Ashryaf Ashy’ari bin Kamaruzaman v Lee Choon Kit (83-4285-12/2017)

The accused in this case was charged with an offence punishable under section 424 of Penal Code. The charge proffered against him was as follows: “Bahawa kamu pada 6.12.2016 di dalam Daerah Petaling Jaya di dalam Negeri Selangor Darul Ehsan dengan curangnya menyembunyikan harta Carine Leong Jia Huey, KP: 851211-14-5708 berjumlah RM5, 801.76/= yang mana wang tersebut telah dipindah ke dalam akaun CIMB Bank No Akaun: 7063455148 milik kamu. Oleh yang demikian kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah Seksyen 424 Kanun Keseksaan”. Hukuman Penjara selama tempoh yang boleh sampai 5 tahun, atau dengan denda, atau dengan kedua-duanya.

When the charge was read and explained to him, the accused pleaded not guilty. At the end of the prosecution’s case, this court found that no prima facie case has been made against the accused and therefore the accused was acquitted and discharged.

Dissatisfied with this court’s decision, the learned DPP filed a Notice of Appeal to the High Court. Herein are my reasons for deciding so.

The learned DPP had called these witnesses to testify: 3 SP1: Nor Bahiyah binti Yaacob (CIMB Bank Officer) SP2: Carine Leong Jia Huey (the complainant)

These exhibits were tendered: P1: CIMB Account Statement for account no: 7063455148 P2: Receipts for deposit of money P3: Police report Kelana Jaya/13015/16 D4: Accused’s s. 112 statement IDD 5: China Press Advertisement IDD6: Request for advertisement to be published IDD 7: Accused’s Maxis phone bill IDD 8: Accused’s police report dated 29.8.2017

In essence the learned DPP’s case was based on the complaint lodged by the complainant (SP2). Produced below is the DPP’s case: “Pada 6 Disember 2016, jam lebih kurang 3.43 petang, SP2 telah menerima panggilan telefon daripada seorang lelaki Cina yang diperkenalkan diri sebagai 4 Mr. Goh dari Aeon Credit Service mengatakan SP2 mempunyai hutang kad kredit berjumlah RM3,999. Pada jam lebihi kurang 3.49 petang, SP2 dihubungi oleh seseorang dari Bank Negara Malaysia melalui telefon mengatakan maklumat diri SP2 telah digunakan oleh pihak lain. Pada jam lebih kurang 3.56 petang, SP2 dihubungi oleh seorang bernama Tan Boon Keong dari Bahagian laporan Bank Negara Malaysia meminta maklummat diri SP2 untuk menjalankan siasatan. Seterusnya SP2 dihubungi oleh seorang lelaki Melayu dikenali sebagai Tuan Mohd Ismail dari Bank Negara Malaysia meminta SP2 pergi ke mesin ATM untuk memindahkan wang ke dalam akaun yang diberikan untuk tujuan siasatan dan keselamatan wang SP2. Pada jam lebih kurang 6.19 petang, SP2 telah pergi ke mesin ATM Maybank SS25/2 Petaling Jaya dan memindahkan wang sebanyak RM3,251.01 ke dalam akaun CIMB No. 7063455148 milik Lee Choon Kit. Pada hari yang sama, SP2 sekali lagi telah memasukkan wang sebanyak 3 kali masing-masing berjumlah RM999.87, RM799.87 dan RM751.01 ke dalam akaun CIMB No.7063455148 milik Lee Choon Kit. SP2 merasa curiga selepas menghubungi pihak Bank Maybank dan dinasihatkan untuk membuat laporan polis kerana SP2 berasa ditipu.

In this respect, the onus to prove that a prima facie case has been made out, lies on the DPP pursuant to s. 173 (h) Criminal Procedure Code. The principles of law with regards to this issue is well established. The testimonies of the prosecution’s witnesses must be given a maximum evaluation. (See cases Looi Kow Chai & Anor v. PP [2003] 1 CLJ 734; [2003] 2 AMR 89 dan Roslan @ Rosli Abdullah v. PP [2009] 1 LNS 875). 5

In PP v. Mohd Radzi Bin Abu Bakar [2006] 1 CLJ 457 his Lordship Gopal Sri Ram FCJ (as he was then) laid down guidelines and explained how a prima facie case is made which is reproduced as follows: “For the guidance of the courts below, we summarise as follows the steps that should be taken by a trial court at the close of the prosecution’s case:

the close of the prosecution’s case, subject to the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinise the credibility of each of the prosecution’s witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused;

(ii) 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”, then 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;

(iii) after the defence is called, the accused elects to remain silent, then convict;

(iv) after the defence is called, the accused elects to give evidence, then go through the steps set out in Mat v. Public Prosecutor [1963] MLJ 263.

In this regard, this court placed a maximum evaluation in deciding whether the evidences tendered by the prosecution was successful in proving a prima facie case against the accused.

These are the elements that needed to be proven by the learned DPP in a case under s. 424 of the Penal Code. 6 a) The accused conceded or removed the property or that he assisted in doing so; b) That he did so dishonestly, or with intent to defraud.

The learned DPP submitted that elements of s. 424 have been met.

The learned DPP submitted that the complainant had banked-in RM5, 76 into the accused’s bank account and that by virtue of the fact that the accused had given his ATM card to a person known as Terrence is a proof that the accused had intention to defraud.

In essence, the crux of the learned counsel’s argument was premised on the basis that there was no intention to defraud and the fact that the accused had informed the IO about the existence of a person known as Terrence along with his mobile number stating that Terrence was his employer but this fact was not investigated or pursued further by the IO. The learned counsel further submitted that the Prosecution had failed to proof that the accused had any knowledge or intention as required by s. 424. 7

SP1 who was the bank officer testified that the CIMB Account was opened on 1.12.2016 in the name of the accused as personal documents of the accused were obtained and was in the possession of the bank together with the bio-metrics of the accused. SP1 informed the Court that the accused was supplied with a Debit Card/ ATM Card bearing No. 519603078433857. She further testified that there were 4 transactions of money deposited into the said CIMB Account. All the transfer of monies namely RM 3,251.00, RM

999.87, RM 799.87 and RM751.01 were by way of ATM transfers. However, these transfers were unclear as to whom was the person who withdrew the money.

SP2 (the complainant) testified that she received a phone call informing her that her personal particulars were misused and she was instructed to transfer money to an account of CIMB. Only after the 4th transaction she felt cheated and she called Maybank and Maybank instructed her to lodge a police report.

SP3 (the investigating officer) testified that the complainant was a victim of “Macau Scam”. SP3 testified that he took the statements of the bank officer and the complainant. He also recorded cautioned statement from the accused. He further obtained all bank particulars and the relevant documents from CIMB. SP3 further testified that the accused had informed him about a job vacancy advertisement by a person known as Terrence. The accused had applied for that job. It was to this Terrence that the accused lent his ATM 8 card. It was testified further that the accused’s scope of job was to promote banking facility with a salary of RM2000.

Section 424 of the Penal Code states that:

Dishonest or fraudulent removal or concealment of consideration Whoever dishonestly or fraudulently conceals or removes any property of himself or any other person, or dishonestly or fraudulently assists in the concealment or removal thereof, or dishonestly releases any demand or claim to which he is entitled, shall be punished with imprisonment for a term which may extend to five years, or with fine, or with both.

To determine whether or not the elements in s. 424 has been met, it is pertinent to look at what dishonestly means under s. 24 of the Penal Code.

"Dishonestly" Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, irrespective of whether the act causes actual wrongful loss or gain, is said to do that thing "dishonestly".

The first element that has to be proven by the prosecutor is, that the accused conceded or removed the property or that he assisted in doing so. To prove this element, the learned DPP must prove that the accused had removed the property in this case RM 5801.76 and that the money was transferred to the accused’s account. In this respect, the accused conceded 9 to the fact that his ATM card and bank account was compromised. The testimonies of SP1 and SP3 proved that the money was deposited into the accused’s account and therefore he had conceded to assist a 3rd party who had cheated SP2 into transferring RM5801.76 into the accused’s account. This element was successfully proven by the learned DPP.

The second element which the learned DPP must prove is the intention to defraud “dengan curangnya menyembunyikan harta”. To prove this element, the testimonies of the witnesses are of utmost importance. It is worth noting that the complainant in her testimony testified that she has never met the accused and he was not the one who called her. Below is the excerpt of her testimony both during examination in chief and cross examination: : You pernah jumpa dia? : Tak pernah DPP : Itu sahaja soalan saya” And during cross examination: : Ada kamu pernah berbual dengan Lee Choon Kit? : Tidak 10 : Kamu kata tak pernah jumpa Lee Choon Kit, maknanya kamu langsung tak kenal Lee Choon Kit? : Tidak pernah”

It is pertinent to look at s. 24 of the Penal Code which defines “dishonestly”. In the decision of his Lordship Malik Ishak J (as he then was), in Mohd Jalani Saliman & Anor v PP [1988] 1 CLJ 123 at p. 141 and its quoted: “It is crystal clear that the word “fraudulently” is defined and meant differently from the word “dishonestly” (Baburam Rai [1905] 32 Cal. 775, 779). These two words do not govern wholly the definition of cheating. The first crucial part would govern the situation that where the person deceived must have been fraudulently or dishonestly induced to deliver any property to any person or to consent that that other person should retain that property. The second crucial part governs the case of a person who by deceiving another intentionally induces the person so deceived to do an act which causes or is likely to cause damage or harm, although the deceiver has not acted fraudulently or dishonestly. Of course the evidence adduced must establish the existence of the fraudulent or dishonest intention at the time of the commission of the act. In short, the offence of cheating is completed once the culprit obtains possession of the property by a trick (Dick G.W. [1914] AIR (A) 538; and Shably bin Ahmad v. Public Prosecutor (Mallal’s Digest at p. 405 para. 1260)). Thus, in practising deception there should be an intention to cause wrongful gain to one person or wrongful loss to another person. It is not necessary that both wrongful gain and wrongful loss should be present. In order to make out an offence of cheating the presence of the dishonest intention from the very beginning is necessary.”

Therefore, from the decision above, it is crystal clear that in order for the accused to have cheated the complainant in an offence of s. 424, the 11 dishonest intention must be been present from the onset when the offence was committed. In this instant case, the dishonest intention to defraud the complainant was missing. What is more pressing is whether, it was actually the accused who had dishonestly or fraudulently assists in the concealment or removal the property belonging to the complainant? The fact that the complainant had never met nor spoke to the accused is also a contributory factor.

In order to prove that the accused had “dishonestly assist in concealing the property of the complainant, it is extremely important for the Investigating Officer to investigate as to why the money was transferred to the accused’s account and the IO must investigate whether the accused had knowledge about the purpose of the monies deposited into his account. It is also pertinent to the Prosecution’s case that the IO investigate the reason given by the accused whether in his knowledge about the existence of the money in his account. Had all these questions were investigated, it will assist this Court in making a finding whether or not the accused actually had knowledge or whether the accused had in fact dishonestly or fraudulently assisted in concealing the complainant’s money.

The existence of a person known as Terence whom the accused gave a lengthy description to the IO was also not investigated. The accused at the earliest available opportunity had advanced the fact that he had no knowledge about the monies deposited into his account which did not belong to him. He informed the IO in his statement that he applied for a job 12 advertisement in a daily called China Press. The scope of job was to market for banking facilities with a salary of RM2000. When he applied for that job, it was made known to him by a person called Terence to open 7 bank accounts for the job as a Marketing Executive. At the end of December 2016, the accused had closed all these accounts because he did not receive any news from Terence. This piece of information about Terence was informed to the IO. : I put it to you you were told by the okt that he was interviewed by this person Terrence and you were aware for the vacancy : Yes : Did you ask okt from Terence phone no? : Saya tak pasti : You’ve just answered that you did ask. Whether you know for a fact : Saya tidak tahu

Reference is made to a Federal Court decision of Alcontra a/l Ambross Anthony v PP [1966] 1 CLJ 705 where his Lordship Edgar Joseph Jr. FCJ (as he then was) held that: “[1] The evidence suggests that the first opportunity the appellant had to explain was at the time he was interviewed and his cautioned statement 13 recorded from him the day after his arrest. There was therefore no evidence of delay on his part in offering an explanation. In fact the evidence indicates that the appellant had made prompt disclosure of his defence in his cautioned statement. It follows that it was wrong for the learned Judge to have assumed, contrary to the evidence, that there had been a belated disclosure of the defence, which suggested concoction. There was thus a misdirection by the Judge on this point.” The Investigating Officer had sufficient time to investigate the identity of Terence and the information given by the accused.

The Investigating Officer had the opportunity to request from CIMB Bank a recording of the CCTV. The IO had testified that there were withdrawals from the ATM but no CCTV recording was obtained. This is important as who was the identity who withdrew the money can be seen through the CCTV recording. Had the IO requested CCTV recording from the Bank, this will strengthen the Prosecution’s case and it will also give a fair treatment to the accused, as the IO had verified from the relevant source whether or not the accused was a part of this scheme. : And these monies were taken out by the OKT, was from ATM, or counter? : Ada yang melalui online transfer dan ATM : I am zooming in into at the counter, this statement will show how the money was taken out. : Agree sumber 14 : Did you ask for CCTV recording to the bank which was over the counter? : No I didn’t : Specifically on 2.12.2016 at KLIA Sepang, did you check the CCTV recording? : Saya tidak periksa CCTV : I put it to you that if you had the CCTV recording, you will be able to see who is the person or persons at the counter who withdrew the money? : Yes, I agree”

Whether or not the accused was the one who had dishonestly or fraudulently assist in concealing the complainant’s property is unclear and the failure of the IO to investigate the important aspects in this case is fatal to the Prosecution’s case as the element of “intent” could not be established.

Reference is made to a Supreme Court decision of Pang Chee Meng v PP [1992] 1 MLJ 137 where the Supreme Court emphasized at p. 142: “The accused cannot be penalized for lack of ingenuity in police investigations depriving him of the time-honoured benefit of the doubt” 15

Reference is further made to a Court of Appeal decision of Deepanraj Subramaniam v PP [2015] 3 CLJ 439 where his Lordship Balia Yusof Wahi JCA (as he then was) held at p. 39: “[39] The failure of the police to carry out proper investigation has deprived not only the prosecution but also the defence of the best and most important evidence to resolve the case.” Based on the principles laid down in these two cases, this Court finds that the failure of the Investigating Officer in making a thorough investigation has raised doubt in the Prosecution’s case.

The Court has to weigh and evaluate with maximum evaluation the entire case of the Prosecution and whether the prosecution has made out a prima facie case against the accused. Should there be a prima facie case, then the accused should be called to enter his defence. If the accused chooses to remain silent, the next question is, can this Court then convict him on the totality of the evidence contained in the prosecution's case. This Court, decided that on the basis of the doubts raised as discussed above, found that it was not safe for this Court to call the accused to enter his defence. 16

Adopting the decision in Sia Soon Suan v Public Prosecutor [1966] 1 MLJ 116 where his Lordship Ong Hock Thye AG CJ (Malaya) (as he was then) held: “(3) the requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether the court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else and therefore the appeal must be allowed and the conviction quashed.”

As such, on a maximum evaluation and the reasoning provided above, this Court found that the Prosecution had failed to establish a prima facie case against the accused. The accused was acquitted and discharged.

My decision was founded on the reasons provided above. Dated: 26th March 2019 .............T.T…………. (NURSHAHIRA HJ ABDUL SALIM) Magistrate Magistrate’s Court 4 Petaling Jaya 17 Deputy Public : Ashryaf Ashy’ari bin Kamaruzaman Prosecutor Jabatan Peguam Negara Cawangan Negeri Selangor. Defence Counsel: KY Leong Advocates & Solicitors No. 24-2 Jalan Radin Anum, Bandar Baru Sri Petaling 57000 Kuala Lumpur