1.

Computer generated document (Document produced by a computer) (Dokumen yang

dikeluarkan oleh komputer). Section 90A, 90B and 90C relate to documents produced
by a computer and were introduced by the Evidence (Amendments) Act 1993 (Act A851).
The principal Act is amended by inserting, in Chapter V, after section 90, the following
new subheading and new sections 90A, 90B and 90C. This section is an exception to the
hearsay rule. It applies to criminal and civil proceeding.
2. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). Admissibility of documents produced by computers: This is
governed by section 90A. Section 90A (1) provides 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.
3. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). Admissibility of documents produced by computers: This is
governed by section 90A. Section 90A (1) provides Dalam mana mana prosiding
jenayah atau civil sesuatu dokumen yang dikeluarkan oleh komputer, atau sesuatu
pernyataan yang terkandung dalam dokumen itu, hendaklah boleh diterima sebagai
keterangan mengenai apa apa fakta yang dinyatakan dalamnya jika dokumen itu
dikeluarkan oleh komputer itu dalam perjalanan penggunaannya yang biasa, sama ada
atau tidak seseorang yang mengemukakan dokumen itu adalah pembuat dokumen atau
pernyataan itu.
4. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). Condition for admissibility The document was produced by a
computer (S. 3 & 90A (5)) The document was produced by the computer in the course of
its ordinary use.
5. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). 2. The document was produced by the computer in the
course of its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud
JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11: A. It may be proved
by the production of the certificate as provided in subsection 2 of section 90A which
provides 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
6. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). 2. The document was produced by the computer in the
course of its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud
JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11: A. It may be proved
by the production of the certificate as provided in subsection 2 of section 90A which
provides Bagi maksud seksyen ini bolehlah dibuktikan bahawa sesuatu dokumen itu
dikeluarkan oleh komputer dalam perjalanan penggunaannya yang biasa dengan
mengemukakan kepada mahkamah suatu perakuan yang telah ditandatangani oleh
sesorang yang sama ada sebelum atau selepas pengeluaran dokumen itu oleh computer
 itu adalah bertanggungjawab bagi pengurusan pengendalian computer itu, atau bagi
perjalanan aktiviti-aktiviti yang baginya computer itu digunakan.
7. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). 2. The document was produced by the computer in the
course of its ordinary use. There are two (2) ways of proving this as stated by Shaik Daud
JCA in Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11: See also section
90A (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 and
section 90A (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.
8. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). B. It may be proved by calling a witness. If this is done, it
is not necessary to also produce a certificate. In Gnanasegaran a/l Pararajasingam v PP
[1997] 3 MLJ 1, 11 the court also argued that Sub-s (2) which use it may be proved
(bolehlah dibuktikan) 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 subsection (2) (Jika
sesuatu perakuan diberikan di bawah subseksyen (2))'. These words show that a
certificate is not required to be produced in every case. It is also the court 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.
9. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). Note: the person called as a witness should be 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 the computer was used. In PP v Ong Cheng Heong [1998] 6 MLJ 678, where
the computer printouts were not admitted as the person who tendered the computer
printouts only introduced himself as the supervisor of the registration department of
vehicles in the RIMV Perlis (mengawal selia bahagian pendaftaran kenderaan) and did
not claim any responsibility for the conduct of the activities for which the relevant
computer were used.
10. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). If the document was produced by the computer in the
course of its ordinary use, then the document or statement contained in such document
shall be admissible as evidence. Section 90A can also be regard as an exception to
hearsay rule. In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1, 11 (Criminal
Breach of Trust Section 409 of Penal Code), where the court held that once the
prosecution adduce 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.
11. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1,
11, Per Mahadev Shankar JCA (concurring/in agreement) states that Zainal was the
branch officer in charge of all the operations of the branch. He was therefore responsible
for the conduct of the activities of the branch for which that computer was used. If he
chose he could have issued a certificate as required by s. 90A(2) and without his actual
presence all the computer generated documents would have been admitted in evidence
as provided by s. 90A(1). In this case, Zainal was able to testify with regard to the
documents because he was in charge of the operations of current accounts.
12. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). In Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1,
11, Per Mahadev Shankar JCA (concurring/in agreement) also states The viva voce
(word of mouth) evidence of the man in the witness box counts for more than a certificate
issued by him. Moreover, as the appellant did not challenge Zainal's evidence by way of
cross- examination, the prosecution succeeded in proving that the documents were
admissible Section 90A was enacted to bring the "best evidence rule (Kaedah
keterangan terbaik) up to date with the realities of the electronic age. The effect of s.
90A(1) in the present scenario is that it is no longer necessary to call the actual teller or
bank clerk who keyed in the data to come to Court provided he did so in the course of the
ordinary use of the computer. Document produced by a computer is also primary
evidence. (See section 63 explanation 3.
13. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). In Standard Chartered Bank v Mukah Singh [1996] 3 MLJ
240 (HC) Ian HC Chin J held that It was only if the evidence was challenged as to its
admissibility that it was necessary to produce a certificate under s 90A(2) of the Evidence
Act 1950, that the documents were produced by a computer in the course of its ordinary
use. Since the documents were unchallenged, such a certificate was unnecessary. In
this case, evidence was given by the witnesses that those documents were computer
generated and they were produced in the course of the ordinary use of the computer.
There was no challenge to this evidence. Since this is unchallenged evidence, it
becomes unnecessary to produce certificate under section 90A (2) to proved the
document were produced by a computer in the course of its ordinary use. It is only where
it is disputed, during the time the evidence was adduced certificate then become
necessary.
14. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). In PP v Azman Ismail [2007] 10 CLJ 469 where five
accused persons here were charged with the offence of murder under s. 302 of the Penal
Code read with s. 34 of the same Code. On the issue whether the accused persons had
been identified as the assailants of the deceased, the prosecution had introduced DNA
profile. Held acquitting and discharging the accused persons. The evidence of the
forensic DNA scientist (PW8) was most wanting, unreliable and unsafe to accept. The
prosecution had failed to prove the expertise of PW8 (Forensic expert) by introducing
evidence as required by law. Further, the DNA analysis and the probabilities values were
obtained using the computer. In order to accept the information given by the computer
software and the print out, there must be compliance with s. 90A of the Evidence Act
 1950. There was no evidence of such compliance of the condition precedent as required
by s. 90A.
15. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). Ahmad Najib Aris v PP [2007] 2 CLJ 229, where the
appellant was convicted in the High Court of the rape and murder of one Canny Ong Lay
Kian ('victim'), and was sentenced to twenty years' imprisonment and whipping of ten
strokes for the rape, and to death for the murder. Appellant appeal. Held (dismissing the
appeal) Per Abdul Aziz Mohamad JCA states The swabs and smears obtained by the
pathologist from the victim's upper vagina proved the presence in the vagina of semen.
The semen was established to belong to the appellant. The stains on the Jack Blue
Classics jeans belonging to the appellant were established to be stains of the blood of the
victim. These proofs were established by DNA profiling and the results of the DNA
profiling were obtained by the use of a computer. It was submitted on behalf of the
appellant in the appeal that the documents concerned that were produced by the
computer, which established those results, or from which those results were established,
were not admissible in evidence under s. 90A of the Evidence Act 1950. This court had,
however, decided in Gnanasegaran Pararajasingam v. PP, that because the word used in
subsection (2) is "may", a certificate under the subsection is not mandatory for proving
that a document was produced by a computer in the course of its ordinary use and that
so long as there is proof that a document is produced by a computer,
16. 61. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). Hanafi Mat Hassan v. PP [2006] 3 CLJ 269 at p. 307-312,
where the accused was convicted of the offences of rape and murder respectively. In the
words of the learned trial judge, the accused "had mercilessly and brutally raped and
murdered the deceased, Noor Suzaily, in the bus WDE 4265 driven by him in the morning
of 7 October 2000 at the time and place as stated in the charges". The chemist, who
carried out DNA tests on blood samples taken from the accused, prepared the summary
of the DNA profiling results thereof and confirmed that the semen found in the vagina of
the deceased belonged to the accused. The accused contended that the findings of the
trial judge were flawed and unsustainable in law and had hence appealed against the
same. Consequently, before the Court of Appeal, arguments were put forth by the
accused: (i) that a computer produced document could only be admitted under s. 90A if
the prosecution proved not only that it was produced by a computer but also that it was
produced in the course of its ordinary use and that in order to do so it was incumbent
upon the prosecution to produce a certificate as required by s. 90A(2); Held (dismissing
the appeal) Per Augustine Paul JCA delivering the judgment of the court: the use of the
words "may be proved" in s. 90A(2) indicates that the tendering of a certificate is not a
mandatory requirement in all cases. Thus, the use of the certificate can be substituted
with oral evidence. See R v. Shepherd [1993] 1 All ER 225; Schmidt Scientific Sdn Bhd v.
Ong Han Suan & ORS [1998] 1 CLJ 685 & PP v. Gurdial Singh Get Singh [2005] 6 CLJ
272.)
17. 62. Computer generated document (Document produced by a computer) (Dokumen yang
dikeluarkan oleh komputer). Sections 90A and 90B to prevail over other provisions of
this Act, the Banker's Books Evidence Act 1949, and any written law: Section 90C
provides The provisions of sections 90A and 90B shall prevail and have full force and
effect notwithstanding anything inconsistent therewith, or contrary thereto, contained in
 any other provision of this Act, or in the Bankers' Books (Evidence) Act 1949, or in any
provision of any written law relating to certification, production or extraction of documents
or in any rule of law or practice relating to production, admission, or proof, of evidence in
any criminal or civil proceeding. See Bank Utama (Malaysia) Bhd v Cascade Travel &
Tours Sdn Bhd [2000] 4 MLJ 582.

In addition to the general requirements, there are others to satisfy when dealing
with tape recording, audio recording etc.
2. Mohd Ali bin Jaafar
a. Tape must be run through and found to be clean
b. Recording machine must be in proper working order
c. Tape not tampered or altered, chain of evidence must be established
d. Witness must have played over the tape and heard voices which they
can identify
e. Transcript prepared and tape played over and checked with transcript

Tempil Perkakas Sdn Bhd v Foo Sex Hong

Although the fascimile letter was a document within the meaning of s 3 of the
Act, it was rightly rejected as it was not brought in by the receiver of the
facsimile message, someone from the firm of solicitors for the appellant. PW1
had no personal knowledge to testify to the matteras it was not brought in by
the receiver of the facsimile messages, ie someone from the firm of solicitors for
the appellant.
Cubby Inc v CompuServe Inc
Brief Fact Summary. Despite Plaintiffs request that they cease to do so,
Defendants continually distributed unsolicited e-mail advertisements to the
subscribers of Plaintiff. Although Plaintiff implemented measures to filter out
Defendants unsolicited messages, Defendants reconfigured their messages so
as to circumvent these measures and reach the intended targets. Plaintiff sought
to enjoin Defendants from continuing in its efforts to send such unsolicited
messages to its subscribers.

Synopsis of Rule of Law. Electronic signals sent via a computer are sufficiently
tangible to form the basis of a cause of action for trespass to chattels, and
interference therewith can be actionable.

Facts. Defendants distributed e-mail advertisements to Plaintiffs subscribers.

Plaintiff requested that Defendants stop, but Defendants continued. Plaintiff
employed measures to block Defendants messages, but these measures were
frequently circumvented. Plaintiff obtained a temporary restraining order to block
the messages, and then sought a preliminary injunction to extend the duration of
the blockage. Defendants argued that Plaintiffs computer equipment and service
was not dispossessed, and that this prevented the issuance of such an injunction.

Issue. Is Plaintiff entitled to a preliminary injunction to block Defendants

messages despite the fact that the computer equipment and service were not
being dispossessed?
Held. Yes. The preliminary injunction was granted. Dispossession is only one
example of an occasion in which trespass to chattels has occurred. Such a
trespass may also be found when the chattel is damaged or devalued, the
possessor is deprived of its use for a substantial period of time, or bodily harm
results from the interference with the chattel.

Discussion. This case again addresses the extent of interference with chattels
that must exist in order to be actionable. The Court rejected Defendants
argument that a plaintiff must show actual dispossession of the chattel to find for
a Plaintiff. Rather, any actionable interference can give rise to a claim and, as
this case demonstrates, an injunction.

Stratton Oakmont v Prodigy Services Company

The plaintiffs alleged that defamatory statements had been posted by a third
party on a bulletin board maintained on Prodigy. The plaintiffs sought to have
Prodigy's liability tested by the standards applicable to publishers of information,
as opposed to distributors.
The defendant computer network company held itself out as having editorial
control over notes posted on its bulletin board, imposed content guidelines on its
users by prescreening notes for offensive language, and permitted board leaders
to delete notes that did not meet guideline requirements.
That such control is not complete and is enforced both as early as the notes
arrive and as late as a complaint is made, does not minimise or eviscerate the
simple fact that PRODIGY has uniquely arrogated to itself the role of determining
what is proper for its members to post and read on its bulletin boards.

Held: It was liable to be sued as publisher of defamatory statements posted on

its bulletin board.