Troy Information Technology Malaysia Sdn Bhd v Nissen Technology Sdn Bhd (WA-22NCvC-649-10/2020)

The Defendant objected to the admissibility of the Plaintiff’s documents placed in part C of the Bundle of Documents filed in Court. The Defendant contended that the documents contravened the provisions of admissibility under the Evidence Act 1950 and therefore were inadmissible. . 28/02/2024 15:06:09

The Court decided to determine the admissibility of the Part C of the Bundle of Documents before proceeding for the full trial of the matter. The Court decided this approach as there would be ramifications if the Court decided to rule in favor of the Defendants, since one of the documents disputed is the agreement upon which the Plaintiffs case is founded on. Part C documents

The total number of documents which were objected contained in part C are 10 documents. 7 documents are objected to as being scanned documents. This are the Agreement between the Plaintiff and the Defendant, Plaintiff’s tax invoices to the Defendant from 15/3/2017 to 8/12/2018, Plaintiff’s letter to the Defendant dated 9/10/2019, RHB Bank Account Statement, Payment voucher and supporting documents, The Plaintiff’s letter dated 14/2/2019 to JPJ, The Plaintiff’s letter dated 20/3/2019 to Pejabat Ketua Setiausaha Negara.

1 document objected to is the Plaintiff’s tabulation of Account Receivable summary for June 2016 until December 2018 which is derived from invoices which were not produced. Finally print out of e mail correspondence between Plaintiff and Defendant in relation to a meeting dated 31/1/2019. Submission of the parties

The crux of the Defendant’s objection against the admissibility of the 10 documents in Part C is that no certificates under Section 90A of the Evidence Act 1950 were produced, which is a requirement for computer generated documents.

Section 90A of the Evidence Act 1950 stipulates as follows:

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.

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)

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.

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.

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.

A document shall be deemed to have been produced by a computer whether it was produced by it directly or by means of any appropriate equipment, and whether or not there was any direct or indirect human intervention.

A document produced by a computer, or a statement contained in such document, shall be admissible in evidence whether or not it was produced by the computer after the commencement of the criminal or civil proceeding or after the commencement of any investigation or inquiry, in relation to the criminal or civil proceeding or such investigation or inquiry, and any document so produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use.

Notwithstanding anything contained in this section, a document produced by a computer, or a statement contained in such document, shall not be admissible in evidence in any criminal proceeding, where it is given in evidence by or on behalf of the person who is charged with an offence in such proceeding the person so charged with the offence being a person who was-

responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or

in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer.

The Plaintiff’s main contention is that the documents are admissible by virtue of Order 34 Rule 2(2)(e) of the Rules of Court 2012 (“the Rules”) which provides as follows:

if the parties are unable to agree on certain documents, those documents on which agreement cannot be reached shall be included in separate bundles and each such bundle shall be filed by the plaintiff and marked as follows:

Part B - documents where the authenticity is not disputed but the contents are disputed;

(ii) Part C - documents where the authenticity and contents are disputed;

In the alternative the Plaintiff also relies upon section 73A(2) and section 32(b) of the Evidence Act 1950. Section 73A(2) states as follows:

In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence-

notwithstanding that the maker of the statement is available but is not called as a witness; and

notwithstanding that the original document is not produced, if, in lieu thereof, there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.

Section 32(b) of the Evidence Act 1950 provides as follows:

when the statement was made by any such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him; Court’s decision 10. In the Court’s view the principal law on admissibility of documents is the Evidence Act 1950 (“the Act”) specifically part V of the Act which is entitled “Documentary Evidence”.

The most significant rule under this Part on admissibility of documents is as stated in section 61 of the Act which stipulates: The contents of documents may be proved either by primary or by secondary evidence.

The Act further states in section 64 that “Documents must be proved by primary evidence except in the cases hereinafter mentioned.”

What are regarded as primary documents is defined in section 62 as follows: Primary evidence means the document itself produced for the inspection of the court. Explanation 1 - Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2 - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original they are not primary evidence of the contents of the original. Explanation 3 - A document produced by a computer is primary evidence.

In this case 7 of the documents are scanned copies and going by the above definition of primary documents, this 7 documents are copies of original documents and therefore in the Court’s view cannot be regarded as primary evidence or primary documents.

Further as this documents are scanned documents this documents also cannot be regarded as documents produced by computer. The word ‘produced by computer’ in the Court’s view refer to documents that are prepared in the computer than generated from the computer. In this case the 7 documents being scanned documents cannot be regarded as documents produced by the computer. This documents are merely printed from the computer and not produced by the computer.

The Court regards the 7 documents as secondary documents. The definition of secondary documents is as stated in section 63 of the Act: “Secondary evidence includes-

certified copies given under the provisions hereinafter contained;

copies made from the original by mechanical processes, which in themselves ensure the accuracy of the copy, and copies compared with such copies;

copies made from or compared with the original;

counterparts of documents as against the parties who did not execute them;

oral accounts of the contents of a document given by some person who has himself seen or heard it or perceived it by whatever means.

The conditions under which secondary documents can be adduced is as stated under section 65 of the Act as follows:

Secondary evidence may be given of the existence, condition or contents of a document admissible in evidence in the following cases:

when the original is shown or appears to be in the possession or power-

of the person against whom the document is sought to be proved;

(ii) of any person out of reach of or not subject to the process of the court; or

(iii) of any person legally bound to produce it, and when after the notice mentioned in section 66 such person does not produce it;

when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produce it in reasonable time;

when the original is of such a nature as not to be easily movable;

when the original is a public document within the meaning of section 74;

when the original is a document of which a certified copy is permitted by this Act or by any other law in force for the time being in Malaysia to be given in evidence;

when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection.

(2)(a) In the cases referred to in subsection

(1)(a), (c) and (d) any secondary evidence of the contents of the document is admissible.

In the case referred to in subsection (1)(b) the written admission is admissible.

In the case referred to in subsection (1)(e) or (f) a certified copy of the document but no other kind of secondary evidence is admissible.

In the case referred to in section (1)(g) evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents.

In this case the Plaintiff has not shown the existence of any of the above circumstances in allowing the Court to accept secondary documents as evidence. The Plaintiff’s reliance on the Rules of Court 2012 is untenable as admissibility is governed under the Act. The Rules mere act as a guide to distinguish the various documents for ease of the proceedings. In no way the Rules displaces the Act on admissibility of documents.

For the same reason above the document which tabulates information from other documents is a secondary document and does not fall under the category of secondary evidence admissible in Court. The documents from which the information is taken are the actual primary document.

The Court further rules that the condition precedent for the admissibility of documents under section 32 of the Act have not been shown or satisfied in this case. The Condition precedent are as stated in the provision as follows : “(1) Statements, written or verbal, of relevant facts made by a person who is dead or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases”

The Plaintiff’s reliance on section 73A of the Act is misplaced as the provision only provides for dispensation of the attendance of a witness under certain conditions but subject to the original document being produced. In this case the issue is not on the non-availability of the witness but rather as to the admissibility of document.

In short the Court allows the objection of the Defendant on the admissibility of the 10 documents in Part C of the Bundle of Documents although on a different ground as submitted by the Defendant. The basis of the inadmissibility is the documents are secondary documents. Conclusion 23. As one of the documents ruled as inadmissible by the Court is the agreement between the Plaintiff and the Defendant upon which the whole of the Plaintiff’s case is founded upon, the Defendant submitted that the Plaintiff’s claim is unlikely to succeed in the absence of the said agreement.

The Court agreed with the Defendant and dismissed the Plaintiff’s claim with a cost of RM10,000. Dated: 28.2.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Chan Chang Yang; Tan Chong Lii Tetuan Teh & Lee A-3-3 & A-3-4, Northpoint Offices, Mid Valley City, No. 1, Medan Syed Putra Utara, 59200 Kuala Lumpur, Wilayah Persekutuan Kuala Lumpur. For the Defendant: Nama Peguamcara: Isa Aziz Ibrahim; Wong Yun Loong Tetuan Isa Aziz Ibrahim Suite B-3-39, Level 3A Dataran Cascades Jalan PJU 5/1, Kota Damansara 47810 Petaling Jaya, Selangor