This book was inspired by the case of PP v Loh Guo Shi  1 SMC 190. My learned friend, Lim Chi Chau and I represented the accused when he was charged under s. 5 of the Computer Crimes Act 1997. He was accused of deleting his employers’ database.
When the case came to us, there was no reported case under Computer Crimes Act 1997 nor any local textbooks that could help us in defending his case. All I had was the book Electronic Evidence by Stephen Mason. This book was recommended by Justice Tan Sri Dato’ Mohamad Ariff Yusof (as then he was) when I had a trial before him.
Fortunately, when I read the documents provided by the prosecution, I saw flaws in the prosecution’s case. One of them was the issue of Internet Protocol (IP) address. I looked at the year of the alleged offence and I realised that the accused was using a Telekom streamyx account. In that year, a streamyx account can be accessed anywhere so long a person has the login and password. During the trial, we got the witness from Telekom Malaysia Berhad to agree with us. There was no evidence that the accused had log on to his account during the time of offence. Further, by reading the log files provided by the prosecution, we discovered that there was a break in the chain of evidence.
The learned Magistrate, Puan Aminahtul Mardiah, acquitted the accused without calling his defence. The High Court had also dismissed the prosecutor’s appeal. The details of this case are also reported in this book.
I would like to believe that we freed an innocent man by using knowledge beyond the law. By writing this book, I hope to help those who face the same or similar predicament as us.
As technology evolves at lightning speed and digitalisation spreads across businesses and people’s lives, a new perspective and a new approach is needed to tackle the issues that come along with emerging technologies. It is natural to expect more and more cases relating to cyberlaw and information technology to be filled in court and even more so to expect digital evidence to be tendered in court.
Foong’s Malaysia Cyber, Electronic Evidence and Information Technology Law is the only book on cyberlaw and electronic evidence in Malaysia. Carrying more than 200 local cases and some selected foreign cases with commentaries, this publication looks at areas that have evolved in the digital sense such as civil issues like defamation, privacy and copyright. Current and very much relevant issues such as instant messages, social media postings, admissibility of electronic evidence in industrial relation disputes and digital asset cases are also discussed. Chapters have been devoted to legal practice and technology, the digital economy, electronic signature and electronic commerce.
This illuminating text provides valuable guidance in emerging areas of law. Its structure is held together by a carefully crafted set of headings to ensure that the text is easily accessible. The inclusion of references to many previously unreported cases, including some decisions of the Sessions Court, certainly lends depth to the analysis and discussion in this book.
This practical title is useful for litigators who are involved in matters concerning electronic evidence, information technology and cyberlaw and will be a valuable guide through its carefully structured commentary and insightful analysis.
Admissibility of Computer-Generated Documents
Presumption of Fact in Publication
Instant Messages, Social Media Postings & Other Electronic Evidence
Electronic Evidence in Industrial Relation Disputes
SEPT 1, 2016 marks the commencement of Malaysia’s first Cyber Court. Consequently, pending cases relating to cybercrime such as PP v Mohd Zaid bin Ibrahim (for a charge under s. 233 of the Communications and Multimedia Act 1998 for allegedly making an offensive statement while calling for the resignation of Prime Minister Najib Razak) was transferred to the newly established Cyber Court before Kuala Lumpur Sessions Court Judge Tuan Zaman Mohd Noor. Practice Direction No. 5 Year 2016 was subsequently introduced to give a special category for cyber cases for both civil and criminal cases.
2016 saw a drop in civil litigation relating to publications on blogs, Twitter and online forums but civil litigation on Facebook thrived. Facebook became the top platform causing disputes between parties in Malaysia. However, Twitter is still a popular platform for criminal investigations as our Inspector General of Police a.k.a @KBAB51 frequently orders investigations against netizens on Twitter.
There is still no shortage of cases relating to disputes on blogs. In Khairulazwan Bin Harun v Mohd Rafizi Bin Ramli (Kuala Lumpur High Court Civil Suit No: 23NCVC-55-07 /2015), the Plaintiff, Deputy Leader of UMNO Youth Wing, filed an application for leave to initiate a contempt proceeding against the Defendant, Vice-President and Secretary-General of the People’s Justice Party (PKR), for sub judice.
The Defendant had apparently published an article in his blog issues which are pending in the Court. According to the Plaintiff, the contents of the article are such that they interfere with the due administration of justice and attacked the merits of the ongoing suit and cast aspersions on the independence and integrity of the judiciary and judicial process and therefore be an act of contempt.
The learned High Court Judge dismissed the application holding that there is no sub judice. The learned High Court Judge held that the general rule is that the law of contempt cannot be used to curtail public discussion of matters of public importance and public interest albeit that these matters may already be the subject of a court action.
In a case relating to a defamation action by a lawyer against the Defendant who is allegedly the infamous blogger, Papagomo, the High Court had rejected the Plaintiff’s action because he had failed to prove that the Defendant is Papagomo notwithstanding that the Plaintiff had called numerous witnesses to prove the same.
The Plaintiff even called a blogger who had allegedly met Papagomo in an event and had positively identified the Defendant as Papagomo, and also another blogger who had testified that Papagomo is the Defendant. The Court of Appeal ((Dato’ Sukri Bin Haji Mohamed v Wan Muhammad Azri bin Wan Deris (Court of Appeal Civil Appeal No. D-02(NCVC)(W)-783-05/2014)) overruled the High Court on this point and held:-
In our view it is reasonable to infer that in the world of bloggers it is highly probable that a blogger knows the other blogger next to him or her. This probability is real because blogs are circulated in virtual space and they are widely read. It is not something that is unusual or unthinkable that sometimes bloggers do engage in virtual debate or argument and respond to each other over issues which attract public interest such as corruption and misuse of power or position by public officials or public figures
In the same case, it is interesting to note that a witness from the Forensic Legal Department of the Multimedia Commission testified that the Commission monitors blogs and articles published through them; and would investigate any offence under the Communication and Multimedia Act 1998 relating to ‘blog-blog lucah, jelek, mengancam dan sebagainya’ when it received complaint from internet users. He also testified that the Commission has data and information for each blog.
In Maricel Cabangon Peralta Perimaloo v Riccardo Rovati & 3 Ors (Kuala Lumpur High Court Suit No. 23VCVC-18-03/2015), the Plaintiff, a former maid of the 1st and 2nd Defendants, sued the Defendants for defamation. The Plaintiff left the employment of the 1st and 2nd Defendants and filed a complaint with the Labour Office at Kuala Lumpur.
The Plaintiff alleged that, among others, the 2nd and 4th Defendant had published defamatory statements on Facebook. However, on the application of the Defendants, the High Court struck out the Plaintiff’s claim against the Defendants on the ground that the statements made were honest, based on facts and raised during a proceeding at the Labour Office at Kuala Lumpur and thus it is protected by absolute privilege and immune from an action for defamation.
The 1st and 3rd Defendant had apparently published the 3rd Defendant’s allegation that the Plaintiffs had been negligent in grooming the former’s dog until it suffered injury. Further in this case, the Plaintiffs initiated contempt proceeding against the 3rd Defendant for allegedly providing fake residential addresses in his affidavits filed in Court.
The 3rd Defendant explained that one of the addresses was his former addresses whereas the other address is his mother’s residence. Fortunately for the 3rd Defendant, the Court accepted his explanation and held that the 3rd Defendant did not provide fake residential addresses to avoid service of the legal papers and interfere with or impede the administration of justice.
In Wedding Galore Sdn Bhd v. Rasidah Ahmad  6 CLJ 621, the High Court affirmed the Sessions Court’s decision in granting a public apology on Facebook and general damages of RM10,000 after the Defendant had taken the Plaintiff’s photographs from her Facebook account and published them in sales brochures for use at a wedding carnival without permission.
In Lim Yun Min & 7 Ors v Ng Han Seng & Anor (Shah Alam Sessions Court Suit No. B53F-7-03/2016), the Plaintiffs sued the Defendants for allegedly defaming them on Facebook. The Defendants applied to strike out the Plaintiffs’ claim for failing to:-
(1) state the Facebook URL address where the statements were published;
(2) state the exact time of publication of the statements; and
(3) identify or name the parties whom the Defendants are alleged to have published the statements and the Plaintiffs did not give the particulars of those parties who have read the alleged Impugned Statement.
The Plaintiffs have also failed to plead the statements in original language i.e Chinese.
The Sessions Court held that the Plaintiffs have failed to provide complete the Facebook web addresses and the identity of the parties that have read the statements. Instead of striking out the case, the Court used its discretion to order the Plaintiffs to amend their pleadings with cost payable to the Defendants.
In GGC v CCC & Anor (Kuala Lumpur High Court Divorce Petition No: 33-1415-08/2013), the Petitioner Wife (PW) sought damages from a lady (CoR) for allegedly committed adultery with her husband (RH). To prove adultery, PW relied on CoR’s Facebook postings to prove that RH and CoR had gone for a trip to various places. The Court stated:-
 The PW alluded to the CoR’s Facebook comments, status and photos uploaded by Co-R Pangkor Laut Resort, Maxim Hotel stay. However, there is no name or image of RH that appeared in any of these photos referred by PW. It was only by inference from some of the comments made by CoR’s friend that PW alleged RH was in those photos with the CoR. Nevertheless, none of these people who commented on the Facebook had been called by PW as witness. These comments or observation by public are therefore merely hearsay and cannot constitute evidence that this Court may rely on with respect to its truth.
 It is also in keeping with the times. In this day and age where with increased mobility, both physical and electronic and the easy access to new-fangled means of communication via the Internet, Wechat, WhatsApp, Skype, Blogs, Twitter and the like, there has been ushered in a whole new world of unlimited opportunities to communicate with anyone anywhere at anytime. With certain communication between the sexes, chemistry develops and opportunities to meet abound. While private investigators may be hired to track and collect evidence of a spouse’s infidelity, logistical costs have become prohibitive for many who have every reason to suspect a spouse is cheating on him or her but always a challenge to prove adultery. The time is both right and ripe for a realignment of the standard of proof even in adultery in a divorce petition to that of on a balance of probabilities.
Last year, I reported in Rina Simanjuntak v PP (Criminal Appeal No: P-05-256-09/2014), a Yahoo Messenger Chat log saved the life of Rina Simanjuntak who had been sentenced to death by the High Court for drug trafficking. In 2016, Facebook chat messages saved the life of a German by the name of Rudolf Tschernezow who was charged with drug trafficking. The High Court in PP v. Rudolf Tschernezow  1 LNS 654 held the Accused managed to prove that he is an innocent carrier using those messages [Update: Court of Appeal in PP v Rudolf Tschernezow (Criminal Appeal No J-05(LB)-345-12/2015) overturned the High Court’s decision).
In Norfariza Binti Harun v Dr Yusaidah Binti Yusof & Anor (Negeri Sembilan Sessions Court Civil Suit No. A53KP-04-11/2014), the Plaintiff sued the 1st Defendant for medical negligence while treating the Plaintiff. In support of the Plaintiff’s case, the Plaintiff had relied on various medical articles obtained from websites such as Healthline.com, webMD, Medicine Net.Com. However, the Court held that Plaintiff’s reliance on various websites to establish the effects of medications, misdiagnosis of Plaintiff’s symptoms and the prescriptions given is insufficient to establish the Plaintiff’s case without calling any medical expert. The Plaintiff’s case was therefore dismissed.
The said Report utilised, among others, Google Search Results as a gauge or yard stick to determine whether or not there are contradicting copyright claims. The Court held that Google cannot be a credible copyright database. Google is merely an internet search engine and cannot be a determinant of any copyright claims or contradictions. Therefore, this Court held that it will not take into account any portions of the Search Report pertaining to Google Search Results.
On a slightly technical side, in the case of Wing Fah Enterprise Sdn Bhd v Matsushita Electronic Components (M) Sdn Bhd (Shah Alam High Court Suit No. 22-753-2005), the High Court held that s. 90A of the Evidence Act 1950 was not enacted to allow admissibility of documents downloaded from the internet. The High Court said that the meaning of computer producing the document must be a computer in the course of its ordinary use.
This refers to dedicated computers kept in organisations to do a certain function of general purport. This provision would cover for instance computers producing receipts on payments. In the present case the Plaintiff’s computers keeping details of accounts for instance would be covered by this provision. The production of the account sheets of the company from this computer would therefore be admissible under this provision. However information downloaded from the internet in no way form the ordinary use for the Plaintiff’s computers.
Computer Crimes Act 1997
Before 2016, it’s a rarity to find reported judgments relating to the Computer Crimes Act 1997. However, three (3) judgments relating to the same were published by the High Court in 2016.
In Basheer Ahmad Maula Sahul Hameed & Anor v Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42(S)-44-06/2015), the High Court dismissed the appeal by the accused over their sentencing for, among others, stealing from the accounts of a few victims from the MH370 air flight tragedy using their ATM cards and online banking.
In Roslan bin Mohamad Som & Anor v Pendakwa Raya (Kuala Lumpur High Court Criminal Appeal No. 42(S)-69- 05/2014 and 42(S)–131–11/2014), the 2nd accused’s appeal over his conviction for making unauthorised modification to Tabung Haji’s database by inserting certain information therein was dismissed by the High Court.
However, in Pendakwa Raya v Vishnu Devarajan (Kuala Lumpur High Court Criminal Appeal No. 42(ORS)-60-07/2015), it was reported that the accused’s 36 charges under the Computer Crimes Act 1997 were struck out by the Sessions Court and subsequently upheld by the High Court as the charges failed to state the physical location where the alleged crime had happened. The High Court also held that an internet protocol (IP) address is not an address where a crime had happened in a charge sheet.
Communications and Multimedia Act 1998 (CMA)
Numerous netizens were subject to an investigation under s. 233 of the CMA (“s. 233”). Notable, a 19 year old boy, Muhammad Amirul Azwan Mohd Shakri, was given the maximum sentence of 1 year for a charge under s. 233 for insulting the Crown Prince of Johor on Facebook notwithstanding that he had pleaded guilty and was unrepresented.
The sentence was subsequently substituted the jail term and sent Amirul to the correction school. In another case, A 76 year old man who goes by the name of “Pa Ya” was arrested and remanded for 3 days for uploading an allegedly insulting photo of Prime Minister Najib Razak. Activist Fahmi Reza was also charged under s. 233 for posting an edited image of Prime Minister Najib Razak on his Instagram account.
On the independent media side, the access to The Malaysian Insider had been blocked pursuant to the direction of the Malaysia Communications and Multimedia Commission (MCMC) vide its powers under s. 263 (2) of the CMA. The MCMC frequently uses the said s. 263 to direct its licensees (i.e. Internet Service Providers) to deny access of netizens to websites to prevent the commission or attempted commission of an offence in Malaysia.
Further, Malaysiakini’s editor-in-chief Steven Gan and KiniTV Sdn Bhd were also charged under s. 233 for airing an allegedly offensive video on KiniTV’s website. The alleged offensive video was of a press conference held by Khairuddin Abu Hassan titled “Khairuddin: Apandi Ali is not fit to be AG and he should quit immediately. Steven Gan was also charged on his capacity as a director of KiniTV Sdn Bhd pursuant to s. 244 of the CMA.
In an interesting case regarding Groupon (an e-commerce marketplace), a user of Groupon Malaysia purchased a tour package vide its platform from one of Groupon’s merchant. However, the said merchant allegedly cancelled the tour and no refund was made by the said merchant to the user. Groupon, however, made a refund to the user. Dissatisfied, the user demanded that Groupon bear the payment he made to Groupon’s merchant.
Groupon rejected the demand and the user made a complaint to the Consumer Tribunal. The Consumer Tribunal held in favour of the user and held Groupon liable for the payment to its merchant. Groupon thereafter filed an application for judicial review against the Consumer Tribunal’s decision in Groupon Sdn Bhd v Tribunal Tuntutan Pengguna & Anor (Kuala Lumpur High Court Judicial Review Application No. 25-332-12/2015)
In the said application, Groupon stated that, among others, that it is merely an online marketing platform and never an agent of the travel company and pointed out that this was highlighted in its terms and conditions – as agreed by the user.
According to the Court’s records, the High Court overturned the Consumer Tribunal’s decision. Unfortunately, no grounds of judgment had been published. But one can assume that an online marketing platform is not necessarily liable for its merchants’ actions.
There are some interesting developments in the realm of cyber and electronic world not seen in Malaysia.
The FBI had requested Apple, Inc to remove some features from its phone such as the auto erase function, the requirement for passwords to be entered manually and any software-invoked delay-upon-failure functions. Apple, Inc contested the request heavily. However, the FBI dropped its case after it found other ways to access the phone.
We can expect that amendments to the Communications and Multimedia Act 1998 to be introduced this year. The amendments of the CMA were supposed to be tabled in the 2016 Dewan Rakyat sitting but it never came to light. It is still unclear what are the exact proposed changes. However, we do know that the punishment for contravention of s. 233 will be increased.
There should also be an increase of harassment case be brought to Court with the advent of tort of harassment (Mohd Ridzwan bin Abdul Razak v Asmah Binti HJ. Mohd Nor (Federal Court Civil Appeal No 01(f)-13-06/2013 (W)). One may bring a person to Court with a help of a lawyer without relying on the authorities.
The cost of hiring a lawyer should now decrease with the advent of many new start-up law firms in Malaysia. Furthermore, there are now online platforms that can match lawyers and members of public such as BurgieLaw and CanLaw.
Foong Cheng Leong is an Advocate and Solicitor of the High Court of Malaya and also a registered Malaysian trade mark, industrial designs and patent agent.
He had served the Malaysian Bar and Kuala Lumpur Bar in the following capacities:-
1. Kuala Lumpur Bar Committee (2013 to 2020)
2. Chairperson of the Kuala Lumpur Information Technology (2012 to 2020)
3. Co-Chairperson of the Bar Council Ad-Hoc Committee on Personal Data Protection (2013 to 2016)
4. Co-Chairperson of the Bar Council Intellectual Property Committee (2019 to present)
5. Co-Chairperson of the Bar Council Information Technology and Cyberlaws Committee (2015 to 2017)
He is also the author of the following books-
1. Compendium of Malaysian Intellectual Property Cases consisting of the following two volumes
a. Vol 1- Trade Marks