Pendakwa Raya v Syed Saddiq Bin Syed Abdul Rahman (05(LB)-103-06/2025(W))

(i) misappropriation,

(v) wilfully suffering another to do any of (i) to (iv). The mere act of withdrawing money does not by itself fall under any of the five limbs. A withdrawal is at its highest an act of preparation and not a complete offence, and since the principal offence which is CBT was not committed by the alleged principal offender, who is PW13, the charge of abetting that offence must also fail. [10] Art. 24.8 of the BERSATU’s Constitution only restricts "perbelanjaan" exceeding RM500,000 without approval. The LHCJ erred in law by reading the word "perbelanjaan" to include "pengeluaran". The two are distinct and the constitution does not prohibit withdrawals above RM500,000. Therefore, the withdrawal of RM1 million was not in violation of any "direction of law" as required for CBT. [11] Furthermore, evidence from PW8, PW9 and PW25 confirmed the withdrawn RM1 million was spent on Armada's programs covering Covid- 19 aid, Ramadhan month and Hari Raya Aidil Fitri. The total sum spent was below the RM500,000 threshold requiring approval. Critically, evidence showed the funds were used for Armada’s programs and not a single cent for SS’s personal gain. [12] The instruction to "clear" the money was given in the context of a burglary at SS's house, where cash was stolen. The Court accepted the defence that this instruction was a valid concern for the safekeeping of party funds, not evidence of dishonest intent. The Court found that the evidence of the key prosecution witness, PW13, to be contradictory and unreliable, particularly regarding whether SS specifically used the word "clearkan." His evidence was inconsistent between examination-in-chief and cross-examination. The testimonies of PW11 and PW13 on when and how the withdrawal amount was decided were also inconsistent. [13] SS's alleged political motives consequent to the "Sheraton Move", his conduct after the withdrawal, and analysis of WhatsApp messages were irrelevant. The sole legal question was whether the instruction to withdraw constituted abetment of CBT, which it did not. [14] There is merit in the defence’s contention that the evidence of the prosecution witnesses being pressured, gives rise to a strong reasonable inference that the Malaysian Anti-Corruption Commission (MACC) might have also exerted improper pressure upon the witnesses, particularly PW13 to tailor his evidence to suit the prosecution’s case. The defence’s contention that PW13 had succumbed to the pressure of being investigated and interrogated to the extent that he admitted he had committed CBT when questioned by the prosecution and gave evidence against SS cannot be ignored. Coupled with inconsistencies in the witnesses’ testimony, there is merit in the defence’s contention. That situation and the evidence by the witnesses are both material and relevant to be considered. The failure to evaluate and consider all evidence by the LHCJ is a clear misdirection which resulted in a serious failure of justice to SS. [15] Therefore, the prosecution failed to prove a prima facie case against SS since the essential elements of the abetment charge were not established against the principal offender of CBT who is PW13. Consequently, SS could not have abetted a non-existent offence. Furthermore, the element of dishonesty was absent, as the funds were used for Armada's objectives without any personal gain to PW13 or SS. ii. S 403 Charge [16] To prove dishonest misappropriation of property under s 403 of the PC, the most essential ingredient is that the misappropriated property must belong to a person other than SS. The LHCJ made an irreconcilable finding when he explicitly found that the impugned RM120,000.00 was raised for the use of SS to finance his election expenses. Once the LHCJ made that factual finding, it legally established that the money belonged to SS. The evidence showed that the donors gave the money to SS for his campaign. Thus, the essential element of property belonging to another person was absent from the outset. SS cannot be guilty of misappropriating his own property. [17] The LHCJ focused on the act of transferring the funds from the ABBE’s account to SS's personal account as evidence of guilt. Since the money was for SS’s campaign purposes, it was logical and necessary for him to access it. The campaign expenses would naturally be incurred before the official campaign period as shown in SS's Election Commission report, exhibit D91, and from the evidence there is no requirement for SS to pay his campaign expenses directly from the ABBE account. Therefore, the transfer was a legitimate step to use funds meant for SS and transferring the money to his account to facilitate spending was not an illegal or dishonest act. [18] The testimony of the main prosecution witness, PW13, is riddled with inconsistencies. PW13 gave contradictory evidence on the fundamental question of who owned the impugned RM120,000.00. PW13’s alternating testimony between saying it was for SS's campaign and for general use of Armada is unsafe to be accepted and relied upon. [19] Mohamed Amshar Aziz (DW2) and Siti Nurul Hidayah (SD4), who were the actual organizers of the fundraisers were not called by the prosecution. Their absence left a critical gap in the prosecution's narrative about the nature and purpose of the funds. This failure attracted an adverse inference under Section 114(g) of the Evidence Act 1950. The LHCJ erroneously relied on hearsay evidence from the investigating officer, Asbi bin Munip (PW29), regarding what DW2 allegedly said. This was inadmissible. [20] SS had RM170,000 in cash on hand before the campaign. He spent this cash on campaign expenses, always intending it to be treated as the fundraiser money. The impugned RM120,000.00 that remained in his bank account thus effectively became his personal money, which he later transferred to his ASB account. The investigating officer (PW28) admitted that she did not investigate this defence at all, dismissing it as irrelevant. The MACC was "duty-bound to investigate the Accused’s defence" and to negate it beyond reasonable doubt. Their failure to do so further weakened the prosecution case. [21] Evidence confirmed the ABBE’s bank account was not an official Armada’s account but a separate entity. Transfers from it were not Armada 's concern. PW13's own witness statements (D79E) clearly said that the fundraiser was "for YB Syed Saddiq himself" and the money was "not for the use of Armada politics but for YB Syed Saddiq's politics". This directly supported SS's ownership claim. [22] Therefore, the prosecution failed to prove a prima facie case, and even on a maximum evaluation of all evidence, failed to prove guilt beyond a reasonable doubt. iii. AMLA Charges [23] Given that the predicate offence under s 403 of the PC is not proven, the AMLA charges could not be sustained. The Prosecution’s Appeal Before Us [24] Dissatisfied with the decision of the Court of Appeal, the prosecution filed three separate notices of appeal. The prosecution cited 15 grounds in the Petition of Appeal. In the prosecution’s written submission, the grounds were condensed to two main reasons as follows:

(a) The learned Court of Appeal Judges erred in law and in fact in deciding that the main witness, PW13, was pressured by the MACC and tailored the evidence to fit the prosecution's version, even though there was no evidence to show such a situation.

(b) The learned Court of Appeal Judges erred in law and in fact when failing to consider all the evidence cumulatively and fairly, based on the correct law, even though the court has a judicial duty to critically re-evaluate all the evidence before the Court. [25] As to the issues at hand, the prosecution raised two main specific questions. First, whether the Court of Appeal's action in choosing to review all the evidence contained in the appeal records, has carried out the task fairly by truly reviewing the entire evidence of the prosecution and the defence critically, or has only selected the evidence which the court considers necessary and appropriate in coming to its decision. Second, whether the court can use personal opinion or in the words used by the prosecution as “a frolic of his own” in determining the value to be given to the evidence of PW13 without being supported by any evidence. [26] In the oral argument before us, the prosecution stressed on a few salient points that had been raised in the prosecution’s written submission. The Analysis and Decision [27] The appeals before us emanated from the decision of the Court of Appeal in acquitting and discharging SS of the 4 charges under three registered cases before the High Court, namely, the abetment charge, the s 403 charge and the two AMLA charges. Abetment Charge [28] The abetment charge is the first charge that was framed against SS is as follows: Bahawa kamu, pada 6 Mac 2020, di Menara CIMB Bank Berhad, yang beralamat di Menara CIMB KL Sentral, Tingkat Bawah, Menara CIMB, Jalan Stesen Sentral 2, Kuala Lumpur Sentral dalam Wilayah Persekutuan Kuala Lumpur telah bersubahat dengan Rafiq Hakim bin Razali yang merupakan Penolong Bendahari Angkatan Bersatu Anak Muda, Parti Pribumi Bersatu Malaysia (ARMADA Malaysia) dan di dalam kapasiti tersebut, Rafiq Hakim bin Razali telah diamanahkan dengan penguasaan ke atas dana ARMADA Malaysia berjumlah RM1,000,000.00 telah melakukan pecah amanah jenayah dengan secara tidak jujur menyalahgunakan dana tersebut iaitu satu kesalahan di bawah s 406 Kanun Keseksaan, dan kamu telah bersubahat melakukan kesalahan tersebut di mana kesalahan tersebut telah dilakukan hasil persubahatan kamu dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah s 406 Kanun Keseksaan [Akta 574] dibaca bersama s 109 Kanun yang sama. [29] The relevant provisions of the law as regards to the abetment charge is as follows. Section 107 of the PC provides:

Abetment of a thing A person abets the doing of a thing who –

(a) instigates any person to do that thing; (aa) commands any person to do that thing;

(b) engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

(c) intentionally aids, by any act or illegal omission, the doing of that thing. Section 108 of the PC provides:

Abettor A person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Section 109 of the PC provides: Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. [30] Under the abetment charge, it was stated that SS abetted PW13 in committing the offence of CBT under s 406 of the PC which provides:

Punishment of criminal breach of trust Whoever commits criminal breach of trust shall be punished with imprisonment for a term not exceeding ten years and with whipping, and shall also be liable to fine. Meanwhile, the offence of CBT is defined under s 405 of the PC as follows:

Criminal breach of trust Whoever, being in any manner entrusted with property, or with any dominion over property either solely or jointly with any other person dishonestly misappropriates, or converts to his own use, that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. [31] To begin with, the word “abetment” is not defined in the PC. Be that as it may, under s 107 of the PC abetment of a thing can be done by way of instigating (para 107(a)), commanding (para 107(aa)), engaging in conspiracy (para 107(b)) and intentionally aiding (para 107(c)), the doing of that thing. It is trite that abetment of an offence is a distinct offence from the offence itself. Therefore, if the charge against the principal offender could not stand, it must not necessarily follow that the case against the abettor must also fall. See Rejab Bin Lebai Man & Anor v Public Prosecutor [2001] 4 MLJ 106 where Augustine Paul J (as his Lordship then was) at page 120 made the following observation: The charge against the second accused is for having abetted the first accused. Under s 107 of the Penal Code, abetment is constituted by instigating a person to commit an offence, or by engaging in a conspiracy to commit it, or by intentionally aiding a person to commit it. Abetment of an offence is a distinct offence from the offence itself (see Sesha Ayyar v Venkatasubba Chetty AIR 1924 Mad 487). Thus, it does not follow that if the charge against the principal offender cannot stand the case against the abettor must fall as well (see Kee Kim Chooi & Ors v PP [1952] MLJ 180). However, it has been held by the Indian Courts that the rule only applies in instances of abetment by instigation or by engaging in a conspiracy to commit the offence abetted (see Faguna Kanta Nath v State of Assam AIR 1959 SC 673; Jammuna Singh v State of Bihar AIR 1967 SC 553). In the Singapore case of Chua Kian Kok v PP [1999] 2 SLR 542 it was held that the rule that an abettor may be liable even though the principal offence was not committed should be extended to cover abetment by intentional aiding as well. The Malaysian position, however, is the same as in India. In Periasamy s/o Sinnapan & Anor v PP [1996] 2 MLJ 557 Gopal Sri Ram JCA in writing for the Court of Appeal said at p 584: The offence of abetment, when it consists of instigation, constitutes a separate and distinct offence. Consequently, an abettor who instigates the commission of an offence or conspires to commit it may be convicted of abetment, notwithstanding that one who is charged with the principal offence has been acquitted. It is otherwise where the abetment consists of intentional aiding; in such a case, acquittal of the principal offender must result in the acquittal of the abettor. Be that as it may, the offence of abetment in the Penal Code deals only with offenders who would be classified in English law as accessories before or at the fact and not accessories after the fact (see Varatharajalu v PP [1960] MLJ 158). As explained in Ratanlal & Dhirajlal's Law of Crimes Vol I (24 Ed) at p 297: Abetment under the Penal Code involves active complicity on the part of the abettor at a point of time prior to the actual commission of the offence, and it is of the essence of the crime of abetment that the abettor should substantially assist the principal culprit towards the commission of the offence. Nowhere concurrence in the criminal acts of another without such participation therein as helps to affect the criminal act or purpose is punishable under the Code. Nor does mere negligence amount to abetment. [32] However, it is apparent to note that in proving the charge of abetment against the abettor, the prosecution first bares the duty of proving the crime against the principal offender. In the case of Hj. Abdul Ghani Bin Ishak & Anor v PP [1981] 2 MLJ 230 at page 237, Wan Yahya J at the High Court made the following observation: To succeed in their charge of abetment against 2nd accused, the prosecution will have to, in addition to the proving of the case against 1st accused, show that he instigated, conspired or aided the 1st accused in the commission of the offence. He must be shown to have knowledge of the consequence of his act - National Coal Board v Gamble [1958] 1 QB 11, 18 and intention to aid. Later, at the Federal Court, Raja Azlan Shah CJM (as His Royal Highness then was) in delivering the judgment of the Court in the same case at page 243, explained as follows: It is of the essence of the offence of abetment that the abettor should substantially assist the principal offender towards the commission of the principal offence. In fact, it is an essential ingredient in a prosecution for abetment that there must be some evidence to show that the abettor actively suggested or stimulated the principal offender to the act by any means or language, direct or indirect, in the form of “expressed solicitation” or of “hints, insinuations or encouragement”. There must also be common purpose or intent to aid or encourage the person who commits the principal crime and either an actual aiding or encouraging or a readiness to aid or encouraging will be required. The word “instigates” in section 107 of the Penal Code does not merely mean placing of temptation to do a forbidden thing but actively stimulating a person to do it - see Soonavala on Bribery and Corruption page

… [33] Back to the appeal before this Court, at the outset, the prosecution relies on para 107(aa) of the PC to establish the abetment charge against SS. To be specific, SS is said to be the mastermind behind PW13 in committing the CBT, that is the act of withdrawing RM1 million from Armada’s account on 6.3.2020. Before us, the prosecution submitted that the Court of Appeal failed to evaluate the evidence cumulatively to determine malice on the part of SS. The prosecution emphasises on the four episodes that had to be considered to show SS’s guilty mind when he instructed PW13 to withdraw the money. The said four episodes are, first, SS’s action before the withdrawer of the RM1 million, second, SS’s action after the withdrawer of the RM1 million, third, SS’s action after his house was investigated by MACC, and fourth, SS’s action after his membership of BERSATU was revoked on 28.5.2020. [34] It was argued that the Court of Appeal failed to apply the law under s 5, 6, 7 and 8 of the Evidence Act 1950 (EA 1950) in analysing the evidence for each and every episode narrated by the prosecution. It was further argued that, since the prosecution’s case heavily depended on the circumstantial evidence, the prosecution was put in a disadvantageous or handicapped position when the Court of Appeal rejected numerus relevant pieces of evidence against SS guilty mind in abetting PW13. [35] As for the abetment charge, it is pertinent to examine carefully the charge proffered by the prosecution against SS. As per the charge, SS is said to have abetted PW13 who had been trusted with the control of Armada’s funds in the amount of RM1 million, and PW13 has committed CBT by dishonestly misappropriating the said funds which is an offence under s 406 of the PC. SS is said to have abetted the commission of the CBT by PW13, and the said CBT was committed as a result of SS’s abetment. [36] On the ingredients of the charge, it is the prosecution’s contention that the Court of Appeal’s had decided on a wrong narrative since it was based on wrong law. To correct the confusion in dealing with the ingredients of the abetment charge, the prosecution pointed out that the CBT committed by PW13 is for “dishonestly misappropriate” the funds which is under the first limb of s 405 of the PC and not for “dishonestly uses or disposes the said fund in violation of any direction of law prescribing the mode in which such trust is to be discharged”, which is under the third limb of s 405 of the PC that required a different set of evidence altogether. [37] To address the prosecution’s argument on this point, it is a pertinent to look at the decision of the Court of Appeal as stated in the grounds of judgment (GOJ). In dealing with the offence CBT that was allegedly committed by PW13, the Court of Appeal made the following observations and findings: [51] The prosecution in the present matter has opted for misappropriation as the actus reus for the criminal breach of trust said to have been committed by PW13. This is borne out in the charge where it is stated PW13, “dengan secara tidak jujur menyalahgunakan dana tersebut ...” [52] In Ratanlal and Dhirajlal’s Law of Crimes, 28th Edition Vol 3 at p 2923, the learned author stated that “misappropriation” means “improperly setting apart for one’s use to the exclusion of the owner”. [53] Section 108 of the PC provides the definition of “abettor”. There are two

24.8 of the BERSATU’s Constitution to include “withdrawal” since both words have different meanings and connotations as observed by the Court of Appeal at paragraph [43] of the GOJ. [47] On absurdity, I am guided by the observation by Lord Greene MR in Grundt v Great Bolder Gold Mines Ltd [1948] Ch 145 at pages 159-160, as follows: There is one rule, I think, which is very clear - and this brings me back to where I started, the doctrine of absurdity - that although the absurdity or the non-absurdity of one conclusion as compared with another may be of assistance, and very often is of assistance, to the court in choosing between two possible meanings of ambiguous words, it is a doctrine which has to be applied with great care, remembering that judges may be fallible in this question of an absurdity, and in any event must not be applied so as to result in twisting language into a meaning which it cannot bear; it is a doctrine which must not be relied upon and must not be used to re-write the language in a way different from that in which it was originally framed. Here, I not only do not find any absurdity, but even if I did, I should not be justified in re-writing art. 102 in such a way as to make it comply more nearly with what I, or another judge, might consider to be more reasonable. (Emphasis added) Thus, the Court of Appeal is correct in its finding that the LHCJ erred in equating the word “withdrawal” with “expenses” since the equation would tantamount to re-writing the language in a way different from that in which it was originally framed. [48] If the interpretation of the word “expenses” to include “withdrawal” as decided by the LHCJ is accepted, there would be a quandary as to the correct interpretation of the word “expenses” used in Art. 24.8 of the BERSATU’s Constitution, and alternative interpretations could exist. In such a situation, the benefit of the doubt in the interpretation must tilt in favour the accused person, SS in this case and not otherwise. In other words, if two views are possible on the evidence adduced in the interpretation of the BERSATU’s Constitution, one pointing to the guilt of SS and the other to his innocence, the view which is favourable to SS must be accepted. Thus, the interpretation and finding of the Court of Appeal on the interpretation of Art. 24.8 of the BERSATU’s Constitution is correct, standing on a sound footing and should not be disturbed. [49] Therefore, I am of the considered view that to equate the non-compliance of Art. 24.8 of the BERSATU’s Constitution by PW13 in withdrawing RM1 million from Armada’s account to an act of CBT surely has no legal basis. The Court of Appeal correctly observed that the act of withdrawal does not fall within any of the five limbs of the actus reus of CBT. Thus, it is a non-starter for the prosecution to rely on that piece of evidence against SS under the abetment charge. [50] Related to the same issue, the prosecution chose not to prosecute PW13 for CBT. In administration of justice in criminal cases, it is the responsibility of the prosecution to prove that someone is guilty, and not for someone who is accused of a crime to prove his innocence. In a criminal trial, the presumption of innocence is a principle of cardinal importance and so the guilt of the accused person must in every case be proved beyond reasonable doubt by the prosecution. However strong and grave the suspicious against the accused person are, they can never take the place of proofs in criminal proceedings. Raja Azlan Shah FJ (as His Royal Highness then was) in Ba Rao & Anor v Sapuran Kaur & Anor [1978] 2 MLJ 146 said: … In the administration of justice nothing is of higher importance than that all relevant evidence should be admissible and should be heard by the tribunal that is charged with deciding according to the truth. To ordain that a court should decide upon the relevant facts and at the same time that it should not hear some of those relevant facts from the person who best knows them and can prove them at first hand, seems to be a contradiction in terms. It is best that truth should be out and that truth should prevail. In Sia Soon Suan v PP [1966] 1 MLJ 116, his Lordship Ong Hock Thye AGCJ (Malaya), delivering the judgment of the Federal Court, at 118 said this: … We must accordingly exonerate all police and military personnel as well as the public prosecutor's officers from any sort of blame for the flaws which had developed in the prosecution case, nevertheless, the requirements of strict proof in a criminal case cannot be relaxed to bridge any material gap in the prosecution evidence. Irrespective of whether this court is otherwise convinced in its own mind of the guilt or innocence of an accused, its decision must be based on the evidence adduced and nothing else. This is axiomatic. In this case before us, the evidence shows that PW13 agreed in cross-examination that he did not know about the requirement under Art. 24.8 of the BERSATU’s Constitution until he was detained and questioned by MACC during the investigation, and he agreed that he committed CBT based on such a requirement. See Enclosure 15 at pages 533 to 535. [51] Considering the fact that PW13 was never charged and convicted before any court of law, he cannot be adjudged as a person that had committed or was guilty of the offence of CBT. The prosecution in the main written submission in Enclosure 58, among others at paragraphs 225 and 227 make a stand that “SP13 memang telah melakukan kesalahan pecah amanah jenayah di bawah Seksyen 406” and at paragraph 229 the prosecution said that without instruction from SS “SP13 tidak akan melakukan kesalahan pecah amanah jenayah di bawah Seksyen 406”, even without any proper proof that PW13 had committed CBT. Labelling PW13 as a person that had committed CBT just based on his confession is not good enough. For sure, the prosecution's stance on the alleged offence of CBT committed by PW13 is superficial and does not conform to the strict standard of proof in criminal jurisprudence. [52] It is equally important to note that any person should not be coerced into confessing to a crime or to incriminate themselves. The Court of Appeal in its finding agreed with the defence’s contention that the evidence of the witnesses succumbed to the pressure that gives rise to a strong reasonable inference that the MACC might have also exerted improper pressure upon PW13 to tailor his evidence to suit the prosecution’s case. Paragraphs [134] to [140] of the GOJ are as follows: [134] One other important aspect of the Appellant’s defence relates to the probability of PW13’s motivation to give evidence against the Appellant. It was the defence’s contention that from PW13’s evidence, it can be strongly inferred that PW13 has tailored his evidence to appease the MACC. The relevant parts of PW13’s evidence were highlighted as follows:

(a) While being examined by the prosecution, PW13 had admitted that he had been remanded by the MACC for a period of 6 days and during the remand period, he was sad and under a lot of stress;

(b) He suffered a break down after being informed that his initial remand period may be extended for one more day; and

(c) While he was in remand, he had even called his wife (PW12) to inform her that “bagi tahu pada sahabat-sahabat di luar, tak payah buat-buat PC ni apa, sebab kat dalam, saya yang kena teruk, bukan mereka kat luar.” [135] PW13 then admitted during cross-examination that after being made aware that Art 24.8 of the Bersatu Constitution used the word ‘perbelanjaan’ instead of ‘pengeluaran’, he had changed his evidence to focus on no working papers being prepared for the withdrawal of the said RM1 million. The Court’s attention was taken to that part of PW13’s evidence: “PB (GDW): Now you know... that PWRm got it wrong. Right? Because 24.8 does not say “pengeluaran” it says “perbelanjaan”. Untuk a one-off payment of RM500,000.00 which wasn’t the case here, correct? PW13: Yes PB (GDW): Yeah. That’s why your whole evidence has changed now and you are focusing just on kertas kerja,right? PW13: Yes. [136] The defence further highlighted that another defence witness, DW4 had testified that she had been threatened and roughed up by MACC officers who had interrogated her in respect of the Appellant’s case. She had then lodged a police report (D95) and called a press conference pertaining to the incident. In D95, DW4 revealed that: i. On 4 June 2020, the MACC officers had taken her mobile phone, squealed at her and threw her mobile phone towards her; ii. While in the investigation room, 6 MACC officers had hissed her and abused her with the words “babi” and “bodoh”. These officers were said to have asserted that she deserved to live alone and to be cast aside by her family when they were dissatisfied with her answers; and iii. One of the MACC officers had even threatened to slap her face and that subsequently she was also asked to stand for about 30 minutes with one of her legs and both of her hands up. [137] The Appellant had written to the MACC Chief Commissioner complaining inter alia of the incident that happened to DW4 (P96). [138] DW4 is the wife of PW10, Abdul Hannan bin Khairy, who also admitted that he was pressured while being investigated. The relevant part of PW10’s evidence is reproduced: “PB (GDW): Adakah kamu juga rasa tertekan? PW10: Ya PB (GDW): Ya. Dan ini semua adalah kerana PWRM hendak jawapan jawapan tertentu dari kamu dan isteri kamu? PW10: Ya.” [139] We have examined the evidence of PW13, and as alluded to earlier, his evidence is inconsistent in many aspects during EIC, cross-examination and re-examination. We find there is merit in the defence’s contention that the evidence of these witnesses being pressured gives rise to a strong reasonable inference that the MACC might have also exerted improper pressure upon PW13 to tailor his evidence to suit the prosecution’s case. We agree with the defence’s contention that it cannot be dismissed PW13 had succumbed to the pressure of being investigated and interrogated to the extent that he admitted he had committed criminal breach of trust when questioned by the prosecution and gave evidence against the Appellant. [140] We are of the considered view that when there is evidence that witnesses were pressured and submissions made to infer evidence being tailored to suit the prosecution case, coupled with inconsistencies in the witness’s testimony such as PW13 herein, not only there is merit in the submission, the evidence are both material and relevant to be considered. Yet again, nowhere in the LTJ’s grounds of judgment disclosing that His Lordship had evaluated and considered this critical evidence. The omission to consider all the evidence has resulted in a failure of justice to the Appellant, and we find there is a serious misdirection on the part of the LTJ. [53] In the written submission, the prosecution frequently condemned the Court of Appeal for being unfair to them and MACC by making “wild accusations” without basis against them. It started with paragraph 45 of the submission where it stated that: Mahkamah Rayuan lebih dipengaruhi dengan emosi apabila membuat beberapa tuduhan liar kepada Pendakwaan dan pihak SPRM tanpa apa-apa keterangan yang boleh digunakan untuk menyokong tuduhan liar tersebut. … Followed by paragraph 81: … Adalah hujahan kami kebarangkalian ini tidak cukup untuk mewujudkan keraguan yang munasabah dan tidak cukup juga menjadi lesen untuk Mahkamah Rayuan membuat tuduhan liar sebegini. At paragraph 91: Suka atau tidak, Mahkamah Rayuan telahpun mengeluarkan “tohmahan” kepada pihak Pendakwaan dan pihak SPRM dengan menuduh mungkin (might) memberikan paksaan ke atas SP13 untuk menyesuaikan (tailored) versi pihak Pendakwaan. At paragraph 92: Ini semua adalah tuduhan yang serius oleh Mahkamah Rayuan ke atas pihak SPRM dan Pendakwa Raya. Kami sendiri tidak pernah come across tuduhan liar sebegini datang daripada satu Mahkamah Rayuan. … At paragraph 94: Tuduhan liar oleh Mahkamah Rayuan ini langsung tidak berlandaskan kepada apa-apa keterangan dan sangat tidak adil kepada pihak Pendakwaan atau SPRM. Seolah-olah kami dipukul secara curi. Tiada peluang untuk kami menjawab tuduhan liar itu. Tuduhan liar ini semata-mata atas spekulasi dan sangkaan. … At paragraph 97: Bukan sahaja Mahkamah Rayuan telah membuat tuduhan liar kepada pihak Pendakwaan dan SPRM dengan hanya bersandarkan kepada spekulasi dan sangkaan, Mahkamah Rayuan juga gagal membuat judicial appreciation terhadap keterangan lain di dalam rekod rayuan. … At paragraph 100: Instead of membuat tuduhan liar sebegini adalah lebih baik Mahkamah Rayuan meneliti sama ada SP10, SP11 dan SP13 mempunyai motif jahat … At paragraph 115: Sebenarnya dalam kes rayuan ini, Mahkamah Rayuan hanya bergantung kepada soalan pihak Pembelaan semasa memeriksa balas SP13 di dalam membuat tuduhan tidak berasas kepada pihak Pendakwaan dan pihak SPRM. Mahkamah Rayuan telah membuat sweeping statement dengan hanya bergantung kepada hujahan peguam Responden. Tuduhan liar ini bukannya datang daripada keterangan tetapi daripada cadangan semasa soal-balas SP13 yang mana telah dinafikan oleh SP13. ... At paragraph 221: Keadaan ini berlaku kerana Mahkamah Rayuan telah ada a fix mind set bahawa SP13 tidak boleh dipercayai from the word go lagi dengan membuat tuduhan liar bahawa SP13 telah ditekan dan diugut oleh SPRM. … (Emphasis added) Finally, at paragraph 257 the prosecution submitted that all the accusations by the Court of Appeal against them and MACC are very serious and baseless, and urged this Court to expunge paragraphs [134] to [140] from the GOJ. [54] The question is, did the Court of Appeal make any “wild accusation” against the prosecution or the MACC as frequently alleged by the prosecution in the submission? From the reading of paragraphs [134] to [140] of the GOJ, it is comprehensible that the observation and finding of the Court of Appeal is in response to the defence’s contention that from PW13’s evidence, it might have been tailored to appease the MACC. [55] Upon perusing the entire paragraphs [134] to [140] of the GOJ, I am of the view that the Court of Appeal have referred, analysed and dealt with the material relevant evidence pertaining to the issue before making the finding of fact that there might be a truth in the defence’s contention concerning PW13’s testimony against SS. The evidence referred to by the Court of Appeal as stated at paragraphs [135] to [138] of the GOJ, explicitly justified the said finding of fact. The finding that was based on the testimony of the witnesses cannot be categorise as “wild accusation” against the prosecution or the MACC as submitted by the prosecution. [56] Besides the excerpt referred to by the Court of Appeal in the GOJ, there are others hard evidence that can be seen from the appeal records that supported the defence’s contention and the Court of Appeal finding. The relevant evidences are as follows:

(i) Evidence of PW13 Enclosure 15 at page 409 - Examination in Chief Baik… seterusnya semalam isteri anda, iaitu Puan Hidayah ada memberikan keterangan… terutama menjawab soalan Encik Gobind. Awak tahu pasal apa? Ya, saya tahu. Boleh awak perjelaskan sikit pasal perkara itu? Semasa saya ditahan 5 hari, sudah tentu saya rasa, siapa yang ada kat tempat saya, pada waktu tu... berasa sangat stress dan tertekan. Dan pada waktu yang sama juga, pada waktu tu kecoh... saudari Hidayah... Hidayah Hannaan, ya... bukan Hidayah isteri saya, ada membuat press conference berkenaan apa yang dikatakan... dikenakan sewaktu berada masa siasatan beliau di SPRM. Dan benda ni... menambahkan stress saya lagi, sewaktu saya berada kat dalam. Dan pada hari kelima tu, SPRM menjangkakan bahawa saya mungkin akan di extend selama sehari lagi reman. Jadi, of course, waktu tu, saya memang break down dan semasa menjadi tahanan SPRM saya tidak diberikan apa-apa platform untuk berhubung dengan luar. Of course, pada waktu itu saya memang sedih, tertekan... banyak, banyaklah, memang breakdown. So, saya meminta salah seorang pegawai SPRM yang mengambil keterangan saya, saya memang minta tolong pada dia, “tuan, boleh tak saya nak minta izin untuk saya call wife saya”, pada waktu tu. Sebab saya memang tengah breakdown. Dan dia memberikan handphonenya pada saya dan saya call wife saya. Dan antara apa yang saya katakan kepada isteri saya, saya memberikan insurance kepada isteri saya, bahawa saya okay dalam tahanan SPRM. Biasalah... proses interrograsi tidak ada sentuhan terhadap fizikal terhadap saya. Dan saya menyatakan kepada isteri saya, apa... err... bagi tahu pada sahabat-sahabat diluar, tak payah buat-buat PC ni apa, sebab kat dalam, saya yang kena teruk, bukan mereka kat luar. Itu ayat saya isteri saya lah, pada waktu itu. Dan dalam keadaan tertekan lah, pada waktu itu. So, itu yang berlaku... sebenarnya berlaku, apa perbualan saya dengan isteri saya. Enclosure 15 at page 535 - Cross-Examination Baik. Jadi, kamu setuju dengan saya, bahawa semasa siasatan, kamu dalam tertekan kerana kamu dikatakan melakukan kesalahan yang mana kamu bole dituduh? Betul. Dan kamu tidak hendak dituduh, betul? Seperti orang lain, saya pun, of course, saya pun tak nak dituduh. At page 539 Di dalam kes ini... it is SPRM that arrested you, tangkap kamu, tahan, siasat kamu dengan teruk. They broke you down, didn't they? Yeah. And they had to break you down because if they didn't, you didn't give them what they wanted. Think about it, Encik Rafiq. Kalau pada hari pertama sudah sebut semua yang mereka nak tu, tak payah mereka teruk, tak payah mereka sampai sedih, pecah dan sebagainya, right? They went for you broke you down until they got what they wanted. ii. Evidence of SP10 Enclosure 14 at pages 289 to 291 – Cross-Examination Volkswagen Passat. Lebih kurang bila kamu beli kereta itu? Saya tak ingat, tapi mungkin awal 2020. Baik. Encik Hannaan, saya akan tanya satu soalan, dengar baik-baik. Pernahkah Encik Hannaan disoal siasat berkenaan dengan kereta itu? SP10: Ya Oleh pihak SPRM? SP10: Ya … Yes. Yang Arif, Ineed direction from the court, Yang Arif. The next question I ask may incriminate the witness. I am going to try to put in but I will try to phrase in in a way that doesn’t, but I stand directed, Yang Arif. Yang Arif, feel that I shouldn’t then will not or rephrase. My learned friend as well. Encik Hannaan, minta maaf… saya kena tanya satu soalan, please listen to the question carefully. Encik Hannaan setuju bahawa pihak SPRM ada siasat berkenaan dengan kereta Passat itu. Right? Itu tadi sudah setuju lah, ya. Saya katakana kepada kamu, Yang Arif, I put it in the best way I can, bahawa Encik Hannaan juga risau… risau bahawa tindakan boleh diambil berkenaan dengan kereta itu terhadap Encik Hannaan. It’s that okay, Yang Arif. YA: Yeah Itu paling lembut, saya rasa. Yeah, I have been fair to witness, Yang Arif. Dan Tindakan oleh SPRM? Ya? Boleh ulang semula, YB. Tadi sebut risau Tindakan boleh diambilkan… jadi Tindakan boleh diambil oleh SPRM terhadap kamu? Dan setuju bahawa sehingga sekarang tidak ada Tindakan diambil terhadap kamu berkaitan dengan kereta tersebut? At Pages 297 – 298 Encik Hannaan, mendengar keseluruhan keterangan yang telah pun kamu berikan hari ini, err… Encik Hannaan setuju dengan saya bahawa Encik Hannaan dalam ketakutan. Juga untuk memeberi keterangan pada hari ini? Dan Encik Hannaan takut… minta maaf ya, saya tanya soalan direct. And this is Court’s answer, ya… Encik Hannaan juga takut pegawai-pegawai SPRM yang mengiringi kamu? (SP10 tidak memberikan jawapan) Tidak mahu jawab? Boleh kalau saya tak jawab? Baik. Leave it like that, Yang Arif. Saya juga katakan kepada kamu bahawa mendengar keterangan ini, yang diberikan hari ini juga adalah keterangan akibat daripada tekanan yang diberikan oleh SPRM? Sebahagiannya, ya. iii. Evidence of PW12 – the wife of PW13 Enclosure 14 at page 365 – Cross-Examination Adakah puan ingat bahawa Rafiq ada maklumkan kepada puan untuk memberitahu dia orang, ya... supaya minta Hidayah tone down on the PC yang mengkritik SPRM sepanjang SPRM sedang jalankan siasatan? I read again, Rafiq maklumkan supaya memberitahu dia orang, supaya minta Hidayah tone down on the PC yang mengkritik SPRM sepanjang SPRM sedang menjalankan siasatan? SP12: Hidayah yang dimaksudkan adalah... Hidayah yang dimaksudkan itu adalah isteri kepada Encik Hannaan. SP12: Okay, ya... betul. [57] Upon sieving the note of evidence in the appeal records, the testimonies on the pressure put to relevant witnesses were not seriously challenged by the prosecution in the re-examination. From the evidence adduced at the prosecution case, it is not plainly wrong for the Court of Appeal in agreeing with the defence’s contention that PW13’s evidence might have been tailored to appease the MACC. The prosecution’s allegation that the Court of Appeal made a “wild accusation” is baseless and uncalled for. [58] As for the offence of abetment, it is trite that abetment is not direct commission of an offence but the facilitation of one. There is no straightforward or clear-cut formula that can be provided as to when the conviction for abetment would depend on the conviction of the principal offender. As for the abetment charge, SS as an abettor cannot and should not be said to have abetted PW13, the principal offender, when the act of the principal offender is not proven to be criminally wrong in the first place. [59] Based on the above, I find that there is no appealable error in the Court of Appeal’s finding that the prosecution failed to prove the abetment charge even at the prima facie stage. S 403 Charge [60] The s 403 charge is the second charge that was framed against SS. The charge is as follows: Bahawa kamu, di antara 8 April 2018 sehingga 21 April 2018 di Malayan Banking Berhad yang beralamat di No. 16 & 16A, Jalan Pandan 3/6A, Taman Pandan Jaya dalam Wilayah Persekutuan Kuala Lumpur telah dengan secara tidak jujur menyalahgunakan harta untuk diri sendiri, iaitu wang berjumlah RM120,000.00 daripada akaun Maybank Islamic Berhad milik ARMADA Bumi Bersatu Enterprise bernombor 562254511198 dengan menyebabkan Rafiq Hakim bin Razali melupuskan wang tersebut dan dengan itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 403 Kanun Keseksaan [Akta 574]. [61] The relevant provisions of the law in regards to the criminal misappropriation of property is as follows. Section 403 of the PC provides:

Dishonest misappropriation of property Whoever dishonestly misappropriates, or converts to his own use, or causes any other person to dispose of, any property, shall be punished with imprisonment for a term which shall not be less than six months and not more than five years and with whipping and shall also be liable to fine. [62] The prosecution raised 9 grounds of appeal in its petition of appeal for the s 403 charge at the prima facie stage. As correctly summarised by learned counsel for SS, the 9 grounds are deduced to 3 main grounds as follows: i. The COA erred when it ruled that the amount of RM120,000 belonged to the respondent and that the amount of RM120,000 had been used by the respondent for the purpose of his election campaign when the respondent treated it as a reimbursement for RM170,000 spent during his campaign – grounds 1, 3 and 4 of the petitions of appeal; ii. The COA erred in invoking adverse inference housed under Section 114(g) of the Evidence Act 1950 (“EA 1950”) due to the failure of the appellant to call Mohamed Amshar bin Aziz and Siti Nurul Hidayah binti Kamaruddin – grounds 5 and 6 of the petitions of appeal; and iii. The COA erred in finding that SP13’s evidence was inconsistent and unsafe to be acted upon – ground 7 of the petitions of appeal. Be that as it may, as mentioned at paragraph [24] above, the prosecution condensed all the grounds of appeal to only two main reasons, and these two reasons also apply to the s 403 charge. [63] On the other hand, learned counsel for SS raised a specific issue in relation to the s 403 charge in their submission here before us, or even at the courts below, that is, whether the charge is defective and groundless because it doesn’t say the property misappropriated belongs to any other person other than the respondent. It was further submitted that nowhere in the charge stated that the impugned RM120,000.00 belonged to ABBE, PW13 or anybody else. Then, learned counsel for SS referred to the sample charge for the offence under s 403 of the PC that ought to be followed as provided by the learned authors in Law of Crimes by Ratanlal & Dhirajlals, (26th Ed) and in Mallal’s Penal Law 2002, where both authors lay down the requirement of naming the owner of the property involved in the misappropriation as an essential ingredient of the charge. [64] Back to the charge framed against SS, the relevant part of the charge related to the issue of defective charge as submitted by learned counsel for SS is “telah dengan secara tidak jujur menyalahgunakan harta untuk diri sendiri, iaitu wang berjumlah RM120,000.00 daripada akaun Maybank Islamic Berhad milik ARMADA Bumi Bersatu Enterprise bernombor 562254511198 dengan menyebabkan Rafiq Hakim bin Razali melupuskan wang tersebut”. Literally, SS is said to have dishonestly misappropriated to his own use the impugned RM120,000.00 from an account which belong to ABBE by causing PW13 to dispose of the said money. From the choice of words in the charge in Bahasa Melayu, it is comprehensible and without doubt that the s 403 charge proffered by the prosecution stand on the fact that the impugned RM120,000.00 in ABBE’s account belong to ABBE. Therefore, there is no basis in the defence’s contention that the s 403 charge against SS is defective on the ground that there is uncertainty of the owner of the impugned RM120,000.00. [65] Be that as it may, the most pertinent question in relation to s 403 charge is, had the prosecution prove a prima facie case against SS under s 403 of the PC. The actus reus of the offence under s 403 of the PC is that, SS must have actually taken, used, or disposed of the impugned RM120,000.00 for his own use. The words “to his own use” must imply that the impugned RM120,000.00 belong to someone else other than the accused. Thus, it is essential for the prosecution to prove who is the owner of the impugned RM120,000.00, and in the charge proffered by the prosecution, it had positively identified that ABBE as the owner of the money. Therefore, the real issue to be determined is that, whether the prosecution proved beyond doubt that the impugned RM120,000.00 in the ABBE’s account that was allegedly misappropriated by SS belongs to ABBE, and be mindful of the line of the defence forwarded by SS during the prosecution case that the impugned RM120,000.00 does not belongs to ABBE, but belong to him. [66] To start with, we have to look at the analysis and the finding of the Court of Appeal on this issue. The relevant paragraphs in the GOJ, that deal with the issue are as follows: [84] The actus reus of the offence under s 403 of the PC is misappropriation or conversion, or causing the disposal of property of another person. In Law of Crimes by Ratanlal & Dhirajlal’s, (26th Edn), at p 2264, it states: “2. Scope...The essence of this offence of criminal misappropriation is that the property of another person comes into the possession of the accused in some neutral manner and is misappropriated or converted to his own use by the accused...” [Emphasis added] [85] In the same literature, the author further laid down the ingredients of the offence under the same section to be: “5. Ingredients — The section requires the following ingredients:

(i) The property must belong to a person other than the accused;