The court ruled on the admissibility of computer-generated evidence while determining profit-sharing obligations in the context of employment agreements.

Azizul Azmi Adnan JC:

Introduction

[1] The plaintiff, who was once an employee of the defendant company, sued the latter for money that he alleged were due to him arising under an agreement that pre-dated the plaintiff's employment with the defendant. After trial, I allowed the plaintiff's claim in part, against which decision the defendant has now appealed.

[2] The crux of this case turns on the admissibility of computer-generated evidence and the seminal decision of the Court of Appeal in Mohd Khayry Ismail v. PP , [2014] 4 MLJ 317 .

Background And Material Facts

[3] The background facts in so far as they were material to the determination of this case were as follows.

[4] The plaintiff was a Human Resources Consultant who provided consulting services in connection with the recruitment of foreign workers. The defendant was a company that was authorised by Kementerian Hal Ehwal Dalam Negeri to recruit, manage and employ foreign workers. They entered into an agreement on 25 October 2005 ("the original agreement") pursuant to the terms of which the plaintiff was to procure and secure contracts from clients for the recruitment, supply and management of foreign workers.

[5] The original agreement was curiously silent as to the nature of the relationship between the parties. I am of the view that, based on its true construction, the agreement operated to govern the terms of an unincorporated joint venture between the parties. This finding does not materially affect the issues in dispute, but assists in the understanding of the background facts.

[6] Under the terms of this agreement, the plaintiff was to have been paid 30% of the profits of the "Business", which was defined in recital D of the agreement as "the business of recruiting and managing foreign workers for business undertakings". The manner in which the profits were to be calculated was provided for in cl 2.1 of the original agreement, which prescribed the usual manner in which profits are determined: revenue less costs.

[7] Two supplemental agreements were entered into between the parties on 7 December 2005. Although the defendant initially disputed the authenticity of these supplemental agreements and had pleaded that it had no knowledge of them, the fact of their existence was conceded in the course of trial. Under the terms of these supplemental agreements, the plaintiff was granted exclusivity to procure business from thirteen companies that were specifically identified, which included Advanced Micro Devices Export Sdn Bhd ("AMD"), Texas Instruments Malaysia Sdn Bhd ("Texas Instruments") and STATS ChipPAC Malaysia Sdn Bhd ("STATS ChipPAC"). This exclusivity operated for a period of three months. The supplemental agreements also provided that if the plaintiff was successful in procuring business from the specified companies, the defendant would pay to the plaintiff, in accordance with cl 2 of the original agreement, 30% of the profits "for as long as the client company is a client of (the defendant)".

[8] The plaintiff claimed to have successfully procured contracts for AMD, Texas Instruments and STATS ChipPAC within the exclusivity period, and the plaintiff acknowledged that the defendant had paid him the sum of RM153,016.20.

[9] On 23 July 2007, the defendant made an offer of employment to the plaintiff, for the plaintiff to be the Chief Operating Officer of the "JR Group of Companies based in JR Joint Resources Holdings Sdn Bhd", which meant that although the plaintiff was to be employed by the defendant, the scope of his responsibilities extended to all the companies within the group. The plaintiff commenced employment on 1 September 2007. In July 2008, the plaintiff was