Malaysia legislation
Section 90
Section 90
Presumption as to documents twenty years old
Where any document purporting or proved to be twenty years old is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of that document which purports to be in the handwriting of any particular person is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
Explanation—Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.
This explanation applies also to section 81.
(a)
A has been in possession of landed property for a long time. He produces from his custody documents relating to the land, showing his titles to it. The custody is proper.
(b)
A produces documents relating to landed property of which he is the chargee. The chargor is in possession. The custody is proper.
(c)
A, a connection of B, produces documents relating to lands in B’s possession, which were deposited with him by B for safe custody. The custody is proper.
Documents Produced by a Computer
Admissibility of documents produced by computers, and of statements contained therein 90a. (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
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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.
(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.
(5)
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.
(6)
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.
(7)
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—
(a)
responsible for the management of the operation of that computer or for the conduct of the activities for which that computer was used; or
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(b)
in any manner or to any extent involved, directly or indirectly, in the production of the document by the computer.
Weight to be attached to document, or statement contained in document, admitted by virtue of section 90a 90b. In estimating the weight, if any, to be attached to a document, or a statement contained in a document, admitted by virtue of section 90a, the court—
(a)
may draw any reasonable inference from circumstances relating to the document or the statement, including the manner and purpose of its creation, or its accuracy or otherwise;
(b)
shall have regard to—
(i)
the interval of time between the occurrence or existence of the facts stated in the document or statement, and the supply of the relevant information or matter into the computer; and
(ii)
whether or not the person who supplies, or any person concerned with the supply of, such information or the custody of the document, or the document containing the statement, had any incentive to conceal or misrepresent all or any of the facts stated in the document or statement.
Sections 90a and 90b to prevail over other provisions of this
Act, the Bankers’ Books (Evidence) Act 1949, and any written law 90c. 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 [Act 33], 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.
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Chapter Va
ADMISSIBILITY OF EVIDENCE OBTAINED UNDER MUTUAL
ASSISTANCE IN CRIMINAL MATTERS REQUESTS
Application of Chapter Va 90d. Notwithstanding any other provision in this Act, this Chapter shall apply for the purpose of determining the admissibility of evidence obtained pursuant to a request made under the Mutual
Assistance in Criminal Matters Act 2002 [Act 621].
Admissibility in criminal matter of evidence obtained pursuant to requests for mutual assistance in criminal matters 90e. (1) Subject to subsections (2) to (9), any testimony, statement or deposition, together with any document or thing exhibited or annexed to such statement or deposition, that is received by the
Attorney General pursuant to a request made under the Mutual
Assistance in Criminal Matters Act 2002 in respect of the criminal matter, shall on its production be admitted in those criminal proceedings as evidence without further proof of any fact stated in the testimony, statement or deposition and in the document, if any, exhibited or annexed to such statement or deposition.
(2)
The testimony, statement or deposition shall be taken—
(a)
on oath or affirmation;
(b)
under an obligation to tell the truth imposed, whether expressly or by implication, by or under a law of the foreign country concerned; or
(c)
under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.
(3)
The testimony, statement or deposition shall—
(a)
be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made; and
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(b)
bear an official or public seal of—
(i)
the foreign country; or
(ii)
a Minister of State, or a department or officer of the government of the foreign country.
(4)
A certificate by the judge, magistrate or officer referred to in subsection (3) shall, without further proof, be admitted in the proceedings as conclusive evidence of the facts contained in the certificate.
(5)
All courts in Malaysia shall take judicial notice of the official or public seal referred to in subsection (3).
(6)
The testimony taken under subsection (2) may be reduced to writing or be recorded on a tape, disk or other device from which sounds or images are capable of being reproduced or may be taken by means of technology that permits the virtual presence of the person in Malaysia.
(7)
Where the testimony has been reduced to writing or recorded on a tape, disk or other device from which sounds or images are capable of being reproduced, the writing, tape, disk or other device shall be authenticated as provided under subsection (3).
(8)
Where the testimony has been made by means of video or other means which permits the virtual presence of the person in Malaysia, that testimony shall be deemed to have been given in Malaysia.
(9)
For the purposes of this Chapter, the testimony, statement or deposition need not—
(a)
be in the form of an affidavit; or
(b)
constitute a transcript of a proceeding in a foreign court.
(10)
For the purpose of this Chapter, where the prosecutor seeks to adduce any testimony, statement, deposition, document or thing specified in subsection (1) as evidence in the criminal matter, the court shall not give any direction that such evidence or any part thereof is not to be adduced.
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(11)
In this Chapter, “criminal matter” has the meaning assigned to it under the Mutual Assistance in Criminal Matters Act 2002.
Certificate relating to foreign evidence 90f. A certificate by the Attorney General or by a person authorized by the Attorney General to make such a certificate certifying that any testimony, statement or deposition to which such certificate is attached, together with any document or thing exhibited or annexed thereto, if any, has been received by the Attorney General pursuant to a request made under the Mutual Assistance in Criminal
Matters Act 2002 in respect of any criminal matter referred to in the certificate, shall on its production without further proof be admitted in the proceeding as conclusive evidence of the facts contained in the certificate.