Pendakwa Raya v 1. Saharuddin Bin Awang Yahya (WA-42K-13-05/2018)

NORZIHAN BINTI ZAINAL ABIDIN … RESPONDENTS (In the matter of Sessions Court, Kuala Lumpur In the Federal Territory, Malaysia. Arrest Case No: 62K – 132 – 07/2015 Arrest Case No: 62K – 133 – 07/2015 Arrest Case No: 62K – 134 – 07/2015

1.

NORZIHAN BINTI ZAINAL ABIDIN) 3 JUDGMENT Introduction [1] The parties are referred to as they were at the trial court. Both the accused were jointly charged for the offence of cheating under section 420 of the Penal Code read together with section 34 of the same Code. There were a total of 8 charges proffered against both the accused. [2] The cases against both the accused in the present appeal were originally jointly tried together with the cases against the 3rd accused, Tengku Ariffin bin Tengku Ibrahim. The 3rd accused was charged for the offence of forgery for the purpose of cheating under section 468 of the Penal Code. After the prosecution called 27 witnesses, the 3rd accused changed his plea and pleaded guilty to the charges. The learned Sessions Court Judge sentenced the 3rd accused to imprisonment for the period of 12 months and imposed a fine of 4 RM3,000.00 for each offence. The sentence of imprisonment was ordered to run concurrently. [3] In the case of both the accused, at the close of the defence the learned Sessions Court Judge convicted both the accused and sentenced each of them to imprisonment for the period of 15 months and a fine of RM3,000.00 in default 6 months of imprisonment for each offence. The sentence was ordered to run concurrently. Both the accused are not satisfied with the decision of the learned Sessions Court Judge and appeal against both the conviction and sentence. On the other hand, the prosecution is not satisfied with the sentence meted out by the learned Sessions Court Judge against both the accused and appeals against sentence. 5 The charges [4] The charges proffered against both the accused read as follows: Arrest Case No: 62K – 132 – 07/2015 “Pertuduhan Pertama Pindaan Bahawa kamu bersama-sama di antara bulan Oktober 2014 dan 14.02.2015, jam lebih kurang 10:00 pagi di pejabat No. 31 – A, Jalan Wawasan 2/1, Bandar Baru Ampang, 68000 Ampang, Selangor di dalam Daerah Ampang, di dalam Negeri Selangor, telah menipu Masry bin Nayan dengan memperdayakan beliau untuk mempercayai bahawa dia boleh mendapatkan penganugerahan “Darjah Kerabat (DK)” yang membawa gelaran “Dato” oleh Negeri Kelantan padahal ianya tidak sah mengikut Undang-Undang Perlembagaan Tubuh Negeri Kelantan dan dengan itu kamu, telah mendorong Masry bin Nayan menyerahkan wang tunai secara 6 serahan tangan bernilai RM80,000.00 yang mana Masry bin Nayan tidak akan menyerahkan wang tunai tersebut sekiranya tidak diperdayakan sedemikian, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 420 Kanun Keseksaan dan dibaca bersama-sama seksyen 34 Kanun yang sama. Pertuduhan Kedua Pindaan Bahawa kamu bersama-sama pada bulan Jun 2014 jam lebih kurang 10:00 pagi di pejabat No. 31 – A, Jalan Wawasan 2/1, Bandar Baru Ampang, 68000 Ampang, Selangor di dalam Daerah Ampang, di dalam Negeri Selangor, telah menipu Chew Eng Hong dengan memperdayakan beliau untuk mempercayai bahawa dia boleh mendapatkan penganugerahan “Darjah Kerabat (DK)” yang membawa gelaran “Dato” oleh Negeri Kelantan padahal ianya tidak sah mengikut Undang-Undang Perlembagaan Tubuh Negeri Kelantan dan dengan itu kamu, telah mendorong Chew Eng Hong 7 menyerahkan wang tunai secara serahan tangan bernilai RM60,000.00 yang mana Chew Eng Hong tidak akan menyerahkan wang tunai tersebut sekiranya tidak diperdayakan sedemikian, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 420 Kanun Keseksaan dan dibaca bersama-sama seksyen 34 Kanun yang sama. Pertuduhan Ketiga Pindaan Bahawa kamu bersama-sama di antara bulan Oktober 2014 dan 14.02.2015, jam lebih kurang 10:00 pagi di pejabat No. 31 – A, Jalan Wawasan 2/1, Bandar Baru Ampang, 68000 Ampang, Selangor di dalam Daerah Ampang, di dalam Negeri Selangor, telah melalui Masry bin Nayan, menipu Ariffin bin Kamal dengan memperdayakan beliau untuk mempercayai bahawa dia boleh mendapatkan penganugerahan “Darjah Kerabat (DK)” yang membawa gelaran “Dato” oleh Negeri Kelantan padahal ianya tidak sah mengikut Undang- 8 Undang Perlembagaan Tubuh Negeri Kelantan dan dengan itu kamu, telah mendorong Ariffin bin Kamal menyerahkan wang tunai secara serahan tangan bernilai RM120,000.00 yang mana Ariffin bin Kamal tidak akan menyerahkan wang tunai tersebut sekiranya tidak diperdayakan sedemikian, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 420 Kanun Keseksaan dan dibaca bersama-sama seksyen 34 Kanun yang sama.”. Arrest Case No. 62K – 133 – 07/2015 “Pertuduhan Pertama Pindaan Bahawa kamu bersama-sama pada 10.02.2015 jam lebih kurang 8:30 petang di Jalan Ampang, Bandar Baru Ampang, 68000 Ampang, Selangor di dalam Daerah Ampang, di dalam Negeri Selangor, telah melalui Masry bin Nayan menipu Wong Kim Hing dengan memperdayakan beliau untuk mempercayai bahawa dia 9 boleh mendapatkan penganugerahan “Darjah Kerabat (DK)” yang membawa gelaran “Dato” oleh Negeri Kelantan padahal ianya tidak sah mengikut Undang-Undang Perlembagaan Tubuh Negeri Kelantan dan dengan itu kamu, telah mendorong Wong Kim Hing menyerahkan sekeping cek Affin Bank Cawangan Seri Kembangan Selangor No. 922996 bernilai RM115,000.00 bertarikh 10.02.2015, yang mana Wong Kim Hing tidak akan menyerahkan wang tunai tersebut sekiranya tidak diperdayakan sedemikian, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 420 Kanun Keseksaan dan dibaca bersama-sama seksyen 34 Kanun yang sama. Pertuduhan Kedua Pindaan Bahawa kamu bersama-sama pada bulan Februari 2015, jam lebih kurang 8:30 malam di Ampang Old Town Cafe, Jalan Ampang, Bandar Baru Ampang, 68000 Ampang, Selangor di dalam Daerah Ampang, di dalam Negeri 10 Selangor, telah melalui Masry bin Nayan menipu Lee Koh Keong dengan memperdayakan beliau untuk mempercayai bahawa dia boleh mendapatkan penganugerahan “Darjah Kerabat (DK)” yang membawa gelaran “Dato” oleh Negeri Kelantan padahal ianya tidak sah mengikut Undang-Undang Perlembagaan Tubuh Negeri Kelantan dan dengan itu kamu, telah mendorong Lee Koh Keong menyerahkan wang tunai secara serahan tangan bernilai RM80,000.00 yang mana Lee Koh Keong tidak akan menyerahkan wang tunai tersebut sekiranya tidak diperdayakan sedemikian, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 420 Kanun Keseksaan dan dibaca bersama-sama seksyen 34 Kanun yang sama.”. 11 Arrest Case No. 62K – 134 – 07/2015 “Pertuduhan Pertama Pindaan Bahawa kamu bersama-sama pada 10.11.2014 dan 24.11.2014 jam lebih kurang 11:00 pagi hingga 12:00 tengahari di pejabat No. 31 – A, Jalan Wawasan 2/1, Bandar Baru Ampang, 68000 Ampang, Selangor di dalam Daerah Ampang, di dalam Negeri Selangor, telah menipu Lim Bok Li dengan memperdayakan beliau untuk mempercayai bahawa dia boleh mendapatkan penganugerahan “Darjah Kerabat (DK)” yang membawa gelaran “Dato” oleh Negeri Kelantan padahal ianya tidak sah mengikut Undang-Undang Perlembagaan Tubuh Negeri Kelantan dan dengan itu kamu, telah mendorong Lim Bok Li menyerahkan sekeping cek Ambank Cawangan Kajang No. 827404 bernilai RM60,000.00 bertarikh 10.11.2014 serta wang tunai secara serahan tangan bernilai RM60,000.00 kesemuanya berjumlah RM120,000.00 yang mana Lim Bok Li tidak akan 12 menyerahkan wang tunai tersebut sekiranya tidak diperdayakan sedemikian, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 420 Kanun Keseksaan dan dibaca bersama-sama seksyen 34 Kanun yang sama. Pertuduhan Kedua Pindaan Bahawa kamu bersama-sama pada Mac 2014 jam lebih kurang 10:00 pagi di pejabat No. 31 – A, Jalan Wawasan 2/1, Bandar Baru Ampang, 68000 Ampang, Selangor di dalam Daerah Ampang, di dalam Negeri Selangor, telah menipu Low Swee Huat dengan memperdayakan beliau untuk mempercayai bahawa dia boleh mendapatkan penganugerahan “Darjah Kerabat (DK)” yang membawa gelaran “Dato” oleh Negeri Kelantan padahal ianya tidak sah mengikut Undang-Undang Perlembagaan Tubuh Negeri Kelantan dan dengan itu kamu, telah mendorong Low Swee Huat menyerahkan wang tunai secara serahan tangan bernilai RM70,000.00 yang mana Low 13 Swee Huat tidak akan menyerahkan wang tunai tersebut sekiranya tidak diperdayakan sedemikian, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 420 Kanun Keseksaan dan dibaca bersama-sama seksyen 34 Kanun yang sama. Pertuduhan Ketiga Pindaan Bahawa kamu bersama-sama di antara bulan Februari 2014 dan 12.05.2014 jam lebih kurang 10:00 pagi di pejabat No. 72, Jalan Rimbunan Raya 2, Laman Rimbunan, Kepong (Pejabat LPKPM Kepong) di dalam Daerah Sentul, di dalam Wilayah Persekutuan Kuala Lumpur, telah menipu Ng Kuok Ping dengan memperdayakan beliau untuk mempercayai bahawa dia boleh mendapatkan penganugerahan “Darjah Kerabat (DK)” yang membawa gelaran “Dato” oleh Negeri Kelantan padahal ianya tidak sah mengikut Undang-Undang Perlembagaan Tubuh Negeri Kelantan dan dengan itu kamu, telah mendorong Ng Kuok Ping 14 menyerahkan wang tunai secara serahan tangan bernilai RM90,000.00 yang mana Ng Kuok Ping tidak akan menyerahkan wang tunai tersebut sekiranya tidak diperdayakan sedemikian, dan dengan itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 420 Kanun Keseksaan dan dibaca bersama-sama seksyen 34 Kanun yang sama.”. Brief facts [5] The cases against both the accused relate to the offence of cheating in respect of the grant of Dato’ titles by the State of Kelantan whereas the Dato’ titles were not recognised by the Constitution of the State of Kelantan. The victims who have been deceived into parting with their money to receive the Dato’ title and the respective amounts paid by them are as follows:

Masry bin Nayan paid RM80,000.00;

Chew Eng Hong paid RM60,000.00; 15

Ariffin bin Kamal paid RM120,000.00;

Wong Kim Hong paid RM115,000.00;

Lee Koh Keong paid RM80,000.00;

Lim Bok Li paid RM120,000.00;

Low Swee Huat paid RM70,000.00; and

Ng Kuok Ping paid RM90,000.00. [6] It all began when DSP Nik Pakheruddin bin Nik Kadir (PW3) who was the “Pengelola DiRaja Kelantan” was referred a newspaper cutting (Exhibit P2A) relating to an advertisement showing Lim Bok Li (PW7) being purportedly conferred with “Darjah Kerabat (DK)” Dato’ titles. PW3 found that the honours was false and was not bestowed by His Majesty the Sultan of Kelantan. PW3 then lodged a police report vide Kota Bharu 16 Report No. 10210/15 (Exhibit P4). At the same time, YM Tengku Abu Bakar bin Tengku Ismail (PW1) too had read the same advertisement in the newspaper. PW1 also lodged a police report vide Kota Bharu Report No. 010183/15 (Exhibit P1). [7] The father of the 2nd accused, Zainal Abidin bin Jaafar (PW20) said that he attended a dinner function on the invitation of the 2nd accused. According to PW20, during the dinner function he was ushered by the 1st accused to the stage to present the honours credentials to the recipients. [8] PW1 was the former Secretary for “Pertubuhan Kerabat DiRaja Kelantan” (PKDRK). According to PW1, all titles and honours must be consented to and bestowed by His Majesty the Sultan of Kelantan. PW1 added that on the dates which were written on the credentials purportedly signed by him, he was no longer holding the position as the Secretary for PKDRK and that he was then only an ordinary member. The current 17 Secretary for PKDRK, YM Tengku Alang bin Tengku Mat (PW11), said that the association (PKDRK) was registered after His Majesty Tuanku Sultan Ismail Petra commanded that an association be formed to strengthen the relationship between members of the Kelantan royal households especially in taking care of the welfare of its members provided it must only consist of members from the family lineage of Long Yunus. PW11 confirmed that all the Dato’ titles were not issued by PKDRK. [9] The State Secretary for the State of Kelantan, Dato’ Mohd Faudzi bin Che Mamat (PW2), confirmed that pursuant to Articles 40 and 43(1) of the Constitution of the State of Kelantan, only His Majesty the Sultan of Kelantan himself may bestow any title or honours or create any bestowed titles or honours. The Branch Manager of Maybank Taman Putra Ampang, Ahmad Tamizi bin Hassan (PW14), confirmed that the 1st accused opened a current account with the bank on 01.10.2012. On 10.11.2014 a sum of RM60,000.00 was 18 credited into the account and on 12.02.2015 a sum of RM100,000.00 was credited. Brief deliberations Contention of the 1st accused [10] The arguments of the learned counsel for the 1st accused in support of the appeal may be summarized as follows:

that the Dato’ titles were titles given by PKDRK and to be used in PKDRK. The Dato’ titles were not bestowed by His Majesty the Sultan of Kelantan;

that the 1st accused himself got to know of PKDRK from Dato’ Chong and Tengku Mohd Azmi and of the flood donation campaigns from the 2nd accused. LPKPM then agreed to carry out the campaigns jointly with PKDRK. The 1st accused only knew from Dato’ Chong and Tengku Mohd Azmi that individuals who 19 made donations towards the flood donation campaigns will be conferred with the title of “Dato’ Pertubuhan” by PKDRK but there was no representation of any Dato’ title made by the 1st accused himself;

that there were no dishonest intention on the part of the 1st accused as all the donations which were received were used for the flood donation campaigns organized by LPKPM of which the 1st accused was its

that there was no evidence to show the existence of a common intention between the 1st and 2nd accused to deceive the victims. Contention of the 2nd accused [11] The contention of the learned counsel for the 2nd accused may be briefly stated as follows: 20

that the 2nd accused had never made any representation to deceive the victims that they would get a Dato’ title from the State of Kelantan;

that there is doubt as to whether the Dato’ titles were not valid pursuant to the Constitution of PKDRK or the

that the flood donation campaigns were in fact carried out using the donations given by the victims and the Dato’ title was a mere gesture and it was explained to the victims that the Dato’ title is only a title in PKDRK and not one which is bestowed by His Majesty the

the 2nd accused merely carried out a collaboration with LPKPM to obtain the donation and there was no dishonesty on the part of the 2nd accused. 21 Contention of the prosecution [12] In response to the submissions of the learned counsels, the learned DPP informed this Court that she relies on the prosecution’s submissions at the trial court. At trial court, the submissions of the prosecution may be summarized as follows:

that there was evidence to show that on the respective dates as specified in each charge, both the 1st and 2nd accused with a common intention had made representations or statements, either on their own or through their agents, to deceive the victims into believing that they would get a Dato’ title from the State of Kelantan although both the 1st and 2nd accused knew that it was against the Constitution of the State of Kelantan;

that there was evidence to show that the victims had delivered their money based on their belief of the 22 representations and statements made by both the 1st and 2nd accused;

that at all material times both the 1st and 2nd accused have knowledge that the Dato’ title was not a valid honours pursuant to the Constitution of the State of

there are sufficient circumstantial evidence to show that both the 1st and 2nd accused had by their respective conduct, the necessary common intention. [13] In support of the prosecution’s appeal against sentence, the learned DPP submits that the sentence of 15 months imprisonment and a fine of RM3,000.00 in default 6 months of imprisonment for each offence meted out by the learned Sessions Court Judge against each accused is manifestly inadequate on the following grounds: 23

that the learned Sessions Court Judge failed to consider the gravity of the offence and the fact that there were 8 individuals who had fallen victim;

that the learned Sessions Court Judge failed to consider the prevalence of the offence and that the perpetrators would normally capitalise on vulnerable businessmen who are eager to get the Dato’ title; and

that the learned Sessions Court Judge had placed undue importance on the interest of the offenders as distinguished from the greater interest of the public. Analysis and decision [14] In hearing an appeal from a subordinate court, the duty of this Court is provided for under section 316 of the Criminal Procedure Code. 24 Section 316 of the Criminal Procedure Code provides as follows: “Decision on appeal 316. At the hearing of the appeal the Judge may, if he considers there is no sufficient ground for interfering, dismiss the appeal, or may —

in an appeal from an order of acquittal, reverse the order, and direct that further inquiry be made, or that the accused be retried, as the case may be, or find him guilty and pass sentence on him according to law;

in an appeal from a conviction or in an appeal as to sentence — 25

reverse the finding and sentence and acquit or discharge the accused, or order him to be retried; or

(ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence;

in an appeal from any other order, alter or reverse such order.”. [15] It is trite that in exercising its appellate powers, the High Court should properly consider and carefully weigh matters such as —

the views of the trial judge on the credibility of witnesses; 26

the presumption of innocence in favour of the accused;

the right of the accused to the benefit of any doubt; and

the slowness of an appellate court in disturbing a finding of fact arrived at by a trial judge who had the advantage of seeing the witnesses. (See: Lim Kheak Teong v. Public Prosecutor [1984] 1 CLJ Rep 207 FC; [1985] 1 MLJ 38; [1984] 1 MLRA 126 and Periasamy Sinnappan v. PP [1996] 3 CLJ 187 CA; [1996] 2 MLJ 557; [1996] 1 MLRA 277; [1996] 2 AMR 2511). [16] At the conclusion of the trial, the trial court is under the statutory duty pursuant to section 173(m) of the Criminal Procedure Code to consider whether the prosecution has succeeded in proving its case beyond a reasonable doubt. 27 Section 173(m) of the Criminal Procedure Code reads as follows: “173. The following procedure shall be observed by Magistrates in summary trials:

(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.

(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused guilty and he may be convicted on it and the Court shall pass sentence according to law. Provided that before the Court passes sentence, the Court shall, upon the request of the victim of the offence or the victim’s family, call upon the victim or a 28 member of the victim’s family to make a statement on the impact of the offence on the victim or his family; and where the victim or a member of the victim’s family is for any reason unable to attend the proceedings after being called by the Court, the Court may at its discretion admit a written statement of the victim or a member of the victim’s family.

(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order of acquittal.”. [17] In Duis Akim & Ors v. PP [2013] 9 CLJ 692 FC; [2014] 1 MLJ 49; [2014] 1 MLRA 92; [2013] 6 AMR 421, the apex Court made the following observations in respect of the duty cast upon the appellate courts when considering decisions of the trial courts: 29 “[22] It is trite that being an appellate court it is our task in this case to review and consider the decision of the courts below. We need to determine whether on the evidence adduced the defence was rightly called. If so, whether the defence had raised a reasonable doubt in the prosecution's case. And even if it did not it is still essential that to sustain the convictions it must be determined whether the prosecution had proved its case beyond reasonable doubt.”. [18] Cheating is defined under section 415 of the Penal Code. It provides as follows: “Cheating 415. Whoever by deceiving any person, whether or not such deception was the sole or main inducement,—

fraudulently or dishonestly induces the person so deceived to deliver any property to any 30 person, or to consent that any person shall retain any property; or

intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do if he were not so deceived and which act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation, or property, is said to “cheat”.”. [19] In a charge for cheating under section 420 of the Penal Code, it is incumbent on the prosecution to prove the following ingredients:

that there was deception practised by the accused; 31

that the accused dishonestly induced the person so deceived —

to deliver any property to any person, or

(ii) 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. Section 420 of the Penal Code reads as follows: “Cheating and dishonestly inducing delivery of property 420. 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 32 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.”. The term “dishonestly” which appears in section 420 of the Penal Code is defined 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”.”, and the expression “wrongful gain” and “wrongful loss” in section 24 is defined in section 23 of the Penal Code as follows: 33 “Wrongful gain” and “wrongful loss”

“Wrongful gain” is gain by unlawful means of property to which the person gaining is not legally entitled. “Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled. A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.”. [20] An appeal is merely a continuation of trial and the evidence adduced at the trial stage is opened to this Court at the appellate stage for re-examination to determine whether or not the findings made by the trial court is correct. This principle is enunciated in the case of Public Prosecutor v. Ma’arif [1969] 1 LNS 134; [1969] 2 MLJ 65; [1969] 1 MLRH 596 and affirmed by the Court of Appeal in Dickson Levy a/l Maria George v. Public Prosecutor [2018] 1 LNS 135; [2018] MLJU 34 98 CA; [2018] MLRAU 49. It thus incumbent upon this Court to review the evidence adduced by the prosecution and the defence to determine the correctness of the decision of the learned Sessions Court Judge. [21] The thrust of the prosecution’s case in the present appeal is the deception practised by both the accused against the victims whereby the victims who made the respective donations will be conferred with the title Dato’ Kerabat (DK) by the State of Kelantan and that the victims, labouring under that deception, were induced to deliver certain sums of money. A reading of the grounds of judgment of the learned Sessions Court Judge shows that in finding that the prosecution has succeeded in establishing a prima facie case against both the accused and calling for them to enter their defence, the learned Sessions Court Judge had dealt with the evidence to show— 35

that the respective Dato’ titles which were given to the victims were false as they were not bestowed by His

that the signatures on the credentials for the Dato’ship honours were not the signatures of the person named, that is, they were not that of YM Tengku Abu Bakar bin

that there were 8 individuals who were purportedly given the title Dato’ and that all of them have made certain payments to get the title;

that the credentials for the Dato’ title was printed by a business entity known as “21 Digi Smart Enterprise” owned by Chong Chee Choong (PW15); 36

that it was the 2nd accused who had approached PW15 to get the credentials printed by “21 Digi Smart

that the printed credentials were sent to be received on behalf of the 2nd accused to Ramli bin Hassan (PW9) by Nurul Hidayah binti Abdul Rahman (PW21) by courier services;

that according to PW21, the application forms for membership of the PKDRK were handled by the 1st accused and it was the 1st accused who gave her the money to be deposited into PW9’s bank account;

that PW9 confirmed having received the printed credentials and the money that was deposited into his bank account. PW9 said that he had dealt with the 2nd accused; 37

that PW9 gave the printed credentials to the 3rd accused to get them signed and to process the membership application and issue the crests;

that a ceremony for the presentation of the credentials were held during the dinner function held by the “Lembaga Pelindung dan Kebajikan Pengguna Malaysia” (LPKPM) on 14.02.2015 at the Renaissance Hotel, Kota Bharu, Kelantan;

that Zainal Abidin bin Jaafar (PW20) confirmed being present at the dinner function on 14.02.2015 at the Renaissance Hotel, Kota Bharu, Kelantan and that he was ushered by the 1st accused to the stage to present the Dato’ship credentials;

that the State Secretary for the State of Kelantan, Dato’ Mohd Faudzi bin Che Mamat (PW2), confirmed that pursuant to Articles 40 and 43(1) of the 38 Constitution of the State of Kelantan, only His Majesty the Sultan of Kelantan himself may bestow any title or honours or create any bestowed titles or honours. Other titles and honours are not in accordance with the

that YM Tengku Alang bin Tengku Mat (PW11) confirmed that all the Dato’ship titles were not issued by PKDRK; and

that the Branch Manager of Maybank Taman Putra Ampang, Ahmad Tamizi bin Hassan (PW14), confirmed that the 1st accused opened a current account with the bank on 01.10.2012. On 10.11.2014 a sum of RM60,000.00 was credited into the account and on 12.02.2015 a sum of RM100,000.00 was credited. 39 [22] The offence with which both the accused were charged involved the element of deception. Unfortunately, with respect, I find that the learned Sessions Court Judge did not deal with the evidence of the victims in his grounds of judgment which is crucial in the determination as to whether the ingredients of the offence as proffered in the respective charges have been established in his finding of a prima facie case. It is thus necessary to examine what was the evidence established by the prosecution in this regard. The victims were all called as the prosecution’s witnesses. The salient features of their respective evidence, vis-à-vis the element of deception, are as follows:

Low Swee Huat (PW4) PW4 knew the 1st accused and had participated in a number of charity events for orphans and old folks organized by the 1st accused. According to PW4, he gave the 1st accused between RM60,000.00 to RM70,000.00 in cash and PW4 later were given a credential for the Dato’ title. However, PW4 agreed in 40 cross-examination that the form which he had filled in was the application form for a Dato’ title from PKDRK. PW4 also agreed with the suggestion by the learned counsel that he knew that what he had applied for in the form was title which was not from His Majesty the Sultan of Kelantan but one which was from PKDRK.

Ariffin bin Kamal (PW6) PW6 said he met Masry bin Nayan (PW27) who was his partner in business. PW27 told him that PW27 himself will get a Dato’ title PW27 offered PW6 the same with the condition that PW6 makes some contribution to the PKDRK for the flood victims in Kelantan. PW6 agreed and gave RM120,000.00 to PW27. Later, PW27 brought PW6 to meet the 1st accused at his office in Ampang. PW6 later received the Dato’ title in a ceremony at the Renaissance Hotel, Kota Bharu, Kelantan. In cross-examination, PW6 agreed that it was PW27 who had deceived him into 41 parting with his RM120,000.00 and that the 1st accused was not involved but it was PW27 who had made all the arrangements.

Lim Bok Li (PW7) PW7 said he received the Dato’ title in a ceremony at the Renaissance Hotel, Kelantan. He became a member of PKDRK on the introduction of one Inspector Zairul (DW3). PW7 said DW3 also told him that he could get a Dato’ title if he pays RM120,000.00. Later PW7 made 2 payments to the 1st accused totalling RM120,000.00. In cross-examination, PW7 agreed that in the credentials for his Dato’ title, it was written that the Dato’ title could not be used in any official communication without the consent of PKDRK. 42

Ng Kuok Ping (PW8) PW8 got to know the 1st accused when he wanted to apply for a certification for good business practice. According to PW8, at that time the 1st accused was the Chairman of the “Lembaga Pengguna dan Pelindung Kebajikan Malaysia” (LPPKM). In one of the meetings, the 1st accused informed PW8 that there was a suggestion for a charity drive to help flood victims in Kelantan and those who donated towards the charity would receive a Dato’ title the PKDRK. Later, PW8 handed to the 1st accused cash in the sum of RM90,000.00 in two payments. According to PW8, he later went to a hotel in Kota Bharu, Kelantan to receive the Dato’ title in a ceremony. In cross-examination, PW8 agreed that the credentials for the Dato’ title that it was from PKDRK. PW8 also agreed that the 1st accused had never forced him to fill up any application forms for the Dato’ title and that the 1st accused had 43 never promised him a Dato’ title if he made a contribution.

Wong Kim Hing (PW13) According to PW13, he got to know from PW27 that he could get a Dato’ title from His Majesty the Sultan of Kelantan if he pays RM115,000.00. PW13 later paid the RM115,000.00 with his company’s cheque. PW13 confirmed that after he made the payment of RM115,000.00 he received the Dato’ title in a ceremony. In cross-examination, PW13 agreed that it was PW27 together with his “runner”, Shamsuddin, who had deceived him.

Lee Koh Keong (PW16) According to PW16, he was given a Dato’ title from the State of Kelantan because he has given a donation. PW16 said he met PW27 at a restaurant in Kajang and PW27 told him that he could get a Dato’ title if he 44 donates RM80,000.00 to the flood victims in Kelantan. When he met PW27 the second time, PW16 gave PW27 the sum of RM80,000.00 in cash. PW16 said with the money, he could help the needy and get a Dato’ title. In cross-examination, PW16 said he only dealt with PW27 and he had never met the 1st accused. PW16 also agreed that he was deceived by PW27.

Chew Eng Hong (PW17) PW17 said he received a Dato’ title because he has made donations totalling RM60,000.00 for the flood victims in Kelantan. The donations he made were given to the 1st accused. In cross-examination, PW17 agreed that he made the donations not for the purpose of getting a Dato’ title but they were for the flood victims as well as the dinner function that night. PW17 also agrees that the 1st accused had never promised him a Dato’ title. 45

Masry bin Nayan (PW27) According to PW27, he was given the title “Yang Mulia Dato’ Tengku” by PKDRK as he has made a RM80,000.00 donation for the flood victims. PW27 gave the RM80,000.00 donation to the 1st accused. His business partner, PW6, also handed over to the 1st accused cash donation in the sum of RM80,000.00 after PW27 told PW6 of the Dato’ title for those who donate more than RM80,000.00. Prior to the receipt of the title, PW27 said the 1st accused had informed him that any person who made a donation for the flood victims would receive the “Dato’ Kerabat” title from PKDRK. That was the reason why he and PW6 made the donation. Others who made similar donations were PW13 and PW16. Donations given by PW13 and PW16 to him (PW27) were given by PW27 to the 1st accused. In cross-examination, PW27 agreed with the suggestion by the learned counsel that he gave the donation to help out the flood victims in Kelantan and 46 not to “buy” the Dato’ title. PW27 also agreed that he was not deceived when he made the RM80,000.00 donation and that the 1st accused had never promised him that title. [23] In reviewing the evidence of all the victims, the evidence shows that PW4, PW6, PW7, PW8 and PW27 knew beforehand that the Dato’ title is not one which is conferred by the State of Kelantan but one which is given by PKDRK. On a scrutiny of the credentials, it is also evident that the credentials for the Dato’ titles specifically state that the Dato’ titles were given by PKDRK and not by the State of Kelantan or His Majesty the Sultan of Kelantan. However, the charges proffered against both the accused were in respect of Dato’ship honours conferred by the State of Kelantan. 47 [24] In this regard, I am of the considered view that the evidence presented by the prosecution itself did not establish the elements of the charges against both the accused. The charges were in respect of false Dato’ titles purportedly conferred by the State of Kelantan whereas the evidence shows that the false Dato’ titles were in respect of Dato’ titles purportedly conferred by PKDRK, a registered society, as distinguished from the State of Kelantan. The prosecution has failed to show that both the accused have committed the offences in respect of the Dato’ title conferred by the State of Kelantan as per the charges and I am of the considered view that both the accused should not have been ordered to enter their defence on that charges. [25] There was also evidence from the prosecution’s witnesses which negate the involvement of the 1st accused. According to PW6, it was PW27 who had deceived him into parting with his RM120,000.00 and that the 1st accused was not involved but it was PW27 who had made all the arrangements. 48 According to PW8, the 1st accused had never forced him to fill up any application forms for the Dato’ title and that the 1st accused had never promised him a Dato’ title if he made a contribution. According to PW13, it was PW27 together with his “runner”, Shamsuddin, who had deceived him and not the 1st accused. According to PW16, he only dealt with PW27 and he had never met the 1st accused. PW16 also agreed that he was deceived by PW27 and not the 1st accused. According to PW17, he made the donation not for the purpose of getting a Dato’ title but the donation was for the flood victims as well as the dinner function that night. PW17 also agreed that the 1st accused had never promised him a Dato’ title. According to PW27, he gave the donation to help out the flood victims in Kelantan and not to “buy” the Dato’ title. PW27 also agreed that he was not deceived when he made the RM80,000.00 donation and that the 1st accused had never promised him the Dato’ title. 49 [26] In making his finding of a prima facie case, with respect, I am of the considered view that the learned Sessions Court Judge had not properly considered the evidence of the victims who were called as witnesses by the prosecution. The evidence constituting the essential elements of the charge in the present appeal should first and foremost be deduced from the victims since it involves the element of deceit and the victims’ evidence would be the best starting point to consider whether the victims had in fact been deceived in the manner as described in the charges proffered. The learned Sessions Court Judge did not deal with the evidence of the victims which negate the culpability of the 1st accused in the crime or the reasons as to why he considers such evidence as not capable of displacing a prima facie case. 50 Conclusion [27] Based on the aforesaid reasons, I hereby allow the appeals by both the accused and set aside both the conviction and sentence. I also dismiss the appeal by the prosecution. Both the accused are hereby acquitted and discharged. Any fine paid by both the accused shall be refunded. Dated 07 January 2020. sgd AHMAD SHAHRIR MOHD SALLEH JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR. 51 CRIMINAL APPEAL NO: WA – 42K – 11 – 05/2018 For the appellant: Dato’ Amirul Ridzuan bin Hanif (Messrs. Hanif & Co) For the respondent: Fatin Hanum binti Abdul Hadi Deputy Public Prosecutor Kuala Lumpur. CRIMINAL APPEAL NO: WA – 42K – 12 – 05/2018 For the appellant: Akmal bin Jusoh (Messrs. Shah & Hurrie) For the respondent: Fatin Hanum binti Abdul Hadi Deputy Public Prosecutor Kuala Lumpur. CRIMINAL APPEAL NO: WA – 42K – 13 – 05/2018 For the appellant: Fatin Hanum binti Abdul Hadi Deputy Public Prosecutor Kuala Lumpur. For the 1st respondent: Dato’ Amirul Ridzuan bin Hanif (Messrs. Hanif & Co) For the 2nd respondent: Akmal bin Jusoh (Messrs. Shah & Hurrie)