Electronic evidence in the information communication technology environment in Malaysia : a study on procedure and admissibility

Abstract

In litigation process, liability or culpability of a person or an entity depends on the evidence produced by the parties. The evidence varies from paper to other physical evidence and often backup by oral or testamentary evidence given by witness under oath. But the nature and characteristic of the evidence changes according to the development in the society, the nature of business and the development in the information communication technology or ICT environment. The ICT environment aspires improvement and development in e-commerce and e-court system. At the same time, it also encourages cybercrimes activities such as online fraud, defamation, theft and threat. Electronic evidence is introduced in this ICT environment. As a result, the electronic evidence has also challenged the existing procedural laws and its admissibility under the Evidence Act 1950. Thus, the main issue centered on whether the existing laws relating to the process of gathering evidence in civil and criminal cases can also be applied in e-commerce or e-contract and computer crimes cases. The research analyzes the application of the existing procedures of gathering evidence under the Rules of High Court 1980 (RHC) and the Criminal Procedure Code (CPC) to the gathering of electronic or computer evidence in the above cases. The relevant laws such as Electronic Commerce Act 2006, Contracts Act 1950, Penal Code, Computer Crimes Act 1997, Communications and Multimedia Act 1998, Digital Signature Act 1997 and Evidence Act 1950 are also examined. The research proves that there is no specific provision on the process of gathering electronic evidence such as electronic discovery and others in the RHC 1980 while in criminal cases the CPC is mainly referred to although the gathering of evidence involves computer crime. Further, there is no specific Practice Direction that provides guidelines to conduct gathering of electronic evidence in the ICT environment for civil cases. Similarly, in criminal cases the available standard operating procedures to investigate, search and seize the computer evidence is always kept confidential. On the position of electronic evidence, sections 90A, 90B and 90C of the Evidence Act 1950 affirm the admissibility of electronic evidence in Malaysia. However, the relevancy and reliability of evidence given by the computer forensic expert can still be challenged in court. Therefore, the study concludes that, the existing laws on procedures and evidence should be reviewed and updated in order to accommodate and achieve effective implementation of e-court system in Malaysia and in facing the challenges brought forward by the development in the ICT environment.