Khairul Anuar Bin Daud (JA-62R-12-09/2022)

Khairul Anuar bin Daud, the accused, was indicted at the Sessions Court with an amended charge exactly as follows: Pertuduhan Pindaan: “Bahawa kamu di antara 26 Jun 2018 sehingga 10 Julai 2018, di Jabatan Pengurusan Sumber Manusia – Operasi Johor Corporation, Tingkat 11, Menara KOMTAR, di dalam Daerah Johor Bahru, di dalam Negeri Johor dengan curangnya telah menggunakan sebagai tulen satu dokumen iaitu slip gaji firely Sdn Bhd bagi bulan Mei 2018, atas nama kamu iaitu Khairul Anuar Bin Daud, Ic/Passport; 720222-01-5941, Employee No. 8501065 berjumlah RM15,820.63, yang kamu mempunyai sebab untuk mempercayai bahawa dokumen tersebut adalah palsu dan dengan itu kamu telah melakukan kesalahan di bawah Seksyen 471 Kanun Keseksaan dan boleh dihukum di bawah Seksyen 465 Kanun yang sama”.

The accused claimed trial to the charge and was represented by Counsels. A Deputy Public Prosecutor and Prosecuting Officers from the Malaysian Anti-Corruption Commission (MACC) conducted the prosecution. At the close of the prosecution’s case, this Court found that the prosecution had failed to make out a prima facie case against the accused. Thus, the accused was acquitted and discharged without calling for his defence.

Being dissatisfied, the prosecution is now appealing to the High Court on the acquittal and discharge.

To prove its case, the prosecution called nine witnesses.

By a letter dated 20.6.2018 (P1) from the Menteri Besar’s office, addressed to the President and Chief Executive Officer of Johor Cooperation (JCORP), the Menteri Besar, the late Dato’ Osman bin Sapian agreed to appoint the accused as a Special Officer to the Chairman of JCORP, who also happened to be the Menteri Besar of Johor. Administratively, the accused would be placed at the Menteri Besar’s office, and JCORP would pay his salary. It was a political appointment and a special arrangement.

Upon receiving the said letter, JCORP sent a letter of offer (P5) to the accused dated 14.5.2018. The accused accepted the job, and the contract was for two years. According to JCORP, the letter was backdated to 14.5.2018 because the appointment occurred after the General Election in May 2018, when Dato Osman bin Sapian was appointed Menteri Besar. Further, JCORP understood that the accused had started work with the Menteri Besar on 14.5.2018.

In 2019, following the results of the accused’s background screening, JCORP found that the salary slip (payslip) submitted by the accused 4 was questionable. It concerned the accused’s last drawn salary from his former employer, FlyFirefly Sdn Bhd (Firefly). JCORP sent a show cause letter dated 4.3.2019 (P6) to the accused, pointing out that based on its investigation, the accused’s salary at Firefly was RM 6,671.00, whereas the payslip sent to JCORP showed RM 18,971.00.

In his letter of reply dated 14.3.2019 (P7), the accused stated, among other things, that he believed the salary that he was receiving from JCORP had nothing to do with his previous job. This was because there was no application process between him and JCORP, and no salary negotiation process, as was usually done by JCORP. In other words, he said the reasons were that he did not apply for the job and that there was no salary negotiation between him and JCORP.

JCORP was not satisfied with the accused’s explanation. In its opinion, the accused had misled it regarding the payslip (P12) sent. JCORP had offered the accused the salary based on the Firefly’s payslip, which he had emailed to the corporation. Therefore, the accused submitted a forged payslip to obtain a higher salary than he was receiving at Firely. JCORP recommended that a domestic inquiry be conducted against the accused.

However, the accused tendered his resignation via a letter to JCORP dated 23.4.2019 (P10), stating that since the Menteri Besar had 5 resigned, there was no longer any need for him to continue serving. JCORP accepted his resignation through a letter also dated 23.4.2019 (P11).

However, in 2010, the Investigation Officer (PW9) received information that the accused had submitted a false payslip to JCORP to deceive it into obtaining a higher salary. Thus, on 11.10.2020, PW9 lodged a MACC report (D22) to commence an investigation under the Malaysian Anti-Corruption Commission Act 2009 (the Act).

The accused was charged with an offence under section 471 of the Penal Code which was punishable under section 465 of the same Code as follows: Section 471. Whoever fradulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document. Section 465. Whoever commits forgery shall be punished with imprisonment for a term which may extend to two years or with fine or with both. [Emphasis added]

Based on the charge preferred, the prosecution was required to prove all the ingredients of the offence for a prima facie case against the accused, which were:

that the document was a forged document;

that the accused had dishonestly used the forged document as genuine; and

that the accused had reason to believe that the document was forged.

that the document was a forged document. [14] The document in question was P12. Purportedly, it was the accused’s payslip from Firefly, his employer before his appointment as Special Officer. P12 showed a payslip for May 2018 with a total gross pay of RM18,971.00. It also had the accused’s name and his identity card number. I was satisfied that the prosecution had proved that P12 was a forged document for the following reasons. [15] PW4 worked with Firefly as a Payroll Executive. Among other things, her task was to process salary payments for Firely’s workers. P13, another May 2018 payslip from Firely, was referred to her. She testified that P13 was the accused’s payslip printed from Firely’s agathaeHR system. The accused’s total gross pay was RM6.671.00. [16] PW4 was also shown P12, the impugned payslip for May 2018 bearing the accused’s name with a total gross pay of RM18,971.00. P12 prominently displayed the word Firely. According to PW4, the particulars in P12 did not match the accused’s actual payslip in the agathaeHR system for May 2018. In her cross-examination, the accused did not dispute that P12 was not the real payslip for the accused. PW4 further agreed that she did not know who had prepared P12. [17] The prosecution could have easily asked PW4 to categorically state, in no uncertain terms, which document was genuine and which one was false. Not one question was asked whether P12 was a false document, nor whether P13 was the true one. And nothing was asked about forgery. Despite the omissions, PW4’s brief written statement (PSSP4) at paragraph 5, had just managed to be sufficiently clear that P12 was a false document. Further, according to section 470 of the Penal Code, a false document, made wholly or in part by forgery, is designated “a forged document”. Notwithstanding the absence of any question or answer regarding forgery made wholly or in part, I was satisfied to find P12, which was a false document, to be a document that was forged. [18] Then, there was PW6’s. PW6 was the Head of Human Resources for Firely. He was shown P13 and said the document was original. He was also referred to P12, and he stated that it was not printed from the agathaeHR system. That was all that was asked in his examination-in-chief. As with PW4 before, the accused did not raise any challenge or contest that P12 was a false document. [19] Based on the evidence adduced by PW4 and PW6, together with the absence of any dispute by the accused, I was satisfied to find the prosecution had proved that P12 was a forged document. Therefore, it had proved the first ingredient of the offence charged against the accused.

(ii) that the accused had dishonestly used the forged document as genuine. [20] The accused was indicted on an amended charge of dishonestly using a forged document as genuine. Initially, he was charged with the offence of committing forgery under section 468 of the Penal Code. With the amended charge, the prosecution no longer had to prove that the accused had forged P12 because it was not an ingredient of the offence. [21] How did the accused use the forged document as genuine? The prosecution alleged that the accused had used P12 during the period as specified in the charge. Therefore, it was crucial for the prosecution to prove that the accused had sent the email to JCORP, and that it was sent between 26.6.2018 and 10.7.2018 to support the allegation that he had dishonestly used the forged document as genuine. In my view, the time frame stipulated was an essential part of the alleged offence to be proved. [22] The accused’s defence was that he did not email P12 to JCORP. This meant he did not use the forged document as genuine at all. In law, the accused had properly put in his defence as early as possible. If it is put in Court for the first time after his defence is called, the defence runs the risk of being criticised or being branded as an afterthought or a recent invention: Public Prosecutor v. Lin Lian Chen [1992] 1 CLJ (Rep) 285; Megat Halim Megat Omar v. PP [2009] 1 CLJ 154. After a thorough evaluation, I found the prosecution failed to prove that the accused had dishonestly used the forged document as genuine. [23] Let us begin with the evidence of PW3, who worked as a Human Resources Executive (Operations) with the Human Resources Department at JCORP. He was the most critical witness to prove that the accused had used the forged document. It was because the accused had allegedly sent P12 only to PW3. PW3 testified that after he asked, the accused emailed P12 to him. In his written statement (PSSP3) at paragraphs 5 and 6, he said:

Saya telah menghubungi En Khairul Anuar Bin Daud berkenaan gaji majikan lama dan meminta mengemukakan dokumen sokongan terhadap gaji yang diterima di majikan lama. En Khairul Anuar telah emelkan slip gaji tersebut ke e-mel rasmi saya iaitu faizailmadlan@jcorp.com.my.

Seterusnya saya telah mencetak slip gaji tersebut menggunakan pencetak di pejabat saya di Bahagian Sumber Manusia Johor Corp. Oleh sebab dokumen ini telah dicetak dan direkodkan, apabila storan email saya hampir penuh saya telah memadamkan email yang asal untuk memberi ruang kepada email-email lain yang akan diterima. Gaji pokok En. Khairul Anuar Bin Daud di Firefly Sdn Bhd adalah RM18,971.00. Saya meminta slip gaji lama ini untuk menyediakan Cadangan Perlantikan. [24] It was incredible that the two paragraphs above were the only evidence adduced in PW3’s written statement concerning P12 that was allegedly sent to him. There was no evidence of when PW3 asked the accused for it, and more importantly, there was nothing on when the accused sent the email. [25] There was also no explanation for why PW3 deleted the email containing P12, apart from saying that his email’s capacity was nearly full. Surely, there were other ways to keep the email containing important documents, such as digitally storing it on a computer, rather than simply deleting it. Further, the accused could have easily forwarded the email containing P12 to his superiors, informing them about it. [26] Nevertheless, I had allowed the prosecution time to ask additional questions and seek clarifications. The prosecution failed to do so because not many questions were asked, including those I had pointed out earlier. This was especially wanting, since in the indictment the accused was charged with using the forged P12 between 26.6.2018 and 10.7.2018, amounting to 14 consecutive days. There was no attempt at all to inquire from PW3 when the email was sent to him to support the particulars in the charge. Thus, the time frame it was allegedly sent was not supported by any evidence from PW3 and was detrimental to the prosecution’s case. [27] Another point was this. If the accused is indicted for dishonestly using P12 by sending it to PW3, the offence may involve only one specific date and time. It was illogical that the accused dishonestly used the forged document as genuine for 14 days by sending only one email to PW3. In any event, PW3 did not testify that the accused emailed the forged document to him for 14 consecutive days. [28] In his cross-examination, PW3 said he did not remember the accused’s email address used to send P12 to him, and he did not keep the address. He added that the email sent only contained P12, without any covering letter or correspondence. He also said that no one else knew the accused’s email address. [29] Further, PW3 testified that the MACC never made any effort to retrieve the email he deleted, and no investigation was conducted of his computer. The defence challenged his testimony, saying the accused did not send P12. At the end of his testimony, the prosecution declined to ask any questions in the re-examination. [30] In a nutshell, PW3 merely said that he received P12 from the accused. No evidence was adduced when he received it. No evidence to support the claim that the accused sent the email. Not even a record showing the sender’s email address for P12. Even worse, no usual forensic investigation was conducted on PW3’s computer to support the case against the accused. Thus, PW3’s testimony carried little weight because of its lack of detail and support from other evidence. [31] Moving on to PW5, who was the Manager in the Human Resource Department at JCORP. She was PW3’s boss. According to her, she instructed PW3 to obtain the accused’s latest payslip from his previous employer. She testified that P12 was the payslip. It must be pointed out that PW3 previously stated no one instructed him and that he did it of his own accord. PW5’s brief testimony was in paragraph 7 of her written statement (PSSP5). [32] Just like with PW3, the prosecution chose not to ask any further questions about when PW5 instructed PW3, when PW3 received P12, or when PW5 first saw the payslip. As with PW3, no evidence was adduced from PW5 that the accused had dishonestly used the forged document as genuine by sending it between 26.6.2018 and 10.7.2018. [33] In her cross-examination, PW5 said that PW3 did not inform her when he received the email from the accused. She also did not ask him whether PW3 actually received the email from the accused. Further, she agreed with the suggestion that it could not be ascertained that P12 was received from the accused. [34] In her re-examination, the prosecution asked PW5 whether she received the email from the accused. She did not. She replied that she only received the payslip printed by PW3. That was all. The notes of evidence showed: TPR : Puan pada tarikh lepas peguam ada bertanyakan soalan. Saya katakan sama ada email ini diterima dari Encik Khairul atau tidak, tidak boleh dipastikan dan puan telah jawab setuju. Soalan saya puan, boleh puan terangkan kenapa puan jawab setuju yang email ini diterima dari Encik Khairul atau tidak, tidak boleh dipastikan? SP5: Saya jawab setuju tidak dapat dipastikan kerana segala komunikasi adalah dilaksanakan oleh Encik Muhammad Faizal dan saya cuma menerima slip yang telah diprintkan sahaja oleh dia. [35] From her reply in the re-examination, it could be gathered that she had no other knowledge of P12 beyond having received it from PW3, and that he made all communications. However, no question was posed to PW5, and no answer was given on when she received the forged payslip. Her admission that it could not be determined whether P12 was received from the accused remained part of the prosecution’s evidence. [36] Further, there was the matter of PW3’s email address. According to PW3 earlier, he said the accused had emailed P12 to his official email address, faizalmadlan@jcorp.com.my (see paragraph 5 of PSSP3). However, PW5 testified that P12 was sent to PW3’s email at faizal_madlan@jcorp.com.my. To my mind, the difference was significant because the accused was said to have used the email address to send the forged document. Therefore, which email address did he use? The prosecution failed to seek any explanation from PW3 or PW5 about the two different email addresses. Further, the Investigation Officer, PW9, admitted that she did not investigate the email addresses to determine which one was used to receive P12. [37] Apart from PW3 and PW5, no other witness could testify to the receipt of P12 by JCORP. Thus, were there any documents by the prosecution to support its narration that the accused had emailed P12 to PW3 during the alleged time frame? I found that there was none. [38] I move on to P9 dated 17.4.2019, which was JCORP’s notice of domestic inquiry letter addressed to the accused. In paragraph 2 and repeated in paragraph 3 of P9, the accused was alleged to have submitted the forged payslip between 1.5.2018 and 31.7.2018, and not between 26.6.2018 and 10.7.2018 as stated in the charge. Why was that so? The time frame in P9 had compromised the prosecution’s case. Was there any explanation proffered by the prosecution on the grave difference concerning the two time frames? There was none. [39] Let us also look at the testimony of PW9. No evidence was forthcoming from her examination-in-chief on when the accused sent P12 to JCORP. There was no evidence because no question was asked about it. [40] During her cross-examination, she said that based on her investigation, she did not find any document produced by JCORP requesting the slip. Further, she did not locate any document from an email from which P12 was sent to PW3. She agreed with the suggestion that there was no other evidence to support the contention apart from what PW3 said. Despite that, she recommended that a charge be preferred against the accused. [41] The defence referred to her D25, which was the accused’s written statement recorded by the MACC pursuant to section 53(3) of the Act. PW9 said that it was the first time she had seen it. According to her, the accused was arrested on 21.9.2022, and D25 was recorded on the same day. D25 consisted of exculpatory statements by the accused that PW9 did not know about or investigate. Amongst others, they were:

to his knowledge, the accused did not give his Firefly’s payslip to JCORP or the Menteri Besar’s office, and the letter of offer (P5) did not require him to bring any payslip to JCORP;

(ii) the accused said that the amount of RM15,820.30 in P12 was incorrect because his salary for May 2018 was only RM5,512.30. He did not know who prepared P12; and

(iii) in P12, the accused stated there was a Firefly logo, whereas none appeared on a genuine payslip. Further, there was no agathaeHR printed in P12, whereas a genuine payslip would have it. The accused confirmed that he did not create P12 and he did not know how it came to be. [42] D25 was admitted in evidence because the prosecution did not object to it, given that the document was delivered to the defence pursuant to section 51A(1)(b) of the Criminal Procedure Court. Pursuant to the said provision, the prosecution indicated that it would tender it as part of its evidence. Peculiarly, the prosecution did not do so. Instead, it was the accused who naturally chose to tender it as part of his defence. As alluded to, PW9 was unaware of D25 until seeing it for the first time in Court. [43] PW9 had an onerous duty to investigate all aspects of the present case, not only the features in favour of the prosecution but also those in favour of the accused. The accused had advanced his defence on the same day that he was arrested. This meant that the exculpatory statements were made contemporaneously with D25’s recording by the MACC. It did not merely consist of the accused’s bare denial that he sent P12. The accused also gave his reasons for attributing the document to be false, not his payslip. [44] Given that PW9 neglected to investigate the accused’s claims, there were still stones left unturned. Could the accused have a fair trial if the investigation was unfair? Certainly, the duty of an Investigation Officer is not merely to complete an investigation within a given time but also to make an impartial recommendation, based on all the evidence, to a higher authority. [45] In Rahmani Ali Mohamad v. PP [2014] 7 CLJ 405, the Court of Appeal said in paragraph 16: In our judgment, the appellant’s right to a fair trial has been compromised as a result of a failure of PW8 to carry out investigation to verify the appellant’s version of fact. The appellant may thereby have lost a chance which was fairly opened to him of being acquitted and that there had been occasioned a failure or a miscarriage of justice. [Emphasis added] [46] In Ghassem Gharezadehsharbiani Hassan v. PP [2014] 1 LNS 752 at paragraph 18, the Court of Appeal opined that: As an investigation officer, PW6 has an onerous responsibility to investigate all aspects and fairly, including feature of the case which not only favours the prosecution but also the appellant. The duty of an investigation officer is not merely to bolster up a prosecution with such evidence as may enable the Court to record a conviction but to bring out the real unvarnished truth (see Jamuna Chaudhary & Ors v. State of Bihar [1974] 3 Supreme Court Cases 774). [Emphasis added] [47] I was mindful that generally, exculpatory statements such as in D25 were not, by themselves, the truth of what was claimed by the accused. However, the lack of investigation into his claims undermined the prosecution’s case. This was because the investigation was inadequate and did not address the allegations the accused had asserted. If the investigation was properly made, it might absolve him, or it might still incriminate him on the charge. Either way, PW9 must investigate not only to enable the Court to consider the prosecution’s case, but also to weigh the accused’s claims. After all, the duty of the Court was to conduct a maximum evaluation on all the evidence adduced. [48] By way of summary, an analysis of the prosecution’s case showed the following:

no evidence from PW3 when the email containing the forged document was sent to him;

no explanation why PW3 could not keep the email by other means instead of deleting it;

the prosecution failed to ask PW3 when the email was sent to him;

the prosecution failed to establish that the forged document was sent to PW3 within the time frame as alleged in the charge;

the MACC did not attempt to retrieve the email containing the forged document from PW3’s computer, and to prove who the sender was and when it was sent;

the prosecution failed to prove that the accused sent the forged document to PW3;

PW5 agreed with the suggestion that it could not be ascertained the forged document was received from the accused;

the contradiction in PW3’s two email addresses, which received the forged document, was not explained away by the prosecution;

PW9 did not conduct any investigation on the two different email addresses;

JCORP notice of domestic inquiry letter (P9) addressed to the accused had a different time frame for when the accused had allegedly sent the forged document; and

PW9 did not investigate the accused’s version in D25. [49] To recapitulate, the prosecution failed to prove when P12, the forged payslip, was sent to JCORP. And failed even to prove that the accused sent the email. The consequence of which was that it failed to prove that the accused had dishonestly used the forged document as genuine as stipulated in the charge against him. [50] The prosecution’s case relied heavily on PW3’s testimony, which I found most lacking, implausible, and incredible. In such a situation, I could not simply accept what he said without further proof. There were unanswered questions in PW3’s testimony as mentioned, due to the prosecution’s lack of questions and explanations. The result was that unresolved issues remained, including the contradictions highlighted earlier. Certainly, there were doubts in the prosecution’s case. The often-quoted principle guided me that a reasonable doubt must arise from the evidence or the want of evidence and cannot be an imaginary doubt unrelated to the evidence: Public Prosecutor v. Saimin & Anor [1971] 1 LNS 115. [51] A party is held by his own evidence, if not explained or clarified. The principle is that a party is bound by the evidence of witnesses whom he calls in proof of his case (Lim Guan Eng v. PP [1998] 3 MLJ 14; John Nyumberi v. PP [2007] 2 CLJ 509; Ho Tze Kean v. PP & Another Appeal [2018] 3 CLJ 71). [52] I was also guided by the quotation from the Federal Court in Sia Soon Suan v. Public Prosecutor [1966] 1 MLJ 116, which said as follows: Nevertheless, the requirements of strict proof in a criminal case cannot be relaxed to bridge any 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. [Emphasis added] [53] Thus, the lack of evidence, unanswered questions, and material contradictions, together with an incomplete investigation, told against the prosecution. I found they were serious and cut deeply into the prosecution’s case. [54] In the circumstances, it was my firm finding that the prosecution failed to prove the second ingredient of the offence that the accused had dishonestly used the forged document as genuine.

(iii) that the accused had reason to believe that the document was forged [55] Given that the second ingredient of the offence was not proved, it followed that the prosecution also failed to prove that the accused had reason to believe that the document was forged. It could not be gainsaid otherwise. Thus, the prosecution failed to prove the third ingredient of the offence as well. Conclusion at the close of the prosecution’s case. [56] I have evaluated the credibility of the witnesses and the reliability of the evidence and found that the prosecution had failed to establish all the ingredients of the offence against the accused. Further, I have analysed the evidence adduced and the lack of it, in light of the inherent probabilities and improbabilities of the case. As reminded by the Court of Appeal, if a witness’s evidence is improbable, it would be a good reason for rejecting it or giving it very little weight: Public Prosecutor v. Mohd Bandar Shah bin Nordin & Anor [2008] 4 MLJ 556. [57] It is well-settled that a prosecution should not be conducted only on suspicion, notwithstanding how grave it might be. Similarly, a finding by a Court should not be based on suspicion or conjecture that the accused is culpable for a crime. However great a suspicion was, it could never be substituted for evidence: PP v. Mohd Azam Raja Abdullah [2012] 8 CLJ 506; PP v. Sim Keng Tee [2008] 9 CLJ 755; Public Prosecutor v. Sim Ah Ba & Anor [1995] 1 LNS 330. [58] I had subjected the whole evidence to a maximum evaluation, which was succinctly explained by the decision in PP v. Lee Hock Lai [2004] 1 CLJ 57: In my view, the ‘maximum evaluation’ refers to a proper and complete evaluation of all the evidence adduced to determine whether a prima facie case has or has not been made out. Thus, all the evidence adduced has to be scrutinised properly and this should not be just a perfunctory, cursory evaluation or an exercise of skimming over the surface of the evidence only. The prosecution must make out the ingredients of the charge with the evidence adduced. If the evaluation of the evidence results in doubts in the prosecution’s case at this stage of the proceedings itself then it cannot be said that a ‘prima facie’ has been made out. The defence ought not to be called merely to clear or clarify the doubts. The benefit of the doubt, if any, at the end of the prosecution’s case must go to the accused. [59] I found that the prosecution had not made a prima facie case against the accused (section 173(f)(ii) of the Code). The prosecution failed to adduce credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction (section 173(h)(iii) of the Code). [60] By maximum evaluation, the totality of the evidence was not sufficient for the defence to be called. That being the case, I was not prepared to convict the accused on the charge if he had elected to remain silent: Balachandran v. PP [2005] 1 CLJ 85; PP v. Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457. Thus, the accused was acquitted and discharged. Dated on this day, 24 December 2025 -sgd- (DATUK AHMAD KAMAL ARIFIN BIN ISMAIL) Judge Sessions Court Johor Bahru For the prosecution : DPP Nur Zahida binti Muhammad Ruzi Alice Voon Mei Ling Rais Adha bin Ramli For the accused : Md Hazza bin Md Khalid Suraya Hani binti Abd Halim Hazza Khalid Suraya & Partners