MANIMALA A/P MUNIANDY v Pendakwa Raya (BA-42K-5-03/2022)

The charges against them both are as follows: PP v Manimala a/p Muniandy BA-62K-56-03/2018 Bahawa kamu pada 08/03/2018 bertempat di Hong Leong Islamic Bhd, No 10, Jalan Tengku Ampuan Zabidah 9/D, Seksyen 9 Shah Alam di dalam Daerah Petaling di dalam Negeri Selangor Darul Ehsan telah menipu Choi Seok Ngoh No. K/P: 600714-10-6376 dengan memperdayakan beliau untuk mempercayai bahawa Hong Leong Bank terdapat promosi simpanan tetap dengan kadar faedah 4.38% dan oleh itu kamu telah dengan curangnya mendorong Choi Seok Ngoh memindahkan wang berjumlah RM 1,798,732.59 ke dalam akaun CIMB nombor 8601986479 penama Five Elements Services yang mana beliau tidak akan memasukkan wang tersebut sekiranya tidak diperdayakan sedemikian oleh kamu dan oleh yang demikian kamu telah melakukan kesalahan yang boleh dihukum dibawah Seksyen 420 Kanun Keseksaan.

An amended charge was then proffered against Manimala as follows: PERTUDUHAN PINDAAN PERTAMA MANIMALA Bahawa kamu pada 08/2/2018 bertempat di Hong Leong lslamic Bhd, No 10, Jalan Tengku Ampuan Zabidah 9/D, Seksyen 9 Shah Alam di dalam Daerah Petaling di dalam Negeri Selangor Darul Ehsan telah menipu Choi Seok Ngoh No. K/P: 6007l4-10-6376 dengan memperdayakan beliau untuk mempercayai bahawa Hong Leong Bank terdapat promosi simpanan tetap dengan kadar faedah 4.38% dan oleh itu kamu telah dengan curangnya mendorong Choi Seok Ngoh memindahkan wang berjumlah RM 1,798,732.59 ke dalam akaun CIMB nombor 8601986479 penama Five Elements Services yang mana beliau tidak akan memasukkan wang tersebut sekiranya tidak diperdayakan sedemikian oleh kamu dan oleh yang demikian kamu telqh melakukan kesalahan yang boleh dihukum dibawah Seksyen 420 Kanun Keseksaan.

The predicate charge against Vinoad a/l Sadasivam is as follows: PERTUDUHAN PINDAAN PERTAMA BA-62K-57-03/2018 Bahawa kamu pada tarikh 09/02/2018 bertempat di Hong Leong lslamic Bhd, No. l0, Jalan Tengku Ampuan Zabidah 9/D, Seksyen 9 Shah Alam di dalam Daerah Petaling di dalam Negeri Selangor Darul Ehsan didapati dengan curangnya menerima wang berjumlah RM1,798,732.59 kepunyaan Choi Seok Ngoh No. KP :600714-10-6376 ke dalam akaun CIMB Bank nombor 8601986479 penama Five Elements Services milik kamu yang mana kamu mengetahui wang tersebut adalah bukannya milik kamu, oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 424 Kanun Keseksaan.

The 2 charges under AMLA are as follows: CHARGE BA-62K-8-02/2019 under AMLA: 1st charge Bahawa kamu di antara 12 Februari 2018, di CIMB Bank Berhad cawangan Perlabuhan Klang, 44, Jalan Chungah, Off Jalan Sekolah, 42000 Port Klang, Selangor, di dalam Negeri Selangor, telah memindahkan wang ke datam akaun simpanan Islamic CIMB Bank Berhad, Cawangan Bukit Tinggi, bernombor 7603916886, milik Rathna a/p Kalaiselvam, (Nombor Kad Pengenalan: 860714-43-5410) daripada akaun semasa CIMB Bank Berhad Cawangan Pelabuhan Klang bernombor 8601986479 milik Syarikat Five Elements Services (Nombor Pendaftaran Syarikat: SA0295240-X) dimana kamu adalah pemilik syarikat tersebut, bagi 2 transaksi berjumlah RM85,000.00 yang merupakan hasil daripada aktiviti haram-Oleh itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah subseksyen 4(1 )(b) Akta Pencegahan Pengubahan Wang Haram, Pencegahan Pembiayaan Keganasan dan Hasil Daripada Aktiviti Haram 2001. 2nd charge Bahawa kamu di antara 12 Februari 2018, di CIMB Bank Berhad cawangan Perlabuhan Klang, 44, Jalan Chungah, Off Jalan Sekolah, 42000 Port Klang, Selangor, di dalam Negeri Selangor, telah memindahkan wang ke dalam akaun simpanan Islamic Hong Leong Bank Berhad Cawangan Shah Alam bernombor 14751093489 milik E.PanimaIar a/p P.Ekan (Nombor Kad Pengenalan: 660215-10-6456) bersama G. Thiagarajan afl N.Govindasamy (Nombor Kad Pengenalan: 631223-10-7333), daripada akaun semasa CIMB Bank Berhad Cawangan Pelabuhan Klang bernombor 8601986479 milik Syarikat Five Elements Services (Nombor Pendaftaran Syarikat: SA0295240X) dimana kamu adalah pemilik syarikat tersebut, bagi 1 transaksi berjumlah RM144,000.00 yang merupakan hasil daripada aktiviti haram. Oleh itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah subseksyen 4(1)(b) Akta Pencegahan Pengubahan Wang Haram, Pencegahan Pembiayaan Keganasan dan Hasil Daripada Aktiviti Haram 2001.

The 1st appellant accused was found guilty under section 420 PC at the end of the trial and sentenced to 5 years imprisonment from the date of sentence (28.02.2022) and a fine of RM30,000.00, in default 1year imprisonment. The 2nd appellant accused was equally found guilty at the end of the trial under section 424 PC and sentenced to 2 years imprisonment from the date of sentence (28.02.2022).

For the BA-62K-8-02/2019 charges, the 2nd appellant was found guilty under section 4(1)(b) of AMLA and for the 1st charge, sentenced to 3 years imprisonment from the date of sentence 28.02.2022 and a fine of RM420, 000.00 in default 1-year imprisonment. For the 2nd charge, the 2nd appellant was sentenced to 3 years imprisonment from the date of sentence (28.02.2022) and a fine of RM720, 000.00 in default 1-year imprisonment. All the imprisonment terms to run concurrently.

This is an appeal by both the accused against conviction and cross-appeal by the Public Prosecutor against sentence. The facts have been succinctly laid out by the learned trial Judge in the grounds of judgment, 6 suffice for this Court to highlight the crucial evidence that would relate to the issues raised in the appeal before this Court. Facts of the case and the defense of both the accused. [9] To begin, it is important to highlight that all these charges upon the request made by the prosecution and having heard the objection raised by the defense, were ordered by the trial Judge, to be tried and heard together. This Court agree that rightly so the joint trial be ordered as the facts and witnesses were so closely connected together to form a unity of purpose and design (see: Amrita Lal Hazra v. Emperor 42 Cal 957, Teo Chee Kong v. PP [2021] 7 CLJ 414). In addition, the joint trial would assist to speed up the trial for both by helping parties to comprehend the bigger picture of the case.

Reverting to the facts in this present case, the complainant SP3 had known the 1st accused for almost 1 years, as SP3 had been the bank priority banking customer and the 1st accused was the bank’s senior executive officer. SP3 had frequently been doing his transactions with the bank through the 1st accused. On 6th or 7th February 2018, SP3 was informed by the 1st accused of a special fixed deposit promotion offering high interest of 4.38% that will be launched on either 10th or 11th February, in conjunction with the Chinese New Year.

Acting on the advice by the 1st accused for SP3 to transfer all his fixed deposit savings into an electronic fixed saving as in the said promotion, SP3 met the 1st accused at the Bank on 8.2.2018 and was 7 asked by the 1st accused to sign the withdrawal form, request for service form and remittance form. SP3 signed these empty forms with the details to be filled up by the 1st accused as normally done.

On 13.2.2018, SP3 did an online search into her account and discovered that her cash had not been transmitted to the electronic fixed deposit on promotion as agreed and this led to SP3 asking for the 1st accused’s explanation. The 1st accused said the bank system was down at that time. On that same day, the 1st accused came to SP3’s office with a person introduced as Dinish Raj a/l Ugaraj said to be the son of the 1st accused and the 1st accused said she was under a spell and did not know where SP3’s money was transferred to. All this was also witnessed by SP3’s colleague known as Tan Kok Yee (SP4).

A further check with the Bank manager SP1 and the operation manager SP2 found that a sum of RM1,798,737.89 was transferred to a CIMB Bank no 8601986479 under the name ‘Syarikat Five Elements Services’ owned by Vinoad a/l Sadasivam the 2nd accused. This moved SP3 to lodge a police report P10.

According to SP5 who was the CIMB bank officer, the said account under the name Syarikat Five Elements Services was opened by the 2nd accused using the 2nd accused biometrics. Only one authorized signatory is required to this account as it is a sole ownership. SP5 said it had a sum of RM497.77 prior to the said transfer of RM1,798,732.59 (exhibit P11) that happened on 9.2.2018. After the remittance of the big sum, a few 8 transactions were done where sums of money were transferred out to other banks, issuance of cash cheques individuals and accounts.

The evidence of the bank officers SP1, SP2 and SP7 all denied the existence of the said promotion as marketed by the 1st accused to SP3. The defense however, had tendered exhibit IDD21, a document with the letterhead of ‘Hong Leong Bank and Hong Leong Islamic Bank’ containing heading ‘Online Fixed Deposit/Online Fixed Deposit-I Chinese New Year Special’ which commenced on 1st February 2018 and ending on 28th February 2018. The defense suggested that the evidence of SP1, SP2 and SP7 goes contrary to what the document IDD21 states. This suggestion to a certain extent was supported by the complainant herself when cross-examined, who readily admitted the existence of the promotion by way of online but said that she lodged the police report as she had lost her money.

In addition, the learned trial Judge in deliberating on this fact in issue as to whether the 1st accused had dishonestly induced the complainant victim SP3 by introducing the said promotion knowing its non-existence, as alleged by the prosecution, had omitted to address this exhibit IDD21 that suggests otherwise. Issues raised in the appeal [17] There are 5 issues raised cumulatively by both the appellants in this appeal, touching on the finding by the learned Session Court Judge pertaining to the following: 1st issue: defective charge where the word ‘menerima’ is not an offence under section 424 as contained in the amended charge against the 2nd appellant; 2nd issue: whether there was dishonest inducement by the 1st accused in marketing a promotion of fixed deposit with a special interest rate taking place in conjunction with the Chinese New Year to SP3 victim; 3rd issue: in the absence of a CCTV which was available, whether it was proven that SP3 being so deceived, had merely signed blank documents at the Bank on trust of the 1st accused; 4th issue: the non-calling of the names of people named in the charge said to have received the monies from the 2nd accused and the non-calling of ‘Balan’; 5th issue: conviction not safe as the trial Judge made a serious error in convicting the 2nd accused on section 424 based on evidence of a section 420 offence.

This Court having scrutinized the evidence, oral and documentary and having perused the submissions by all parties, dismissed the appeal by both the accused against conviction. These are the reasons for the said dismissal based on the issues raised above. Most of the issues will be taken together as below. 2nd issue: whether there was dishonest inducement by the 1st accused to SP3 victim, in marketing a promotion of fixed deposit with a special interest rate taking place in conjunction with the Chinese New Year that deceived him (SP3) to deliver his (SP3’s) property. 3rd issue: in the absence of a CCTV which was available, whether it was proven that SP3 being so deceived, had merely signed blank documents at the Bank on trust of the 1st accused 19] Section 420 of the Penal Code, a charge against the 1st accused contains the following:

Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived, whether or not the deception practiced was the sole or main inducement, to deliver any property to any person, or to make, alter, or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment for a term which shall not be less than one year and not more than ten years and with whipping, and shall also be liable to fine. [20] The elements of a section 420 offence are: a) accused deceived a person to do something he was not bound to do or omit to do; b) accused induced the deceived person to do so; c) the person acted upon the inducement upon been deceived by the accused; d) the accused acted fraudulently or dishonestly when he so deceived the person; e) the dishonest deception had induced the person to deliver any property to any person. [21] The word ‘dishonest’ has been defined in the Penal Code itself under section 24 as follows:

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’. Whilst section 23 of the Penal Code defines wrongful gain as: "Wrongful gain" is gain by unlawful means of property to which the person gaining is not legally entitled". "Wrongful loss" is the loss of unlawful means of property to which the person losing it legally entitled. As to the word ‘induce’, Black's Law Dictionary defines inducement as '[t]he act or process of enticing or persuading another person to take a certain course of action’. In https://dictionary.cambridge.org/dictionary/english/inducement Cambridge online dictionary, the word ‘induce’ is defined as “an act or thing that is intended to persuade someone or something”. [22] This Court, having perused the totality of the evidence, observed that this D21 was never put to SP1 nor SP2 for their view or explanation being the relevant witnesses who were the bank officers during that material time, but was only brought to the attention of the Investigating Officer IO SP7. Hence, whether the existence of this investment promotion, valid or otherwise ought to come from them (SP1 and SP2) and not SP7. [23] What can be sieved from SP1 and SP2’s evidence is that based on SP1 and SP2’s evidence, there was no notification received of the said promotion by e-mail which would normally be the case, hence to this Court’s view, SP1 and SP2 could not positively say whether the promotion of that sort, exist or not. This, would go against the finding by the trial Judge at the close of the prosecution case that there was no promotion pertaining to the fixed interest saving happening in conjunction with the Chinese New Year. [24] Be that as it may, this does not prejudice the appellants as there are other relevant evidence to support the element of ‘dishonest inducement’ as this Court finds that the existence or non-existence of the investment promotion in itself alone, would not address the issue. What can be deduced from the evidence is that D21 was also not shown to SP3 victim but SP3 said that her belief that there was one (as exhibited in D21), prompted her to subsequently sign the forms for the transfer of her savings to satisfy the said promotion as marketed by the 1st accused. The learned trial Judge had made a finding that SP3, for this purpose had merely signed empty forms based on her trust with the 1st accused. [25] The trust SP3 had on the 1st accused on the existence of the said promotion and by signing empty forms, knowing she (SP3) had such huge amount of savings in her account shows the 1st accused had grabbed the opportunity to dishonestly induced SP3 to deliver her cash to be transferred to another ‘suspended account’ known only by the 1st accused, to satisfy the terms of the said promotion. [26] This totality of the evidence satisfies the element of cheating under section 420 of the Penal Code as there was wrongful gain on the part of both the appellants and wrongful loss on the part of SP3, as required by the law. Hence, regardless of whether the promotion in conjunction with the Chinese New Year is real or a lie, the summed-up evidence that the victim SP3 believed in its existence offering 4.38% interest per week that saw the transfer of her cash money but only later was discovered by SP3, to an unknown account, proves that SP3 was induced into believing such promotion with such offer and hence made the transfer. [27] As to the issue on the non-production of the CCTV, this trial Judge had indirectly addressed this point to be as immaterial as the final point that needs to be determined is whether SP3 had merely signed blank forms. This Court, having read the entire judgment, agree with the trial Judge’s finding, that SP3 merely signed blank forms, having trusted the 1st accused extensively. The contents of these blank forms in the form of the difference in its handwriting is proven by the expert called by the prosecution. [28] In the absence of another expert to contradict this, the finding by the learned trial Judge therefore, that SP3 had signed blank forms could not be refuted and remains unchallenged. Hence, it remains a valid finding made by the trial Judge that SP3 was induced by the 1st appellant, to make the said transfer by signing empty forms, said for the purpose of the saving promotion in another account when it was not the case. 1st issue: defective charge where the word ‘menerima’ is not an offence under section 424 as contained in the amended charge against the 2nd appellant 5th issue: conviction not safe as the trial Judge made a serious error in convicting the 2nd accused on section 424 based on evidence of a section 420 offence. [29] The 1st and 5th issues will be taken together. Section 424 PC provides as follows:

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 assist 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. [30] The elements of a section 424 offence are: a) The accused concealed or removed the property or that he assisted in its concealment or removal; b) the accused acted dishonestly or fraudulently when he did the above. [31] The complaint by the 2nd appellant accused is that the word ‘menerima’ as contained in the amended charge extracted as follows “dengan curangnya menerima wang berjumlah RM1,798,732.59 kepunyaan Choi Seok Ngoh No. KP :600714-10-6376 ke dalam akaun CIMB Bank nombor 8601986479 penama Five Elements Services milik kamu yang mana kamu mengetahui wang tersebut adalah bukannya milik kamu” is never part of a section 424 element. [32] This Court disagree as the word ‘menerima’ in the amended charge comes with further details as highlighted above which connotes that the act of ‘menerima’ on the part of the 2nd appellant was that the cash sum was deposited and concealed in the 2nd accused’s account with his knowledge albeit for a short moment only before the said sum was moved out from the said account of the 2nd appellant by way of 8 transfers. [33] The evidence as a whole proves this. The learned trial Judge had dealt with this issue of section 424 in his grounds of judgment although not extensively but sufficient to enable a finding being made. This Court agrees with his finding and to add further, there can never be a concealment of the cash sum without a prior transfer being made to the said account. The relevant witnesses were called by the prosecution to prove this and the crucial evidence pointing to the sum before and after the transmission of the said cash sum, the signatory to the said account that could only permit this transfer, possible; only points to the 2nd accused. 4th issue: the non-calling of the names of people named in the charge said to have received the monies from the 2nd accused and the non-calling of ‘Balan’; [34] One cannot transfer what one does not know to exist. Thus, the 2nd accused must have known the existence of such huge sum in his account to enable him to make the subsequent 8 transfers to others. These witnesses including Balan need not be called by the prosecution as they are not material witnesses to the prosecution and their evidence, do not form any part of the elements of section 424. [35] This finding however, did not bar the accused to call him as defense witness based on section 104 and section 105 of the Evidence Act 1950, except that Balan could not be traced by SP7 (IO). The trial Judge had similarly come to this deduction in his grounds of judgment on the defense of Balan, put forward by the appellants. In the upshot, the appeal by the appellants based on the issues raised above, are without merits and dismissed. The convictions are safe and are hereby upheld. [36] As to the conviction of the 2nd appellant on the charges under AMLA, the learned trial Judge had addressed his mind of the elements that must be proven for a successful conviction, namely (i) that the accused had received the monies stipulated in the charge; (ii) that the monies received were proceeds of an unlawful activity; and (iii) the mental element of the crime that the accused has knowledge of the source of the proceeds. The evidence arising from the factual circumstances of the case with section 424, being the offence listed in the Second Schedule of AMLA as the predicate offence, this Court agree with the findings by the learned trial Judge that there was ample evidence adduced to show the 2nd appellant had received the said amount in his account. The conviction of the 2nd appellant under these charges are equally preserved, having been shown there was movement of the money from the 2nd accused’s account into the respective accounts of the said person mentioned in these AMLA charges. [37] The learned trial Judge had amply considered the evidence before him in coming to the said decision. However, the learned trial Judge had not sufficiently addressed his mind to the aggravating factors existing against the 2nd appellant paramount over the only mitigating factor of him being first time offender, in this case. There was no valid defense as to why he committed the offence hence this Court, in the absence of any submission that the said sum of money be it a portion or all, have been returned to SP3 that would entitled the 2nd appellant to a discount (see: Mohd Abdullah Ang Swee Kang v PP [1987]2CLJ 405), this Court is of the view that a higher sentence should be passed. [38] For these reasons, this Court substituted the 2-year imprisonment under section 424 to 4 years imprisonment and the 3-year imprisonment under section 4(1)(b) AMLA to 4 years imprisonment. The sentence of fine and concurrent order as pronounced by the trial Court is maintained. [39] Arising from this conviction, both the appellants had asked for a stay pending appeal. The prosecution did not object, both to the stay and neither was the bail sum addressed by the DPP to be increased. With the appeal against conviction been dismissed by this Court, this gives rise to a change in the circumstances making the conviction against them a concurrent finding of guilt by the Session Court and by the High Court exercising its appellate jurisdiction. Hence, this Court leaves the bail sum as it is. Judicial Commissioner MTJ3 Shah Alam. Dated: 17th January 2022 For the 1st appellant: Mr. Saravanan a/l Subramaniam. Tetuan Saravanan & Nasriq Peguambela dan Peguamcara No. 230, 1st Floor, Jalan 18/23, Taman Sri Serdang, 43300 Seri Kembangan, Selangor Darul Ehsan For the 2nd appellant: Mr. Vemal Arasan a/l Vembarasan Tetuan Vemal Arasan & Associates Peguambela dan Peguamcara No.91-A, Jalan Rengas, Taman Selatan, 41200 Klang, Selangor Darul Ehsan For the Respondent: Noor Mawani Abdul Halim Timbalan Pendakwa Raya Pejabat Timbalan Pendakwa Raya Tingkat 4, Podium Utara, Bangunan SSAAS 40152 Shah Alam Selangor Darul Ehsan.