DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG
RAYUAN JENAYAH NO______TAHUN____________
DI ANTARA
SUHANI BINTI MAT DAUD
......PERAYU
LAWAN
PENDAKWA RAYA
......RESPONDEN
RAYUAN BALAS
ANTARA
PENDAKWA RAYA
......PERAYU
LAWAN
SUHANI BINTI MAT DAUD
......RESPONDEN
(Di dalam perkara Mahkamah Sesyen (1) Butterworth
kes Tangkap No: 62-102-2008)
PENDAKWA RAYA
......PERAYU
DAN
SUHANI BINTI MAT DAUD
......RESPONDEN
1
ALASAN PENGHAKIMAN
A.
The Accused is a former practicing advocate and solicitor.
On 28 July 2008, the Accused was brought before this court and
charged for criminal breach of trust, an offence punishable under s.
409 of the Penal Code. She claimed trial to the charge which reads
as follows:-
B.
C.
D.
E.
F.
G.
H.
“Bahawa kamu di antara 28 Mac 2001 dan 6 Julai 2001, di pejabat
Tetuan Suhani & Partners beralamat di No. 42, Bangunan MARA,
Jalan Danby, Bukit Mertajam di dalam Daerah Seberang Perai
Tengah di dalam Negeri Pulau Pinang, sebagai seorang agen, iaitu
seorang peguam yang telah dilantik sebagai pemegang amanah
telah diamanahkan dengan penguasaan ke atas suatu harta, iaitu
wang sebanyak RM270,972.16, dalam perjalanan urusan kamu
sebagai peguam telah melakukan pecah amanah jenayah ke atas
harta tersebut dan dengan itu kamu telah melakukan satu
kesalahan yang boleh dihukum di bawah seksyen 409 Kanun
Keseksaan.”
In a nutshell the case for the prosecution is that the Accused
committed criminal breach of trust of the sum enumerated in the
charge in her capacity as the solicitor entrusted with the payment of
the balance purchase price to be delivered to the seller. Instead of
handing over the said sum to the seller, the Accused withheld
payment and used the money for another purpose.
Facts of the Case
The prosecution called 9 witnesses. The most crucial witness is
SP 1 who is the main complainant in this case.
Evidence of SP 1
On behalf of SP 3, SP 4 and another friend, SP 1 had entered
into a sale and purchase agreement with Hj Mohd Noor b Said @
Mohd S.A. Filfilan (the seller) to buy a piece of property known as
MK No. 670, Lot No. 1039, Mukim 5 Daerah S.P.T and a part of the
property known as MK No. 673, Lot No. 1042, MK 5, Daerah S.P.T.
The said sale and purchase agreement was entered into on 27 July
2000. The full purchase price of the property was RM301,080.18.
10% of the purchase price comprising of RM30,108.02 was the
deposit paid to the seller leaving the balance of RM270, 972.16 to
be paid within 6 months form the date the agreement was entered
2
A.
B.
C.
D.
E.
F.
G.
to. The agreement provided for a further agreed extension of 2
months for completion of the sale.
The Accused was engaged to handle the sale and purchase
transaction with regard to the above said property The sale and
purchase agreement with regard to the conveyancing of the
property was prepared by the Accused. SP 1 identified the Accused
as the solicitor in charge of the conveyancing and he said the
transaction was conducted while the Accused practiced under the
name of Tetuan Suhani & Partners at No. 42, Bangunan Mara,
Jalan Danby, Bukit Mertajam.
In his testimony SP 1 confirmed that he had paid the balance
purchase price of RM270,972.16 vide 4 cheques via a loan taken
from Koperasi Pendidikan Inovatif Bhd by himself and his 3 other
friends. All the cheques were paid into the account of Tetuan
Suhani & Partners. This has been attested to by SP 2(the
operations manager of Hong Leong Bank, SP 6(Manager of Bank
Islam) and SP7 (the officer from Bank Muamalat). It has also been
established in the prosecution’s case that the Accused had
acknowledged receipt of payment of this amount via her letter dated
28 March 2001(Exhibit P13).
SP 1 and his friends later realized that the Accused had not
handed over the balance of the purchase price to the seller as
agreed and they went to see her many times in an effort to obtain a
refund from the Accused. Despite their best efforts the Accused did
not refund the money to them and SP 1 had no choice but to lodge
a police report against the Accused. The said police report is
marked Exhibit P15 and is dated 7 July 2001. The Accused did not
return the money even after the police report was lodged. SP 1
then filed a civil suit against the Accused in the Penang High Court
claiming for the return of the said money. The Penang High Court
gave judgment in favour of SP 1 and the said Order of Court is
dated 28/3/2002.
H.
According to SP 1 the money was only refunded to SP 1 in the
year 2008 after the Accused was charged in court.
I.
Under cross-examination SP 1 confirmed that the Accused had
refunded more than the amount claimed ie the sum of RM280,000
through 7 post dated cheques, the first on 30/3/2008 and the final
cheque on 30/9/2008.
3
A.
B.
C.
SP 1 was questioned as to his action in writing to the Attorney
General’s office requesting for the charge against the Accused be
withdrawn. The said letter was admitted into court and marked as
Exhibit D16. SP 1 agreed with defence counsel’s suggestion that
his intention when writing the said letter was to request for the
charge against the Accused to be withdrawn as he was convinced
the Accused would honour her promise to reimburse the whole sum
that was owing to him and his friends.
Later in re-examination SP 1 clarified that the discussion
leading to the settlement of the whole amount owing only took place
after the legal process to charge the Accused had begun. Before
that there was hardly any communication between the Accused and
SP 1 and the Accused did not make any overtures to settle the full
sum.
D.
E.
F.
G.
The prosecution called SP 8 who is the Director of the
Complaints Section in the Malaysian Bar Counsel as their witness.
SP 8 testified as to the following chronology of events with regard to
the Accused’s history as solicitor and advocate based on records in
the possession of the Bar Counsel to which SP 8 had access:10/5/1991 – The Accused was called to the Malaysian bar. She was
in partnership with Ariffin & Co;
2/7/1998 – the partner Ariffin passed away
25/1/2000 – Practiced under Suhani & Partners at No. 42,
Bangunan Mara, Jalan Danby, 1400 Bukit Mertajam;
6/12/2001 – the complainant (SP 1) lodged his complaint against
the Accused;
12/3/2003 – Tetuan Suhani & Partners was dissolved;
4/5/2005 – Disciplinary Order striking her off the rolls
The law governing the offence of criminal breach of trust is found in
Section 409 of the Penal Code which states as follows:-
H.
Criminal breach of trust by public servant or agent
409
I.
Whoever, being in any manner entrusted with
property, or with any dominion over property, in
his capacity of a public servant or an agent,
commits criminal breach of trust in respect of that
property, shall be punished with imprisonment
for a term which shall not be less than
4
A.
two years and not more than twenty
years and with whipping, and shall also be liable
to fine. The ingredients of the charge preferred
against the Accused is proven if the prosecution
proves the following:-
B.
(i)
The Accused was an agent
(ii)
The Accused was entrusted with the
amount stated in the charge ie
RM270,972.16 and;
(iii)
The Accused had committed criminal breach of
trust.
C.
D.
There are several ways in which the offence of criminal breach
of trust can be committed as stipulated in s 405 of the Penal Code
which reads as follows:Criminal breach of trust
E.
F.
G.
405.
Whoever, being in any manner entrusted with
property, or with any dominion over property either
solely or jointly with any other person dishonestly
misappropriates, or converts to his own use, that
property, or dishonestly uses or disposes of that
property in violation of any direction of law
prescribing the mode in which such trust is to
be discharged or of any legal contract, express or
implied, which he has made touching the discharge
of such trust, or willfully suffers any other
person so to do, commits “criminal breach of trust.
It is therefore the duty of the prosecution to prove the following
ingredients pertaining to the offence in the charge preferred against
the Accused:H.
(1) The Accused has been entrusted with a property or dominion
over the property;
I.
(2) That she should dishonestly misappropriate or convert it to
her own use or dishonestly use or dispose of the property or
willfully suffer any other person so to do in violation of
(3) Any direction of law prescribing the manner in which such
5
A.
B.
C.
trust is to be discharged or of any legal contract made
touching
the
discharge
of
such
trust.
(See PP v Yeoh Teck Chye(1981) 2 MLJ 176
There is no doubt that the Accused in her capacity as an
advocate and solicitor was the stakeholder of the balance of the
purchase price for the said piece of property. She was the agent
through which the balance of the purchase price would be paid and
the property transferred over to the buyer. Therefore she was
entrusted to accept it for onward transmission to the seller. The
balance of the purchase price was given to the Accused for the
specific purpose of onward transmission to the seller of the
property. In the case of Som Nath v State of Rajasthan(1972) AIR
S.C. 1940 it was said that:
“ as long as the Accused is given possession of
property for a specific purpose or to deal with it in a
particular manner, the ownership being in some
person other than the Accused, he can be said to be
entrusted with that property to be applied in
accordance with the terms of entrustment and for the
benefit of the owner.”
D.
E.
F.
In the case presently before this court it has been established
that the A had dominion over the said money as she was holding it
as a stakeholder. She had acted as an agent for the complainant.
This has been borne out on a prima facie basis from the following
way:-
G.
the sale and purchase agreement(Exh. P1);
- the letter written by Tetuan Suhani & Partners dated
6/7/2001(Exh. P13);
- the letter from Tetuan Suhani & Partners dated 6/7/2001(Exh.
P14) and
H.
- from the oral evidence of SP 1, SP3, SP 4, SP 5 and SP 8.
It is the court’s view that the prosecution has proven this
element and ingredient of the charge.
I.
As to whether the prosecution has proven the second element
of the charge which is the question whether the Accused was
entrusted with the dominion of the sum of RM270,972.16, the court
6
A.
B.
C.
D.
E.
F.
G.
H.
I.
has merely to look to the cheques marked Exhibits P2, P9, P10,
P11 and P12. These cheques prove on a prima facie basis that the
cheques had all been made out to Tetuan Suhani & Partners. The
Accused had acknowledged receipt of the full sum of
RM270,972.16. The said sum of money had been credited into the
account of Tetuan Suhani & Partners as shown in Exhibit P17,
P18(2) and P18(3). Furthermore the evidence of SP 1 has stated
that the said money was never handed over to the seller as
intended.
SP 2 the bank officer has affirmatively stated in his testimony
that all the above mentioned cheques made payable to Tetuan
Suhani & Partners had been credited into Tetuan Suhani & Partners
– client’s account. Exhibit P18(2) and P18(3) are the statements of
account showing the credit balance of RM270,972.16 as at
2/4/2001. The above transaction coupled with the evidence of the
relevant witnesses has proven on a prima facie basis that the
Accused was entrusted with and had dominion over the balance of
the purchase price.
Did the Accused commit CBT in respect of the sum of
RM270,972.16?
SP 1 had affirmatively stated that the money was not given for
onward transmission to the seller of the property as agreed
according to the sale and purchase agreement and this in effect
had caused the said agreement to be cancelled.
SP 2, the Branch operations manager of Hong Leong Bank had
testified that the Accused kept a client’s account in the bank under
the name of Suhani & Partners. The account was first opened on
25/1/2001 and there was a standing instruction made to the bank
stating to the effect that the Accused was to be the sole authorized
signatory of all cheques issued out from this account.
Based on the statement of account in Exhibit P18(1) – (4) and
Exhibit P19(1) – (37), SP 2 confirmed that steady withdrawals had
been made from the client’s account until the account was closed
on 9/7/2003. At the time the client’s account was closed on
9/7/2003 it only had a credit balance of RM1,612.75.
Had the prosecution proven that the Accused had
misappropriated the money entrusted to her in her capacity as a
stakeholder?
7
A.
B.
C.
Under the law even temporary retention of money not precisely
for the purpose it was given is an offence provided of course if it is
dishonest. In the case of Durugappa v State of Mysore(1956) Cri.
L.J. 630 the term misappropriation means “improperly setting apart
for one’s use to the exclusion of the owner”.
In some instances the dishonest misappropriation may not
ordinarily be a matter of direct proof. The prosecution in this
instance has elected to raise the presumption made available to
them pursuant to Section 409B of the Penal Code. According to s.
409 Penal Code it states:
Section 409B Presumption
(1) Where in any proceeding it is proved –
D.
E.
(a) For any offence prescribed in sections 403 and 404, that
any person had misappropriated any property; or
(b) For any offence prescribed in sections 405,406, 407, 408
and 409, that any person entrusted with property or with
dominion over property had –
(i) Misappropriated that property;
F.
G.
(ii) Used or disposed of that property in violation of any
direction of law prescribing the mode in which such
trust is to be discharged or of any legal contract,
express or implied which he had made touching the
discharge of such trust; or
(iii) Suffered any person to do any of the acts described in
subparagraph (i) or (ii) above,
it shall be presumed that he had acted dishonestly until the
contrary is proved.
H.
I.
(2) The presumption under subsection (1) shall apply mutatis
mutandis to the offences prescribed in sections 109 and 511
of the Code in relation to any of the offences referred to in
that section.
Whether prima facie case established?
At the close of the prosecution case, the court is duty bound to
8
A.
determine whether the prosecution has established a prima facie
case against the Accused. In so doing the court is guided by the
following steps summarized in the Federal Court case of PP v Mohd
Radzi b Abu Bakar(2006) 1 CLJ 457 at p. 467.
B.
(1) at the close of the prosecution’s case, subject the evidence
led by the prosecution in its totality to a maximum evaluation.
Carefully scrutinize the credibility of each of the prosecution’s
witnesses. Take into account all reasonable inferences that
may be drawn from the evidence’s If the evidence admits of
two or more inferences, then draw the inference that is most
favourable to the Accused;
C.
D.
(2) ask yourself the question: if I now call upon the Accused to
make his defence and he elects to remain silent am I
prepared to convict him on the evidence now before me? If
the answer to that question is “Yes”, than a prima facie case
has been made out and the defence should be called. If the
answer is “No” then, a prima facie case has not been made
out
and
the
Accused
should
be
acquitted;
E.
(3) after the defence is call, the Accused elects to remain silent,
then convict;
F.
G.
H.
I.
(4) after defence is called, the Accused elects to give evidence
then go through the steps set out in Mat v PP(1963) MLJ
263.”
The court in this case had at the close of the prosecution’s case
subjected the evidence led by the prosecution in its totality to a
maximum evaluation. The court found that the Accused did not
hand over the money to the seller as required of her. Since the
prosecution had activated the presumption pursuant to s 409B it
had therefore proved its case on a prima facie basis. The evidence
showed on a prima facie basis that the Accused had
misappropriated the money to the exclusion of the owner and that
she had converted the purpose for which the money was given in a
manner contrary to the purpose for which she had received it in the
first place.
Counsel for the Accused had questioned the prosecution’s
perceived failure to call the first I.O as an occasion calling for the
9
A.
B.
C.
activation of an adverse presumption to be invoked against the
prosecution. The court is not prepared to do so as the prosecution
had called the I.O presently in charge of this case ie SP 9. This was
sufficient and thus no advantage or disadvantage could be gained
from procuring the evidence of the previous I.O.
Having performed its duty of conducting a maximum evaluation
of all the evidence put forward by the prosecution and after having
applied the principles set out in PP v Mohd Radzi b Abu
Bakar(supra) the court came to the unerring conclusion that a prima
facie case had been made out against the Accused. The court
therefore called upon the Accused for her defence.
The defence
D.
E.
F.
G.
H.
I.
The Accused elected to give sworn evidence. She commenced
her testimony by giving a brief background of her legal career. After
her admission to the bar, the Accused practiced as a legal assistant
in the firm known as Ariffin & Co and later in 1995, she accepted
the offer of a partnership with Hj Ariffin. Her duties were mostly
connected to conveyancing work and a little litigation. After Hj Ariffin
died on 2/7/1998, the firm’s account was frozen and since Hj Ariffin
was the only authorized signatory of the firm’s account the Accused
faced considerable difficulty in handling the firm’s existing files and
financial constraints in continuing with the conveyancing work in the
firm. Compounded with that was the civil suit brought against her by
Hj Ariffin’s beneficiaries. To overcome the above mentioned
problem the Accused decided to open her own firm under the name
of Suhani & Partners on 25/1/2000 at the same address as Ariffin &
Co.
The Accused explained that she felt it was her duty and
responsibility to handle all the existing files that remained in Ariffin &
Co and since the accounts had been frozen she felt that she could
only conveniently carry on handling the files if she operated from
her own firm which was Suhani & Partners.
The Accused acknowledged the complainant as her former
client and that she had handled the transaction pertaining to the
sale and purchase agreement which he had complained of. She
also acknowledged that she had received the sum of
RM270,972.16 by way of cheques which had been deposited into
her client’s account and that she had used every single cent from
that sum but not for the purpose that it was given to her. According
10
A.
B.
C.
D.
E.
F.
G.
H.
I.
to the Accused, the agreement provided for the completion date of
the sale as on 26/1/2001 when the balance of the purchase price
should be settled. She said the complainant failed to pay the
balance of the purchase price within the time stipulated and that
signified the termination of the sale and purchase agreement and
the forfeiture of the deposit.
The Accused did not contact the seller even though the balance
purchase price had been paid by SP 1. The seller did however visit
her law office together with his daughter and she said they were
extremely unhappy that the deal could not be completed. According
to the Accused the sale could not be completed because the
consent from FIC (foreign investment committee) could not be
obtained. As a result of that the seller took away the original title
deed to the property from her office and left.
In her further testimony the Accused said she was forced to use
the amount of RM270,972.16 as she was facing severe financial
difficulties where she had to settle outstanding amounts due and
owing on other conveyancing files. These payments included
payment of outstanding stamp duties, penalties and progress
payments to housing developers which ran into the hundreds of
files left from the firm of Ariffin & Co. She said the clients harassed
and pleaded with her almost every day to proceed with the
transactions.
The Accused said she sincerely believed that there was a good
possibility of winning the civil suit brought against her by Hj Ariffin’s
beneficiaries and when that possibility manifested itself she would
then be able to obtain a portion of the money that had been frozen
and she would be able to refund in full to the complainant in this
case. Unfortunately the court decided in favour of the other party
and therefore she did not have any means to refund the money to
him.
According to the Accused she had informed SP 1 of her
problems and asked him for some time before she could refund the
money back to him. She told the court that she did not have any
intention to misuse the said sum of money but that she was forced
to use it due to the critical and dire situation she was put in. She
said she believed that she could return the money that she had
used.
At the same time in the year commencing from 1996 the
11
A.
national economy was not doing well and she said she could not
find any means to come up with the said sum. She referred to her
letter addressed to SP 1(Exh. P14) which she said showed her
sincerity and her true intention in wanting to return the money owed.
B.
After a period of time, the Accused said she finally could
reimburse the amount she owed to SP 1 from the sale of her
husband’s property and she informed SP 1 of her intention to repay
the full sum in late 2007 or early 2008. Although she could not
remember the exact date she said that she did so before she was
charged in court. According to the Accused she had paid more than
what was owed in full and final settlement by way of monthly
instalments. She referred to her cautioned statement made to the
police on 6/12/2005 pursuant to Section 112 of the CPC in which
she had explained her predicament.
C.
D.
E.
F.
G.
H.
I.
Duty of the court at the end of the defence case
It behoves upon the court at the end of the defence case to
evaluate and consider whether the defence put forward by the
Accused has succeeded in raising a reasonable doubt on the
prosecution’s case. S 182A of the CPC states that the court shall
consider all the evidence adduced before it and shall decide
whether the prosecution has proved its case beyond reasonable
doubt.
In Balachandran v PP(2005) 1 AMR 321 the Federal Court defined
“proof beyond reasonable doubt” as follows:“Proof beyond reasonable doubt involves two aspects.
While one is the legal burden on the prosecution to
prove its case beyond reasonable doubt the other is
the evidential burden on the Accused to raise a
reasonable doubt. Both these burdens can only be fully
discharged at the end of the whole case when the
defence has closed its case. Therefore a case can be
said to have been proved beyond reasonable doubt
only at the conclusion of the trial upon a consideration
of all the evidence adduced as provided by s. 182A(1)
of the Criminal Procedure Code. That would normally
be the position where the Accused has given evidence.
However, where the Accused remains silent there will
be no necessity to re- evaluate the evidence in order to
determine whether there is a reasonable doubt in the
12
A.
absence of any further evidence for such a
consideration. The prima facie evidence which was
capable of supporting a conviction beyond reasonable
doubt will constitute proof beyond reasonable doubt.”
B.
In considering the defence put forward by the Accused, the
court must hold to the principles and guidelines established in the
Supreme Court case of Mohd Radhi b Yaakob v PP(1991) 1 CLJ
311 where Mohd Azmi SCJ said:
C.
D.
E.
F.
G.
H.
I.
“We are of the view that whenever a criminal case
decided on the basis of the truth of the prosecution case
against the falsity of the defence story, a trial judge must
in accordance with the principle laid down in Mat v
PP(1963) 1 MLJ263 go one step further before
convicting the Accused by giving due consideration as to
why the defence story though could not be believed did
not raise a reasonable doubt on the prosecution case.
Thus, even though a Judge does not accept or
believe the Accused explanation, the Accused must not
be convicted until the Court is satisfied for sufficient
reason that such explanation does not case a
reasonable doubt on the prosecution’s case. It is well
established principle of Malaysian criminal law that the
general burden of proof lies throughout the trial on the
prosecution to prove beyond reasonable doubt the guilt
of the Accused for the offence with which he is charged.
He is presumed innocent until proven guilty. To earn an
acquittal, his duty is merely to cast a reasonable doubt
in the prosecution’s case. To earn an acquittal, the court
may not be convinced of the truth of the defence story or
version. Raising a reasonable doubt in the guilt of the
Accused will suffice. It is not however wrong for the
court to be convinced that the defence version is true in
which case the court must order an acquittal. In
appropriate cases it is also not wrong for the court to
conclude that the defence story is false or not
convincing, but in that instance, the court must not
convict until it asks a further question that even if the
court does not accept or believe the defence
explanation, does it nevertheless, raise a reasonable
doubt as to his guilt? It is for this reason that in dealing
with the defence story or explanation, the majority of
13
A.
B.
C.
D.
E.
F.
G.
H.
I.
judges rightly prefer to adopt straightaway the legally
established “reasonable doubt” test, rather than to delve
in the “believable and convincing” test before applying
the “reasonable doubt” test.”
In the case of PP v Abdul Rahman b Akif(2007) 4 CLJ 337, Ariffin
Zakaria FCJ pronounced that:
“It is trite law that the court need not be convinced of the
defence story to entitle the Accused to an acquittal. The
burden of proof on the Accused is indeed a light one
which is merely to case a reasonable doubt on the
prosecution’s case”
The definition of “reasonable doubt” has been defined in
PP v Saimin & Ors (1971) 2 MLJ 16 by Sharma J thus:
“It is not mere possible doubt, because everything
relating to human affairs and depending upon moral
evidence is open to some possible or imaginary doubt. It
is that state of the case which after the entire comparison
and consideration of all the evidence leaves the mind of
the jurors in that condition that they cannot say they feel
an abiding….the conviction to a moral certainty of the
truth of the charge.
It has again been said that “reasonable doubt is the
doubt which makes you hesitate to the correctness of the
conclusion which you reach. If under your oath and upon
your conscience, after you have fully investigated the
evidence and compared it in all its parts, you say to
yourself I doubt if he is guilty, then it is a reasonable
doubt. It is a doubt which settles in your judgment and
finds a resting place there” A reasonable doubt must be
a doubt arising from the evidence or want of evidence
and cannot be an imaginary doubt or conjecture
unrelated to evidence.”
The court has reminded itself that it is not the duty of the
defence to bring any evidence or offer any witness to support its
defence as the defence duty is merely one of raising a reasonable
doubt on the prosecution’s case.
At the end of the defence case the court took the opportunity to
re-evaluate the evidence of the prosecution with the additional
14
A.
B.
C.
D.
E.
F.
defence version of which was made under oath. There is no doubt
that at the end of the defence case the remaining matter for
consideration is whether the Accused had dishonestly used the
sums of money in violation of any direction of law prescribing the
mode in which the money is to be used or of any legal contract,
express or implied, which he has made touching the discharge of
such trust. The prosecution had relied on S 409B of the Penal Code
to establish a dishonest intention on the part of the Accused. When
a presumption is invoked and relied upon by the prosecution to
prove an essential element of the charge, the defence burden to
discharge it is merely on a balance of probabilities (PP v Yuvaraj
1969 2 MLJ 89).
Therefore the pertinent question requiring to be resolved here
was thus: did the Accused have a dishonest intention to commit
criminal breach of trust of the money that was entrusted to her?
In the case of Periasamy a/l Sinnappan v Pendakwa
Raya(1996) 2 AMR 2511 the very learned Gopal Sri Ram JCA
defined the true nature of what constituted the offence of criminal
breach of trust. He said:
“It is elementary law that the offence of criminal breach
of trust is not an offence of strict liability. It is only an
offence, under s. 405 of the Penal Code, to convert
dispose or to appropriate property if it is done with a
dishonest intention.”
And whether there is dishonest intention will depend on the
facts and circumstances of each particular case.
G.
H.
I.
It is the submission of the defence that the Accused harboured
no dishonest intention to retain the money in criminal breach of the
trust when it was given to her. She claimed that she had all along
had the most sincere belief and intention that she could refund the
money to the complainant once the proceedings in the High Court
was pronounced in her favour. She had acted on this sincere belief
when she withdrew the money from the clients’ account and used it
for other pressing and urgent matters.
The Accused had in her testimony admitted that she had used
up all the money that SP 1 had entrusted to her for the purpose of
completing the conveyancing agreement. She had said that she
had used the money to settle all the other outstanding
15
A.
conveyancing files from Messrs Ariffin & Co.
According to Rule 7 of the Solicitors’ Account Rules 1990 it states
as follows:-
B.
Rule 7. Drawing money from the client account.
There may be drawn from the client’s account (a) in the case of client’s money (i) money properly required for a payment to or on behalf of the
client.
C.
In law the firm of Messrs Ariffin & Co and Messrs Suhani & Co
are two different entities. The cheques in question were specifically
made out to Messrs Suhani & Co. This in itself showed that the
money was not used for the purpose it was given.
D.
I had earlier on this judgment adumbrated on the evidence
given by the Accused in material detail. From the evidence above
the court was not convinced that the Accused had acted in the
sincere belief that she would refund the money or that she had no
intention to commit the offence. The court was of the view based on
the overall evidence given in the prosecution’s case as well as the
defence case and from that totality the court came to the unerring
conclusion that the defence of the Accused was one not of bare
denial as suggested by the learned DPP but an elaborate
opportunistic and an attempt to safe herself from the quagmire of
the prosecution that has dogged her since 2001. The court was
greatly influenced by the passing of the years from the time the
offence was committed to the time when the Accused took steps to
refund the money which showed the stubborn reluctance and the
refusal of the Accused to refund the money that was rightfully the
property of the complainant and his friends. If there was any
sincerity at all to be shown than the Accused would have attempted
to make a refund immediately or within a reasonable time after that.
Why did it take the Accused almost 7 years to finally make a
refund?
E.
F.
G.
H.
From the evidence adduced it will be seen from the chronology
of events listed the lapse of time taken from the time the money
was handed over to the Accused:
I.
27/7/2000
Sale and
entered into
16
Purchase
agreement
A.
27/1/2001
Completion date for agreement
27/3/2001
Balance of purchase price was paid
via
cheque
through
Koperasi
Pendidikan Muslimin
28/3/2001(Exhibit
P13)
Letter from Tetuan Suhani & Partners
acknowledging
receipt of the balance purchase price
of M270,972.16
B.
C.
Letter written by SP 1 requesting for
the return of the money
D.
E.
6/7/2001(Exhibit
P14)
6/12/2001
Complaint by SP 1 to Bar Counsel
9/7/2003
Client’s Account of Messrs Suhani &
Partners in Hong Leong bank was
closed
28/3/2002
Order of High Court Penang in favour
of the complainant ordering the A to
refund the money owed
Date not furnished
Order of the Kuala Lumpur High Court
in favour of the beneficiaries of
Hj Ariffin.
F.
G.
H.
I.
Letter written by the A stating that she
would refund the said sum of
RM270,972.16 as soon as possible
12/3/2003
Messrs Suhani & Partners dissolved
4/5/2005
The Accused is struck off the Rolls
12/5/2005
The police recorded a
statement from the Accused.
13/3/2008
Accused is arrested by the police
caution
The Accused was 1st brought to court
to answer the charge (date of 1st
appearance in court)
17
A.
B.
C.
D.
E.
18/3/2008(Exhibit
D16)
Letter from the complainant to the
A.G’s chambers requesting them to
withdraw the charge against the
Accused.
28/3/2008
The Accused was first brought to
court to answer the charge(date of 1st
appearance in court)
30/3/2008
1st installment payment of RM20,000
by the Accused to the complainant
30/4/2008
2nd installment payment of RM50,000
by the Accused to the complainant
30/5/2008
3rd installment payment of RM50,000
by the Accused to the complainant
30/6/2008
4th installment payment of RM50,000
by the Accused to the complainant
30/7/2008
5th installment payment of RM50,000
by the Accused to the complainant
30/8/2008
6th installment payment
Accused of RM50,000
complainant
30/9/2008
7th and final installment payment of
RM10,000 by the Accused to the
complainant
F.
G.
H.
I.
by
to
the
the
Never once in the early intervening years did the Accused
attempt or offer to return the money. Not even after the order of the
High Court in Penang dated 28/3/2002 giving judgment in favour of
the complainant did the Accused make any refunds. The firm was
dissolved in 2003 and the police called the Accused in to record a
caution statement by the end of the year 2005. With respect the
letter from the Accused (Exhibit P14 dated 6/7/2001) was a mere
delay tactic meant to hold off SP 1 from taking any action against
her or to lull him into a false sense of security that the money was
going to be refunded. SP 1 was clearly not convinced with the
contents of this letter. Otherwise he would not have lodged his
police report one day after this letter was written. Furthermore in her
18
A.
B.
C.
D.
E.
F.
G.
H.
I.
evidence the Accused said the owner of the property in question
had gone to see her after she had written the said letter in Exhibit
P14. This showed that SP 1 had asked for the refund from as way
back as in 2001. Yet still the Accused remain defiant in her refusal
to pay up the money that had been taken. Only after she was
arrested on 13/3/2008 did the Accused awake from her slumber
and attempt to communicate with SP 1.
According to SP 1 in his testimony there was no communication
between the Accused and him after the civil case was over.
Communication between them only revived in early 2008 but he
stressed in re-examination that although he had accepted the
repayment he had no wish to withdraw the police report which he
had lodged against the Accused.
Caution Statement
Counsel for the Accused argued the point that the caution
statement made in 2005 clearly showed that the Accused had every
intention to return the money to the complainant. He argued that it
is a corroborative evidence to show that the defence version is
credible. When challenged by the learned DPP as to the contents of
the caution statement which made no mention of her stating as a
fact that she wished to return the money, the Accused denied this
and referred to the paragraph almost to the end of the caution
statement where she had stated thus:
“setelah Hj Ariffin Daud telah meninggal dunia pada
2/7/1998 segala akaun Ariffin & Co telah dibekukan oleh
Majlis Peguam. Oleh itu Suhani & Partners telah
menggunakan RM270,972.16 untuk menyelesaikan keskes yang tertangguh milik Ariffin & Co kerana yakin
wang yang terdapat didalam akaun pelanggan Ariffin &
Co akan diserahkan kembali kepada Suhani& Partners.”
She explained that these words meant that she had the sincere
intention of returning the money back to the complainant.
With respect the court is unable to accept this explanation as
reasonably probable. Nowhere in the caution statement did the
Accused clearly and pointedly say that she had the intention to
return the money to the complainant. Her statement to the police on
19
A.
C.
this score only voiced her conviction that the money from the
clients’ account of Ariffin & Co would be returned to Suhani &
Partners. She did not add into her caution statement that once the
money was returned, she would then reimburse the amount she
had taken. She herself agreed when challenged by the learned
DPP that the caution statement was silent on this issue. All she did
was to explain why she had taken and used the money for another
purpose. With respect also, if she had explained this in her caution
statement which was the best opportunity for her to show her true
intention then perhaps the outcome of this trial would have been
different.
D.
The court finds that Exh. D47 is detrimential to the Accused
because she wasted this one golden opportunity to explain what
was her true intention. The Accused has thus failed to create a
reasonable doubt on this score.
B.
E.
F.
G.
H.
I.
The Accused’s constant repetition of her sincerity and intention
to refund the money as her mantra did not follow up with any act in
that direction. Merely to say so without doing something concrete or
taking some active step in refunding is in my view a clear indication
of a dishonest intention. Whatever good intentions if any which is
doubted, when not converted into deeds do not have any
significance. This is certainly not a matter of gross negligence as
submitted by defence counsel. The complainant’s money was
deliberately and willfully taken out and used for some other
purpose.
Counsel also urged the court to consider the letter written by the
Accused to the Koperasi dated 6/7/2001 (Exh P14.). He pointed out
that it was written one day before the police report was lodged by
the complainant. This, according to counsel also showed the
Accused’s intention to return the money and not to keep it.
Merely writing this letter did not yet mean that it was a clear
indication of the Accused’s good intention. It had to be followed up
with some steps taken in that direction.
The conduct of the Accused in the whole series of transaction
from the time the money was given to her points to only one
inference and no other. It points to the inference that she had the
dishonest intention all along and never had any intention to repay
the complainant until her back was pressed to the wall.
20
A.
B.
Pointing towards the letter written on 6/7/2001 was merely a
flimsy attempt at showing an honourable intention. There was no
other follow through action after that. Therefore the court was not
convinced of the Accused’s sincere intention to refund the money. It
was highly probable that the letter was written to ward off the
complainant’s constant queries as to when she would return the
money.
The withdrawal of the complaint by SP 1.
C.
D.
E.
F.
G.
H.
I.
The defence has raised this issue by pointing to Exhibit D16
which is the letter written by the complainant to the Attorney
General’s office requesting for the charge to be withdrawn.
According to counsel Exhibit D16 showed the sincerity and honest
intention of the Accused to return the money that was entrusted to
her. A careful perusal of the chain of events in this case shows
clearly that Exhibit D16 was written after the Accused had been
arrested and granted police bail. By this time the Accused would
have known that the police were intent on taking steps to have her
charged in court. Exhibit D16 is dated 18/3/2008. The Accused was
arrested on 13/3/2008. Moreover SP 1 had said in his testimony
that the money had not yet been returned to him when he wrote the
said letter. According to SP 1 the discussion to repay was only done
when the police had started prosecution proceedings against the
Accused. Furthermore SP 1 told the court that although Exhibit D16
was sent to the AG’s office, he had never gone back on his own
police report which he had lodged. Although the Accused said she
had no knowledge when Exhibit D16 was written, the court felt that
it made no difference to the outcome of this case and if at all it
made a difference, it would come later in the form of mitigation.
Defence counsel brought up several arguments which the court
felt had to be addressed. It is the submission of counsel that the
honest belief of the Accused was never subject to crossexamination by the prosecution. Having gone through the notes of
evidence thoroughly with a fine toothcomb, the court is regrettably
unable to accept this submission put forth. Clearly there were many
questions put to the Accused during cross-examination by the
learned DPP which challenged the Accused’s belief and stance that
she had any intention of returning the money. Some instances of
the challenges made by the learned DPP were as follows:
S: Setuju pada tarikh ini deal is considered off kerana penjual telah
21
A.
B.
ambil geran balik?
J: Saya setuju sebelum P14 ditulis penjual telah ambil balik geran.
S: Setuju pada tahun 1996 this whole deal was not even in plac –
perjanjian Jual Beli dan pemberian wang belum ada?
J: Setuju
S: Setuju kamu sebenarnya bole pinjam dari pihak lain tanpa ambil
wang klien kamu?
J: Tidak setuju.
C.
D.
E.
F.
G.
S: Setuju pada D47 kamu langsung tidak sebut tentang completion
date?
J: Saya setuju.
S: Setuju pada D47 kamu langsung tidak sebut tentang niat kamu
untuk kembalikan RM290,972.16?
J: Tidak setuju.
S: Setuju pada D47 kamu tidak sebut terus terang niat kamu untuk
kembalikan wang kepada Prof. Wan Mansor?
J: Setuju.
S: Setuju bahawa dari tarikh Perintah Mahkamah Tinggi Pulau
Pinang(Sivil) ie pada 28/3/2002 sehingga pada 13/3/2008 kamu
langsung tidak berbincang tentang kembalikan wang tersebut
kepada Prof Wan Mansor?
J: Tidak setuju.
S: Put mulai dari tahun 2001 sehingga Perintah Mahkamah keluar
sampai ditangkap pada 13/3/2008 kamu tidak mahu berbincang
tentang mengembalikan wang tersebut?
J: Tidak setuju.
S: Setuju tarikh dia tulis surat adalah selepas kamu ditangkap pada
13/3/2008?
J: Tidak setuju.
H.
I.
S: Setuju selepas Perintah Mahkamah Tinggi pada 2002 kamu
masih tidak membayar wang tersebut?
J: Setuju.
After considering and evaluating all the evidence as a whole,
the court found that it could not believe nor could it accept the
Accused’s explanation that she had no intention to misappropriate
22
A.
B.
C.
D.
E.
F.
the money. The court doubted the credibility of the Accused on this
score. The court is of the view that the Accused indeed had the
dishonest intention to misappropriate the money from the time she
took it and used it for a purpose other than what it was originally
entrusted to her. The court is not convinced that she ever had the
intention to refund the money. With that the court finds that the
defence has failed to rebut the statutory presumption that has been
invoked on a balance of probabilities.
Even though the court does not believe the Accused, it must still
ask itself a very important question: Has the Accused raised a
reasonable doubt in this case? The court has taken the time to
consider this question very carefully.
The clear answer to this would be in the negative. The court in
this case is satisfied for sufficient reason shown that the Accused’s
explanation has not succeeded in casting a reasonable doubt in the
prosecution’s case. The Accused had burnt her boats when she
dissolved her firm in 2003. The court is of the view that the Accused
had all along harboured the dishonest intention to commit criminal
breach of trust of the money entrusted to her. In the light of the
totality of the evidence the court was of the view that there was
justification in coming to such findings as adumbrated above. The
court was convinced of the dishonest intention of the Accused from
her conduct from the beginning and throughout the intervening
years.
The court hereby finds the Accused guilty and convicts her of the
offence charged.
Sentence
G.
H.
I.
Counsel for the Accused urged the court top use its discretion
pursuant to section 294 of the Penal Code to allow the Accused to
be released on a bond of good behaviour. The learned DPP
typically objected strongly to such a suggestion.
The court in coming to its decision on the proper sentence to
impose on the Accused took into account several factors which it
considered relevant.
It is important to bear in mind that the Attorney General in his
wisdom had chosen to charge the Accused pursuant to s 409 of the
Penal Code. S 409 of the Penal Code stipulates that the Accused if
found guilty and convicted is to be subject to imprisonment for a
23
A.
B.
C.
D.
E.
F.
G.
H.
I.
term which shall not be less than two years, and not more than
twenty years and with whipping, and shall also be liable to fine. It is
clear therefore that the gravity of the offence and the seriousness of
which is reflected in the punishment must be taken into account
when meting out the appropriate sentence
The court took into account the mitigating factors that are
personal to the Accused. The court took note that the Accused is a
first offender and is no longer practicing as an advocate and
solicitor. In fact she has been struck off the rolls as confirmed by SP
8 during the trial.
Counsel for the Accused argued that the charge is a stale
charge as the incident happened more than 7 years ago and more
importantly he said that there was an amicable settlement whereby
the Accused had paid up more than what was initially taken. The
court acknowledges that the Accused has made restitution of the
amount owed as a factor noted in her favour.
Having said that, the court is however not in agreement with
counsel’s submission that the charge is a stale charge or that the
matter had been amicably resolved even before her arraignment. A
criminal offence lives on in perpetuity and there is no time limit in
which to charge an Accused. Secondly, it has been the finding of
this court that the impetus to settle the matter only gained
momentum after 13/3/2008 when the Accused was arrested. The
Accused must then have realized the magnitude of the trouble she
had put herself into and thus finally took concrete steps to make
restitution.
While the court took and considered all the factors so eloquently
spoken by her counsel, the court felt that what was of more
paramount importance is the factor of public interest. Public interest
demands that persons who are in noble professions such as
advocates and solicitors have a higher moral stand to keep its
integrity and good name. They are in positions of trust. Society
through the courts must make it clear to likeminded persons that
anyone breaking the trust must expect a severe sentence.
Having considered all the above factors, it was therefore the
court’s decision in using its discretion to turn down the request by
learned counsel for the Accused to be released on a bond of good
behaviour. The unique facts surrounding this case did not warrant
the court to allow such a request. The sentence of the court must
24
A.
B.
reflect the gravity of the offence.
The court hereby sentences the Accused to a term of
imprisonment of 2 years which takes effect from the date of this
order. The court is of the view that the Accused has already paid a
heavy price for this crime that she has committed. For 2 years the
Accused will be incarcerated and separated from her family and
loved ones. This charge and conviction has caused her to lose her
dignity and reputation and the stigma is permanent. The court feels
that this is an appropriate punishment that the Accused will never
forget.
Dated 30 April 2010.
Julie Lack
Hakiim Mahkamah Sesyen
Butterworth
25