Secret Recordings: Are they admissible?

Authors: Donovan Cheah (Partner) and Denise Choo (Intern) (Donovan & Ho)

www.dnh.com.my

 The advent of technology has seen a plethora of recordings, ranging from your run of the mill song recordings to more insidious uses of the ability to covertly record conversations. When employer-employee disputes arise, it is always tempting to record any conversations that may occur.

We are regularly asked by clients whether they should “secretly” record conversations with the other party as a “safeguard”. Ethics aside, are these recordings even admissible as evidence in the Industrial Court?

The case of Sanjungan Sekata Sdn Bhd v. Liew Tiam Seng [2003] 2 MELR 362 concerned an employer who sought to terminate his employee by relying on a recording made without the knowledge of the employee. The Industrial Court referred to the following requirements (referred to in the criminal case of Mohd Ali Jaafar v. PP [1998] 4 CLJ Supp 208) in order to admit evidence of a tape recording:

          (a) The tape should be run through and found to be clean before the recording was made

          (b) The machine must be in proper working order

          (c) The tape must not be tampered with or altered in any way — it should be established in whose possession the tape was at all times

          (d) The officers (or other witnesses) must have played the tape over after making the recording and heard voices which they can identify

          (e) A transcript should be prepared of the voices, and

          (f) The officers (or other witnesses) should play over the recording and check it with the transcript to identify the voices in the conversation.

In addition to the above matters, there are also several precautionary steps that should be be taken, such as uttering introductory and closing words, breaking the safety tabs after the recording, and placing identification marks on the tapes.

Whilst the recordings in Sanjungan Sekata were held inadmissible as evidence due to its failure to comply with the procedures set out, the 2012 case of Sivakumar R Prumal v. Malayan Racing Association [2012] 1 MELR 717 allowed the recordings to be used as evidence as the party relying on the recording had successfully presented a clear chain of custody. Further to that, evidence on whose voices were on the tape were also submitted to the Industrial Court.

However, the recent years have raised a new aspect to this issue — handphone and digital recordings. The requirements above could almost be considered obsolete when it comes to recording a conversation on your iPhone, since there are no “tapes” to run through to be clean, no “safety tabs” to be broken and there is that troublesome impossibility of placing identifying marks on a digital sound file.

This came to light in a recent 2017 Industrial Court case of Justin Maurice Read and Petroliam Nasional Berhad (Petronas) [Award No. 965/2017] where the employee sought to admit recordings which he had recorded on his phone in secret and then transferred to a pen drive/compact disc. Here, the Industrial Court rejected the application of the requirements in Sanjungan Sekata as the modus operandi in recording the conversations was different. This implies that there could be a difference in the requirements for admissibility depending on the method of recording.

In the Justin Maurice Read case, the Industrial Court ultimately refused to admit the recordings as there was doubt as to the authenticity of the handphone recording. Among the factors considered by the Industrial Court were:

          • the recordings were obtained in an unethical manner

          • the transcripts prepared were not complete as several parts were inaudible, and

          • the employee failed to establish a chain of evidence in respect of the custody of the recordings to eliminate doubt of tampering.

The takeaway is that while courts may view secret recordings as unethical, it can still be admitted as evidence provided it fulfils certain thresholds regarding its authenticity and accuracy. This is in line with the general principle in Malaysia that illegally obtained evidence can still be admissible if it is relevant.

Parties intending to take this as a green light to start surreptitiously recording others in order to collect evidence for a pending case should heed this warning: In the case of Karen Liew Pui Leng v LYL Capital Sdn Bhd [2014] 1 MELR 328, even though the Court allowed the secret recording to be admitted as evidence, the Court assigned minimal weight to the employee’s evidence because she was the one who made the secret recording. The Court found that the employee in making the recording would have obviously prepared relevant questions to leverage her case, whereas the employer would have been oblivious and therefore more truthful and credible when he was being recorded. In dismissing the employee’s claim for unfair dismissal, the Court had harsh words to say about the Claimant’s ethics in making the secret recording:

“The legal maxim that “He who comes to equity must come with clean hands” cannot be applied to the claimant who had appeared in court with her tainted evidence…. These all boil down to the issue of the claimant’s credibility. She had postured her case right from the very beginning when she realised that she would be terminated for underperforming.”

In light of the cases above, perhaps the most important question to be asked when it comes to making secret recordings is not “Can you?” but “Should you?”.