Each citizen deserves to enjoy a private life where one can freely converse with another person without interference or fear that the conversation might be heard by any 3rd party. In the modern days of today, it is not foreign for anyone to communicate with each other through telephone calls and instant messaging applications. Although the various means of communications that we have today seem to make life much easier compared to before where we are able to have an uninterrupted conversation with someone from across the world, the convenience comes with a risk that the conversation has the possibility of being tapped by another party, legally or illegally.

A recent press conference was held by the Chief Commissioner of Malaysian Anti-Corruption Commission (“MACC”), Latheefa Koya, in relation to recordings of several telephone conversations between the then Prime Minister of Malaysia, Datuk Seri Najib Razak with several individuals, including his wife and a foreign dignitary. As briefed by Latheefa Koya, the telephone conversation recordings were released in the spirit of transparency, integrity and accountability in relation to criminal proceedings that is currently held against Datuk Seri Najib Razak.

However, one may stop to wonder, is it even legal to tap someone’s telephone call? Should this kind of evidence be admitted in the court of law where justice and fairness are of the utmost priority?

Admission of Sound Recordings in Court

The admission of evidence in court is mainly governed by the Evidence Act 1960 ("EA 1960"). The admission of phone recording as evidence is provided under Section 3 of EA 1960 wherein ‘phone recording' is defined as:

"(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."

In applying EA 1960 for admission of evidence, the court has additionally outlined a few requirements as held in the case of Mohd Ali bin Jaafar v Public Prosecutor. The admission of sound recordings as evidence is subject to several elements as follows:-

i.            The tape was clean before record;

ii.            The machine works properly and is not tampered or altered;

iii.            The witness played the tape after the recording and heard voices they can identify;

iv.            A transcript was prepared of the voices; and

v.            The witness checked the recording with the transcript to identify voices in the conversation.

However, the making of sound recordings has evolved over the years whereby recordings are no longer stored in tapes but most of the recordings are digitally stored in memory cards or computers. The question of whether the tape is clean before the recordings are made may no longer be relevant for the court to consider.

The Industrial Court in the case of Justin Maurice Read v. Petroliam Nasional Berhad (Petronas) which was recently decided in 2017 has imposed additional requirements for the admission of digitally recorded conversations. The court has considered the manner in which the recordings are made, such as, if it is ethical or not, the clarity of the conversation, and the chain of custody in respect of the recordings to avoid any suspicions of tampering with the recording.

It is important to note that none of the cases mentioned above have put an emphasis on the legality of obtaining the recordings as the requirement for admission as evidence in court. The courts gave a higher consideration on the authenticity and clarity, in comparison to legality.

Legality of Covert Recordings

The question of legality brings us to the second issue that shall be discussed further in this article on whether it is legal to actually tap one's telephone conversation. As alarming as it sounds, the law permits the tapping of electronic devices as provided in the amendment of Criminal Procedure Code tabled in Parliament.

In respect of the interception of communication and admissibility of intercepted communications, Section 116c of Criminal Procedure Code (Amendment) Act 2012 provides that:

(1)   notwithstanding any written law to the contrary, the Public Prosecutor, if he considers that it is likely to contain any information relating to the commission of an offence, may authorise a police officer -

a)     to intercept, detain, and open any postal article in the course of transmission by post;

b)     to intercept any message transmitted or received by any communication; or

c)     to intercept, listen to or record any conversation by communication

(2)   the Public Prosecutor, if he considers that any communication is likely to contain any information relating to the commission of an offence, may -

a)     require a communications service provided to intercept and retain a specified communication or communications of a specified description received or transmitted, or about to be received or transmitted by that communications service provider; or

b)     authorize a police officer to enter any premise and to install on such premises, any device for the interceptions and retention of a specific communication or communications of a specified description and to remove and retain such device.

It is crystal clear through the provisions above that the law in Malaysia permits the practice of phone tapping provided that the Public Prosecutor is satisfied that the respective conversations contain any information relating to the commission of an offence.

The Public Prosecutor is authorized under the Criminal Procedure Code to exercise his discretion to tap one's phone. With this amendment in place, there is a stronger justification for the Court to admit sound recording as evidence in court.

Elements of Subjudice

On the other hand, it is worth noting that the telephone conversation recordings released by Latheefa Koya, the Chief Commissioner of MACC is released in reference to an on-going criminal case being tried under the Malaysian Anti-Corruption Commission Act 2009.

As the recording is the same phone recording which will be admitted as evidence by the public prosecutor, the act of releasing the evidence as such might possibly trigger an act of sub judice by MACC.

Sub judice is akin to contempt of court and the limitations are provided to protect the sanctity of the court as the only institution with the authority to conduct criminal hearings, to prevent any wrongful perception against the accused and to ensure that the integrity and credibility of the court is protected at all times.

Every person deserves a right to a free trial whereby every accused person is presumed to be innocent until proven otherwise. The limitation of Sub judice is a pillar to this presumption of innocence.

Balancing between public interest and rights to privacy

The development of law in respect of national and public interest must always be in line with the development of law in protecting the rights of each individual citizen. Vis-a-vis, the court must always find the balancing line that separates the two of them.

To date, Malaysia has yet to pass any law that explicitly provides for the rights to private life that is comparable to Article 8 of the European Convention on Human Rights where it provides that a right to Private and Family Life is one of the foundations of basic human rights that the state must proactively provide and refrain itself from interfering.

The policy makers and the court must also observe the danger of providing a broad discretionary power to the Public Prosecutor to interfere in private communications between parties as it might be counter-productive thus severely affecting, among others, the sanctity of marriage, confidentiality of business transaction, privacy of citizens and potentially going against the principle of justice.

In conclusion, a covertly obtained telephone conversation is admissible in court provided it satisfies the requirements that have been outlined by the provisions in statutes and precedents as set out in the court of law. The admissibility of such evidence is crucial considering the nature of modern offences which commonly involve technologically advanced elements that require similarly advanced solutions especially in the effort to combat cross-border terrorism and corruption.

The writers believe that the court shall always exercise its wisdom to balance the interest of the public and the rights of each individual as provided by the law.

Prepared by: Melinda Marie D' Angelus & Mohd Sallahudin Saufry Hamzah