - it
seldom proves your case nor saves your client's life. But who knows when that
day will come when that one piece of evidence plays a crucial role. In writing this,
I have benefitted from trial and error, input from colleagues and a few scholarly
articles. Our discussion revolves around Section 90A of the Evidence Act 1950 for
conventional criminal cases. Section 90A operates similarly for civil cases too,
except for some aspects such as subsection 90A(7).
This part of the Court of Appeal judgment in HANAFI MAT HASSAN v PP [2006] 1
MLRA 706 was quoted in at least 6 leading cases:
The most widely recognised types of digitally recorded evidence are visual (still
photos / frames and motion videos) and audio recordings, as well as videos plus
audio. These categories are continuously evolving. Sophisticated volumetric
holographic displays, 3 dimensional sculpted prints, geospatial locators could
predictably fill these categories as they arise more frequently in disputed cases.
That is why I would not lose sleep in the debate over computer produced vs
computer generated; or electronic evidence vs digital evidence. 10 years ago
there were discussions distinguishing them, but as technologies became more
intergrated and converged, you hear those discussions less and less and Judges
spend less time on them too. It is good that Courts are open to consider more
and more categories of devices with the advancement of technology. Perhaps
we got the drafting right the first time.
We saw over the last dozen-over years that you do not need a Section 90A
certificate just because your exhibit came out of a printer. If your opponent or the
Court insists you comply with every part of Section 90A just because your
document came out of a computer, please refer to APPROFIT SDN BHD v. KENT
SING CONSTRUCTION SDN BHD & ORS [2001] 6 MLRH 749. 20 years on, it is still good
law. At paragraph 15 of the said judgment, Richard Malanjum J (as the former
Chief Justice then was) opined:
19. On perusal of the said document I am of the view that it may have
been printed using a computer. But I do not think it is in the same
category as a computer generated document as ordinarily
understood. ID-15 is nothing but an invoice that can also be printed by
other means. It differs from the document discussed in
Gnanasegaran's case in that there it was a statement of accounts.
Obviously the contents were generated from the data stored in the
computer and that the print was produced in the ordinary use of the
said computer. That in my view is the intention of section 90A of the
Act. Otherwise it could mean that any document would be admitted
regardless of it authenticity or contents if it could be shown that it was
printed by a computer. In other words, a document printed by a
computer vide a word-processing software would be included. With
respect, I do not think section 90A should be extended that far.
Under the Evidence Act 1950, the meaning of document, including a document
produced by a computer, is wider than its plain language meaning. A document
includes digital video and sound recording. It’s all defined in the Act. I guess even
a digitally imprinted tatoo or retina laser etching (like in a spy movie) could fall
within this definition.
This includes your handphone, laptop and pendrive. The law is descriptive and
looks at the function and not actual computing power. Would an electric
typewriter be considered a computer? After all it is involved in “producing any
information or other matter” and contemporary printers even perform
“computing” functions and interact with other devices like a computer. All the the
important issues on point are contained in just a few cases (Gnanasegaran, Mat
Hanafi and Ahmad Najib Aris, the rest build on them).
So you do not need to tender a 90A certificate with every typed and printed letter
(with or without signature – but that goes to authentication -- please see Public
Prosecutor v Abdul Rahim Abdul Sattar [1989] 2 MLRH 790, Wan Yahya J) or every
lakaran kasar that came out of a printer. I'm thankful to my learned friend T
Chelvakumar who shared this case with me almost 10 years ago, literally from
the next cubicle. I do not mean to digress, but this case is useful for prosecutors
and defence counsel. The judgment came about very close to that of Lin Lian
Chen, and the latter has enjoyed much fame. But Sattar is also useful tactically.
The heart of the argument is that Section 90A is intended to cover those
documents that came out of the computer from a scrambled mass of code,
data, values and formulas, like a bank account print out or a share price
movement print out. According to the United States National Institute of Justice,
"Digital evidence is information stored or transmitted in binary form that may be
relied on in court" (https://nij.ojp.gov/digital-evidence-and-forensics).
90A does not underwrite the actuality of whatever is depicted in the photo. It only
underwrites the integrity of the data produced by a computer in a printed form
and then exhibited on a piece of A4 paper.
If you use a digital camera to record a picture of fake drugs, fake injuries, fake
victims or fake evidence, all that a 90A cert can tell you is that the photo was
printed on a piece of paper based on data stored in a computer that was
working correctly at the time of the printing. It does not prove the object it
captured visually. In my humble opinion, the presumption in 90A works differently
from a presumption under Section 399 of the Criminal Procedure Code for
example, whereby when service is proved, the analysis of experts may be
established. Section 399 relates to proof of the thing analysed itself. Because
often, it is the expert’s analysis that proves what the thing is (dangerous drugs,
matching DNA). In the context of digital photographs, section 90A only helps
prove the conditions surrounding the production of pictures of the thing but it
does not prove the thing being pictured. It takes a human being to prove what
was photographed. Even if a Section 90A cert stated that “the photograph of a
purple rose was produced by a computer in the course of its ordinary use”, the
Court is still entitled to inquire into and consider challenges as to whether the
thing is actually purple, or actually a rose, or actually a purple rose. This is
because it was a human being who described it as a purple rose. Fortunately, in
most of the cases I handled involving digital photography evidence, the
descriptive terms were file names. Sometimes the 90A certs used descriptive
terms such as “gambar tempat kejadian”, which I trust most courts would not
assign any probative meaning.
Therefore, I think that the Court should not be satisfied with anything less than
actual proof that the raiding team identified the physical drugs in court (usually
based on markings). Since the condition of the exhibits change during the course
of investigation, the identity of the drugs should be proved based on markings as
well as images of the actual drugs in its original form at the time of seizure.
Remember that the offence relates to possession or trafficking in dangerous
drugs and not markings or packaging. But even if the photos were lost or never
recorded, I think the prosecution could still prove the identity of the exhibits — but
there needs to be more care in the description of the type, number, condition of
the seals, and other aspects. If it helps, the photos recorded by the chemist
before, during and after analysis could be produced. The proof must be
established by evidence elicited from the mouths of witnesses and not from the
lack of cross examination by counsel. As per the term “accepted” used in the
judgment of the oft relied case Wong Swee Chin, for criminal cases I do not think
that the Court is bound to admit evidence even if it were accepted by the
defence.
I am thankful for the discussion with counsel who handled the appeal in ABDUL
RAHMAN MOHD v PP [2021] MLRAU 102 decided on 10 May 2021. Encik Nik Mohamed
Ikhwan bin Nik Mahamud informed that the matter is presently on appeal to the
Federal Court. The Court of Appeal found:
I really do not know how a piece of paper that the Koperal Jurufoto typed up and
signed himself is accepted as certifying the document is assured to tamper free
as to that document describing the reality of the computer printout and the
reality of his relationship to it. We just accept it because the law says so. And
even when the Section 90A cert has been destroyed in cross examination, the
oral testimony is still accepted. I’m sure there have been cases out there where
some piece of crucial evidence, the deciding factor of a case, could only be
proved through 90A. I have not faced such a case. But due to the rarity, perhaps
that is why Parliament saw it fit to allow us to wing it. That being said, like most
other statutory presumptions and deeming provisions, it is rebuttable.
Prosecutors tender evidence in accordance with the tried and tested Section 90A
certificates day in and day out. On the day of the trial, a police photographer
attends court and produces a certificate with faded Royal Malaysia Police logo
printed in faded ink. It is faded yet still fresh because he (or his office mate)
printed it that morning. The document is creased because it was unfolded out of
his pocket. It is signed by himself. It contains several mistakes. It gets the dates
and reference numbers wrong or omits them entirely. Experienced counsel do
not bother to object because they know courts will admit and mark them
anyway. It is just unclassy to pick on the jurufoto who does not know anything
about the case. Please stop all this needless overkill cross-examination of the
Jurufoto. Jurufoto are good fillers, stopgap witnesses in between important
witnesses. Bonus points if there are 3 jurufoto : One for the crime scene (which
may be wrong because the IO did not give proper directions to the jurufoto,
assuming the IO did actually arrive at the crime scene), one of the exhibits and
one of the cadaver or other relevant subject. But they are actually redundant –
the IO can produce the same exhibits and tender the 90A certificate. If the DPP
wants to call the IO and tender the 90A, let her do it.
Subsection (3)(b) provides that “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.” There you have it, it is
redundant to call the Jurufoto.
IOs should prepare all the digital exhibits themselves to minimise “necessary
explanations” needed to provide to the court. Preparing the digital exhibits
includes proper cataloguing, transferring from the recording device to another
platform such as a laptop, transferring it to another storage device such as a
pen drive or optical disc, printing it, arranging and gluing the photos on sheets of
A4-sized paper, labelling the photos, preparing a cover page with the correct
police report number and the correct name of the IO, labelling the photos. Due
to their heavy workload, IOs delegate such task to the jurufoto. Thus in one of my
trials, one of the exhibits were a collection of photographs of a crime scene at
Lembaga Zakar Selangor (her typo not mine). The intended target was a parking
ticket machine but the wrong ticket machine was photographed, presumably
because the jurufoto was guided by vague information provided.
In court, the IO insisted that the video images clearly showed the Accused, and that
the print-out exhibited is unclear. This despite the maker (the forensic analyst
herself), who analysed over a thousand cases, having testified that the persons in
the video are unidentifiable. The IO alleged he saw the Accused in the security
room monitor which he claimed was clearer than these printed images. Should the
court accept what he said without being shown what he saw in the security room
monitor? Furthermore, prosecutors often must make decisions on cases based on
such evidence. They know best.
DON’T DO THIS
A while back, I prosecuted a cheating case where a young man used some
cloned credit cards to buy goods from an electrical appliances shop. I had
evidence of the entire transaction in the form of the CCTV recording but I did not
wish to use it against him because the shop owner fudged the chain of custody. I
disclosed the fact that we had CCTV and I was open about its technical
problems. We even gave my opponent a copy of the CCTV recording in a
compact disc format. My opponent could not resist the opportunity to study the
content of my CCTV recording by having it played in view of the court. I objected.
The court overruled my objection and allowed the defence counsel to put the
CCTV recording forward. He was already adducing evidence through cross
examination. I knew exactly the part that would favour my case: at one point of
the recording, you could clearly see that the accused signed the payment slip (it
was a duplicate customer and merchant’s copy). My opponent had denied his
client signed it. As the CCTV rolled on, I could see from my opponent’s posture
that he was super confident that I had no evidence and that the CCTV would
show that his client did not sign anything. I knew the exact time stamp and I was
saying in my heart, “Oh please, please, please ….”
Then the CCTV video clearly showed his client take up a pen and sign the
duplicate slip, then hand the same slip to the cashier. My opponent stopped
smiling. Without looking directly at him I knew exactly when he stopped smiling.
Speechless and silent for one full minute. From the corner of my eye I saw him
turn and glare at his client. I refrained from any gloating, which would be
unethical and unbecoming of crown counsel.
One of my former bosses, Datuk Noorin Badaruddin (now a judge) advised us,
never display nor exhort your wins or successes, keep it inside. Never celebrate a
win. Hold it in. You can celebrate in your quiet moments or among close friends
out of everyone’s earshot.
I was celebrating like it was 1999, but only at the conceptual, digital level of
course.
We may have no real issue with documents produced from the analysis of the
Chemistry Department, or printouts from price movement of the capital markets
regulator. We may, however, want to scrutinise the integrity and reliability of data
from “less conventional” sources, such as amateur video, hacked data, and
perhaps conventional but potentially not as well-maintained systems such as
the ticketing machine from a passenger bus, or the enter/exit log records of a
condominium, or the GPS-synchronised flight path of a flying drone.
Section 90A is a statutory presumption, which means that the Court is not
obliged to accept it at face value even if the Prosecutor has ticked all the boxes
in the 90A certificate. There are other laws that use the word “shall”. So the Court
could still require more proof or scrutiny if it considers it appropriate. Lawyers
should of course not take the 90A certificates for granted — especially for those
less conventional or less well-maintained sources mentioned above. The Court
should be satisfied that the integrity of the system checks out according to
certain standards and there are control mechanisms to ensure the data is
accurate and can be cross-referenced to the facts in issue in a meaningful,
relevant way. Thus if the time-stamp is off, many types of data become
irrelevant because the completion of almost all crimes are linked to space and
time. The Court should need to be satisfied of any explanations for the time lag
by evidence from the Prosecutor. In a murder trial, I cross examined the technical
staff of a shopping complex, who disclosed that the time-stamp did not match.
The Prosecution did not produce any evidence to cover such deficit. Instead they
adduced testimony from a cashier on site who described a male of a particular
ethnicity who purchased the impugned items. I challenged the evidence in cross
examination because there was nothing before the Court to link any male of any
ethnicity with the purported time stamp with the man in the dock. This approach
I had taken is a very typical challenge that a defence counsel would be expected
to mount in comparable scenarios. It’s not like the cashier checked his wrist
watch every time a customer made a purchase, to make sure that the time
printed on the sales receipt was correct, or that the CCTV recording’s time stamp
was likewise correct.
Dr Ani Munirah Mohamed studied the UK position on the issue of how far the
sources of digital information must be authenticated and verified — I am of the
view that the Court can still and should scrutinise information sources that are
not so conventional or not so well maintained. In her article “ADMISSIBILITY AND
AUTHENTICITY OF ELECTRONIC EVIDENCE IN THE COURTS OF MALAYSIA AND UNITED
KINGDOM” published in 2019 at page 126 of the International Journal of Law,
Government and Communication:
I repeat again: You still need to prove how the exhibit relates to the Accused or to
whatever you need to prove.
So you still need to prove that the thing or person whose image was recorded,
sound was digitalised, movement was tracked, weight was measured, etc was in
fact relevant to the thing.
The most widely recognised types of digitally recorded evidence are visual (still
photos / frames and motion videos) and audio recordings, as well as videos plus
audio. These categories are continuously evolving. Sophisticated volumetric
holographic displays, 3 dimensional sculpted prints, geospatial locators could
predictably fill these categories as they arise more frequently in disputed cases.
That is why I would not lose sleep in the debate over computer produced vs
computer generated; or electronic evidence vs digital evidence. 10 years ago
there were discussions distinguishing them, but as technologies became more
intergrated and converged, you hear those discussions less and less and Judges
spend less time on them too. It is good that Courts are open to consider more
and more categories of devices with the advancement of technology. Perhaps
we got the drafting right the first time.
We saw over the last dozen-over years that you do not need a Section 90A
certificate just because your exhibit came out of a printer. If your opponent or the
Court insists you comply with every part of Section 90A just because your
document came out of a computer, please refer to APPROFIT SDN BHD v. KENT
SING CONSTRUCTION SDN BHD & ORS [2001] 6 MLRH 749. 20 years on, it is still good
law. At paragraph 15 of the said judgment, Richard Malanjum J (as the former
Chief Justice then was) opined:
19. On perusal of the said document I am of the view that it may have
been printed using a computer. But I do not think it is in the same
category as a computer generated document as ordinarily
understood. ID-15 is nothing but an invoice that can also be printed by
other means. It differs from the document discussed in
Gnanasegaran's case in that there it was a statement of accounts.
Obviously the contents were generated from the data stored in the
computer and that the print was produced in the ordinary use of the
said computer. That in my view is the intention of section 90A of the
Act. Otherwise it could mean that any document would be admitted
regardless of it authenticity or contents if it could be shown that it was
printed by a computer. In other words, a document printed by a
computer vide a word-processing software would be included. With
respect, I do not think section 90A should be extended that far.
Under the Evidence Act 1950, the meaning of document, including a document
produced by a computer, is wider than its plain language meaning. A document
includes digital video and sound recording. It’s all defined in the Act. I guess even
a digitally imprinted tatoo or retina laser etching (like in a spy movie) could fall
within this definition.
This includes your handphone, laptop and pendrive. The law is descriptive and
looks at the function and not actual computing power. Would an electric
typewriter be considered a computer? After all it is involved in “producing any
information or other matter” and contemporary printers even perform
“computing” functions and interact with other devices like a computer. All the the
important issues on point are contained in just a few cases (Gnanasegaran, Mat
Hanafi and Ahmad Najib Aris, the rest build on them).
So you do not need to tender a 90A certificate with every typed and printed letter
(with or without signature – but that goes to authentication -- please see Public
Prosecutor v Abdul Rahim Abdul Sattar [1989] 2 MLRH 790, Wan Yahya J) or every
lakaran kasar that came out of a printer. I'm thankful to my learned friend T
Chelvakumar who shared this case with me almost 10 years ago, literally from
the next cubicle. I do not mean to digress, but this case is useful for prosecutors
and defence counsel. The judgment came about very close to that of Lin Lian
Chen, and the latter has enjoyed much fame. But Sattar is also useful tactically.
The heart of the argument is that Section 90A is intended to cover those
documents that came out of the computer from a scrambled mass of code,
data, values and formulas, like a bank account print out or a share price
movement print out. According to the United States National Institute of Justice,
"Digital evidence is information stored or transmitted in binary form that may be
relied on in court" (https://nij.ojp.gov/digital-evidence-and-forensics).
90A does not underwrite the actuality of whatever is depicted in the photo. It only
underwrites the integrity of the data produced by a computer in a printed form
and then exhibited on a piece of A4 paper.
If you use a digital camera to record a picture of fake drugs, fake injuries, fake
victims or fake evidence, all that a 90A cert can tell you is that the photo was
printed on a piece of paper based on data stored in a computer that was
working correctly at the time of the printing. It does not prove the object it
captured visually. In my humble opinion, the presumption in 90A works differently
from a presumption under Section 399 of the Criminal Procedure Code for
example, whereby when service is proved, the analysis of experts may be
established. Section 399 relates to proof of the thing analysed itself. Because
often, it is the expert’s analysis that proves what the thing is (dangerous drugs,
matching DNA). In the context of digital photographs, section 90A only helps
prove the conditions surrounding the production of pictures of the thing but it
does not prove the thing being pictured. It takes a human being to prove what
was photographed. Even if a Section 90A cert stated that “the photograph of a
purple rose was produced by a computer in the course of its ordinary use”, the
Court is still entitled to inquire into and consider challenges as to whether the
thing is actually purple, or actually a rose, or actually a purple rose. This is
because it was a human being who described it as a purple rose. Fortunately, in
most of the cases I handled involving digital photography evidence, the
descriptive terms were file names. Sometimes the 90A certs used descriptive
terms such as “gambar tempat kejadian”, which I trust most courts would not
assign any probative meaning.
Therefore, I think that the Court should not be satisfied with anything less than
actual proof that the raiding team identified the physical drugs in court (usually
based on markings). Since the condition of the exhibits change during the course
of investigation, the identity of the drugs should be proved based on markings as
well as images of the actual drugs in its original form at the time of seizure.
Remember that the offence relates to possession or trafficking in dangerous
drugs and not markings or packaging. But even if the photos were lost or never
recorded, I think the prosecution could still prove the identity of the exhibits — but
there needs to be more care in the description of the type, number, condition of
the seals, and other aspects. If it helps, the photos recorded by the chemist
before, during and after analysis could be produced. The proof must be
established by evidence elicited from the mouths of witnesses and not from the
lack of cross examination by counsel. As per the term “accepted” used in the
judgment of the oft relied case Wong Swee Chin, for criminal cases I do not think
that the Court is bound to admit evidence even if it were accepted by the
defence.
I am thankful for the discussion with counsel who handled the appeal in ABDUL
RAHMAN MOHD v PP [2021] MLRAU 102 decided on 10 May 2021. Encik Nik Mohamed
Ikhwan bin Nik Mahamud informed that the matter is presently on appeal to the
Federal Court. The Court of Appeal found:
[27] The head of the raiding team (SP2) was shown the photographs in
question when he gave evidence. He identified all the photographs as
representing the drugs, the sling bag, the motorcycle and the scene of
arrest in relation to the instant case. During cross-examination, no
challenge was made by counsel for the appellant that the
photographs do not depict the exhibits and the scene of arrest
pertaining to this case. In fact, counsel for the appellant at one point
during the trial cross-examined SP2 in relation to the location of the
motorcycle by relying on the very same photographs. No suggestion
was ever made that the photographs were not photographs of the
scene of arrest. Similarly, when the investigating officer (SP3) gave
evidence that it was he who instructed the police photographer to take
the photographs in question, no suggestion was made that the
photographs did not depict the exhibits or the scene of arrest.
I really do not know how a piece of paper that the Koperal Jurufoto typed up and
signed himself is accepted as certifying the document is assured to tamper free
as to that document describing the reality of the computer printout and the
reality of his relationship to it. We just accept it because the law says so. And
even when the Section 90A cert has been destroyed in cross examination, the
oral testimony is still accepted. I’m sure there have been cases out there where
some piece of crucial evidence, the deciding factor of a case, could only be
proved through 90A. I have not faced such a case. But due to the rarity, perhaps
that is why Parliament saw it fit to allow us to wing it. That being said, like most
other statutory presumptions and deeming provisions, it is rebuttable.
Prosecutors tender evidence in accordance with the tried and tested Section 90A
certificates day in and day out. On the day of the trial, a police photographer
attends court and produces a certificate with faded Royal Malaysia Police logo
printed in faded ink. It is faded yet still fresh because he (or his office mate)
printed it that morning. The document is creased because it was unfolded out of
his pocket. It is signed by himself. It contains several mistakes. It gets the dates
and reference numbers wrong or omits them entirely. Experienced counsel do
not bother to object because they know courts will admit and mark them
anyway. It is just unclassy to pick on the jurufoto who does not know anything
about the case. Please stop all this needless overkill cross-examination of the
Jurufoto. Jurufoto are good fillers, stopgap witnesses in between important
witnesses. Bonus points if there are 3 jurufoto : One for the crime scene (which
may be wrong because the IO did not give proper directions to the jurufoto,
assuming the IO did actually arrive at the crime scene), one of the exhibits and
one of the cadaver or other relevant subject. But they are actually redundant –
the IO can produce the same exhibits and tender the 90A certificate. If the DPP
wants to call the IO and tender the 90A, let her do it.
Subsection (3)(b) provides that “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.” There you have it, it is
redundant to call the Jurufoto.
IOs should prepare all the digital exhibits themselves to minimise “necessary
explanations” needed to provide to the court. Preparing the digital exhibits
includes proper cataloguing, transferring from the recording device to another
platform such as a laptop, transferring it to another storage device such as a
pen drive or optical disc, printing it, arranging and gluing the photos on sheets of
A4-sized paper, labelling the photos, preparing a cover page with the correct
police report number and the correct name of the IO, labelling the photos. Due
to their heavy workload, IOs delegate such task to the jurufoto. Thus in one of my
trials, one of the exhibits were a collection of photographs of a crime scene at
Lembaga Zakar Selangor (her typo not mine). The intended target was a parking
ticket machine but the wrong ticket machine was photographed, presumably
because the jurufoto was guided by vague information provided.
DON’T DO THIS
A while back, I prosecuted a cheating case where a young man used some
cloned credit cards to buy goods from an electrical appliances shop. I had
evidence of the entire transaction in the form of the CCTV recording but I did not
wish to use it against him because the shop owner fudged the chain of custody. I
disclosed the fact that we had CCTV and I was open about its technical
problems. We even gave my opponent a copy of the CCTV recording in a
compact disc format. My opponent could not resist the opportunity to study the
content of my CCTV recording by having it played in view of the court. I objected.
The court overruled my objection and allowed the defence counsel to put the
CCTV recording forward. He was already adducing evidence through cross
examination. I knew exactly the part that would favour my case: at one point of
the recording, you could clearly see that the accused signed the payment slip (it
was a duplicate customer and merchant’s copy). My opponent had denied his
client signed it. As the CCTV rolled on, I could see from my opponent’s posture
that he was super confident that I had no evidence and that the CCTV would
show that his client did not sign anything. I knew the exact time stamp and I was
saying in my heart, “Oh please, please, please ….”
Then the CCTV video clearly showed his client take up a pen and sign the
duplicate slip, then hand the same slip to the cashier. My opponent stopped
smiling. Without looking directly at him I knew exactly when he stopped smiling.
Speechless and silent for one full minute. From the corner of my eye I saw him
turn and glare at his client. I refrained from any gloating, which would be
unethical and unbecoming of crown counsel.
One of my former bosses, Datuk Noorin Badaruddin (now a judge) advised us,
never display nor exhort your wins or successes, keep it inside. Never celebrate a
win. Hold it in. You can celebrate in your quiet moments or among close friends
out of everyone’s earshot.
I was celebrating like it was 1999, but only at the conceptual, digital level of
course.
We may have no real issue with documents produced from the analysis of the
Chemistry Department, or printouts from price movement of the capital markets
regulator. We may, however, want to scrutinise the integrity and reliability of data
from “less conventional” sources, such as amateur video, hacked data, and
perhaps conventional but potentially not as well-maintained systems such as
the ticketing machine from a passenger bus, or the enter/exit log records of a
condominium, or the GPS-synchronised flight path of a flying drone.
Section 90A is a statutory presumption, which means that the Court is not
obliged to accept it at face value even if the Prosecutor has ticked all the boxes
in the 90A certificate. It MAY presume the fact was proved. There are other laws
that use the word “shall”. So the Court could still require more proof or scrutiny if
it considers it appropriate. Lawyers should of course not take the 90A certificates
for granted — especially for those less conventional or less well-maintained
sources mentioned above. The Court should be satisfied that the integrity of the
system checks out according to certain standards and there are control
mechanisms to ensure the data is accurate and can be cross-referenced to the
facts in issue in a meaningful, relevant way. Thus if the time-stamp is off, many
types of data become irrelevant because the completion of almost all crimes
are linked to space and time. The Court should need to be satisfied of any
explanations for the time lag by evidence from the Prosecutor. In a murder trial, I
cross examined the technical staff of a shopping complex, who disclosed that
the time-stamp did not match. The Prosecution did not produce any evidence to
cover such deficit. Instead they adduced testimony from a cashier on site who
described a male of a particular ethnicity who purchased the impugned items. I
challenged the evidence in cross examination because there was nothing before
the Court to link any male of any ethnicity with the purported time stamp with
the man in the dock. This approach I had taken is a very typical challenge that a
defence counsel would be expected to mount in comparable scenarios. It’s not
like the cashier checked his wrist watch every time a customer made a
purchase, to make sure that the time printed on the sales receipt was correct, or
that the CCTV recording’s time stamp was likewise correct.
Dr Ani Munirah Mohamed studied the UK position on the issue of how far the
sources of digital information must be authenticated and verified — I am of the
view that the Court can still and should scrutinise information sources that are
not so conventional or not so well maintained. In her article “ADMISSIBILITY AND
AUTHENTICITY OF ELECTRONIC EVIDENCE IN THE COURTS OF MALAYSIA AND UNITED
KINGDOM” published in 2019 at page 126 of the International Journal of Law,
Government and Communication:
Adolph Von Menzel (1886) Adolph Von Menzel graphische Kunst, Verlag Ernst Arnold,
Dresden (1920).
PREPARING THE EXHIBITS FOR COURT
The still frames are produced like any other documentary evidence. Because the
still frames were printed from a digital recording device (your handphone), you
will need to prepare to explain to the court the process that you printed it:
• That you recorded the frames from your handphone, that your handphone
was operating normally, that you transferred the frame to your laptop for
the purpose of printing, that your laptop was operating normally, that you
printed the same frame from your printer;
• That you are the owner and responsible for the proper functioning of all 3
devices (phone, laptop and printer);
• The frames were produced by the devices in the course of their ordinary
use; and
• You will need to be prepared to exhibit your phone and laptop used in the
printing if required. If you are still using it to make a living, or that it is
otherwise something that should not be left in storage of the court or the
IO's locker, ask permission to take it back.
• The individuals in the frames, and if it is audio recording, the voices, must be
identified.
• The DPP may raise an objection under Section 90A(7) of the Evidence Act
1950, which suggests that documents produced by the accused’s computer
are inadmissible in court. My comments on this below.
The High Court in PERKASA JAUHARI SDN BHD v YS CHONG ENTERPRISE SDN BHD
[2020] MLRHU 1253 ruled that “[37] At this juncture, it is crucial to note the
reminder administered by Siti Norma Yaakob JCA (as she then was) in the Court
of Appeal case of GUAN TEIK SDN BHD v HJ MOHD NOOR HJ YAKOB & ORS [2000] 4
MLJ 433; [2000] 4 CLJ 324, that 'when there is a conflict between
contemporaneous documentary evidence and self-serving oral evidence, the
court should accept the former.”
The Court may consider the value of the tendered evidence in terms of weight,
even if the dates or time does not match (Section 90B).
I have heard that there were courts that required the maker of the transcript to
attend court and produce the transcript like any other witness. I have also heard
of courts that did not; they adopted it as part and parcel of the court
proceedings – i.e. as though the Magistrate heard the recording and typed out
the dialogue herself. Call the maker to be on the safe side.
The Court of Appeal decided this year a case that included evidence contained
in a recorded conversation. This was a civil case but on the issue of transcripts it
referred to 2 criminal cases. This is a long excerpt , but we can extract some
general principles that would guide the Magistrate for our case:
LIM PENG HOCK & ANOR v CHUAH PENG SAN & ANOR [2021] MLRAU 31
Sample Transcript of a translated WhatsApp message. The Court interpreter
prepared it. What is the value of a translation of a WhatsApp message and what
kind of weight could be assigned? (This is not from the Lim Peng Hock case
quoted)
The Alleged Recorded Conversations (ID8A & ID8B, ID9, ID10 & ID11 And
ID12A & ID12B
The above decision suggested that failure to produce the device in court is fatal.
Like many things in our legal regime, this works on a case by case basis. Many
courts do not require you to produce the device. Some only want to hear you
mention it, its model number, the software used. Some only want you to show it in
court but not exhibit/mark it. If you mark it the device, please request permission
from the court to release it and return it for use by the police department. Strictly
this should not be permitted because it could affect the integrity of the device
and there would be changes in the content. But I would not make a big issue out
of this. Let's be reasonable about this and choose our battles.
SELECTED PRACTICAL ISSUES
1. 90A(7) does not stop the defence from producing such evidence through other
witnesses, whether prosecution or defence witnesses.Adduce evidence through
the IO using this win-win process. But you need to confirm your client's
instructions that there is indeed favourable evidence in the device. Do not use
this method if your instructions are insecure. Write to the IO inform them that you
have the recordings. Number and tabulate them. Let's call this an intimation.
Make sure you have an acknowledgment of receipt from the IO or her boss or
someone in her office whose job it is to receive correspondence. If the IO or their
office is avoiding/discouraging service, you could do it in open court and notify
the court as you do it so that the judge puts it on record (if they want to). But this
means that the handover is to the prosecutor, whom you cannot call as a
witness and therefore your intimation remains untenderable (at least in the
conventional sense of ID and P). Your goal is to elicit the evidence through the IO.
It is kind of win-win for the defence because if the IO acts on the intimation and
seizes the evidence, you can elicit evidence about its contents by cross
examining the IO. If the IO ignores your intimation, just establish through cross
examination of the IO that they ignored your intimation and exhibit the
acknowledgment copy of your letter to the IO. Foreseeing that the IO would
ignore your intimation, address the letter to their immediate boss. The target is to
make your letter tender-able through the IO and marked as D. If some random
police civilian clerk signed off the acknowledgment, the IO may claim they do not
recognise the person and you cannot mark it as even an identified exhibit (ID).
Do not assume that the court will allow the intimation to be marked through the
IO just because the acknowledgement chop/stamp of the IO or their boss or their
office is still wet with ink. It has to be the signature of a human being. I've not yet
articulated the point in recent times, but a long while back, several courts
accepted my argument where I related it to Section 47 (credit to my seniors at
Unit Jenayah Perdagangan). Looking back, I surmise that Section 47 does not
deal with identification of documents per se just because it involves human
signatures. That being said, my point is that the IO cannot shy away from
identifying their boss's signature or the signature of their boss's PA. Give this a
shot, it is win-win or close to it. Unfortunately, in 2 recent cases, I was
unsuccessful in achieving the right finding-- an alleged paedophile case and a
murder case. Both are reported and I can share the reference on your request,
but it is not helpful to explain my point because the grounds do not even
consider it "in the right perspective" to borrow a phrase from one of the grounds.
The murder case was worse, because the IO even testified that it was not
necessary for him to investigate the defence put forward, and the learned Judge
let him go. On the other hand, I am presently handling another murder case
where in view of the prohibition in Section 90(7), I elicited favourable evidence
from the IO who alleged to have studied the entire contents of my client's
handphone but only exhibited 15 screenshots. There were potentially hundreds of
other screenshots. Because the forensic analyst was not instructed to look at all
the contents (but merely extract them), even the said analyst was no help. So I
adduced secondary evidence of the contents of my client's handphone which
was not printed. I was barred from adducing the contents under Section 90A(7)
but I still obtained the evidence I wanted through cross examination because
under the provision on secondary evidence, it was established that my client's
handphone was in the custody of the IO. Furthermore, I sent the DPP a notice to
produce. Please read the combined effect of Section 65(1)(a) and 66 of the
Evidence Act 1950. To set this up you still need to issue a Notice to Produce
because the proviso in 65(1)(a) provides, "and when after the notice mentioned
in section 66 such person does not produce it". In addition, Ooi Choo Hock v
PP decided by the Court of Appeal could be helpful if played right – IO should act
on your information and record your statement. If the IO does not, it could
amount to an obstruction of justice. Work your way towards a Section 114(g)
argument in submissions. Lay all the above one by one. The argument in Ooi
Choo Hock does not seem to be, with a lack of a better word, tactically feasible in
trial. It is pointless to use it in trial. Save it for appeal.
2. Despite what Section 90A(7) says, I would still give it a go. Try some of these
arguments.
• If the recording includes what the accused says or does, it comprises part of
his statement.
• Lin Lian Chen. Go on the principle of the right and duty of the defence to
present its case. No need to emphasise the principle that the IO could
tender it because he has custody of the exhibit – what if your IO (tactically)
refused to seize the pen-drive (refer to my points above -- but the situation
is distinguishable from Ooi Choo Hock).
• There are many cases on the effect of failure to investigate. Consider Lee
Kwon Woh v PP [2009] 2 MLRA 286 and Chu Tak Fai v PP [2006] 2 MLRA 317.
If you have any other experience on how to deal with this issue, or relevant
precedents on point, please let me know and if it worked I will acknowledge you.
Thank you.
Chain of Evidence
It goes without saying that the chain of evidence remains an important issue of
proof even for documents produced by a computer. In this context, I do not
mean chain of evidence like that of a drugs case where even the storekeeper is
called to prove that the exhibit brought to Court was the exhibit submitted by the
IO (notwithstanding case law that chain of evidence is most important up to the
Chemist and less so afterwards). I also do not refer to the chain of evidence of
that piece of paper that came out of the maker’s printer. What I meant is the
chain of evidence to prove the information at the time that it is captured by the
system all the way until it is represented on the sheet of A4 paper. All those
stages in between need to be in order. Section 90A itself does not state that the
Prosecution needs to prove all these unknowable stages. Section 90A seems to
focus on the role of the person tendering the A4 piece of paper and how he is
situated with the original source of information. The Prosecution can actually
wing it safely with a properly drafted Section 90A cert or written statement that
ticks all the boxes of 90A. It can be done without the Court or defence knowing
what actually happened behind the scenes (or backroom, say the technically
inclined). The Defence often does not have the means to have the computer
system independently tested by a third party forensics analyst. Who knows,
perhaps someday a determined, financially strong Accused is permitted by a
permissive Court, to submit the computer system to a reputable, independent
lab that exposes the true reliability of the facts purported in that 90A cert. This is
not one of those things in which the defence counsel can rely on a hunch. You
really need to show the Court a basis for doing this.
The Court, Prosecutors and Defence Counsel should be careful that the Section
90A certificate describes the device, processes and output properly and the time
and date all line up logically. Sometimes the IO or the maker of the document
prepared a 90A cert based on their own non-legal understanding, thus omitting
certain parts of the chain of evidence. In my view this is repairable by oral
testimony but it must be from the right witness. The maker runs into trouble if the
production of the document involves multiple input from multiple human users.
Just because a fact in the chain of evidence was omitted in the 90A cert does
not mean that the Prosecution needs to call every witness in that chain. As
mentioned earlier, the thinking behind section 90A is to assist the Prosecution
with legal fiction, which is taken that one person can certify multiple devices
working in concert. We know that in real life, this is sometimes true and
sometimes false. But we accept it because the law accepts it. I would suggest,
unless the omission is glaring or if you have evidence that can contradict the 90A
cert, learned defence counsel need not expend too much time on this issue of
chain of evidence. If the witness’s testimony ticks the boxes spelled out in 90A,
leave him alone. Even if they faked it all, you would not have anything better to
catch them with — so by all means attack if you have something substantial with
which to challenge the witness or else the Court may lose patience with you.
"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".
Imagine how handy it would be to have a portable “Section 90A” machine that
extracts the contents of a device (either remotely by something like Bluetooth or
a physical connector), authenticate it according to a legal standard, and print it
into sheets of paper in one continuous, uninterrupted process, together with
something similar to a QR code that can confirm the authenticity, and print the
90A cert too.
This is what the High Court found in ARIFIN (SPRM) v DRAHMAN [2016] MLRHU 1194:
“[24]In the 4th ground of appeal, the Appellant contended that the
learned Sessions Court Judge erred in law and in fact when he decided
that the Appellant's failure to establish that PW5 is an expert is fatal.
[26] This Court finds from the Notes of Proceedings, that the Appellant
had failed to establish that PW5 had the necessary experience or the
expertise in using forensic tools like XRY in his analysis on the SIM card
and the hand phone and/or was an expert in this particular field. Thus
the Appellant had failed to establish the requisite foundation for the
admission of PW5's expert opinion evidence pursuant to s 45 of the
Evidence Act 1950.”
The learned Judicial Commissioner informed the parties from the Bench that for
drugs cases, Her Ladyship had admitted photographs taken of messages
displayed on the screen of handphones. That meant, screen prints from a police
camera that was aimed on an activated handphone with the display lit. I had
some comments about that, but defence was called anyway for murder. We will
see what kind of ruling was arrived at in the grounds.
I recall a few general crimes cases I prosecuted where, somehow the court
admitted photos of handphones that displayed SMS texts. They were not crucial
evidence but I do not know how they got in but they did. This happens because
the police failed to preserve the evidence with more forensically-acceptable
techniques.
In all fairness, I have seen many investigations properly their forensic analyst
correctly for trial. But in these paragraphs below I wish to highlight a curious
practice that helps protect the investigation.
I found it interesting that in a few cases I handled, the forensic analyst is only
instructed to transfer the content to another medium but not analyse it. Analysis
is omitted from the request form issued by the IO to the analyst. Please study this
request form -- it is analogous to a Pol 31 and sometimes reveals blindspots in
the investigation. It is made to appear as though no forensic expertise is required
to do this. They plug it into what they call a software called XRY and it ‘vacuums’
the contents and transfers it to a device which then burns it into a CD. Cleverly
the analyst is not asked to even peek at its contents to make sure they are not
just blank white pictures, blank white videos or white noise audio. So when we
cross examine the analyst we just get blank white stares. This curious practice
enables them to avoid having to ID the contents. Tactically, it means one less
witness for the prosecutor to ensure consistency and one less witness for the
defence counsel to look for contradictions. More interesting is, the IO does not
even use the contents of that CD for investigation. That’s what they say so we
take it at face value. He just prints the contents of the device using unscientific
methods such as taking photos of the handphone display or printing the
contents directly from his personal laptop. So what is the point of having referred
the exhibits to the forensic analyst? Why call the forensic analyst to testify?
CONCLUSION
1. Digitally recorded evidence is sexy but it still requires the same care and
scrutiny as any other evidence. Fight the urge to present a dramatic audio
recording without studying it – to avoid any backfire against you.
2. Choose your battles. You need not object to every single non-compliance in
the certificate.
Word of Thanks
In transferring my thoughts to this write up, I am grateful to all my seniors in Unit
Jenayah Perdagangan and Unit Rayuan in the former C3 and C7 respectively who
taught me how to use these provisions, and all those trial judges who told me how
not to. I will never forget those times Tuan Deva unexpectedly summoned me into
his room as I walked past with his booming voice and told me what 90A was
about. Tuan Awang generously and ably deconstructed the provision for me and
tested me.
Arik Zakri
Arik Zakri
You are responsible
for your own
enlightenment.
Educate yourself and
take charge of your
destiny.