Computer

Generated
Document
Definition Document

”Document"
means any matter expressed, described, or howsoever represented, upon any substance, material, thing or
article, including any matter embodied in a disc, tape, film, sound track or other device whatsoever, by
means of—
a. letters, figures, marks, symbols, signals, signs, or other forms of expression, description, or
representation whatsoever;
b. any visual recording (whether of still or moving images);
c. any sound recording, or any electronic, magnetic, mechanical or other recording whatsoever and
howsoever made, or any sounds, electronic impulses, or other data whatsoever;
d. a recording, or transmission, over a distance of any matter by any, or any combination, of the means
mentioned in paragraph (a), (b) or (c),
or by more than one of the means mentioned in paragraphs (a), (b) , (c) and (d), intended to be used or
which may be used for the purpose of expressing, describing, or howsoever representing, that matter;
Definition - Computer

”Computer"
means an electronic, magnetic, optical, electrochemical, or other data processing
device, or a group of such interconnected or related devices, performing logical,
arithmetic, storage and display functions, and includes any data storage facility or
communications facility directly related to or operating in conjunction with such
device or group of such interconnected or related devices, but does not include an
automated typewriter or typesetter, or a portable hand held calculator or other similar
device which is non-programmable or which does not contain any data storage
facility;
Cases
Hanafi Mat Hassan v PP - an automated bus ticketing machine, a thermalcycler and a
DNA analyser

Ahmad Najib Aris v PP - Chemist Report and CCTV Tape

Ajeng Yulia v PP [2016] 1 LNS 302 - Luggage Tag

 (1) In any criminal or civil proceeding a document produced by a computer, or a statement

Section 90A 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
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)
 (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.
(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
 (b) in any manner or to any extent involved, directly or indirectly, in the production of the document by the
computer.
Explanatory Notes

Seksyen baru 90A dengan jelas memperuntukkan bahawa dokumen yang dikeluarkan oleh
komputer, atau suatu pernyataan yang terkandung dalam dokumen itu, akan boleh diterima
dalam mana-mana guaman atau presiding sebagai keterangan bagi apaapa fakta yang
dinyatakan dalamnya. Kebolehterimaan dokumen komputer adalah dibuat tertakluk kepada
syarat bahawa dokumen itu dikeluarkan dalam perjalanan penggunaan biasa komputer itubagi
tujuan itu.

Subseksyen (2) seksyen 90A memperuntukkan bahawa hal-hal yang dinyatakan di atas yang
berhubungan dengan syarat kebolehterimaan boleh dibuktikan dengan perakuan yang diberikan
oleh orang yang bertanggungjawab bagi pengurusan pengendalian komputer atau bagi
perjalanan
Subseksyen (4) mengadakan peruntukan bagi Subseksyen (6) membolehkan dokumen yang
anggapan bahawa komputer yang berkenaan dikeluarkan oleh komputer selepas
dengannya perakuan diberikan di bawah bermulanya prosiding jenayah atau sivil, atau
subseksyen (2) adalah dalam keadaan yang apa-apa penyiasatan atau siasatan yang
baik dan beroperasi dengan sepatutnya dari berhubungan dengannya, diterima sebagai
semua segi sepanjang bahagian material keterangan dan disifatkan telah dikeluarkan
tempoh dokumen itu dikeluarkan oleh oleh komputer dalam perjalanan
komputer itu. penggunaannya yang biasa.
Standard Chartered Bank v Mukah Singh
[1996]3 MLJ 240

In any event, 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 there was this unchallenged [1996] 3 MLJ 240 at
256 evidence, it becomes unnecessary to produce the certificate under s 90A(2) of the
Evidence Act 1950 to prove that the documents were produced by a computer in the
course of its ordinary use.

It is only in the case where it is disputed, during the time the evidence was adduced, as to
whether the documents were produced by a computer in the course of its ordinary use –
which is not in issue here – would such a certificate then become necessary.
Gnanasegaran v PP [1997]3 MLJ 1

We need to remind ourselves that s. 90A was enacted to bring the "best evidence rule" up to date with the realities
of the electronic age. Receipts for payments in and records of payments out of a bank account are keyed in by the
tellers into the terminals at the counter, and the information is electronically stored in the bank's computer. The
information so stored is not in itself visible to the naked eye. To become visible the raw data has to be projected
on a video display unit and/or printout. So the definition of a "document" in s. 3 of the Evidence Act now provides
that both the display on the video display unit, and the printout qualify as documents. The last two items in
the Illustrations to the section have spelt this out.
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.
This is a relaxation of the direct evidence rule in s. 60 of the Act beyond the extent to which its provisions have
been diluted by s. 32(b) in the case of documents made in the ordinary course of business. A situation could thus
arise under s. 90A(1) where the particular person who keyed in the information may not be individually
identifiable, but the document would nevertheless be admissible.
Gnanasegaran v PP [1997]3 MLJ 1

 The appellant, an advocate and solicitor, was charged on 30 September 1993 before the Kuala Lumpur
Sessions Court with two counts of criminal breach of trust. On the first count, he was charged that between 12
June 1987 and 19 May 1988, as an agent, in that in his capacity as the solicitor of the estate of one Tee Seng
Pun @ Tee Seng Yeat (deceased) and being entrusted with dominion over a sum of RM6,576.16, he had
committed criminal breach of trust of the said sum and had thereby committed on offence under s. 409 of the
Penal Code.

 It is a fact that the prosecution relied on the evidence of the operations officer of the United Asian Bank Bhd.
One Zainal Abidin bin Mohamed who testified that in 1986 he was the operations officer at the Jalan Masjid
India Branch of the United Asian Bank Bhd. and in that capacity was in charge of the operations of current
accounts of the bank. He confirmed that in 1986 the appellant's firm operated an office and also a client's
account at the branch. He produced the relevant statements for both accounts as well as paying in slips,
cancelled cheques and other relevant documents showing the opening and operation of these two accounts.
On reading through s. 90A of the Evidence Act 1950, we are unable to agree with the
construction placed by learned Counsel. First and foremost s. 90A which has seven
subsections should not be read disjointedly. They should be read together as they
form one whole provision for the admissibility of documents produced by computers.
As stated earlier, s. 90A was added to the Evidence Act 1950 in 1993 in order to
provide for admission of computer produced documents and statements as in this
case. On our reading of this section, we find that under sub-s. (1) the law allows the
production of such computer generated documents or statements if there is evidence
that they were produced firstly by a computer.
Secondly, it is necessary also to prove that the computer is in the course of its ordinary
use. In our view, there are two ways of proving this.
One way is, it 'may' be proved by the production of the certificate as required by sub-s.
(2). Thus sub-s. (2) 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 sub-s. (2)...' These words
show that a certificate is not required to be produced in every case.
It is our 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.
It is also our view that the prosecution can tender the computer printout through the
investigating officer without calling any bank officer. Therefore, when they adopt this
way of proof then it would be incumbent upon them to establish that the document is
produced by a computer in the course of its ordinary use by producing the certificate
under sub-s. (2).
The reason seems to me to be obvious as the investigating officer will be in no
position to say that the printout is produced by a computer in the course of its
ordinary use, as he is not an officer of the Bank.
In the present case Zainal Abidin bin Mohamed the person in charge of the operations of current
accounts testified that the statement of accounts were computer printouts. Therefore, in my view,
the first part of sub-s. (1) has been proved ie, that the document is a computer printout. It would
be superfluous for him to issue a certificate under sub-s. (2) when first hand evidence that 'the
document so were produced by a computer ' was given by Zainal Abidin. It would be
superfluous to have a provision such as in sub-s. (6) if in every case a certificate must be
produced. It follows, therefore, that such a certificate need only be tendered if an officer like
Zainal Abidin b. Mohamed is not called to testify that the statement is produced by a computer.
Then the certificate becomes relevant to establish that the document is produced by a computer
in the course of its ordinary use. It is my view that when such an officer is not called, the court
cannot rely on the deeming provision of subs. (6). Once the court accepts the evidence of Zainal
Abidin b. Mohamed, and in this case I cannot see any reason whatsoever for the court not to, as
there was no challenge by cross-examination, the prosecution has succeeded in proving what s.
90A(1) requires them to prove, that such document was produced by the computer and in view of
the deeming provisions of sub-s. (6), the second part is also proved.
PP v. ONG CHENG HEONG [1998] 4
CLJ 209
In this era of computers and information technology, even the Evidence Act would have to be brought
abreast with the period. On this, the words of Steyn J in R v. Minors and R v. Harper [1989] 2 All ER
208 (at p; 210) is apropos. He said:

 The law of evidence must be adapted to the realities of contemporary business practice. Mainframe
computers, minicomputers and microcomputers play a pervasive role in our society. Often the only
record of a transaction, which nobody can be expected to remember, will be in the memory of a
computer. The versatility, power and frequency of use of computers will increase. If computer
output cannot relatively readily be used as evidence in criminal cases, much crime (and notably
offences involving dishonesty) will in practice be immune from prosecution. On the other hand,
computers are not infallible. They do occasionally malfunction. Software systems often have 'bugs'.
Unauthorised alteration of information store on a computer is possible. The phenomenon of a 'virus'
attacking computer systems is also well established.

Realistically, therefore, computers must be regarded as imperfect devices.

 In my analysis, s. 90A(2) in essence, implies that a document which derives its existence solely
through the production of a computer could only be tendered to the court by - or through a certificate
signed by - the person who is responsible for the management of that computer. It stands to reason that,
if such certificate is tendered, the opposing party is entitled to cross-examine its (the certificate) maker
if so desired. The courts have to be mindful that the failure of a computer, or a software programme,
may occasionally result in total failure to supply the required information, or in the supply of
unintelligible or obviously wrong information.

 When PW3 tendered the two computer print-out, P9A and P9B, he only introduced himself as the
supervisor of the registration department of vehicles in the R.I.M.V. Perlis ('mengawal selia bahagian
pendaftaran kenderaan') and he did not claim any responsibility 'for the conduct of the activities for
which the relevant computer was used'. His declared designation does not necessarily put him in
management of - or in the conduct of activities pertaining to - the operation of the computer which
produced P9A and P9B; not to mention that even in his registration department there are a number of
officers including himself who may be holding varied and myriad functions unconnected with a
computer. I would therefore rule the computer print-out, P9A and P9B, inadmissible.
TAN CHOW CHEANG v. PP[2018] 6 CLJ 452

The appellant was charged in the High Court at Muar for drug trafficking under s.
39B(1)(a) of the Dangerous Drugs Act 1952. On 17 September 2015, during the
cross-examination of PW5, Konstabel L/K Amer bin Ilyas, one of the raiding officers
involved in the raid, the defence suddenly produced a CCTV recording and applied
for it to be viewed by the court as it was their case that the drug was planted.
The prosecution was caught by surprise and the case was therefore adjourned to 15
November 2015. On 12 January 2016, PW5 completed his evidence, the CCTV
recording was viewed through the pendrive and the pendrive was marked as IDD27
despite the prosecution's objection. Two certificates under s. 90A of the Evidence Act
1950 were produced and marked as IDD26A and IDD26B.
With due respect to learned counsel for the appellant we could not agree with his argument
even though IDD26A was certified by a director responsible for the management of the
operation of the computer. The learned High Court Judge had averred in her judgment that
the image in the video was blurry and PW5 himself had refuted the time shown on it.
Subsection 90A(2) provides as follows:"(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 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 ".[12] The
word used in the subsection is "may". Hence the production of the certificate in our view is
not the conclusive way to prove the pendrive's admissibility. Especially so when the content
was being disputed. To allow it to be admitted in such circumstances in, our view, would be
open to abuse. It is not impossible during this era of modern technology for images to be
superimposed or tempered with. Therefore it is only safe for witnesses to be called either to
confirm or to rebut it.
Hanafi Mat Hassan v. PP [2006] 3 CLJ 269

A careful perusal of section 90A(1) reveals that in order for a document produced by
a computer to be admitted in evidence it must have been produced by the computer in
the course of its ordinary use. It is therefore a condition precedent to be established
before such a document can be admitted in evidence under section 90A(1).
The manner of establishing this condition has been prescribed. It can be proved by
tendering in evidence a certificate as stipulated by section 90A(2) read with section
96A(3). Once the certificate is tendered in evidence the presumption contained in
section 90A(4) is activated to establish 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.
Section 90A(4) must therefore be given its full effect as it has a significant role to play in
the interpretation and application of section 90A. Ordinarily a certificate under section
90A(2) must be tendered in evidence in order to rely on the provisions of section 90A(3)
and (4). However, the use of the words 'may be proved' in section 90A(2) indicates that the
tendering of a certificate is not a mandatory requirement in all cases. In PP v. Chia Leong
Foo [2000] 4 CLJ 649, a plethora of authorities was referred to in ruling that facts to be
presumed can, instead, be proved by other admissible evidence which is available (at pp
722-723). Thus the use of the certificate can be substituted with oral evidence as
demonstrated in R. v. Shepherd [1993] 1 All ER 225 in dealing with a provision of law
similar to section 90A.
Needless to say, such oral evidence must have the same effect as in the case of the use of a
certificate. It follows that where oral evidence is adduced to establish the requirements of
section 90A(1)in lieu of the certificate the presumptions attached to it, in particular, the
matters presumed under section 90A(4) must also be proved by oral evidence.
AHMAD NAJIB ARIS v. PP [2009] 2
CLJ 800
Learned counsel for the appellant argued that under s. 90A of the Act, the prosecution must produce a certificate
under s. 90A(2) of the Act to confirm that the Chemist Report (P83) was produced by a computer "in the course of
its ordinary use " before P83 can be admitted as evidence.
I am of the view that a certificate under s. 90A(2) of the Act is not the only method to prove that a document was
produced by a computer "in the course of its ordinary use". On this point I would first like to cite the case of
Gnanasegaran Pararajasingam v. PP [1997] 4 CLJ 6 where Shaik Daud, JCA said at pp. 17-18:-

On reading through section 90A of the Act, we are unable to agree with the construction placed by learned
counsel. First and foremost, section 90A which had seven subsections should not be read disjointedly. They
should be read together as they form one whole provision for the admissibility of documents produced by
computers. As stated earlier, section 90A was added to the Act in 1993 in order to provide for the admission of
computer-produced documents and statements as in this case. On our reading of this section, we find that under
subsection (1), the law allows the production of such computer-generated documents or statements if there is
evidence, firstly, that they were produced by a computer. Secondly, it is necessary also to prove that the
computer is in the course of its ordinary use. In our view, there are two ways of proving this. One way is that it
'may' be proved by the production of the certificate as required by subsection (2). Thus, subsection (2) is
permissive and not mandatory. This can also be seen in subsection (4) which begins with the words 'Where a
certificate is given under sub-section (2).
These words show that a certificate is not required to be produced in every case. It is our
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 subsection (2) as subsection (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.
In appreciating the above passage it must first be observed that s. 90A(1) deals with the
admissibility of a document which was produced by a computer in the course of its
ordinary use as a matter of fact. It refers to a document that was produced by a computer
in the course of its ordinary use. It is this requirement that must be proved.
On the other hand s. 90A(6) deals with the admissibility of a document which was not
produced by a computer in the course of its ordinary use and is only deemed to be so.
AHMAD NAJIB ARIS v. PP[2009] 2 CLJ 800

It must be remembered that the purpose of tendering in evidence a certificate

under section 90A(2) is to establish that a document was produced by a computer in
the ordinary course of its use. On the other hand section 90A(6) deems a document
produced by a computer to have been produced by the computer in the course of its
ordinary use.
They are incompatible and inconsistent with each other. A fact cannot be deemed to
have been proved which specific provision has been made for the mode of proof of
the same fact. If therefore section 90A(6) is to function as a substitute for the
certificate it will render nugatory section 90A(2).
Thus section 90A(6) can only apply to a document which was not produced by a computer in the ordinary course
of its use, or, in other words, to a document which does not come within the scope of section 90A(1). Thus it
cannot apply to a document which is already one that is produced by a computer in the ordinary course of its use.
It cannot therefore be used as a mode of proof to establish that such a document was so produced. The document
must be proved in the manner authorized by section 90A(2). It can now be discerned with ease that section 90A(6)
has its own purpose to serve and can never be a substitute for the certificate.

In this case no certificate was tendered as required by s. 90A(2) for proof of the chemist report (P83). Neither was
any oral evidence adduced to show that the report was produced by a computer in the course of its ordinary use. It
therefore remains that the only evidence available is that the report was produced by a computer. It is thus
appropriate to resort to s. 90A(6) to presume that the report was produced by the computer in the course of its
ordinary use.
Lau Chee Kai v Public
Prosecutor [2016] 6 MLJevi 223
The appellant was charged under s 3 of the Kidnapping Act 1961 (‘the KA’) read
together with s 34 of the Penal Code for the offence of having kidnapped one Seow
Wei Sheng aged seven for the purposes of obtaining a ransom. The appellant was
subsequently convicted and sentenced on an amended charge under s 5 of the KA for
the offence of having had received ransom monies amounting to SD7,750.

PW9 testified that the photostated copies of the notes were bound into five volumes
which were produced by the prosecution as exh. P12 (1-5). PW16 testified that on 7
March 2008 at about 12.30pm she received P12 (1-5). She then keyed in the serial
numbers of the notes into the computer. A printed copy of the notes' serial numbers
was produced and tendered by the prosecution as exh. P71.
Learned counsel for the appellant further submitted that PW16 did not compare and
check the seized money with exh. P12 (1-5). What she did was to compare and check
the seized money with exh. P71 to find out whether the seized money was part of the
ransom money. It was contended by the defence that exh. P71 was not admissible as
the provision of s. 90A of the Evidence Act 1950 had not been complied with.
Firstly, the serial numbers of the money found in exh. P12 (1-5) were keyed in into
the computer by PW16 and one Inspector Salwani. They took about two months to
do that. Only PW16 gave evidence. Inspector Salwani was not called to give
evidence. Secondly, the prosecution had not tendered a certificate under s. 90A (2) of
the Evidence Act 1950. The prosecution had not proved that the computer used by
PW16 and Inspector Salwani was in the course of its ordinary use.
In the instant appeal PW16 had testified that exh. P71 was a document produced by a
computer. In fact she and Inspector Salwani had keyed in the data into the computer.
It is true that the prosecution had not tendered a certificate under s. 90A(2) of the
Evidence Act and PW16 did not say whether exh. P71 was produced by a computer
in the course of its ordinary use.
However, by proving that exh. P71 was produced by a computer the prosecution, in
view of the authorities cited earlier, could resort to the presumption under s.
90A(6) which provides that a document produced by a computer shall be deemed to
be produced by the computer in the course of its ordinary use. We are of the view that
exh. P71 was rightly admitted in evidence by the learned trial judge.