I have previously written about Bundles A, B and C.
In trial, opposing counsel may mark an innocuous document as “Part C” (authenticity and contents challenged). More often than not, this is a tactic to knock-out inconvenient documents.
Emails
This leads to the sticky topic of emails. Emails always have 2 parts: the recipient and the sender.
Assume a scenario. Duke sends an email to Doughnut, containing proposed terms in a contract. It is copied to Lassie.
Subsequently, litigation ensues as-between the parties. The crux of the dispute would be whether Doughnut has deliberately omitted the clauses Duke proposed.
At trial, Doughnut deliberately has this email marked as a “Part C” document. Duke isn’t called as a witness, but Lassie is. She intends to tender the email, together with a S. 90A Certificate.
Doughnut maintains his objection that as the maker of the email hasn’t been called as a witness (i.e., Duke), the email ought to be inadmissible.
The conundrum
In such a scenario, the Courts have held that the production of a Section 90A (of the Evidence Act 1950) Certificate will allow the recipient of the email to adduce the same. 2 cases bear this out.
In SkyWorld Development v SkyWorld Holdings [2020] 3 MLJ 294, the COA held that calling the recipient of the email, together with a S. 90A Certificate, would obviate the need to call the maker:
[71] The plaintiffs had also adduced evidence of actual confusion vide two emails from the public enquiring whether the plaintiffs and the corporate defendants are related (see pp 1092–1095 Rekod Rayuan (Jld 2C). The plaintiffs answered to the queries from Venugopal and John Smith that the plaintiffs’ company is not related and not connected in any form or manner howsoever with the corporate defendants. The plaintiffs had also adduced a certificate pursuant to s 90A(2) of the Evidence Act 1950 by SP1 (see p 1089), which dispenses the need to call the maker of these emails.
The COA applied the principles decided by the FC in Ahmad Najib v PP [2009] 2 MLJ 613.
An interesting application of these principles in actual trial may be seen in Glove Kendall v Maple Challenge [2016] MLJU 1452. Here, Su Geok Yiam J converted emails into exhibits upon a S. 90A Certificate being tendered:
[212]Reverting back to Suit 2256, PW2, PW4 and PW5 had tendered their respective section 90A certificates in Court during the trial of this matter. These certificates were, accordingly, marked as Exhibits P70, P58 and P66, respectively by the Court. Hence, the Court agreed with and accepted the submissions of the plaintiffs that the emails referred to in the aforementioned section 90A certificates ought to be admitted as evidence for purposes of this trial and to be considered by this Court. Therefore, the Court allowed ID9, ID10, ID11, ID13, ID14, ID15, ID16, ID17, ID18, ID24, ID26, ID28, ID30, ID30A, ID57, ID67, ID68, ID69 and ID71 to be admitted as exhibits and to be remarked, accordingly, as P9, P10, P11, P13, P14, P15, P16, P17, P18, P24, P26, P28, P30, P30A, P57, P67, P 68, P69 and P71.
Refer also: Petroliam Nasional v Khoo Nee Kiong [2003] 4 MLJ 216
A note about marking documents in Part C
Marking documents as “Part C” willy-nilly is to be frowned upon.
The Courts have wizened to this underhanded manoeuvre. In Damansara Realty v Om Cahaya Mineral [2020] MLJU 2515, the COA noted that trial Judges are under a duty to ensure that “Part C” documents are genuinely disputed:
[152]Part C documents are documents which are disputed as to their authenticity, existence and contents. Thus, the original documents have to be produced and marked as "ID" and later converted to exhibits. The process requires the maker to be called to establish the authenticity and contents of the documents. Part C documents are usually for documents which are of suspicious or dubious provenance. As a rule of thumb, Part C documents are for documents which are said to be fake, forged or fictitious. But in practice, it is not unusual for parties to insist on innocuous or benign documents being placed in Part C.
[153]The reasons for doing so may be spurious, strategic or tactical. It is also possible that the purpose of placing documents in Part C is just to make life difficult for the other side who intend to rely on those documents. Trial Judges have an overriding duty to conduct active case management to ensure that documents in Part C are "genuinely disputed". Trial Judges should not passively allow parties to dictate that documents should be in Part C. Parties who insist on placing documents in Part C must therefore satisfy the Judge that there is a valid and acceptable reason for doing so. The reason is obvious. It would be unjust to allow parties to impose an unfair burden on the other side by tactically insisting on documents being placed in Part C. To allow parties to indiscriminately insist on documents being placed in Part C would also be an unfair burden on the Court and a waste of judicial time.
A logical corollary of the above would be that trial Judges are at liberty to rule that “Part C” documents be converted into “Part B” (authenticity not disputed, contents disputed).
Conclusion
In conclusion, the recipient of an email is entitled to have the same adduced as an exhibit, provided a S.90A Certificate is produced.
Doughnut would be hard-pressed to avoid Duke’s email being maintained as a “Part C” document.
GAVIN JAYAPAL
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