The Infamous “Can I Advise You Something?”. Is It Evidence?

The Netflix Korean Series "Stranger" has intrigued this writer on so many aspects of the law. He was reminded of a few events that brought about this query and one in particular which shocked the nation. Tai Zee Kin has the story.

The Korean Drama series Stranger on Netflix has intrigued the writer on so many parts of the law.

I have often wondered whether life imitates art, or is it the other way around? Watching Stranger brought me back to the time when one particular incident had rocked the nation and turned netizens into Audio Recording Experts.

In the first season of Stranger, however, there were many instances of ‘Audio recordings’, and induced as conclusive evidence presumably, whether to justify admission or to convict a suspect. It is pertinent to note that they did not elaborate these instances in a trial setting, but merely showed outcome of finding of guilt or conclusive admission upon such audio recordings obtained.”

Having watched this series, I immediately recalled few past experiences, where the issue of Audio Recording as evidence was raised. A few years back, a friend called to ask for my personal opinion on his/her case of ‘breach of contract’- where he claimed that there were elements of ‘self-induced’ frustration on his counterpart, evidenced by an audio-recording.

A series of recordings were done from his phone. He forwarded them to me. A voice (only one voice mainly, others were not clear), was heard through the series of recordings, where his counterpart reprimanded him for sloppy works, and threatened to ‘frustrated’ the contract with lines like: “If you don’t complete your work xxxxxx, I will then Yyyyyyyy, and then void the contract.”

My friend was quick to “Presume” that this audio recording is admissible as evidence, asking only questions related to the impact-value of this evidence for his case. A few months after this, another event unveiled, that shocked the whole country.

This was the “Disclosure” by then MACC Chief, Lateefa Koya, on recorded conversations between then Prime Minister, Najib Razak, his wife Rosmah Mansor, and other individuals relevant to some of the on-going criminal proceedings against Najib. Whilst the phrase “Can I advise you something?” stole the limelight, I was baffled as to why Lateefa would reveal the audio recording in such manner, instead of having them tendered as Evidences in court.

The pertinent question then arises – did she do so because these audio recordings cannot be tendered as substantive evidence to support the direct ingredient of charges at all? (Note – it was tendered as evidence in PP v Datin Seri Rosmah Mansor by Ad Hoc Prosecutor Gopal Sri Ram, as a means to “ascertain the over-bearing nature of Datin Sri Rosmah Mansor,” instead of it being supportive evidence that whatever that transpired within that conversation did happen).

Lateefa Koya’s act triggered the ultimate question: Is ‘Audio Recording’ admissible in court as evidence?
For my learned friends in the legal fraternity, this post is meant to be for lay consumption. My observations were derived from myriads of cases. Here are some authorities, among others, for your reading pleasure:

  • Mohd Ali Jaafar v PP [1998] 4 MLJ 210,
  • PP v Balveer Singh a/l Mahindar Singh [2009] 1 MLJ 386,
  • Sahari bin Masrom v PP [2009] 2 MLJ 859,
  • Jambri bin Abd Hamid v PP [2009] 9 MLJ 683
  • However, the particular case I wanted to refer to is a High Court case delivered recently in High Court of Malaya, Johor Bahru Branch – Jelas Kurnia Sdn Bhd v Loh Yuen Seng.

  • In a nutshell, the Plaintiff adduced an Audio-Recording as evidence, purported to have recorded a conversation between the Plaintiff and Defendant, to support the Plaintiff’s claim. The facts of the case is irrelevant, so I shall zoom straight into the issue of admissibility of Audio Recording.

  • The presiding Judicial Commissioner of this case was Evrol Mariette Peters. Her findings were thorough and crystal clear, vanquishing all the questions that I had accumulated over the years on admissibility of Audio-Recording as evidence, in one shot.

  • In her written Grounds of Judgment, Justice Peters distinguished the common law ‘rules of admitting’ audio recording through a “TAPE recorder”, and that of a “Digitally-recorded audio”.

  • Common Law Authorities (cases that I’ve cited above) established clear procedures on audio recording done via TAPE, especially in ensuring the integrity aspects of such tapes. Justice Peters went one step ahead to discuss the conditions in which digitally-recorded audio recordings can be admissible or otherwise. She said “courts must be cautious and test the authenticity of any type of recording, bearing in mind that although technology has been responsible for remarkable breakthroughs in several disciplines, it remains a double-edged sword, and has provided various methods of doctoring and tampering with evidence.”

  • In her ruling that the Audio Recording evidence was inadmissible, she shared her grounds as followed :
  • Whether or not the original Audio recording files were produced?
  • In Jelas Kurnia case, the original recording was deleted as a result of ‘phone reformat’.
  • Was the recording extracted from the “Back Up” of the phone?
  • In Jelas Kurnia case, the “Backed Up” version of the original recording was not tendered.

Based on points 1 and 2 above, Justice Peters indicated the likelihood of it being admissible depends mainly on the ‘integrity’ of such recording – ie, it being ‘closest’ to the result of an original recording of the conversation.

In Jelas Kurnia case, recording tendered in a pendrive, was extracted ‘from the phone’. it was NEITHER ‘of the phone’ where one can simply play it without any transferring – like what we saw in Netflix Korean Series “Stranger”, NOR was it extracted from the ‘Back Up’ of the phone.

  • Did the Transcriber participate in the actual conversation?
  • In Jelas Kurnia case, the Transcriber did NOT participate in the conversation, and admitted to have some difficulties in recognising and identifying the identities of personnel whose voices were recorded.
  • Were there “Short Pauses” in the recording?
  • Justice Peters raised the possibility of ‘tampering’ and ‘doctoring’ that would compromise the integrity of the recording in her grounds of judgment, where there were short-pauses in the recording.
  • Was there incoherence in the conversation recorded?
  • The existence of incoherence in a recorded audio indicates possibility of serious misgiving as to the contents and direction of exchange.

Based on the above considerations, the Recording was ruled “inadmissible”.
Here, we know that the core considerations of the Court in relation to audio record admissibility is split into two main aspects
a) How confident is the court on the recording’s integrity
b) How accurate can the court deduce holistic content of the recording based on transcript of the audio recording.

I then applied these findings to the case of my said friend. First, not only there were pauses in between the conversation, it was fragmented – which means, the possibility of tampering (cut out parts that were infavorable to him) is very high. Second, was it the original recording that my friend recorded? Yes it was – on the condition that the audio is played from his phone, and not through any derivative means. Third, if I was to transcribe the content of the recording, would there be any incoherence? Yes – it was sent to me in multiple audio files, and I couldn’t bridge the whole conversation together to ascertain the flow of it, making it confusing to me when it comes to some part of the conversation.

So here is an advice to those who think they are smart enough to record an audio conversation in anticipation of tendering it as evidence in Court:

  • record it on a device/phone meant to be tendered as evidence eventually.
  • do not cut/paste/edit the file. Leave it in totality as it is, even if there are parts that were detrimental to you.
  • make sure that the recording is loud, and clear – to avoid incoherence to any transcriber.

Avoid having short pauses during the recording.

Hope this helps. – New Malaysia Herald

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