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The admissibility of unlawfully-obtained evidence
Evidence can make or break a case. Let’s consider an example.
The Lucy and Mr Do saga
Lucy Sdn Bhd (“Lucy”) is a manufacturer of arms and weaponry, with a top-secret client base. Mr Doughnut (“Mr Do”) is employed by Lucy as a weapons-solution architect. He signs numerous water-tight Non-Disclosure Agreements at the time of employment.
After 18 years of service, Mr Do accidentally comes into possession of Lucy’s confidential list of clients. They include, inter alia, Colonel Gaddafi and the IRA. This information is received by Mr Do after a director of Lucy accidentally copies him into an email.
In breach of his NDA, Mr Do goes public with the list. He claims that Lucy is actively facilitating terrorism.
Lucy sues Mr Do for defamation. They claim that the list is fabricated. Notwithstanding this, they further claim that even if the list is true, it would be a breach of confidence and fidelity for Mr Do to have disclosed the same.
The list becomes of central importance
A central aspect of the claim would be the veracity of the list; if it is true, then Mr Do may be afforded the defence of justification. A further cause for concern would be the admissibility of the list in Court.
An additional concern: given that Mr Do has breached his NDA to “go public” with the list, would it even be accepted as evidence in Court?
The admissibility of illegally-obtained evidence in Court
In a Malaysian Court and as a general rule, the list would be admissible in Court, even if obtained unlawfully. The central concern of a Judge would be relevance. This holds true in both civil and criminal proceedings.
A starting point would be Wako Merchant Bank v Lim Lean Heng [2000] 3 MLJ 401. Here, Abdul Aziz J held that even if an Act prohibited disclosure, the same (Act) would not affect the admissibility of a document:
It is obvious that the intention of Parliament in enacting s 97 is to protect the secrecy of the affairs and account of a customer of a financial institution as such a customer, but, in giving effect to that intention, Parliament has gone only to the extent of creating offences of the prohibited disclosures. Parliament has not gone further to deal with the question of the admissibility or otherwise in criminal or civil proceedings of any information or document disclosed in contravention of s 97, which is a matter of the law of evidence, where the law is that evidence illegally obtained is nonetheless admissible if relevant.
As such, utilising a document that is prohibited from disclosure may open one up to a breach of an Act. That is a separate matter to be decided in a different forum. However, the said document would still be admissible.
The same holds true in criminal proceedings. In Benjamin William Hawkes v PP [2020] 5 MLJ 417, the Federal Court held as follows:
Hence it is only procedural and not evidential. It is trite law that even in cases of evidence obtained illegally, its admissibility is unaffected as the issue is relevancy. This was explained by Lord Goddard in the Privy Council case of Karuma v The Queen [1955] AC 197:
“the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how the evidence is obtained.”
Refer also:
Hanafi bin Mat Hassan v PP [2006] 4 MLJ 134
TNB v Api-Api Aquaculture [2015] MLJU 2359
Evidence obtained from an unlawful Anton Piller search
Interestingly, evidence obtained from an unlawful Anton Piller search would still be admissible. In Quantum Petroleum v Manimaran [2020] MLJU 689, Wong Kian Kheong J held that evidence obtained from an Anton Piller order that was subsequently set-aside would still be admissible:
[26] As explained in the above Parts C(2) to C(5), the Ex Parte APO is set aside in its entirety. The novel issue that arises is whether the Plaintiffs, 1st to 4th and 7th Defendants can admit at the Trial the illegally obtained APO Evidence.
[27] In the Article, at [45] to [51], I have referred to cases from United Kingdom, Singapore and Hong Kong regarding the admissibility of illegally obtained “Yield of APO” at the trial of the cases in question. I am of the view that the illegally obtained APO Evidence can be admitted by the Plaintiffs, 1st to 4th and 7th Defendants at the Trial. This decision is premised on the following reasons:
(1)the relevancy and admissibility of evidence in a trial is governed by the Evidence Act 1950 (EA)…
(2)illegally obtained evidence has been admitted in the following two civil cases in the High Court (which do not involve illegally obtained APO Evidence)…
If illegally obtained evidence can be admitted in civil trials as stated in the above two cases, there is nothing in principle and policy which can exclude illegally obtained APO Evidence at the Trial; and
(3)in criminal proceedings in Malaysia which involve life and liberty, illegally obtained evidence (except for confession from an accused person) is admissible if such evidence is relevant to the case in question
A restatement of principle by the English Court of Appeal
Recently, the English COA in Ras Al Khaimah v Farhad Azima [2021] EWCA Civ 349 affirmed the longstanding principle that unlawfully-obtained evidence was, as a general rule, admissible. However, there are exceptions and the Court may indicate its displeasure by imposing adverse orders as to costs. Here, emails were obtained via unlawful hacking. In dealing with admissibility:
41. Cases of evidence procured by torture aside, the general rule of English law is that evidence is admissible if it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. Relevant evidence is admissible even if it has been stolen: Kuruma v R [1955] AC 197. In Helliwell v Piggott-Sims [1980] FSR 356 Lord Denning MR said:
"I know that in criminal cases the judge may have a discretion. That is shown by Kuruma v the Queen. But so far as civil cases are concerned, it seems to me that the judge has no discretion. The evidence is relevant and admissible. The judge cannot refuse it on the ground that it may have been unlawfully obtained in the beginning. I do not say that it was unlawfully obtained. It was obtained under an Anton Piller order which was not appealed against. But, even if it was unlawfully obtained, nevertheless the judge is right to admit it in evidence and to go on with the case as he proposes to do."
42. We add to that the pithy statement by Millett LJ in Bell Cablemedia Plc v Simmons [2002] FSR 34 at [42]
"The common law has always set its face against preventing a party to civil proceedings from adducing admissible evidence even where it has been improperly obtained: Calcraft v Guest [1898] 1 QB 759. Equity has never sought to intervene in this context. It has never sought to mitigate the rule in Calcraft v Guest, but on the contrary has applied it to proceedings in its own courts. It is significant that in Ashburton v Pape the equitable jurisdiction was firmly based on confidence and not upon any wider principle of fair play in litigation. But in any case the defendant's mistake, as I have already pointed out, is not the kind of mistake in respect of which a court of equity would ever grant relief. It will not protect a dishonest man from the consequences of mistakenly disclosing evidence of his dishonesty."
43. Under CPR Part 32.1 the court has power "to exclude evidence that would otherwise be admissible". That is, of course, a power rather than a duty. If it is established that one party has obtained evidence unlawfully, how is the court to exercise its discretionary power?
44. In Jones v University of Warwick [2003] EWCA Civ 151, [2003] 1 WLR 954 the claimant in a personal injury action was surreptitiously filmed at home by an inquiry agent posing as a market researcher. The video footage showed that she did not have the injury that she alleged. The question for this court was whether the defendant should be allowed to rely on that footage at trial. Lord Woolf CJ pointed out that there were two potentially conflicting public policies in play: the achieving of justice in a particular case on the one hand; and promoting the observance of the law on the other. At [28] he said:
"The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case."
45. In the result, therefore, the balance came down in favour of establishing the truth; and the evidence was held to be properly admissible. Nevertheless, at [30] Lord Woolf suggested that there were other ways in which the court could express its disapproval of unlawful conduct in gathering evidence; most notably by requiring the defendant to pay the costs of the appeals even though it had been the successful party.
An important qualification placed by the COA would be as follows:
47. There are, in addition, two other points to be made. First, the materials which were obtained through hacking Mr Azima's e-mail accounts were "documents" as defined by CPR Part 31.4. Ex hypothesi they were within his control. Accordingly, as Mr Lord QC accepted, an order for standard disclosure would have required him to disclose those documents (other than documents properly covered by legal professional privilege) in so far as they either supported RAKIA's case or adversely affected his own case: CPR Part 31.6. It follows that those materials ought to have been available to RAKIA by the time of trial. This was a point that Rix J made in Dubai Aluminium Co at 1969F. Second, the materials revealed serious fraud on the part of Mr Azima which would have been a very serious bar to the grant of equitable relief in his favour, as noted in Istil.
The takeaway would be that where the Defendant was obligated to make pre-trial disclosure of the hacked documents, there was a strong presumption as to admissibility.
Conclusion
In concluding, it is highly likely that Mr Do would be allowed to adduce the list as evidence. What probative worth it would carry though (given that Lucy would absolutely mark it as a “Part C” document) would be a matter for trial.
GAVIN JAYAPAL
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