(iii) There must be dishonest intention on the part of the accused [Emphasis added]” [88] The COA then made reference to illustration (a) of s.403 as follows: "(a) A takes property belonging to Z out of Z's possession, in good faith, believing, at the time when he takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section" [89] In my considered view, the COA embarked upon a correct analysis when it proceeded to analyse the actus reus of the section as being predicated upon the fact that the property that is the subject of the alleged offence must belong to a person other than the Respondent. [90] Having done that, the COA then evaluated the available evidence adduced in order to determine this very question. [91] As alluded to, the COA found no evidence that the monies belonged to either ABBE or Armada. PW13 also from the evidence, had never said that the RM120,000.00 belonged to ABBE. [92] In fact, the COA found that PW13 was not in any position to testify as to the ownership of the funds, when they found as follows: [98] In his witness statement D79, PW13 clearly stated that the fundraisers "diuruskan oleh Hidayah dan Amshar" and that he "tidak terlibat dengan Majlis Makan Amal ini." Given that PW13 was not involved with the fundraiser, the person who could meaningfully give evidence on this issue would be Amshar. Mohamed Amshar (DW2) should have been called at the prosecution stage to testify whether he did or did not have the knowledge about the campaign's expenses. Mohamed Amshar (DW2) and one other person by the name of Nurul Hidayah binti Kamarudin are material witnesses because these two persons are not only material, they are relevant to assist the Court with regard to the status of the RM120,000 being public contribution into the ABBE account. The non-calling of these two witnesses at the prosecution stage had left a gap in the prosecution case and attracts the presumption under s.114 (g) of the Evidence Act 1950. [99] The prosecution again relied heavily on PW13's evidence and again we find PW13 was inconsistent. We reproduced PW13's evidence in EIC: (refer Refer Enclosure 12- PDF page 207 of Record of Appeal Volume 2 (2), Enclosure 13- PDF page 9 of the Record of Appeal Volume 2 (3): "TPR (WS): Baik, sebelum tadi pun...awak ada nyatakan "fund raising", siapa buat remark "fundraising" ini? PW13: Saya yang buat TPR (WS): Kenapa awak buat remark "fundraising"? PW13: Sebab duit yang terkumpul dalam akaun ini adalah untuk satu program fundraising yang dianjurkan...untuk YB Syed Saddiq dan selepas daripada itu, saya mendapat arahan untuk transfer amaun yang dikumpulkan itu ke akaun YB Syed Saddiq. Tapi...pada waktu itu, ada account limit yang membolehkan saya buat transaksi dalam satu masa RM30,000.00 sahaja. Sebab itu ada dua transaksi.” [100] Then PW13 retracted his evidence and stated as follows: "TPR (WS): Baik. Akaun peribadi ya? Duit-duit dalam akaun ABBE ni, untuk apa sebenarnya? PW13: Duit hasil err...duit kegunaan, untuk kegunaan ahli-ahli ARMADA untuk program-program ARMADA juga. TPR (WS): Sekali lagi, adakah duit dalam akaun ABBE ini..khas digunakan untuk aktiviti Syed Saddiq? PW13: Err... bukan dia sahaja...err... ahli-ahli ARMADA yang lain juga boleh menggunakannya." [101] However, upon being confronted with his witness statement (paragraph 58) (D79) in cross-examination, PW13 sought to explain as follows (refer Enclosure 16 PDF page 175 of the Record of Appeal Vol.2 (6): "PW13: But in directly Syed Saddiq is also in Armada so maksud saya sebab apa Syed Saddiq dibenarkan menggunakan ABBE atas kapasiti dia sebagai ketua Armada which is in title sebab dia juga ahli Armada, Cuma bezanya dekat sini this the luar normal ABBE. ABBE normally kita jual merchandise sebagainya that's why saya bentangkan tapi duit yang digunakan dikumpulkan dalam ABBE Yang Arif adalah daripada hasil sumbangan orang ramai untuk tujuan kempen YB Syed Saddiq di Muar, tapi at first place he's in title because dia sebagai ketua Armada which is dia juga ahli Armada, itu penjelasan saya Yang Arif." [102] Nonetheless, we agree with the defence's contention what PW13 sought to explain was that when he said other members could use the money in the ABBE account, he was referring to the ABBE account and not the RM120,000 which was meant for the Appellant." (emphasis added) [93] A few matters of significance emerge from the above passage by the COA, firstly, that PW13 was not involved in the fund raising and so could give no meaningful testimony in respect thereof. Secondly, he had given inconsistent evidence in relation to the purpose of the funds in ABBE. [94] It also transpired from PW13's statement (D79) that while he had no knowledge of the fund raising, Mohamed Amshar (DW2) and Nurul Hidayah binti Kamarudin however, did. This raised the issue of why the Appellant saw fit not to call either of them to unfold the narrative of the prosecution case in relation to the fund raising, since they would be in the best position to do so. [95] One can only conclude from this, as the COA did, that had they been called, it would have adversely impacted the prosecution case as their testimonies would have proved unfavourable, and thus the adverse presumption under section 114 (g) Evidence Act 1950 was rightfully invoked. [96] The COA after having found that there was no evidence that the monies belonged to either ABBE or Armada, went on to state as follows: [105] RM90,000 from the impugned RM120,000 was transferred before the beginning of the campaign period, whereas the remaining RM30,000 was transferred on 21.4.2018 during the campaign period. Instead of depositing the RM170,000 the Appellant had on hand, the Appellant proceeded to spend RM170,000 on his election campaign, always intending that it be considered monies from the fundraisers. In these circumstances, the impugned sum in his Maybank account was substituted with the RM170,000 cash he had on hand, the latter of which was fully spent by the end of the campaign period for the Appellant's campaign in Muar. By 16th and 19th June 2018, therefore, the RM100,000 transferred into his ASB account had already become his personal monies." [97] The COA reasoned thus that by the end of the campaign in Muar, the Respondent had fully spent the sum of RM170,000.00 he had in hand and therefore, by the 16th and 19th of June 2018, the sum of RM100,000.00 transferred into his ASB account had become his personal monies. [98] This analysis by the COA also took care of the main plank of the Respondent's defence which is that the impugned monies were a reimbursement of the monies that he had spent on his election campaign. [99] In that regard, the testimony of the Respondent and that of DW4 is that during the first fundraising event, the Respondent initially used RM30,000.00 of his own funds and managed to raise approximately the same amount. The Respondent also asserted that the second fundraising event was fully sponsored by Mejar (B) Tan Pau Son, who was, like the Respondent, a fellow alumnus of the Royal Military College and therefore collectively had successfully raised and collected RM120,000.00. [100] There further was evidence that the Respondent had withdrawn a sum of RM50,000.00 from his ASB account on 6th April 2018 which was evidenced by Exh.D90 (statement of the Respondent's ASB account). The Respondent had also borrowed monies from several individuals including a Radzi Tajudin (Mat Rodi) for a sum of RM40,000.00. All these were meant for financing the Respondent's own political campaign. [101] The Respondent in giving his statements pursuant to ss. 53 and 62 of the MACC Act 2009 had also said that he spent no less than RM170,000.00 on his election campaign. [102] Further to this, DW4 had prepared D91 (Declaration) with supporting receipts, and officially submitted the same to the Election Commission confirming that the Respondent had spent RM171,675.00 in his campaign. [103] The COA also found as follows: [92] The donors have contributed the money to and for the Appellant and the money was deposited into the ABBE account. We find that the LTJ erred in taking into consideration the facts of the transfer of money into the Appellant's personal account and the timing of the transfer. It is logical for expenses to incur in advance before 29.4.2018 as seen in the report filed by the Appellant with the Election Commission (see exhibit D91) and we find that the LTJ erred in holding that the donation could only be spent during the official campaign period (28.4.2018-9.5.2018). We further find that there was no requirement for the Appellant to justify his request for the transfer. According to the Appellant the money was his as the money was derived from his plea to the donors to assist him with his political campaign. He is therefore legally entitled to the money. Even if his believe that he is entitled to the money is wrong (which we find he is not), the offence cannot be said to be committed. In Ratanlal & Dhirajlal's Law of Crimes Vol.2 at page 2264, the learned author had stated. "A wrong opinion that the accused was justified in keeping the thing does not constitute this offence..." [104] The COA here made certain telling observations, the first is that the HCJ made several erroneous findings when it came to the timing of the transfers. The HCJ found that the donation monies could only be spent during the official campaign period which ran from 28th April to 9th May 2018. [105] However, the COA said that it is only logical that expenses are incurred in advance before the onset of campaigning on 29th April 2018 and that this is backed up in the report filed by the Respondent or on his behalf, with the Election Commission (exh. D91). [106] Given these observations by the COA, they were quite correct in arriving at the conclusion that as the Respondent had incurred expenses in campaigning, which he paid for in advance, he had naturally regarded the funds expended as being subject to reimbursement from the funds which came into the account which were from donors contributing to the cause of his campaigning. [107] Returning to the essential ingredients of the charge, the actus reus of the offence can only be committed in relation to property belonging to some one other than the accused. [108] Therefore, it stands to reason that if the COA found that the funds in fact belonged to the Respondent, he cannot be said to have committed the offence. [109] The COA also pointed out that in his judgment, the HCJ had made a finding of fact that the RM120,000.00 was for the use of the Respondent to finance his election expenses when he stated as follows: “[32] Setelah mempertimbangkan keterangan seperti yang dinyatakan di atas, Mahkamah ini berpuas hati bahawa wang hasil kutipan dari majlis makan malam amal ini sebenarnya adalah bagi tujuan membiayai perbelanjaan kempen pilihanraya OKT bagi pilihanraya yang akan diadakan sebulan (1 bulan) selepas majlis tersebut.” [110] However, after the HCJ arrived at that finding, he made an irreconcilable finding that a prima facie case had been made out against the Respondent. [111] This quite clearly went against the grain of the essential elements of the charge in s.403 PC which was premised upon the act of either misappropriation or conversion of property of someone other than the Respondent. [112] The necessary corollary of that of course, is that no dishonesty or mens rea can be proven in relation to the charge. [113] The COA was therefore correct in its analysis and reasoning in relation to why the charge under s.403 was not made out. [114] Under all the circumstances and for the reasons given, the COA was correct to conclude that based upon a maximum evaluation of the evidence, the prosecution has failed to adduce credible evidence and facts to support the s.403 charge. The allegation that improper pressure was brought to bear upon the witnesses for the prosecution [115] One other important matter merits my consideration, which is that, it was alleged on behalf of the Respondent that there was evidence of certain witnesses being pressured which gave 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 case. [116] In order to appreciate the scope of this argument, it is pertinent to make reference to the manner in which the COA had dealt with it as follows: "[134] One other important aspect of the Appellant's defence relate 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 buatbuat PC ni apa, sebab kat dalam, saya yang kena teruk, bukan mereka kat luar." [135] PW13 then admitted during crossexamination 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 4.6.2020, 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 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." [138] We have examined the evidence of PW13 and as alluded to earlier, his evidence is inconsistent in many aspects during EIC, cross examination and reexamination. We find there is merit in the defence's contention that the evidence of these witnesses being pressured give 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 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 these critical evidence. The omission to consider all the evidence has resulted a failure of justice to the Appellant and we find there is a serious misdirection on the part of the LTJ." [117] There was credible evidence given by PW13, PW10 and DW12 that they were subject to some measure of improper pressure by the officers from the MACC. PW12, the wife of PW13 had saw fit to lodge a police report in this regard. [118] After having carefully considered and evaluated this argument, I find myself in agreement with the COA that in light of the unexplained inconsistencies in the evidence of PW13 at all levels of his testimony, there arises a reasonable inference that as there was evidence that improper pressure was brought to bear on other witnesses as well as PW13, that PW13 was constrained to tailor his evidence to suit the prosecution case. This necessarily impacted upon his credibility when giving evidence against the Respondent in respect of both the first and second charge. [119] As was also pointed out by the COA, this critical aspect of the defence argument was never considered by the HCJ. This constituted another cogent reason to dismiss these appeals and affirm the findings and decision of the COA. The AMLA charges [120] The essence of the Respondent's defence was that he had no reason to believe or suspect that the sum of RM100,000.00 which was transferred into his ASB account were proceeds of an unlawful activity or the instrumentalities of a scheduled offence. [121] This is because the Respondent had considered the monies as constituting a reimbursement for expenses already incurred in pursuit of his political campaign. [122] Having come to the determination that they did in respect of the charge under s.403 PC, the COA was correct in finding that given that the predicate offence under s.403 of the PC was not proven, the AMLA charges could not be sustained. Decision [123] In conclusion, I find no appealable error on the part of the COA in respect of all the charges preferred against the Respondent for the reasons given above. Each of these appeals are thereby dismissed and the decision of the COA in respect of all the charges is hereby affirmed. Dated : 16 July 2026 (COLLIN LAWRENCE SEQUERAH) Judge Federal Court Malaysia Counsel for the Appellant :