(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.” [11]. In line with the principles laid down in How Chee Hong v Public 165 Prosecutor [2020] 2 CLJ 863; [2020] 8 MLJ 14; [2020] AMEJ 0002, to sustain a conviction under Section 409 of the Penal Code, the prosecution must establish the following essential elements beyond a reasonable doubt: a) The appellant is an agent; 170 b) The appellant had control (dominion) over the client's account of Tetuan Firdaus Rizal & Co; c) The appellant committed a criminal breach of trust involving RM116,187.88 and RM 18,000.00 which was received in the firm's client account from the property sale; and 175 d) The accused acted dishonestly in doing so. [12]. This court is of the view that illustration (c) provided under Section 405 of the Penal Code, best illustrates the commission of the offence in the present case in that the appellant, as a lawyer, was entrusted with the 180 sale proceeds from a property transaction, similar to how A in the illustration was entrusted with funds to be invested as directed. However, the appellant failed to remit the funds to the rightful parties (seller and buyer), just as A in the illustration failed to invest the money as instructed and instead used it for personal purposes. This constitutes a dishonest 185 breach of entrusted responsibility, as the appellant's failure to pay the seller and buyer aligns with A’s misuse of the remitted funds. The charge under Section 409 of the Penal Code, which addresses criminal breach of trust by an agent or person in a position of trust, closely mirrors Illustration (c), where an agent dishonestly misuses funds intended for 190 another purpose. Element (a): Establishing the Accused as an Agent under Section 409 Penal Code [13]. The first element of the offense under Section 409 of the Penal Code, is proved by the prosecution that the appellant was an agent within 195 the statutory definition. Section 402A of the Penal Code explicitly includes advocates and solicitors as agents, a principle reaffirmed in John Willibrod Concisom Willie Brod v. PP [2014] 10 CLJ 373; [2014] 2 MLJ 284, which confirmed that lawyers fall under this category. [14]. In support of this, the Practice Certificate and Annual Certificate 200 substantiate that the appellant was a practicing lawyer at Tetuan Firdaus Rizal & Co. Furthermore, SP6’s testimony established that the appellant was the firm's owner, managing operations alongside his partner, Ma’arof Bin Abdul Karim, as well as other associates SP6, SP5 (Syakira Afifah Bt Aminudin), and a finance clerk, one Mr Manogaran. 205 [15]. The Sessions Court found that the appellant had control over the firm’s administration, which reinforces his status as an agent. Based on statutory provisions, cases referred to, and evidentiary support, this court concurs with the finding that the appellant qualifies as an agent under Section 402A, thereby satisfying no error in the finding by the Sessions 210 court of the first element of the offense under Section 409 of the Penal Code. Element (b): Appellant had control (dominion) over the client's account of Tetuan Firdaus Rizal & Co [16]. Based on the evidence presented by the bank witness (SP5) 215 regarding withdrawals from the client’s account of Tetuan Firdaus Rizal & Co., the testimony contradicts the appellant’s claim that withdrawals required dual authorisation. SP5 confirmed that the appellant was the sole authorised signatory for the account, and no other individual had the authority to sign or authorise withdrawals. This directly refutes the 220 appellant’s assertion that multiple signatories were needed for transactions. [17]. During cross-examination, the appellant was questioned about this discrepancy and maintained his stance that he did not have exclusive control over the account. However, the documentary evidence, including 225 bank records, demonstrated that only the appellant's signature was required and that all withdrawals bore his sole authorisation. [18]. Given this, the appellant’s claim lacks credibility in the face of the bank’s unequivocal testimony, which establishes his dominion over the funds and contradicts his defence that financial transactions require joint 230 approval. Moreover, his allegation that Mr. Manogaran had access to the funds in any manner whatsoever also lacks credibility, particularly in light of the contradictions in the appellant’s own testimony regarding his denial of being the sole signatory of the bank account. [19]. Accordingly, I am satisfied that the learned Sessions Court did not 235 err in its finding on the second element of the offence under Section 409 of the Penal Code. Element (c): Criminal Breach of Trust by the Appellant involving RM116,187.88 and RM18,000.00. [20]. The prosecution successfully established that the appellant, in his 240 capacity as a lawyer and agent of Tetuan Firdaus Rizal & Co., was entrusted with RM116,187.88 from the property sale proceeds and RM18,000.00 from an excess loan disbursement. The foundation of this charge is that the appellant received the funds in his professional capacity as a solicitor, which is central to both amended charges. The testimony of 245 SP2 (Maybank Officer) confirmed that Maybank disbursed RM135,000 into the firm’s client account on 13.7.2018, while SP4 (RHB Officer) verified that this amount was credited into Tetuan Firdaus Rizal & Co.’s account on 16.7.2018. 250 [21]. Furthermore, SP6 corroborated that the stakeholder in the Sale and Purchase Agreement was Tetuan Firdaus Rizal & Co., reinforcing that the appellant was acting as an agent in handling these funds. The prosecution further established that the appellant was the sole authorised signatory for the client’s account, as confirmed by SP5 and banking records, indicating 255 exclusive control over the entrusted funds. [22]. Given this, the failure to disburse the money to the rightful recipients constitutes dishonest misappropriation, fulfilling the third element of Section 409 of the Penal Code. The principle in PP v. Dato’ Haji Harun bin Haji Idris [1977] 1 MLJ 180; [1976] 1 MLRH 562 is applicable, where 260 the court held that the retention and unauthorised use of entrusted funds amounts to criminal breach of trust. Therefore, this court finds that the prosecution has proven beyond reasonable doubt that the appellant received and had dominion over the funds in his capacity as a solicitor, thereby satisfying the elements of the offense under Section 409 of the 265 Penal Code. [23]. Accordingly, I am satisfied that the learned Sessions Court did not err in its finding on the third element of the offence under Section 409 of the Penal Code. Element (d): The Appellant Acted Dishonestly in Committing 270 Criminal Breach of Trust [24]. The appellant’s failure to disburse RM116,187.88 from the property sale proceeds and RM18,000.00 from the excess loan disbursement constitutes dishonest misappropriation, fulfilling the final elements of criminal breach of trust under Section 409 of the Penal Code. The 275 prosecution established that the funds were received in Tetuan Firdaus Rizal & Co.’s client account, as confirmed by SP2 and SP4. Despite this, the appellant, who was the sole authorised signatory, failed to release the funds to SP1 and SP3 within a reasonable timeframe, thereby causing wrongful loss to SP1 and delayed wrongful gain to SP3. 280 [25]. Under Section 403 of the Penal Code, the misappropriation of entrusted property, combined with a failure to account for it, may constitute prima facie evidence of dishonest intent. This principle was upheld in Chong Chiew Nam @ Chong Chee Wah v PP [1997] CLJU 34; [1997] MLJU 112; [1997] 7 MLRH 41, where His Lordship K.C. 285 Vohrah J held that an individual entrusted with funds who misappropriates them is presumed to have acted dishonestly unless rebutted. His Lordship further referred to the case of Mohd Adil v PP [1967] 1 MLJ 151, where Ismail Khan J (as he then was) adopted with approval the reasoning in J.M. Desai v State of Bombay AIR 1960 SC 889. In that case, the Indian 290 Supreme Court held that the prosecution need not prove the precise mode of conversion. Entrustment and failure to account, in light of the surrounding circumstances, can justify an inference of dishonest misappropriation. The relevant passage from the Indian case is appended below: 295 "... to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion. The principal ingredient of the offence being dishonest misappropriation or 300 conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation of conversion. Conviction of a person for the 305 offence of criminal breach of trust may not, in all cases be founded merely on his failure to account for the property entrusted to him, or over which he as dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an 310 inference of misappropriation with dishonest intent may readily be made” (underlined emphasised) [26]. The Federal Court in Yap Sing Hock & Anor v Public Prosecutor 315 [1992] 4 CLJ 1950; [1992] 2 MLJ 714; [1992] 1 AMR 47; [1992] 1 MLRA 372 further clarified that "dishonesty" under Section 24 of the Penal Code refers to conduct that causes wrongful loss to one party or wrongful gain to another. These were the words of His Lordship Peh Swee Chin: “The mens rea element is contained in the word "dishonestly" and 320 s. 24 defines it as whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do the thing dishonestly Section 23 defines wrongful loss and wrongful gain thus. "Wrongful loss, is the loss by unlawful means of property to which a person losing it is legally 325 entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as such person acquires wrongfully. A person is said to loss wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully, deprived of property" 330 [27]. The appellant’s failure to disburse the funds, unauthorised withdrawals, and sole control over the account reinforces the inference of dishonest intent. The Federal Court in Navaratnam v. PP [1973] 1 MLJ 154; [1972] CLJU 100 held that mere retention of entrusted money 335 without justification is sufficient to establish dishonest intent in criminal breach of trust cases. The Federal court states: “…On the question of dishonest intention, we can do no better than quote a passage from the Judgment of Fazl Ali J in Harakrishna Mahatab v. Emperor AIR [1930] Patna 209. 340 We do so because the learned trial Judge in the instant case has referred to it as having been cited with approval by Ismail Khan J (as he then was) in the case of Mohamed Adil v. PP [1967] 1 MLJ 151. Fazl Ali J said: “It is not necessary or possible in every case of 345 criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused, because under the law even temporary retention is an offence provided that it is dishonest but the essential thing to be proved in case of 350 criminal breach of trust is whether the accused was actuated by dishonest intention or not. As the question of intention is not a matter of direct proof, the Courts have from time to time laid down certain broad tests which would generally afford useful 355 guidance in deciding whether in a particular case the accused had or had not mens rea for the crime..." (underlined emphasised) [28]. Based on the evidence, legal presumptions, and authorities cited 360 above, this court finds that the appellant acted dishonestly, thereby satisfying the mens rea requirement for criminal breach of trust under Section 409 of the Penal Code. [29]. Accordingly, I am satisfied that the learned Sessions Court did not commit any error in its finding on the fourth element of the offence under 365 Section 409 of the Penal Code. Conclusion [30]. The prosecution proved beyond reasonable doubt that the appellant had exclusive control over the client’s account and dishonestly misappropriated RM116,187.88 and RM18,000.00. His defence is 370 contradicted by banking records, witness testimony, and statutory presumptions. As held by the Federal Court in PP v Wan Razali Kassim [1970] 2 MLJ 79; [1970] 1 MLRA 181; [1970] CLJU 121, appellate courts should be slow to disturb findings of fact: “an appellate court should be slow to interfere with the 375 finding of fact by a lower court as an appellate court does not have the advantages of seeing and hearing the witnesses and therefore of assessing their credibility” [31]. Accordingly, the appellant’s conviction under Section 409 of the 380 Penal Code is upheld, and the appeal against both conviction and sentence is dismissed. Decision for appeal AA-42K-6-02/2023: [32]. For the same reasons adumbrated above, I am dismissing the appellant’s appeal in Appeal No. AA-42K-6-02/2023. 385 [33]. After the delivery of the decision, the appellant’s counsel made an oral application for a stay of execution of the sentence. SUBMISSIONS BY THE APPELLANT FOR STAY [34]. The Appellant applies for a stay of execution of the sentence affirmed by this Court in this Appeal No. AA-42K-1-02/2023 and AA-42K- 390 6-02/2023 pending the final disposal of the Appellant’s appeal to the Court of Appeal. This application is brought pursuant to Section 311 of the Criminal Procedure Code. [35]. The Appellant further prays that the existing bail conditions, namely bail in the sum of RM20,000 and the retention of the Appellant’s 395 international passport, as previously ordered by the Ipoh High Court on 8 March 2023 in Case No. AA-44-11-02/2023, be maintained pending the said appeal. Grounds for Stay Application: a) Serious Medical Conditions. The Appellant is currently undergoing continuous medical treatment at Hospital 400 Sultanah Nur Zahirah, Terengganu, for various chronic and debilitating health conditions. These include: • Diabetes Mellitus with renal complications • Hypertension (high blood pressure) • Congestive heart failure 405 • Obstructive Sleep Apnea, requiring CPAP machine assistance while sleeping • Spinal injuries involving vertebrae L3 to S1, which are currently supported with two titanium rods and six screws • Nerve damage affecting the ears, cervical spine, 410 shoulders, and upper limbs, resulting in severe weakness • Partial paralysis and loss of strength in the lower limbs below the waist These conditions significantly impair the Appellant’s mobility and ability to function independently. The Appellant also 415 relies on assisted breathing equipment and is unable to remain seated for prolonged periods. Documentary medical evidence has been submitted in support of this ground. b) Financial Hardship and Personal Circumstances. The Appellant has been formally declared bankrupt by an order 420 of the court dated 14 October 2022, in Case No. AA- 29NCC-11-01-2021. He is registered under the “Asnaf Fakir Miskin” category and receives annual welfare assistance amounting to RM5,000 from the Terengganu Islamic Religious and Malay Customs Council. 425 c) In addition, the Appellant is the sole guardian and financial supporter of two children, both of whom are currently enrolled in local institutions of higher learning at Universiti Teknologi MARA (UiTM) and the International Islamic University Malaysia (IIUM), respectively. 430 [36]. The Appellant submits that the above circumstances i.e the serious and chronic health conditions, financial insolvency, dependent children in tertiary education, and the continued valid existing bail terms constitute exceptional circumstances warranting the grant of a stay of execution. 435 [37]. The Prosecution left the matter to the court’s discretion, taking into account the appellant’s medical condition. [38]. In the circumstances of the case, the court allows the stay of sentence. The Appellant is granted bail as previously ordered by the Ipoh High Court on 8 March 2023 in Case No. AA-44-11-02/2023, namely, bail 440 in the sum of RM20,000 and the retention of the Appellant’s international passports, the same bail condition be maintained pending the determination of the appeal to the Court of Appeal. This means that the Appellant will not commence serving the sentence while the appeal is pending, but must continue to comply with the bail terms already imposed. 445 Dated : 29 June 2025 MOSES SUSAYAN 450 Judicial Commissioner High Court in Malaya at Ipoh, Perak 455 Counsel: For the Appellant : Mohd Zamri bin Ibrahim Advocates and Solicitors 460 [Moh & Co.] Seri Manjung, Perak For the Respondent : Geetha Jora Singh Deputy Public Prosecutor 465 Prosecution Unit Perak Legal Advisor Offices (Notice: This Grounds of Decision is subject to official editorial revision) Headnotes: 470 The appellant, a lawyer and partner of a firm, was convicted by the Sessions Court on two counts of criminal breach of trust under Section 409 of the Penal Code involving monies received in the firm’s client account. The High Court found that the appellant had exclusive dominion over the account, acted dishonestly, and failed to disburse funds to the 475 rightful parties. The four essential elements under How Chee Hong v PP [2020] 2 CLJ 863 were satisfied. Presumptions under Sections 409B and 24 supported findings of dishonest intent. The court dismissed the appeal and the affirmed the conviction and sentence of the Sessions Court. A stay of execution pending appeal was granted on existing bail 480 terms due to the appellant’s serious medical conditions, financial hardship, and dependent children. The appeal was dismissed and the conviction affirmed.