Hairuliqram Bin Hairuddin v Siti Absah Binti Zaini (83-874-3/2018)

The accused in this case was charged with an offence punishable under section 424 of Penal Code. The charge proffered against her was as follows: “Bahawa kamu pada 12.10.2017 jam lebih kurang 1630hrs di alamat Menara KPMG One Utama di dalam daerah Petaling di dalam Negeri Selangor, dengan curangnya menolong menyembunyikan harta Ng Chong Eng, KPT: 790718-08-5613 iaitu wang sebanyak RM4000 yang dimasukkan ke dalam akaun CIMB Bank kamu yang bernombor 7622820941 yang dimasukkan oleh Ng Chong Eng, KPT: 790718-08- 5613, yang mana kamu ketahui wang tersebut bukanlah milik kamu. Oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum dibawah s. 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 her, 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. 3

The learned DPP had called these witnesses to testify: SP1: Ng Chong Eng (complainant) SP2: Insp. Muhammad Ferdaus bin Zulkafli (the Investigative Officer)

These exhibits were tendered: P1: Complainant’s Police Report Damansara/015105/17 ID2: Maybank transaction receipt 09/10/2017 ID3: Maybank transaction receipt 12/10/2017 P4: Siti Absah’s CIMB account statement (76-2282094-1) P5: Arrest Report No. Senawang/011521/17 D6: Accused’s s. 112 Statement IDD 7: Accused’s police report No. Senawang/003010/18 and correction report No. Senawang/003011/18

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 7.9.2017, jam lebih kurang 1400 hrs, semasa pengadu berada di tempat kejra yang beralamat di Ground Floor KPMG Tower, One Utama Petaling Jaya 4 telah terima 1 mesej melalui applikasi whatsapp daripada seorang perempuan Cina yang memperkenalkan diri sebagai ejen pinjaman wang peribadi dari Syarikat Empire Credit yang bernama Chloe ataupun Chin Lai Fong. Nombor telefon tersebut adalah 011-21386579/011-21386579/011-27250027 Chloe menawarkan pengadu untuk membuat pinjaman peribadi sebanyak RM150,000 dengan faedah yang rendah sekitar 5.5.% hingga 6.6% faedah dengan pembayaran sebanyak RM1,992 sebulan selama 10 tahun melalui OCBC bank. Chloe meminta pengadu untuk membayar yuran perkhidmatan dan wang deposit untuk memproses pinjaman tersebut. Pengadu kemudiannya pada 9.10.2017 telah memindahkan wang sebanyak RM850.00 melalui Maybank2u.com kepada akaun bank CIMB atas nama Sitti Nurul Liza sebagai yuran perkhidmatan (ID2). Pada jam 12.10.2017, jam lebih kurang 1630 hrs, Pengadu sekali lagi telah memindahkan wang sebanyak RM4000 melalui Maybank2u.com kepada akaun CIMB Bank atas nama Siti Absah binti Zaini sebagai yuan proses guaman pinjaman tersebut (P4) dan wang akan dipulangkan selepas pinjaman telah diluluskan. Chloe juga memaklumkan bahawa pinjaman telah diluluskan. Selepas lebih kurang 1 minggu pembayaran dibuat, Pengadu tidak dapat menghubungi Chloe lagi dan selepas itu, Pengadu menghubungi OCBC Bank untuk bertanyakan berkenaan pinjaman wang tersebut, dan OCBC Bank memaklumkan bahawa mereka tidak lagi menawarkan sebarang pinjaman peribadi lagi. Pengadu berasa tertipu dan membuat laporan polis pada 21.10.2017 (P1).

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 5 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).

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. 6

These are the elements that needed to be proven by the learned DPP in a case under s. 424 of the Penal Code. 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 RM4000 into the accused’s bank account and that by virtue of the fact that there was transaction of taking out the money is a proof that the accused had intention to defraud. The fact that the accused claimed of her ATM card was stolen and that she did not make any police report or to block the card right after the card was stolen proves the intention of the accused. The learned DPP contended that those evidences proved that the accused had knowledge of all the transactions that took place. 7

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 was a victim in this case. The accused according to the counsel, did not receive any form of benefit and that her account was misused by a person known as Chloe. The learned counsel submitted that the accused in her 112 statement informed the IO that a police report had been made with regards to her losing her ATM card and that she did not have any knowledge about the money which was transferred to her account. 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.

SP1 (the complainant) testified that he was cheated by a company known as Empire Credit whereby the company was a outsource company for a bank and they provide services of giving personal loan with a lesser interest rate. He was instructed by one Chloe to bank in RM850 dan RM4000 as processing fees for the personal loan application. In this particular case, the amount was RM4000. All conversations were via the Whatsapp application. SP1 only realized that he was cheated when he did not receive any personal loan and he called up OCBC bank. OCBC bank informed him that they no longer issue out personal loans since 2016. 8

SP2 (the investigating officer) testified that the complainant was a victim of “Macau Scam”. SP2 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. SP2 further testified that the accused had called CIMB Bank to block her ATM card from being misused and informed the IO she had lost all purse together with her ATM card.

SP3 who was the bank officer testified that the CIMB Account was opened on 15.9.2017 in the name of the accused. The account was subsequently closed on 20.11.2017. He further testified that there were 6 transactions of money withdrawn from the said CIMB Account. Ideally, SP3 said that only the person who holds the ATM card can withdraw the money from the ATM.

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. 9

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 4000 and that the money was transferred to the accused’s account. In this respect, the accused conceded to the fact that her ATM card and bank account was compromised. The testimonies of SP2 and SP3 proved that the money was deposited into the accused’s account and therefore she had conceded to assist a 3rd party who had cheated SP1 into transferring RM4000 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 his testimony testified that he had never met the accused and he was not the one who called her. Below is the excerpt of his testimony during cross examination: 10 : Setuju tak dengan saya RM850 dan RM4000 kamu bayar kepada Syarikat Empire Credit? : Betul : Dan bukannya kamu nak bayar kepada Siti Absah dan Sitti Nurul Liza? : Tidak, mereka sebagai nama sahaja. Macam mana lepas saya transfer duit, macam mana Sitti Nurul Liza transfer kepada Empire Credit saya tidak tahu. : Siti Absah dan Sitti Nurul Liza kamu pun tak kenal? : Tidak kenal : Samada Siti Absah atau Sitti Nurul Liza tahu empire credit menggunakan akaun mereka? : Ya, tidak tahu.

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: 11 “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 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. 12

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 her 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 her 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 Chloe and also a company known as Empire Credit, in which the complainant gave the telephone number of this person known as Chloe, was investigated. The accused at the earliest available opportunity had advanced the fact that she had no knowledge about the monies deposited into her account. She also informed the IO about 2 weeks after she opened the account, her ATM card together with the card holder was lost when she was riding a motorcycle in Senawang. She did not make any report pertaining the loss of the card purely because the account only had RM50. She further informed the IO that her pin number and account number was attached with the ATM card. Only in October 2017 she called CIMB bank and asked about her account which she then instructed them to block the account. The accused also informed the IO that she does not know of any transactions which took place including the RM4000 by the complainant. 13 : Inspektor, saya pohon Inspektor rujuk laporan polis yang dibuat oleh pengadu, jikalau dilihat di laporan polis ini dia telah terima masej daripada seorang perempuan, Inspektor ada buat siasatan atau tidak syarikat Empire ini? : Tidak siasatan ke atas syarikat tersebut. : Jikalau Inspektor lihat di sini, nama Chloe ada no kad pengenalan ini adalah no kad pengenalan Chloe tersebut? : Betul seperti mana yang pengadu katakan. : Ada buat siasatan lanjut mengenai Chloe? : Tidak : Ada no telefon telah diberi, ada Inspektor jalankan siasatan mengenai no telefon tersebut? : Tiada : Daripada siasatan Inspektor Empire Credit atau perempuan nama Chloe atau no telefon adakah mana-mana fakta tersebut ada kaitan dengan OKT? : Pada pandangan saya tiada kaitan. 14 : Jadi siasatan Inspektor hanya berkenaan no akaun CIMB di atas nama OKT? : Betul siasatan menjurus kepada akaun penerima wang tersebut. : Inspektor setuju dengan saya kalau saya katakan bahawa akaun OKT ini sebenarnya telah disalah gunakan oleh pihak ketiga oleh kerana OKT tidak ada kaitan dengan Empire, Chloe dan no telefon yang digunakan? :

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 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 Chloe and the Empire Credit as he was well informed by the complainant. 15

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. : Ada buat siasatan dikeluarkan oleh mesin ATM mana? : Tiada : Inspektor setuju tak bila pengeluaran dibuat akan ada CCTV duit tersebut akan dikeluarkan oleh siapa? : Setuju : Inspektor ada buat siasatan CCTV? : Saya ada tanya kepada pegawai bank mengenai CCTV dan telah dimaklumkan CCTV tidak dapat diperolehi. : Inspektor ada tanya kenapa tidak boleh diperolehi? : Saya tidak tanya. 16

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”

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. 17

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 her 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 her defence.

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. 18

My decision was founded on the reasons provided above. Dated: 7th November 2019 .............T.T…………. (NURSHAHIRA HJ ABDUL SALIM) Magistrate Magistrate’s Court 4 Petaling Jaya Deputy Public : Hairuliqram bin Hairuddin Prosecutor Jabatan Peguam Negara Cawangan Negeri Selangor. Defence Counsel: I. Asmawi & Co Advocates & Solicitors No.57, Tingkat 1, Jalan S2 F1, Garden Homes Seremban 2 70300 Seremban Negeri Sembilan 19