Nor Badli Munawir Bin Mohamad Alias Lafti v Pendakwa Raya (WA-42R-10-10/2019)

(a) the judgment is based upon a wrong premise of fact or of law,

(b) there was insufficient judicial appreciation by the trial judge of the evidence of the circumstances placed before him,

(c) the trial judge has completely overlooked the inherent probabilities of the case,

(d) that the course of events affirmed by the trial judge could not have occurred,

(e) the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts, or

(f) the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. (See: Mohd Yusri Mangsor & Anor v. Public Prosecutor [2014] 7 CLJ 897 CA; [2014] 4 MLJ 875; [2014] MLRAU 284). Credibility of witnesses [53] At the onset, I shall first deal with the credibility of witnesses as it is related to all charges in respect of the CBT and AMLATFA offences. The position of the law in this respect has been reiterated by His Right Honourable Arifin Zakaria CJ (as he then was) in Dato’ Seri Anwar Ibrahim v. PP & Another Appeal [2015] 2 CLJ 145 FC; [2015] 1 MLRA 609. It may be summarized as follows:

(a) the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see: Bhojraj v. Sitaram AIR [1936] PC 60),

(b) being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability of a fact in issue must be the prime consideration (see: Muniandy & Ors v. PP [1966] 1 LNS 110; [1966] 1 MLJ 257),

(c) if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see: Khoon Chye Hin v. PP [1961] 1 LNS 41; [1961] MLJ 105),

(d) discrepancies and contradictions there will always be in a case. In considering them, what the court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence worthless and untrustworthy (see: De Silva v. PP [1964] 1 LNS 32; [1964] MLJ 81),

(e) one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments (see: Ugar v. State of Bihar AIR [1965] SC 277),

(f) there will always be discrepancies because every witness does not remember the same thing and he does not remember accurately every single thing that happened. The question is whether existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other (see: PP v. Datuk Haji Harun bin Haji Idris (No 2) [1976] 1 LNS 184; [1977] 1 MLJ 15),

(g) in the absence of any contradiction and in the absence of any element of inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted (see: PP v. Mohamed Ali [1962] 1 LNS 99; [1962] MLJ 257). [54] In finding that the prosecution’s witnesses were credible, the learned trial judge reasoned that the prosecution’s witnesses were consistent in their evidence despite the rigorous cross-examination. According to the learned trial judge, she had no reason to reject the evidence of PW20 despite the challenge by the defence that PW20 may be a self-serving witness and there were various contradictions in his testimony. [55] In Moh Chuan Pin v. Public Prosecutor [2009] 6 CLJ 420 FC; [2018] Supp MLJ 453; [2009] 2 MLRA 467, the Federal Court reiterated the position of advantage accorded to trial judges in assessing the credibility of witnesses and the usual approach adopted by appellate courts in respect of the same. The apex Court referred to the following passage in the judgment of Lord Hoffmann in Ryan v. Jarvis [2005] UKPC 27 which reasoned as follows: “It is of course most unusual for an appellate tribunal to reverse a trial judge’s findings on credibility on the ground that the evidence which he rejected has the ring of truth. The true or false note is generally more audible to the judge who hears and sees the witnesses than to the appellate court reading the record.”. [56] The learned counsel anchored the challenge on the credibility of the prosecution’s witnesses on the following grounds:

(a) that the learned trial judge failed to critically evaluate the conduct and behaviour of PW20 as a whole,

(b) that the learned trial judge failed to consider the defence evidence which showed that PW8, PW11 and PW13 was not credible as they may have retained the monies they withdrew for their own purpose, and

(c) that the conviction was based on the evidence of PW8 and PW20 whose credibility was clearly at stake. [57] In my considered view, the learned trial judge had correctly considered and assessed the credibility of PW8, PW11, PW13 and PW20 in accordance with established legal principles. In her grounds of judgment, the learned trial judge had considered certain material facts. These facts are material as they may be used as a testbed in assessing the credibility of the relevant witnesses in the circumstances of present appeal. They are as follows:

(a) instructions were given for cheques to be prepared even without any invoices or claims for payments,

(b) sham invoices and sham receipts were made for the various payments,

(c) certain cheques were encashed and the monies were personally delivered to the accused,

(d) certain cheques were replaced pursuant to instructions for payments to be credited directly into the recipients’ bank accounts despite no request for such direct remittances,

(e) PW11 of RL Offshore went on to claim for the balance payment of RM575,800.00 in respect of the 1st milestone claim despite a cheque for the same amount has been prepared and paid out,

(f) at the request of the accused, PW8 had to make good the claim made by PW11 whereas the payment should be made by THHE instead,

(g) at the material times, Bicara Sepakat, Coral Intoil and RL Offshore all had subsisting projects with THHE,

(h) as the finance executives of THHE, PW4 and PW18 were merely following instructions and had no authority of their own to prepare the cheques for the respective amounts without instructions. Both of them had not gained anything. [58] Had the payments were for valid reasons, there would not be questions about instructions for cheques being prepared without any claim for payments, there would not be sham invoices and receipts issued, there would not be similar claims made despite payment for the same amount having been “made”, there would not be payments having had to be made by Bicara Sepakat to RL Offshore. [59] I am of the considered view that the findings of the learned trial judge in respect of credibility and assessment of the totality of the evidence accords with the probabilities of the case. They did ring true. In assessing credibility of the witnesses, I am thus of the considered view that the learned trial judge had properly availed herself of the audio-visual advantage. The charges for criminal breach of trust [60] In a charge for criminal breach of trust under section 409 of the Penal Code, the prosecution must prove the following ingredients:

(a) that the accused was an agent,

(b) that the accused was entrusted with property in his capacity as an agent,

(c) that the accused committed criminal breach of trust in respect of that property,

(d) that there was dishonest intention on the part of the accused. [61] Credible evidence to establish a prima facie case may include the use of presumptions, inferences or anything other than direct evidence. They may be —

(a) by adducing credible direct evidence of that ingredient;

(b) by drawing inferences of fact, i.e., adducing credible circumstantial evidence, from which the ingredient can be inferred; or

(c) by invoking presumptions of law, i.e., adducing credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists. (See: Abdullah Atan v. PP [2020] 9 CLJ 151 FC; [2020] 6 MLJ 727; [2020] 6 MLRA 28; [2020] 7 AMR 1). [62] In an offence for criminal breach of trust under section 409 of the Penal Code, the law provides for the operation of a rebuttable presumption of having so acted dishonestly under section 409B(1)(b) of the Penal Code. In order to invoke this presumption, it is incumbent on the prosecution to prove the basic or primary facts necessary to give rise to that presumption. This is done by adducing evidence to prove any of the facts under subparagraph (i), (ii) or (iii). [63] The prosecution took the stance that the accused had misappropriated the property. This is a fact governed under subparagraph (i) of 409B(1)(b) of the Penal Code. Once it is proved that the accused was entrusted with property and had misappropriated that property, the rebuttable presumption of the accused having so acted dishonestly applied until the contrary is proved. This is aligned with the observations made the Court of Appeal in Public Prosecutor v. Cho Sing Koo & Anor [2015] 4 CLJ 491 CA; [2015] 4 MLJ 689; [2015] 2 MLRA 67; [2014] AMEJ

Being a rebuttable presumption, it was for the accused to adduce evidence to rebut the presumption on the balance of probabilities. Whether the accused was an agent [64] The fact that the accused was the chief executive officer for THHE was not dispute by the defence. The learned trial judge made a finding that the accused was appointed as the CEO for THHE. The learned trial judge also found that the role and function of the accused as the CEO was explained by PW14. Based on the definition of the word “agent” in section 402A of the Penal Code, it was found that the accused was an agent within the meaning of the law as intended by the Code. In this regard, I find that the learned trial judge had correctly found that the prosecution had succeeded in establishing this ingredient. Whether there was entrustment [65] In Sathiadas v. Public Prosecutor [1970] 1 LNS 142; [1970] 2 MLJ 241; [1970] 1 MLRH 166, His Royal Highness, the late Raja Azlan Shah J. (later LP) made the following observations with regard to the elements necessary to make out a case for entrustment: “The gist of the offence of criminal breach of trust is entrustment and dishonest misappropriation or conversion to own use. Once the prosecution have succeeded in proving the receipt of the money for a particular purpose the case of entrustment is made out. Dishonest misappropriation or conversion to own use involves wrongful gain to the appellant or wrongful loss to his employers for the period of the retention of the money. That must depend on the facts and circumstances of each case. Criminal breach of trust is not an offence which counts as one of its factors, the loss that is the consequence of the act, it is the act itself, which in law, amounts to an offence. The offence is complete when there is dishonest misappropriation or conversion to one's own use, or when there is dishonest user in violation of a direction, express or implied, relating to the mode in which the trust is to be discharged. It may be observed that mere retention of money would not necessarily raise a presumption of dishonest intention but it is a step in that direction. The fact that money entrusted to be used for a particular purpose, was not used for such purpose; that there was retention for a sufficiently long time would, together with other facts and circumstances justify the inference that the appellant had dishonestly misappropriated or converted the money to his own use. There was the intention in the appellant to deprive his employers of their monies, and the appellant misappropriated the monies for a time, intending to make it good eventually when any further retention became impossible.”. [66] It has been accepted by the court in Rex v. Lee Siong Kiat [1934] 1 LNS 66; [1935] 1 MLJ 53; [1934] 1 MLRH 70, that the word ‘trust’ in the expression ‘criminal breach of trust’ as found in the Penal Code is used in a far wider and more popular sense. In Aisyah Mohd Rose & Anor v. Public Prosecutor [2016] 1 CLJ 529 CA; [2016] 1 MLJ 840; [2016] 1 MLRA 203; [2016] 1 AMR 521, the Court of Appeal too was of the view that the expression ‘in any manner entrusted’ in section 409 of the Penal Code has a wide application as it encompasses a situation whereby the entrustment may be direct as well as indirect. [67] Central to the offence of criminal breach of trust is the dishonest misappropriation or conversion to the accused’s own use or the dishonest use of the property in violation of the direction of the trust, either expressly or impliedly. In delivering the decision of the Court of Appeal in Aisyah Mohd Rose (supra.), Her Ladyship Tengku Maimun Tuan Mat JCA (now CJ) said as follows: “[35] To bring home the charge of criminal breach of trust, the prosecution must prove that the first appellant was entrusted with the cheques or that the first appellant had dominion over the cheques. The gist of the offence is, that there is dishonest misappropriation or conversion to one’s own use or that there is dishonest user in violation of a direction, express or implied, relating to the mode in which the trust is to be discharged (see Sathiadas v. PP [1970] 1 LNS 142; [1970] 2 MLJ 241).”. [68] At the onset, the learned trial judge correctly observed that the accused was one of the authorized signatories for the company’s accounts. This was evidenced by the directors’ resolution. Directors’ resolutions are meant to document the decisions and actions authorized by the board of directors as a means of accountability to the company – the separate corporate entity. They embody the parameters of actions which the board of directors had authorized to be made on behalf of the company. As one of the authorized signatories of the company’s accounts, undoubtedly it was imperative that the accused was under a duty to ensure that any expenditure incurred and payments made by the company must be one which was proper and valid. Anything done contrary to this premise would be a violation of that authorization. [69] The learned trial judge found that the accused was entrusted with the five cheques which were the subject of the CBT charges in his capacity as the CEO of THHE. Being the person with the authority to sign the cheques for the company, it was found that the accused had the control and power of disposal over the company funds. The learned trial judge noted the fact that there were other officers of the company who were authorized as signatories of the company cheques as well. However, that did not absolve the accused from the fact that he was entrusted with and had dominion over the company’s funds and he was in fact the person who had given instructions and directions for all the impugned payments. [70] The learned trial judge also observed the wide application of the expression “in any manner entrusted” in section 409 of the Penal Code to encompass a situation whereby the entrustment may either be direct or indirect as was the case with the present appeal when issuance of the impugned cheques was entrusted to the accused as the CEO for THHE having dominion over them. [71] The learned counsel contended that there was no entrustment of the cheques by the company to the accused and that the accused had no dominion over the cheques. It was also contended that since the trust property were the cheques, there cannot be misappropriation or conversion of the cheques within the meaning of section 405 of the Penal Code as all the cheques were in fact properly paid out to and received by the named payees. [72] The learned counsel for the accused relied amongst others on the case of Che Man Che Mud v. Public Prosecutor [1994] 4 CLJ 823 and contended that a distinction must be drawn between property in cheque and property in cash. The learned counsel further argued that misappropriation of the cheques can only occur if the named payee did not receive the cheques but this was not the case in the present appeal. [73] With respect, I am unable to agree with this contention. This was not a case whereby the particular cheques per se were entrusted with the accused. This was a case where the company’s funds were entrusted with the accused. That to my mind, would be properly giving the expression ‘in any manner entrusted’ a broad meaning and in consonant with the purpose of the offence under section 409 of the Penal Code. [74] In Che Man Che Mud (supra.), the observations of the learned High Court Judge which were relied upon by the learned counsel relates to the meaning of “movable property” in the context of the offence of theft under section 378 of the Penal Code. In that case, it was decided that the subject of theft must be “movable property” but not incorporeal property. However, the learned High Court Judge in Che Man Che Mud (supra.) expressly qualified that the same cannot be said in cases of criminal breach of trust. In delivering his decision, His Lordship Abdul Aziz bin Mohamad J. said at page 835 (CLJ) as follows: “In criminal breach of trust and cheating, the subject is not confined to movable property, but may include incorporeal property.”. [75] In the context of the present appeal, it was clear that the accused was entrusted with dominion over the property of THHE including the cheques which are the subject matter of the present appeal. The accused exercised control and dominion over the payments which were made. This is evident from the fact that his instructions for payments to the respective companies had to be complied with by PW20 despite no invoices being issued for them and no payments were then due to the respective companies. As the accused had the necessary control and dominion over payments to be made, the fact of entrustment of property must be said to have been established. Surely the accused would not be designated as one of the authorized signatories for the company’s accounts if he had no dominion over the property of the company. [76] Secondly, if that were the position of the law then the accused in the present appeal could not be said to have committed criminal breach of trust despite having authorized payments which were not due and then pocketing the cash when the cheques were encashed. Authorizing and directing issuance of the cheques when payments were not due was clearly an act in direct violation of the position of trust held by the accused as the CEO and as one of the authorized signatories of the company’s accounts as well as the mandate pursuant to the directors’ resolution. [77] Pocketing the cash for himself instead was certainly an act of misappropriation. I cannot imagine how it can be argued otherwise. As such, it is my considered view that the learned trial judge had correctly found the ingredient of entrustment having been established by the prosecution. Whether there was criminal breach of trust [78] The learned trial judge found that the accused had misappropriated the impugned cheques in the following instances:

(a) it was the accused who had directed PW20 to prepare cheques for payment to Bicara Sepakat on three occasions and once each to Coral Intoil and RL Offshore respectively. These five payments were purportedly meant for the Murphy guys but they were instead encashed and ultimately ended up with the accused,

(b) all cheques for the respective payments were made on the instructions of the accused. Although only three of the cheques were signed by PW20 and counter-signed by the accused, the two replacement cheques were signed by PW20 and only counter-signed by PW19 because the accused was not in the office then. The replacement cheques had to be prepared because it was the accused who had later instructed for them to be credited directly into the respective bank accounts of Bicara Sepakat and Coral Intoil instead. PW19 had no knowledge as to the reasons for the payments made when he counter-signed those cheques,

(c) all five payments made out through the respective cheques were not properly nor validly done as they were without valid invoices and supporting documents from Bicara Sepakat, Coral Intoil and RL Offshore,

(d) PW8, PW11 and PW13 confirmed that these payments were not related to work done and that neither Bicara Sepakat, Coral Intoil or RL Offshore did make a claim for them,

(e) the invoices issued were a sham and made up,

(f) the accused took undue advantage of the then existing contractual relationship which the respective companies had with THHE by implicitly placing PW8, PW11 and PW13 in an awkward position should they refuse to toe the line. [79] The crux of the ingredient of the offence was the dishonest misappropriation by the accused of the cheques being the property of THHE. I am of the considered view that the findings made by the learned trial judge were well supported by the evidence of PW20, PW4, PW18, PW8, PW11 and PW13 as well as various other strong circumstantial evidence. Further, the fact that the cheques were made payable to Bicara Sepakat, Coral Intoil and RL Offshore respectively and later encashed was never disputed by the defence. In this instance, I have no reasons to disagree with the findings made by the learned trial judge. Whether there was dishonest intention [80] Having made a finding of fact that the accused had misappropriated the cheques when the cash eventually ended up with the accused, the learned trial judge invoked the presumption of having so acted dishonestly under section 409B(1)(b)(i) of the Penal Code. In this regard, I am of the considered view that there was overwhelming evidence to show misappropriation of the company’s monies by the accused. Since the primary facts necessary to give rise to the presumption under section 409B(1)(b)(i) of the Penal Code have been proved, I have no hesitance to find that the rebuttable presumption against the accused of having so acted dishonestly has been correctly applied by the learned trial judge. [81] In the circumstances, it my considered view that the learned trial judge had correctly arrived at her finding of a prima facie case in respect of all the charges for criminal breach of trust against the accused. The charges for money laundering [82] Money laundering is an offence under section 4(1) of the then Anti Money-Laundering and Anti-Terrorism Financing Act

It provided as follows:

“Offence of money laundering

(a) engages in, or attempts to engage in; or

(b) abets the commission of, money laundering, commits an offence and shall on conviction be liable to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding five years or to both.

“Interpretation

(a) engages, directly or indirectly, in a transaction that involves proceeds of any unlawful activity;

(b) acquires, receives, possesses, disguises, transfers, converts, exchanges, carries, disposes, uses, removes from or brings into Malaysia proceeds of any unlawful activity; or

(c) conceals, disguises or impedes the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity, where — (aa) as may be inferred from objective factual circumstance, the person knows or has reason to believe, that the property is proceeds from any unlawful activity; or (bb) in respect of the conduct of a natural person, the person without reasonable excuse fails to take reasonable steps to ascertain whether or not the property is proceeds from any unlawful activity;”. [84] In construing the true meaning of the term “money laundering”, the meaning of three other related terms under the AMLATFA must be ascertained. They are “proceeds of unlawful activity”, “unlawful activity” and “serious offence”. In logical sequence, these terms were defined under the then AMLATFA as follows: “proceeds of an unlawful activity” means any property derived or obtained, directly or indirectly, by any person as a result of any unlawful activity;”, “unlawful activity” means any activity which is related, directly or indirectly, to any serious offence or any foreign serious offence;”, “serious offence” means —

(a) any of the offences specified in the Second Schedule;

(b) an attempt to commit any of those offences; or

(c) the abetment of any of those offences;”. [85] Based on the scheme of the then AMLATFA, the charges and facts of the present appeal, the ingredients of the offence of money laundering under section 4(1)(a) are as follows:

(a) that the accused was engaged in money laundering,

(b) the act of money laundering was the receipt by the accused of the proceeds of an unlawful activity,

(c) the proceeds of the unlawful activity were the monies obtained as a result of the unlawful activity,

(d) the unlawful activity was the offence of criminal breach of trust under section 409 of the Penal Code. [86] In this regard, the crux of the ingredient of the offence of money laundering insofar as the accused is concerned was the receipt by the accused of the monies paid out under the respective impugned cheques. Whether the accused did receive the monies which originated from the impugned cheques [87] The learned trial judge made a finding that the accused had engaged in money laundering —

(a) when he received RM570,000.00 from PW8 on 26.06.2013 between 6:00 pm to 8:00 pm at the Old Town White Coffee café at Ara Damansara in Petaling Jaya for the AMLATFA 2,

(b) when he received RM430,000.00 from PW13 on 27.06.2013 between 2:00 pm to 4:00 pm at the accused’s office for the AMLATFA 3,

(c) when he received RM600,000.00 from PW8 on 11.09.2013 between 6:00 pm to 8:00 pm at the Old Town White Coffee café at Ara Damansara in Petaling Jaya for the AMLATFA 4, and

(d) when he received RM570,000.00 from PW11 on 01.11.2013 between 3:00 pm to 4:00 pm at the Leaf Dining restaurant at the Solaris, Mont Kiara in Kuala Lumpur for the AMLATFA 5. [88] The evidence in this regard came chiefly from PW8, PW6, PW11 and PW13. Although the accused raised the defence of alibi and challenged receipt of the sum of RM430,000.00 from PW13 on 27.06.2013, the learned trial judge found that the presence of the accused at the place and at the material time was not disputed by the accused. PW13 confirmed that he did go to the accused’s office after having had the money withdrawn from the bank. As such, it was found that it was not improbable for PW13 to have met the accused and delivered the money to him. After all, PW13 explained that it only took a short while to deliver the money. [89] The findings of facts made by the learned trial judge in this regard were well-supported in evidence. I hold the considered view that they have been properly arrived at by the learned trial judge and thus should not be disturbed on appeal. Whether the monies were proceeds of unlawful activities [90] In finding that the prosecution has established this ingredient, the learned trial judge made a finding that the prosecution has succeeded in proving the predicate offence of criminal breach of trust against the accused under section 409 of the Penal Code. It was found that the prosecution had also proved that the monies received by the accused were the proceeds of the offence of criminal breach of trust. [91] On the facts and circumstances surrounding the receipt of the monies by the accused, the learned trial judge found that objectively, it may be inferred that the accused knew or had reasons to believe that the monies were the proceeds of the predicate offence of criminal breach of trust of which the accused himself was involved in. The fact that the offence of criminal breach of trust under section 409 of the Penal Code was a “serious offence” within the meaning of section 3(1) of the then AMLATFA was also not in dispute. [92] Based on these reasons, I hold the considered view that the learned Sessions Court Judge had made a correct finding of a prima facie case in respect of the four charges of money laundering against the accused. The defence against charges for criminal breach of trust [93] In considering the defence, the learned trial judge made the following findings of facts:

(a) the problems caused by migration of the computerized management systems had no relevance to THHE having to describe payments to its subcontractors as “consultancy”. Although the accused said this course of action was approved by the top management of THHE but there was nothing to show that it was in fact decided as such. On the other hand, the testimony of PW4 and PW18 that the payments made were not in accordance with the financial procedures of THHE ought to be accepted as true since as accounts executives they must be taken to know the procedures for payments,

(b) the fact remained that none of the companies made any claims for payments from THHE insofar as the impugned cheques were concerned. Bicara Sepakat had never received any advance payment in the real sense of the word. Bicara Sepakat had never undertaken the works described by the accused and denied having made any such claims for advance payments. Coral Intoil did not make any claim under the teaming agreement. PW13 said he had to agree with the accused’s plan just to protect the business interest of Coral Intoil,

(c) the accused’s claim that he had no knowledge of the two replacement cheques was a bare denial. It was the accused who directed the change in mode of payment. As such, the cheques which the accused had initially counter-signed had to be replaced,

(d) PW11 only received the sum of RM424,200.00 out of the total RM1 million for the 1st milestone claim and insisted to be paid in full. This has led to PW8 being instructed by the accused to make good the shortfall by paying the difference of RM575,800.00 to RL Offshore. Payment of the sum of RM575,800.00 was confirmed by PW7, the bank officer from Maybank at Kuala Terengganu branch. Therefore, the accused’s claim that the cheque for RM575,800.00 was meant as part payment for the invoice issued by RL Offshore could not be true,

(e) the evidence of DW2 centred on PW20 when PW20 was appointed as a consultant for the DW2’s company. DW4 had no knowledge about migration of the computerized systems because he was not employed at THHE then. DW6 touched on matters which occurred between January and April 2014 whereas the charges were in relation to incidents between April and November 2013. The evidence of DW8, DW7 and DW9 were at best neutral and had no bearing to the charges. [94] The learned counsel for the accused argued that there was no wrongful loss to the company in respect of the sum of RM575,800.00 in relation to CBT 5. According to the learned counsel, the accused had not acted dishonestly in that he had no intention of causing wrongful loss to the company because PW11 did in fact made a claim for works done, namely the 1st milestone claim. [95] I am however, not persuaded with the contention of the learned counsel. In cases of criminal breach of trust, the elements of wrongful loss and wrongful gain being the constituent elements of the ingredient of dishonest intention are dealt with by way of the presumption under section 409B(1)(b) of the Penal Code. All that was necessary for the prosecution to prove was the primary facts giving rise to the presumption. In the present appeal, the primary facts were the misappropriation of property by the accused which fell under subparagraph (i) of section 409B(1)(b) of the Penal Code. On the facts, I am in complete agreement with the learned trial judge that the accused has failed to rebut the presumption on the balance of probabilities and that the defence has not raised a reasonable doubt in the prosecution’s case. The defence against charges for money laundering [96] The learned trial judge found that the defence in respect of the money laundering charges was nothing but a bare denial. The challenge made by the defence that PW8 made the withdrawals to finance his lavish lifestyle and to make payments to the Insolvency Department to discharge his bankruptcy had no basis. Although PW8 was a bankrupt, he was only discharged in the year 2015 whereas the incident took place in the year 2013. [97] For AMLATFA 4, although the accused claimed that he was in a meeting with DW5 at the material time and produced a notice of alibi, the learned trial judge found that there was in fact sufficient window for PW13 to hand over to him the cash of RM430,000.00 between 2:00 pm up to the time immediately before DW5 came for the meeting. Although DW3 said she had never left her desk, she did leave her desk for a while when she went to the toilet and the prayer room. The evidence of PW13 that DW3 was not there at her desk when he arrived at the accused’s office and that PW13 had went straight into the accused’s room made sense as it occurred between the Zohor prayer time and before DW5 arrived. [98] PW13 said he did not have to register himself for a visitor’s pass since he was provided with one (Exhibit P160) much earlier and had the express permission of the accused to come to the office. After all, all PW13 did was just to carry the bag with the money and left it with the accused near the table. It took nothing more than a mere 2 to 3 minutes. [99] In respect of the defence of alibi, the following principles may be distilled from the decision of the apex court in Public Prosecutor v. Azilah Hadri & Anor [2015] 1 CLJ 579 FC; [2015] 1 MLJ 617; [2015] 1 MLRA 431; [2015] 1 AMR 641:

(a) the accused must adduce credible evidence that can cast a reasonable doubt over the prosecution’s case, namely evidence of particulars of the place where he claimed he was at the time of the commission of the offence,

(b) if successful in establishing the alibi, the accused’s acquittal should be assured as he could not have committed a crime when he was physically away from the scene of crime,

(c) the burden of proving the commission of an offence by an accused person never shifts away from the prosecution whilst the burden of establishing that defence of alibi lies on the accused person,

(d) mere service of a notice of alibi on the prosecution is not sufficient to substantiate the truth of such notice even though an accused person does not assume the burden of proving its truth. The burden is still on the prosecution to prove its falsity by evidentially establishing the presence of the accused person of having been at the scene of the crime at the material time. The falsity of that notice will crystallise once the prosecution successfully establishes a prima facie case,

(e) if the prosecution fails to establish prima facie case, then the need by the accused person to prove his alibi defence does not arise; but once the prosecution discharges his prosecutorial burden of proof that led to the establishment of the prima facie case, it then becomes incumbent upon the accused person to cast a reasonable doubt that he was elsewhere. [100] In dealing with the defence of alibi, it is also pertinent to bear in mind of the following principles:

(a) the defence of alibi must preclude the possibility that the accused could have been physically present at the place of the crime or its vicinity at or about the time of its commission,

(b) the defence of alibi must be considered in the light of the totality of the evidence and the court’s impression of the witnesses and from that totality to decide whether the alibi might reasonably be true,

(c) once the trial court accepted that the alibi evidence could not be rejected as false, it was not entitled to reject it on the basis that the prosecution had placed before it strong evidence linking the accused to the offences. The acceptance of the prosecution’s evidence could not, by itself alone, be a sufficient basis for rejecting the alibi evidence. Something more was required. The evidence must have been, when considered in its totality, of the nature that proved the alibi evidence to be false. (See: Pathmanabhan Nalliannen v. PP & Other Appeals [2017] 4 CLJ 137 FC; [2017] 3 MLJ 141; [2017] 3 MLRA 247; [2017] 3 AMR 105). [101] At the onset, it is pertinent to bear in mind that the offence under AMLATFA 4 was alleged to have been committed at the accused’s own office at the Menara UOA, Bangsar. In considering the defence in this regard, one should not isolate a particular piece of evidence raised by the accused and have it detached from the totality of the case which has been established by the prosecution at the prima facie stage. The proper approach is for the trial judge to consider the defence of alibi against the whole of the evidence placed before the court. [102] The learned trial judge has made a finding that PW13 had indeed delivered the money to the accused at his office. There was also a finding made as to the credibility of PW13 as a witness. In essence, it has been established on a prima facie basis on the strength of credible evidence that the money was delivered to the accused. This can only be displaced by evidence which could raise a reasonable doubt as to whether the money had in fact, been delivered to the accused as PW13 said he did. [103] In the first place, it must be clear that the offence was alleged to have been committed at the accused’s own office between 2:00 pm to 4:00 pm. By his own notice of alibi, the accused did not dispute that he was in his office on that material date. The only dissent he had was that PW13 had not met him between the hours of 2:00 pm and 4:00 pm. [104] The meeting on 27.06.2013 was scheduled between 3:00 pm and 5:00 pm and DW5 arrived between 10 to 15 minutes before the scheduled time. When shown the entry log for the accused’s office, it showed that DW5 entered at 2:49 pm and exited at 3:54 pm. Although DW3 said she did not see PW13 coming to see the accused on the same day and that she had never left her desk during the 1:00 pm to 2:00 pm lunch hour and then between 2:00 pm to 4:00 pm, DW3 nevertheless agree in cross-examination by the learned DPP that she could have gone to the ladies and left for prayers for a few minutes. DW3 also added that if at all she left her desk, it was definitely not during the meeting or before or prior to the meeting DW5 with the accused. [105] In finding that PW13 did in fact handed the money over to the accused at his office, the learned trial judge made a factual finding that it was not improbable for PW13 to have met the accused and delivered the money to him as PW13 only took between 2 to 3 minutes to do it. In my view, the learned trial judge was entitled to examine the alibi on a preponderance of the evidence and consider whether it was capable of raising or creating a reasonable doubt as to the guilt of the accused. In the present appeal, the learned trial judge had done just that and I am unable to find any cogent reasons to disagree with such a finding of fact nor do I find it against the weight of the evidence. After all, it must not be forgotten that the accused in fact did not dispute that he was in his office at the material time. Failure to challenge the defence in cross-examination [106] The learned counsel for the accused contended that the learned trial judge had erred as she failed to judicially consider the defence case. In arguing this position, the learned counsel mainly contended that the learned trial judge failed to consider that the prosecution has failed to challenge a number of evidence put forward during the defence case. In support of this, the cases of Wong Swee Chin v. Public Prosecutor [1981] 1 MLJ 212 and Tan Kim Ho & Anor v. Public Prosecutor [2009] 3 CLJ 236 were relied on. In both cases, the well-established principle is that failure to cross-examine a witness on a crucial part of the case amounts to an acceptance of the witness’ testimony. [107] In Wong Swee Chin (supra.), the appellant was charged with possession of firearms and ammunition under section 57(1) of the then Internal Security Act 1960. The appellant was convicted at the trial court and had his appeal eventually dismissed by the Federal Court. At the conclusion of the trial, the learned trial judge held, inter alia, that failure of the defence to challenge two of the prosecution’s witnesses during cross-examination amounted to a clear admission of the fact of possession. This finding was one of the grounds of appeal raised by the learned counsel. [108] In dismissing the appeal and delivering the decision of the Federal Court in that regard, His Royal Highness the late Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) ascribed to the following:

(a) a correct statement of the law is that failure of the defence to cross-examine the prosecution’s witnesses on the matter merely goes to the credibility of their testimony,

(b) there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’ testimony,

(c) the exception of the general rule is where —

(i) the story (testimony) is itself of an incredible or romancing character,

(a) the accused did not receive the money,

(b) the accused was in a meeting with DW5 with at his office. [111] Failure of the prosecution to challenge the narrative of the defence in cross-examination does not amount to acceptance of the defence by the prosecution. Unlike failure of the defence to challenge the evidence of the prosecution during the prosecution’s case (see: Wong Swee Chin) which amounted to acceptance by the defence of the evidence of the prosecution, at the defence stage the prosecution has succeeded in establishing each and every ingredient of the offence and it is for the defence to raise a reasonable doubt in the prosecution’s case. [112] In the present appeal, the defence too has a duty to rebut the presumption on the balance of probabilities. Whether or not the prosecution “accepted” the defence by its omission to cross-examine the accused is immaterial. It is a finding which must be made by the trial court as to whether the defence was capable of raising a reasonable doubt and rebutting the presumption on the balance of probabilities. [113] Conversely, even if the prosecution were to agree with the narrative of the defence at the defence stage, that does not mean that the accused is entitled to an acquittal unless the court finds that such a position taken by the prosecution in conceding to the defence does raise a reasonable doubt in the prosecution’s case and successfully rebutted the presumption on the balance of probabilities. As such, with respect I am unable to agree with the contention of the learned counsel on this score. Whether the defence has raised a reasonable doubt in the prosecution’s case [114] I have analysed the reasons for the findings made by the learned trial judge at the end of the case for the defence. It is my considered view that there is no error in the findings made by the learned trial judge. Whether or not the defence is capable of raising a reasonable doubt is a question of fact. It has been held that the existence of reasonable doubt is dependent upon the totality of the evidence and on an examination of all the evidence in a fair and reasonable manner and not in isolation. (See: Nenggani Asmo v. Public Prosecutor [2013] 1 LNS 265; [2014] 1 MLJ 501; [2013] MLRAU 122). [115] In Azhar Lazim v. Public Prosecutor [2012] 1 LNS 262 CA; [2012] 5 MLJ 1; [2012] 3 MLRA 484; [2012] AMEJ 0081, His Lordship Abdul Malik Ishak JCA explained as follows: “[27] A credible defence is a defence that answers the evidence of the prosecution. It is purely a question of fact whether the explanation of the defence is capable of raising a reasonable doubt.”. [116] In considering the defence against the totality of the evidence, I have no reasons to disagree with the findings made by the learned trial judge. The defence was nothing more than a bare denial bereft of merits and incapable of rebutting the presumption raised under section 409B(1)(b)(i) of the Penal Code. Whether the sentence was manifestly excessive [117] The accused was sentenced to imprisonment for the period of 7 years for each offence of CBT and imprisonment for the period of 4 years for each offence of money laundering. The learned trial judge ordered for the sentence of imprisonment for CBT and money laundering respectively, to run concurrently. The sentence of imprisonment between the CBT offences and the money laundering offences were ordered to run consecutively. In total, the accused would have to serve 11 years of imprisonment for the total of 9 charges. [118] The approach taken by appellate courts in considering appeals against sentence is grounded on generally recognized principles as decided in a number of case laws. Albeit non-exhaustive, the position may be summarized as follows:

(a) the question of whether the appellate court would have imposed a different sentence if it were the court of first instance is not a relevant factor to consider unless the sentencing court has erred in principle or had imposed a sentence which is manifestly excessive or manifestly inadequate; (See: Public Prosecutor v. Sulaiman Ahmad [1992] 3 CLJ Rep 447; [1992] 4 CLJ 2283; [1993] 1 MLJ 74; [1992] 2 MLRH 420, Adam Atan v. PP [2009] 1 CLJ 33; [2008] MLJU 402; [2008] 2 MLRA 600, PP v. Karthiselvam Vengatan [2009] 4 CLJ 632 CA; [2011] 4 MLJ 212; [2009] 1 MLRA 702 and PP v. Mohammad Yunus [2018] 2 CLJ 749 CA; [2017] MLJU 1838; [2017] MLRAU 466)

(b) in considering whether the sentence imposed is manifestly excessive or otherwise, public interest must always be the first and foremost consideration; (See: Iwan Bujang Dara & Anor v. Public Prosecutor [2017] 1 LNS 285 CA; [2017] 3 MLJ 630; [2017] SSLR 1 and Amir Hassan Ali Usin v. PP [2019] 3 CLJ 325 CA; [2018] 6 MLJ 421; [2018] MLRAU 289; [2018] 6 AMR 213.)

(c) in fixing the punishment for any particular crime, the court will consider the nature of the offence, the circumstances under which it was committed, the degree of deliberation shown by the offender, the provocation which he has received if the crime is one of violence, the antecedents of the prisoner up to the time of sentence, his age and character; (See: Mohamed Jusoh bin Abdullah and Another vs. PP [1947] 1 LNS 73; [1947] 13 MLJ 130 and Mohd Khir bin Toyo lwn. PP [2013] 5 CLJ 323 CA; [2013] 4 MLJ 801; [2013] 5 MLRA 392; [2013] 4 AMR 220.)

(d) a court should, when sentencing an accused, take into account all considerations relevant to the case, including the gravity of the offence, the circumstances surrounding the commission of the offence, the antecedents of the accused, the deterrent effect that punishment is to have, any factor that warrants special attention either in favour of or against the accused and above all the public interest. Reasons must be given for imposing a particular sentence to enable an appellate court to ensure that there has been no error in principle; (See: PP v. Tengku Mahmood Iskandar & Anor [1973] 1 LNS 124; [1974] 1 MLJ 110; [1974] 1 MLRH 347 and Lim Guan Eng v. PP & Other Appeals [1998] 3 CLJ 769 CA; [1998] 1 MLRA 457; [1998] 3 AMR

2079.)

(e) there can be only general guidelines in sentencing. No two cases can have exactly the same facts to the minutest detail. Facts do differ from case to case and ultimately each case has to be decided on its own merits. In practice, sentences do differ not only from case to case but also from court to court. All things being equal these variations are inevitable if only because of the human element involved. But, of course, there must be limits to permissible variations. (See: Public Prosecutor v. Loo Choon Fatt [1976] 1 LNS 102; [1976] 2 MLJ 256 and PP v. Dato’ Waad Mansor [2005] 1 CLJ 421 FC). [119] Broadly speaking, appellate intervention in the sentence imposed by the trial court is warranted if it is satisfied that any of the following four grounds are made out:

(a) the sentencing judge had made a wrong decision as to the proper factual basis for the sentence;

(b) there had been an error on the part of the trial judge in appreciating the material facts placed before him;

(c) the sentence was wrong in principle; or

(d) the sentence imposed was manifestly excessive or inadequate. (See: PP v. Ling Leh Hoe [2015] 4 CLJ 869 CA; [2015] MLJU 1006; [2015] MLRAU 138; [2015] 5 AMR 325). [120] In considering the discretionary power of the court in determining the length of a custodial sentence, there are several factors which must be taken into account. These general principles were laid down in following words by the apex Court in the case of Mohd Abdullah Ang Swee Kang v. PP [1987] 2 CLJ 405 SC; [1988] 1 MLJ 167; [1987] 1 MLRA 43: “In assessing the length of custodial sentence, the court must look at the overall picture in perspective by considering, firstly, the gravity of the offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigation factors, and fourthly, the sentences that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. As stated by James LJ in R. v. Ladd & Tristam [1975] Crim LR 50; Encyclopedia of Thomas Current Sentencing Practice p. 1058: We have to look at the overall picture of what is the right sentence for the total involvement, the total degree of criminality involved, and we have to keep the sentences in perspective with the sentences that have been passed on other occasions for offences involving criminal activity of this kind, though of course varying in their gravity. Clearly a deterrent element has to be involved, but because the offences are very serious, it does not necessarily follow that on the particular facts very long sentences are justified.”. [121] Sentencing is an exercise of judicial discretion to carefully balance the perspectives between the offence committed and the principles of retribution, deterrence, prevention and rehabilitation to serve the ultimate ends of justice. While a sentence must reflect the gravity of the offence and serve as a lesson to the accused and a deterrent to would-be offenders, I am of the considered view that this Court must also consider the ensuing collateral damage or hardship which may be caused to the family of the accused should the accused be sentenced to a lengthy term of imprisonment. A long period of incarceration imposed on the accused may cause further and aggravated harm to the accused’s family and this consequence should also be borne in mind by the sentencer. [122] In the present appeal, I am of the considered view that justice would be best served if the accused is given the opportunity to turn over a new leaf. In the circumstances, I hereby order as follows:

(a) the sentence of 7 years imprisonment for each offence of CBT is set aside and substituted with the sentence of 5 years imprisonment. This sentence of imprisonment shall run concurrently,

(b) the sentence of 4 years imprisonment for each offence of money laundering is set aside and substituted with the sentence of 3 years imprisonment. This sentence of imprisonment shall run concurrently,

(c) the sentence of imprisonment between the offence of CBT and money laundering shall run consecutively. Conclusion [123] On the premise of the reasons as discussed above, I dismissed the appeal against conviction and allowed the appeal against sentence. Dated 27 June 2022. sgd AHMAD SHAHRIR MOHD SALLEH JUDGE HIGH COURT OF MALAYA KUALA LUMPUR. For the appellant: Hisyam bin Abdullah @ Teh Poh Teik (Messrs. Hisyam Teh) Kitson Foong Chew Jee San Van Shir Mooi (Messrs. Kit & Associates) Chetan Lachman Jethwani Ivy Shu (Messrs. Chetan Jethwani & Company) For the respondent: Rasyidah Murni binti Adzmi Mohd ‘Afif bin Ali Deputy Public Prosecutors Malaysian Anti-Corruption Commission