The court ruled that evidence obtained illegally may still be admissible if relevant, emphasizing equitable principles apply to both parties.

AWARD

Salahudin Hidayat Shariff:

Reference:

[1] This is a reference dated 19 June 2023 by the Director General of the Industrial Relations pursuant to subsection 20(3) of the Industrial Relations Act 1967 [Act 177] arising out of the dismissal of Goh Boon Hooi ("Claimant") by Trive International Consultancy Sdn Bhd ("Company") on 23 December 2022.

Preliminary Objection

[2] The Company raised Preliminary Objection on the submission of Claimant's Bundle of Document part 2 and 3. The crux of the Preliminary Objection is that the recordings that the Claimant intends to submit are illegal and therefore not admissible in this Court of equity since it contravenes the equitable maxim at "He who comes to equily must come with clean hands." On this the Court stands guided on the issue of illegally obtained evidence.

[3] On the issue of illegally obtained evidence, the Court has questioned the term illegal, which connotes an offence in law that criminal charges could be brought against the person submitting the said evidence. This Court does not have jurisdiction in criminal but, if the Company wants to invoke it, surely there must be evidence of proceedings of a criminal nature. Otherwise there is no issue of illegality.

[4] If the argument was that the recordings was done without the express consent of the Company and its representatives, then it is a question of equity. On this the case law is quite clear that equitable principles of clean hands is applicable on both sides/parties. The Claimant intends to use the evidence against the termination by the Company.

[5] Unless the evidence has been doctored or edited, which can only be determined after a full trial. Then all the evidence will show is the actual words that were uttered by the parties. This is in line with the Federal Court case submitted by the Claimant namely Benjamin William Hawkes v. PP; [2020] 5 MLJ 417; [2020] 8 CLJ 267; [2020] 6 AMR 749. The Federal Court reiterated the Privy Court findings in the case of Kuruma, Son of Kaniu v. The Queen [1955] AC 197. The Federal Court stated as follow:

"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 actually relevancy."

[6] The above is in a Criminal case where the burden of proof is much higher than a Civil Court or an arbitrative Tribunal.

[7] Another argument rebutted by the Company is that the cases submitted by the Claimant were all not industriual Court cases, therefore irrelevant to the case at hand. Whilst the Court agress that the cases were not Industrial Court cases, but the law of evidence does not change merely for the change in locality. This Court may not be purely a Civil Court but it is also bound to the rules of procedure.

[8] Despite the fact that the cases are not industrial Court cases, they are still relevant if there are issues that happened to be in congruence. In this case is the issue of admissibility of evidence which is applicable to any Court or Tribunal. Futhermore, the provision in subsection 30(5) Industrial Relations Act (Act 177) dictates that the Court should focus on the "substantial merits" of the case.

[9] Therefore based on the above, the Court rejects the preliminary objection and the Claimant is allowed to submit the evidence and bundles. The weight of the said evidence is still subject to the evidence and testimony of witnesess which the Court will ascertain and determine at the end of the trial.

[10] Besides the above, the Court also noted that the documents have been mistakenly marked on 3/4-1161/23 where it should be 3/4-1162/23. Parties to take note of the mistake and act accordingly.