Illegally Obtained Digital Evidence and the New Section 116b of the Criminal Procedure Code – Compatibility with the Principle of Fairness

• Main Author: Ayub, Zainal Amin
• Format: Conference or Workshop Item
• Language: English
• Published: 2013
• Subjects: K Law (General)
• Online Access: https://repo.uum.edu.my/id/eprint/31138/2/UUMILC%202013%2001-10.pdf; https://repo.uum.edu.my/id/eprint/31138/; http://lawconference.uum.edu.my/

The main object of evidence gathering during investigation is for the evidence to be admissible in the trial. The Parliament introduced a new provision, section 116B of the Criminal Procedure Code, to specifically govern the search and seizure of digital evidence in Malaysia. The aim of this paper is to examine whether the introduction of the provision take into the consideration the prejudicial nature of illegally obtained digital evidence; and the compatibility of illegally obtained evidence and section 116B with the principle of fairness. It is a long standing principle of admissibility of evidence in Malaysia that illegally obtained evidence is admissible as long as it is relevant. Moreover, with the advancement of information technology and the internet, vast amount of data are in digital form and becoming potential digital evidence in crimes. Section 116B specifically introduced to tackle the increasing number of digital evidence. This paper finds that the section (116B) further enhances the admissibility of illegally obtained evidence in Malaysia’s criminal justice system. The paper implies that the section and the admissibility of illegally obtained evidence principle in Malaysia may be prejudicial and incompatible with the principle of fairness. This paper recommends that a “backstop” provision must be introduced to improve the criminal justice system in Malaysia on this matter