Legality of recording witness statements through secure online platforms under the Income Tax Act 1967

This Opinion considers whether an Investigating Officer exercising powers under the Income Tax Act 1967 may lawfully record a witness statement through a secure online platform.

Table of contents

• Executive summary
• Introduction
• Issue
• Relevant legislative framework
• Applicability of Section 112 of the Criminal Procedure Code
• Section 112 does not explicitly or impliedly state a requirement for physical attendance
• Legislative recognition of electronic processes
• Nature and purpose of a witness statement
• Purposive interpretation under Section 17A of the Interpretation Acts 1948 and 1967
• Absence of prejudice
• Exceptional use of remote witness statements
• Conclusion
• Legal risk assessment

Executive summary

This Opinion considers whether an Investigating Officer exercising powers under the Income Tax Act 1967 ("ITA 1967") may lawfully record a witness statement through a secure online platform, such as Microsoft Teams or Zoom.

Having considered the relevant statutory provisions, it is my considered opinion that there is no legal impediment to the recording of witness statements through a secure online platform, provided that the integrity, voluntariness, authenticity and reliability of the witness statement are preserved and all applicable statutory safeguards are observed.

This conclusion is founded upon the following principal considerations:

1. The Income Tax Act 1967 is silent as to the mode by which a witness examination must be conducted and does not require physical attendance before an Investigating Officer.
2. Section 3 of the Criminal Procedure Code ("CPC") establishes the CPC as the general procedural law governing criminal investigations, subject always to the provisions of any written law. Accordingly, investigations conducted under the ITA 1967 remain governed primarily by the statutory framework established under the Act.
3. Section 112 of the CPC, even if applied by analogy, regulates the procedural safeguards surrounding the recording of witness statements but does not expressly or impliedly require that an oral examination be conducted through physical attendance. The provision is silent as to the medium through which the examination may be conducted.
4. Sections 142A and 152A of the ITA 1967 demonstrate Parliament's recognition of electronic records and electronic transmission of information in the administration of the Act, supporting the use of modern electronic communication where appropriate.
5. The principal purpose of a witness statement is to facilitate the investigation and assist the Investigating Officer in determining the appropriate enforcement action. Such statements are ordinarily not tendered during the criminal trial and primarily serve as an internal investigative tool.
6. The recording of witness statements through online platforms should not become the ordinary practice but should instead be utilised only in appropriate and justifiable circumstances, such as where physical attendance is impracticable, disproportionately costly, time-sensitive or otherwise operationally inefficient.

Accordingly, provided that appropriate safeguards are implemented to ensure the witness is properly identified, examined orally, afforded the opportunity to review and amend the recorded statement, and thereafter authenticates the contents of the statement, it is my considered opinion that witness statements may lawfully be recorded through secure online platforms in appropriate cases under the Income Tax Act 1967.

1. Introduction

This Opinion considers whether an Investigating Officer appointed under the Income Tax Act 1967 ("ITA 1967") may lawfully record a witness statement through an online platform, such as Microsoft Teams or Zoom, rather than requiring the witness to be physically present.

For the reasons set out below, in the absence of any express statutory prohibition, a witness statement may validly be recorded through an online platform, provided that the integrity, voluntariness and authenticity of the statement are preserved and the statutory safeguards governing the recording of the statement are complied with.

2. Issue

The principal issue is whether the ITA 1967 or any other applicable law requires that the examination of a witness be conducted only by way of physical attendance before an Investigating Officer.

3. Relevant legislative framework

The ITA 1967 confers investigative powers upon authorised officers for the purpose of administering and enforcing the Act. However, the Act is silent as to the manner or medium through which an oral examination of a witness must be conducted.

Reference may first be made to section 3 of the Criminal Procedure Code ("CPC"), which provides that offences under the Penal Code and offences under any other written law are to be inquired into and tried in accordance with the CPC, subject to any written law regulating the manner or place of inquiring into or trying such offences.

Section 3 establishes the CPC as the general procedural code governing criminal investigations and prosecutions in Malaysia. However, it is equally significant that Parliament expressly made the application of the CPC subject to the provisions of any other written law. Consequently, where the ITA 1967 confers independent investigative powers or prescribes its own investigative framework, those provisions prevail over the general provisions of the CPC to the extent of any inconsistency.

Accordingly, whilst the CPC may serve as the general procedural framework, it does not automatically import every procedural requirement applicable to police investigations into investigations conducted by officers exercising independent statutory powers under the ITA 1967.

4. Applicability of Section 112 of the Criminal Procedure Code

Section 112(1) of the CPC provides:

"A police officer making a police investigation under this Chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case..."

The language employed by Parliament is both deliberate and specific.

First, the provision is expressly directed towards a police officer.

Secondly, it applies only where the officer is making a police investigation under the Criminal Procedure Code.

An Investigating Officer appointed under the ITA 1967 does not derive his investigative powers from section 112 of the CPC but from the provisions of the ITA 1967 itself. Consequently, section 112 does not, as a matter of statutory construction, impose procedural obligations upon officers exercising independent investigative powers under the ITA 1967.

Accordingly, it is my opinion that section 112 is not directly applicable to investigations conducted by officers of the Inland Revenue Board of Malaysia.

Nevertheless, even if we were to hold that the procedural safeguards embodied in section 112 ought to apply by analogy, such conclusion would not affect the legality of conducting an examination through an online platform.

5. Section 112 does not explicitly or impliedly state a requirement for physical attendance

Assuming, without conceding, that section 112 is applicable, the provision itself does not prescribe the medium by which the oral examination must occur.

The statutory requirements are limited to the following:

(a) the witness is examined orally;
(b) the statement is reduced into writing;
(c) the witness is informed of his statutory rights and obligations;
(d) the witness is afforded an opportunity to review and correct the statement; and
(e) the witness authenticates the statement by signature or thumbprint.

Significantly, section 112 does not contain any requirement that:

• the witness be physically present before the investigating officer;
• the examination take place at a police station or government office;
• the questions be asked only in person; or
• electronic communication is prohibited.

The omission of such requirements is significant.

It is a well-established principle of statutory interpretation that the Court should not imply words into a statute which Parliament has deliberately omitted. Had Parliament intended to mandate physical attendance, it could easily have done so in express terms.

Instead, Parliament confined itself to prescribing procedural safeguards directed towards the reliability and authenticity of the statement rather than the physical medium through which the examination is conducted.

This approach is reinforced by section 17A of the Interpretation Acts 1948 and 1967. The purposive approach requires the Court to adopt an interpretation that advances the legislative object of the statute. Reading into the legislation an unwritten requirement for physical attendance would unnecessarily restrict the investigative powers conferred under the Income Tax Act 1967 without promoting any identifiable legislative objective.

On the contrary, permitting witness statements to be recorded through secure electronic platforms such as Microsoft Teams or Zoom preserves every procedural safeguard expressly required by Parliament whilst facilitating the efficient administration of investigations. Such an interpretation is consistent with the legislative recognition of electronic records under section 142A of the Income Tax Act 1967 and the electronic transmission of information under section 152A of the same Act.

Accordingly, the statutory silence regarding the mode of examination should not be construed as an implied prohibition against remote examinations. Rather, Parliament's deliberate omission of any requirement for physical attendance supports the conclusion that the medium through which the oral examination is conducted is a matter of procedure, provided that the statutory safeguards concerning voluntariness, truthfulness, accuracy and authentication are fully observed.

6. Legislative recognition of electronic processes

The legislative scheme of the ITA 1967 further supports this interpretation.

Section 142A of the ITA 1967 expressly recognises the legal admissibility and evidential status of electronic records. Similarly, section 152A recognises that information may be transmitted through electronic means for purposes connected with the administration of the Act.

Whilst neither provision expressly regulates the taking of witness statements, both provisions clearly demonstrate Parliament's acceptance of electronic methods in the administration and enforcement of the ITA 1967.

Read together, these provisions indicate a legislative intention that the administration of the Act is not confined to traditional paper-based or face-to-face processes.

It would therefore be inconsistent with the legislative framework of the ITA 1967 to imply a prohibition against conducting an oral examination through secure electronic communication in circumstances where Parliament has itself recognised the legal efficacy of electronic records and electronic transmission of information.

7. Nature and purpose of a witness statement

It is also material to appreciate the purpose for which a witness statement is obtained during an investigation.

A witness statement forms part of the investigative process and serves primarily as an internal investigative tool to assist the Investigating Officer in ascertaining the relevant facts, evaluating the available evidence, and determining whether sufficient evidence exists to recommend prosecution or whether further investigative steps are necessary.

Ordinarily, a witness statement is not tendered as evidence during the criminal trial.

The witness is generally required to attend court and give oral testimony under oath, where such evidence is subject to examination-in-chief, cross-examination and re-examination. Accordingly, the witness statement itself is not intended to replace the witness's oral testimony before the Court.

Whilst there are limited circumstances in which a witness statement may become relevant in subsequent proceedings, such as where issues of perjury, inconsistent statements or credibility arise, those circumstances are exceptional and do not represent the ordinary purpose for which witness statements are recorded.

Viewed in its proper context, the function of the witness statement is to facilitate and complete the investigation rather than to constitute substantive evidence before the Court. Consequently, provided that the integrity and authenticity of the statement are maintained, the medium through which the statement is recorded does not undermine its investigative purpose.

8. Purposive interpretation under Section 17A of the Interpretation Acts 1948 and 1967

The interpretation of both the Criminal Procedure Code and the Income Tax Act 1967 must also be considered in light of section 17A of the Interpretation Acts 1948 and 1967, which provides:

"In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object."

Section 17A embodies the statutory adoption of the purposive approach to statutory interpretation in Malaysia. The Court is therefore required to prefer an interpretation which advances the legislative purpose of the statute rather than one founded solely upon a strict or literal construction.

The purpose underlying the investigative provisions of the Income Tax Act 1967 is to facilitate the effective investigation of tax offences whilst ensuring that the integrity and reliability of evidence obtained during the investigation are preserved.

Neither the Income Tax Act 1967 nor the Criminal Procedure Code contains any express provision requiring that a witness must be physically present before an Investigating Officer before his statement may be recorded. Equally, neither statute prohibits the use of electronic communication or video conferencing technology for that purpose.

A construction requiring physical attendance would therefore amount to the Court implying procedural words which Parliament itself did not enact. Such an interpretation would unnecessarily restrict the investigative powers conferred by Parliament without advancing any identifiable legislative purpose.

Conversely, a construction permitting the recording of witness statements through secure electronic platforms such as Microsoft Teams or Zoom gives full effect to the legislative purpose of facilitating investigations while simultaneously preserving all essential procedural safeguards, namely:

(a) the witness is examined orally;
(b) the witness is informed of his legal rights and obligations;
(c) the statement is accurately reduced into writing;
(d) the witness is afforded the opportunity to review and correct the statement; and
(e) the witness authenticates the contents of the statement by signature or other lawful means.

Such an interpretation is also consistent with sections 142A and 152A of the Income Tax Act 1967, through which Parliament has expressly recognised the legal efficacy of electronic records and the electronic transmission of information in the administration of the Act. Those provisions demonstrate Parliament's intention that the administration and enforcement of the Income Tax Act 1967 should accommodate modern electronic methods where appropriate.

Accordingly, applying the purposive approach mandated by section 17A of the Interpretation Acts 1948 and 1967, the absence of an express prohibition against remote witness examinations should not be construed as an implied prohibition. Rather, provided that the integrity, voluntariness, authenticity and reliability of the witness statement are maintained, the recording of witness statements through secure electronic platforms promotes the statutory object of effective tax administration and is entirely consistent with the legislative framework enacted by Parliament.

The purpose underlying the recording of a witness statement is to ensure:

• voluntariness;
• accuracy;
• truthfulness;
• procedural fairness; and
• authenticity.

These objectives are fully capable of being achieved through secure video conferencing technology.

Indeed, where the entire interview is video recorded, such technology may enhance the integrity of the investigative process by preserving a contemporaneous record of:

• the identity of the witness;
• the cautions administered;
• the voluntariness of the statement;
• the questions asked;
• the answers provided; and
• the overall conduct of the interview.

Consequently, the use of Microsoft Teams or Zoom does not diminish the statutory safeguards intended by Parliament, provided that appropriate measures are implemented to preserve the integrity of the process.

9. Absence of prejudice

The Court is ultimately concerned with whether the witness has suffered any procedural prejudice.

Where:

• the witness is able to hear and understand the questions;
• the Investigating Officer is able to observe the witness throughout the interview;
• the statement is accurately reduced into writing;
• the statement is read back in the language used by the witness;
• the witness is afforded the opportunity to make corrections; and
• the witness thereafter signs or otherwise authenticates the statement,

it is difficult to identify any prejudice arising solely because the interview was conducted remotely rather than in person.

The mode of communication does not affect the substantive safeguards afforded to the witness.

10. Exceptional use of remote witness statements

It should also be emphasised that the recording of witness statements through online platforms is not intended to supplant or replace the conventional practice of conducting witness interviews in person. Physical attendance remains the preferred and ordinary mode of examination where it is reasonably practicable to do so.

The use of secure electronic platforms such as Microsoft Teams or Zoom should instead be regarded as an exceptional investigative measure to be employed only where circumstances reasonably justify its use. Such circumstances may include situations where the witness is located in a different State or overseas, where attendance would result in disproportionate cost or delay, where logistical constraints make physical attendance impracticable within the required timeframe, or where other operational considerations render remote examination the more efficient and proportionate option.

The availability of remote examination should therefore be viewed as an additional investigative mechanism that enhances administrative efficiency without compromising procedural fairness or the integrity of the investigation. Its utilisation should always be guided by the particular facts and circumstances of each case, having due regard to the interests of justice, the reliability of the evidence to be obtained, and the need to ensure that all statutory safeguards relating to the recording of witness statements are fully observed.

Accordingly, this Opinion should not be construed as advocating the routine or indiscriminate use of remote witness examinations. Rather, it recognises that modern technology may appropriately be utilised in suitable cases where it facilitates the effective administration of investigations while maintaining the same standards of voluntariness, accuracy, authenticity and procedural fairness that would be expected during a conventional face-to-face interview.

Conclusion

In my considered opinion:

1. Section 3 of the Criminal Procedure Code establishes the CPC as the general procedural framework governing criminal investigations and prosecutions, subject always to the provisions of any written law providing otherwise. Investigations conducted under the ITA 1967 are therefore to be considered within that statutory framework.
2. Section 112 of the Criminal Procedure Code does not directly regulate investigations conducted by Investigating Officers exercising powers under the Income Tax Act 1967.
3. Even if the Court were to hold that the procedural safeguards contained in section 112 apply by analogy, the provision does not require that an oral examination be conducted through physical attendance.
4. Neither the Criminal Procedure Code nor the Income Tax Act 1967 contains any express prohibition against recording a witness statement through a secure online platform such as Microsoft Teams or Zoom.
5. Sections 142A and 152A of the Income Tax Act 1967 demonstrate Parliament's recognition of electronic records and electronic transmission of information within the statutory scheme, thereby supporting a construction that permits the use of modern electronic communication in the investigative process.
6. A witness statement serves primarily as an internal investigative tool and is ordinarily not tendered as evidence during trial. Its principal function is to facilitate the completion of investigations and assist the Investigating Officer in determining the appropriate enforcement action. The possibility of the statement being relied upon in collateral proceedings, such as matters involving perjury or inconsistent statements, is exceptional and does not alter its fundamental investigative purpose.
7. Accordingly, provided that the witness is properly cautioned, examined orally, the statement is accurately reduced into writing, the witness is afforded the opportunity to review and amend the statement, and the statement is thereafter duly authenticated, the recording of a witness statement through an online platform is consistent with the legislative framework of the Income Tax Act 1967 and does not offend the procedural safeguards reflected in section 112 of the Criminal Procedure Code.

Accordingly, it is my considered opinion that an Investigating Officer acting under the Income Tax Act 1967 may lawfully conduct and record a witness statement through an online platform such as Microsoft Teams or Zoom, subject always to the preservation of the integrity, voluntariness, authenticity and reliability of the statement obtained.

Legal risk assessment

This Opinion recognises that there is presently no reported Malaysian judicial authority directly determining whether a witness statement obtained by an Investigating Officer under the Income Tax Act 1967 may be recorded through a secure online platform.

Nevertheless, the legal position supporting such practice is, in my opinion, supported by the following considerations:

• the absence of any express statutory prohibition within either the Income Tax Act 1967 or the Criminal Procedure Code;
• the general application of the Criminal Procedure Code under section 3, subject to the provisions of other written laws;
• the absence of any requirement under section 112 of the Criminal Procedure Code mandating physical attendance during an oral examination;
• Parliament's recognition of electronic records and electronic transmission of information under sections 142A and 152A of the Income Tax Act 1967;
• the purposive approach to statutory interpretation required by section 17A of the Interpretation Acts 1948 and 1967; and
• the preservation of all substantive procedural safeguards relating to voluntariness, truthfulness, accuracy, review and authentication of the witness statement.

Accordingly, the legal risk associated with adopting this practice on an exceptional and controlled basis is assessed to be low, provided that appropriate administrative safeguards are implemented and each case is considered on its own facts and circumstances.

For good governance, it is recommended that the Inland Revenue Board Malaysia issue an internal administrative guideline governing the circumstances in which remote witness statements may be utilised. Such guideline may include requirements relating to verification of the witness's identity, confirmation that the witness is alone unless otherwise authorised, contemporaneous recording of the online interview where appropriate, execution of the witness statement immediately following the interview, and secure retention of all electronic records generated during the investigative process.

The adoption of such internal safeguards would further strengthen the integrity of the investigative process whilst ensuring consistency, transparency and accountability in the exercise of investigative powers.

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