POOBALAN A/L RAJAH v Pendakwa Raya (WA-41S-5-04/2024)

I noted that the Appellant was charged in 2019 and trial commenced 10 on 13.9.2019. However, it took a long time to dispose the matter in the lower court because of the COVID-19 pandemic where there were numerous postponements due to the lockdowns. The Appellant had on 26.8.2022 changed his plea to guilty and the matter adjourned to 9.9.2022 to enable his counsel to prepare for 15 mitigation and sentencing. But on that day, he again changed his plea and maintained his innocence. The court fixed the case for continued trial where a total of 8 witnesses testified for the prosecution. On 15.6.2023, the Magistrate found upon a maximum evaluation of the evidence adduced that the prosecution had proved 20 a prima facie case against the Appellant and called for his defence. The Appellant was the sole witness for the defence. After considering the defence case, the Magistrate found that it had not raised any reasonable doubt on the prosecution case. 25 [3] The Magistrate convicted him on the attempted cheating charge and sentenced him to 2 years’ imprisonment from the date of conviction and 2 strokes of the rotan as well as ordering him to pay prosecution costs of RM5,000.00 in default of which, he would have to serve 4 months’ imprisonment. The learned Deputy Public Prosecutor 30 (Respondent here) had also filed a Notice of Appeal against the inadequacy of the sentence imposed by the Magistrate. THE APPEALS [4] The Court heard both appeals on 15.1.2026 after the Appellant appeared in Court pursuant to a Warrant of Arrest that was issued on 17.12.2025. On that date, he did not turn up in Court and his counsel submitted a copy of a medical certificate (Encl. 28) which 5 was an extended leave from 17.12.2025 to 5.1.2026. Earlier, hearing was fixed on 15.12.2025 but he did not attend court as he had been given medical leave from 24.11.2025 to 16.12.2025 (Encl. 27). In both enclosures, counsel mentioned that he had an accident and that was the reason for the medical leave but the medical 10 certificates did not state anything about an accident. His bailor too did not attend court because he was travelling to Chennai on the same day. Dissatisfied with counsel’s explanation, the Court issued a Warrant of Arrest against him. 15 [5] The Appellant finally turned up in Court on 15.1.2026 and as the written submissions had already been filed, I proceeded to hear and disposed of the appeals on that day.

The Court had perused the records of appeal and after hearing the 20 parties’ submissions, the Court dismissed the Appellant’s appeal against conviction and sentence as well as the appeal against sentence by the DPP. The Court set aside the order to pay prosecution costs but only maintained the 2 years’ imprisonment sentence commencing on 15.1.2026 and the 2 strokes of rotan. The 25 Appellant filed a Notice of Appeal against this Court’s decision on 25.1.2026. The Court now gives its reasons for holding the same. The prosecution has not filed any appeal on the revised sentence. PROSECUTION CASE [7] The facts of the case have been obtained from the grounds of judgment of the learned Magistrate (with modifications). The prosecution witnesses to prove its case were as follows: 5 i) SP1 – Hoong Wei Choong, Complainant ii) SP2 – Soo Prai Yen, Insurance Adjuster iii) SP3 – Dr. Amy Fairuza Binti Abdul Aziz, Medical Officer iv) SP4 – Dr. Norhaslinda Binti Kamiso, Radiologist v) SP5 – Dr. Emelianah Binti Saidil, Radiologist 10 vi) SP6 – Muhammad Nabil Shafiq Bin Mahat, X-Ray Technician vii) SP7 – Sim Ying Ching, Manager of Prudential Assurance; and viii) SP8 – ASP Anizan Bin Adnan, Investigating Officer.

The prosecution case started with the testimony of SP1 who was 15 Prudential Berhad’s Head of Major Claims and Service Servicing Department (“the complainant”). His department would process all applications for major claims by following set procedures. They would peruse reports submitted by claimants to determine whether the documents were compliant with the conditions in the contracts 20 of insurance that the parties had agreed to (i.e. purchased). The life insurance claims comprised such claims for death, critical illnesses and permanent disabilities. In May 2016, the Appellant had submitted a Critical Illness and Disability Claim Form (P1) dated 1.5.2016 to SP1’s department pursuant to his life insurance policy 25 number 35070823 purchased some time in November 2015 worth RM500,000.00 The supporting documents submitted as proof were in P2, P3 and P4. He claimed to have suffered a stroke on 2.5.2016 and sought medical treatment on that same day.

It was an “early insurance claim” for the purported stroke which the insurance company had scrutinised to determine whether there was an undisclosed pre-existing health condition prior to the policy purchase. He had presented himself at Hospital Ampang on 2.5.2016. In the CT Scan report (P3) dated 3.5.2016 signed by SP3, 5 it showed the findings of a CT brain scan done on the previous day as follows: “There are hypodensities at bilateral external capsule, anterior limb of right internal capsule and left lentiform nucleus, suggestive of infarcts. No intracranial bleed. 10 Prominent ventricles, basal cisterns and cerebral sulci indicating cerebral atrophy. No midline shift of mass effect. Impression: Multifocal infarcts with cerebral atrophy”. 15

According to SP2 who assessed the claim form (P1), there were suspicions in regard to the claim because the policy was only purchased 6 months earlier and there was no known medical illness (refer to P18, the life insurance proposal form dated 2.11.2015 20 completed by an agent by the name of Janice Sim Ying Ching (SP7) and signed by the Appellant). SP7 had interviewed the Appellant herself in order to complete the form P1 where he said he was healthy. Hence, this was contrary to the findings of SP3 pursuant to a CT Scan done on 2.5.2016 (refer to P3 at page 15 of RRJ3). The 25 insurance company received P1 from the counter at it headquarters and noted that some parts of the form were incomplete. The missing information were the names and addresses of consultants and specialists or hospitals whom the Appellant had been referred to for his condition and the date when he was certified to have the medical 30 condition. Pursuant thereto, the Appellant was, vide the Outstanding Requirement Letter (P5) dated 3.6.2015, asked to furnish a medical questionnaire to be completed by the first treating doctor and a medical questionnaire to be completed by a regular treating doctor for minor illnesses. The documents were as per P6, P7 and P8. 5 [11] The Appellant responded by returning the P6, P7 and P8 forms but again, the information requested were not given. The information requested were pertaining to his medical treatments and medications given from 2.11.2013 until 2.11.2015. Therefore, 2 other Outstanding Requirement Letters both dated 5.11.2016 (P9 10 and P12 respectively were issued) for further details to be submitted to Prudential Assurance. His blood test result was also not available to the insurance company (refer to P10 and P11). These raised further questions on the complainant’s part because, amongst others, the response received from the doctors who allegedly 15 treated the Appellant in Kuala Pilah and Bahau was negative (refer to P12 at pages 35 – 46 of RRJ3).

Therefore, SP1 lodged a police report (P15) dated 5.4.2018 after being informed that the Appellant was involved in a SOCSO pension 20 claim for “tuntutan ilat palsu”, hence he suspected something amiss in regard to his claim with the insurance company. Earlier on 13.3.2018, another CT Scan was ordered by SP5 of Hospital Ampang and the impression was seen in P16 that there was “No significant abnormality”. The findings were: 25 “No focal brain parenchymal lesion. The previous old left MCA infarct is not seen in this study. No intracranial bleed. The ventricles, basal cisterns and cerebral sulci are normal. No mass effect or midline shift.” 30 THE DEFENCE CASE [13] The Appellant’s defence was that the documents submitted to the insurance company, namely P2 – P4, were not prepared by him. He admitted however that P6 – P8 were sent by him to the “treating doctors” and claimed that those were completed by the doctors. 5 Therefore, he claimed that he was merely following the insurance company’s instructions and that he did not have any intention to cheat the latter.

Additionally, the Appellant admitted that he himself attended the CT 10 Scan procedures in 2016, 2017 and 2018 and that they were conducted in accordance with the hospital’s procedures. The Appellant alleged further that the 2 different CT Scan results were prepared by the hospital. As the contents of P2, P3 and P4 were never amended by the Appellant, he claimed that he never had any 15 intention to cheat Prudential Assurance. The documents had been certified by Hospital Ampang and therefore, he alleged that he would not have submitted a claim if he was not ill. EVALUATION AND FINDINGS OF THE COURT 20 [15] The Petition of Appeal can be summarised as the following:

that the Magistrate was wrong to accept the prosecution evidence that the first and second ingredients of the offence had been proved when P3 showed he had suffered stroke;

(ii) that the magistrate was wrong to conclude that the Appellant 25 had intention to cheat the insurance company when P6, P7 and P8 in fact were completed by the doctors who treated him;

(iii) the radiologist had stated that the Appellant suffered a stroke in his brain;

(iv) that the Appellant was not making up his condition and relied on the medical reports prepared by the doctors; and

that the defence was not properly considered by the 5 Magistrate. [16] It is trite law that an appellate court would not disturb the findings of the trial judge unless there are serious misdirections of fact and law. In Norisman Bin Rozali v PP [2015] 3 MLJ 125, the Court of 10 Appeal held: “[17] It is said that a judge who is required to adjudicate upon a dispute must arrive at his decision on an issue of fact by assessing, weighing and, for good reasons, either accept or reject the whole 15 or any part of the evidence placed before him. He must when deciding whether to accept or to reject the evidence of a witness, test it against relevant criteria. That is judicial appreciation of evidence, (see Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2 MLJ 97; [2003] 2 CLJ 19). A trier of facts 20 who makes finding based purely upon the demeanour of a witness without undertaking a critical analysis of that witness's evidence runs the risk of having his findings corrected on appeal. [18] It is incumbent on the part of the learned trial judge to indicate 25 through his judgment his evaluation of the evidence. It is not sufficient to merely say 'I accept' or 'I believe' the evidence of the witness. Reasons and analysis of the evidence must be shown (Murugiah v Public Prosecutor [1941] 1 MLJ 17b).”. 30 [17] From a perusal of the grounds of judgment, I found that that the learned Magistrate, had discussed the duties of the court upon hearing the case for the prosecution and had carefully weighed all the evidence before her (refer to paragraphs 5 – 40 of the grounds of judgment in RRJ1). She had evaluated the prosecution evidence on a maximum evaluation and found that a prima facie case of attempted cheating had been proved. She had thoroughly discussed the ingredients of the offence of ds.420 read with s.511 of the Penal Code based on the evidence of the prosecution 5 witnesses. And upon hearing the evidence of the Appellant, the learned Magistrate had discussed the defence put forward and applied the correct principles of law. She had observed that the Appellant’s evidence were contradictory to each other and had found that it had not raised any doubt in her mind on the 10 prosecution case (this will be dealt with further in this Grounds of Judgment). Therefore, I could find no fault with her assessment of the evidence as a whole because she had not only discussed the oral evidence given by the witnesses but also the documentary evidence tendered in this case. She had considered the evidence 15 against the requirements of the law in this type of offence. [18] The High Court as an appellate court does not have the advantage of observing the demeanour of witnesses and it is trite that an appellate court would be slow to disturb the findings of the 20 subordinate court on the issue of credibility of witnesses unless the findings made was perverse. In the case of Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232, the Court held: “(7) the credibility of a witness is primarily a matter for the trial judge. 25 The functions of an Appellate Court, when dealing with a question of fact in which questions of credibility are involved are limited in their character and scope and in an appeal from a decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, an Appellate Court must in order to reverse not merely entertain doubts whether the 30 decision below is right but be convinced that it is wrong. In this case the learned trial judge accepted the evidence of Atun, the prosecution witness, whom he found to be a consistent witness unshaken by very severe cross-examination and the Appeal Court could find no reason to interfere with his assessment.”. [Emphasis added] [19] Here, the credibility of the witnesses was not so much of an issue 5 by the Appellant but the alleged lack of dishonest intention to use the documents obtained from Hospital Ampang (P2 – P8) to commit insurance fraud. Nevertheless, there was an inconsistency between P3 and P16 which were the prosecution’s exhibits and required this Court to analyse the different results. P3 was a result of the CT Scan 10 where the radiologist in charge was SP4 and which was the basis of the claim submitted by him to the insurance company. P16 was the result of the CT Scan where the radiologist in charge was SP5. Of course, the crux of the prosecution case was that because P16 stated that the Appellant’s CT Scan on the brain did not show any 15 abnormality and the “previous old left MCA infarct is not seen in this study” done in 2018 therefore, the Appellant’s claim that he suffered a stroke in 2016 (as reflected in P3) meant that he had the dishonest intention to submit a false claim when he knew that he did not suffer from such condition at all. 20 [20] I noted that SP3 filled up the form P2 but she only obtained the information from the hospital record system. SP4 in her evidence had explained that she had prepared P3 report with Dr Lim Yi Ting. In her examination-in-chief, SP4 was asked: 25 Boleh jelaskan satu persatu? SP4 : Laporan CT Scan dibuat pada 02/05/2016. Clinical comment ialah indikasi doktor pemohon CT Scan adalah Dr Mohd Safuan. Pesakit adalah berusia 32 tahun yang datang dengan lemah sebelah kiri pesakit dan tidak sedarkan dir dan berserta tekanan darah yang 30 tinggi. Saya dapati berdasarkan gambar yang telah dibuat iaitu imej CT Scan yang telah dibuat terdapat beberapa kawasan infarct di external capsule dan anterior limb or right internal capsule dan left lentiform nucleus. Bahagian ini melambangkan tisu telah mati. Disamping itu, otak pesakit juga telah menunjukkan atrophy iaitu keseluruhan otak telah mengecut. Kesimpulannya pesakit ini ada multifocal infarcts iaitu beberapa kawasan sel otak telah mati dan 5 cerebral atrophy otak telah kecut. Report ini dibuat bersama dengan Doktor Lim Yi Ting iaitu MO yang bertugas pada hari tersebut. Finding ini bertulis dibuat macam mana? Berpandukan imej CT Scan yang dibuat sebelumnya. Apakah penyakit yang dikatakan dialami oleh pesakit dalam layman 10 term apa? Stroke atau angin ahmar. ... Boleh jelaskan tak berkenaan dengan cerebral atrophy tu, katanya otak kecut? 15 Otak itu telah mengecut dan selalunya berlaku kepada orang yang tua lah, yang more than 50 years old. Lebih 50 tahun. Tapi dekat sini, dekat indication dia kata 32 years old male, keterangan doktor kata possibly kepada orang yang berumur 50 tahun. 20 Haah, orang yang melebihi 50 tahun. Boleh jelaskan lebih lanjut tak kenapa ada contradiction dekat sini, ada dia punya indication adalah 32 years old male, tapi possibility adalah kepada orang berumur 50 tahun? Sebab kebiasaannya cerebral atrophy ni berlaku memang 25 kepada orang-orang yang melebihi 50 tahun lah, orang muda biasa dia tidak ada atrophy lagi kecuali dia memang ada background long standing medical illness contoh macam long standing hypertension, diebetic atau ada masalah penyakit yang lain lah. Long standing medical illness seperti kencing manis, 30 darah tinggi, penyakit jantung atau penyakit-penyakit kronik yang lain. Kalau dalam kes ni adakah dia possible untuk kepada orang 32 years old male? Sebab indication cuma diberi simple macam ni. Dia tiada cakap 35 background medical illness dekat sini, so saya tak pasti. Itu mungkin doktor medical lebih tahu lah. Dia cuma menyatakan kat sini pesakit 32 tahun, dia tidak beritahu sakit-sakit lain yang pesakit ada lah. Jadi saya rasa yang lebih mengetahui adalah the primary team. Doktor yang merawat dia. Saya tak pasti. 40 ... Berkenaan dengan accute infarct tu, adakah accute infarct tu berlaku dalam kes ni? Kes ni dia old infarct, sebab kita dah nampak dia hitam dah. Infarct yang dah lama lah, bukan yang baru terjadi. Dah lama terjadi sebab nampak hitam? SP4 : Dia nampak hitam. Dia hitam. Dia clear kita nampak clear. 5 [21] We know that the Appellant did not suffer from any longstanding medical illness or taking any medication based on the testimony of SP7; he was healthy! Had he been ill when he submitted the life insurance proposal form, the premium paid would likely be much 10 higher as he would be a high-risk individual. This is a fact of which the Court could take judicial notice. However, based on the P18 document, his insurance premium was RM2,580.00 to be paid every 6 months, making it a monthly premium of RM430.00 only for a coverage of RM500,000.00. 15 [22] However, SP5 in her examination-in-chief testified that: Apakah peranan Doktor? Saya Doktor yang membuat laporan CT Scan 2017 dan 2018 Berkenaan dengan laporan CT Scan tersebut? 20 Kedua CT Scan tersebut adalah CT Scan bahagian kepala. CT Scan pada tahun 2017 saya dapati ada kawasan infarct maksudnya tisu otak yang dah mati sebelah kiri kawasan otak. Pada tahun 2018, saya membuat laporan CT Scan tersebut kelihatan normal. ... 25 Apakah yang dimaksudkan dengan “normal” pada akhir laporan CT Scan? Laporan ini bertarikh 2018, hasil akhir CT Scan ini adalah normal. Apakah yang dimaksudkan oleh “normal” di sini? Pada tahun 2017, saya melaporkan CT Scan tersebut terdapat 30 bahagian tisu otak yang infarct ataupun dah mati. Tetapi pada 2018, bahagian tisu yang dah mati sudah tidak kelihatan yang mana saya sebenarnya tidak pernah terjumpa kes yang seperti ini. Bila tisu otak dah mati memang mustahil akan dapat tisu yang normal selepas itu. 35 Perenggan kedua laporan tersebut iaitu “previous CT Brain done on 2.5.2016 and 27.9.2016”. Saya membandingkan CT Scan 2018 dengan CT Scan pada tahun 2016 serta 2017 juga. Pada tahun 2016, terdapat tisu otak yang telah mati dikedua-dua belah bahagian otak di mana apabila saya melihat pada CT Scan 2018. Tisu-tisu otak telah mati ini tidak kelihatan yang mana agak mustahil untuk kedua-dua perbezaan ini berlaku. 5 Selain rujuk CT Scan ada Doktor rujuk juga perkara lain? Terdapat juga perbezaan bentuk tengkorak kepala kedua CT Scan tersebut. Perbezaan bentuk tengkorak tu macam mana? Setiap orang bentuk kepala yang tertentu bentuk kepala ini tak 10 mungkin akan berubah apabila orang tersebut di peringkat dewasa. Apabila saya lihat bentuk kepala yang berbeza, ini menjadi satu yang tak mungkin sekiranya pesakit adalah satu pesakit orang yang sama. Tak mungkin kepala orang dewasa akan berubah. 15 Macam mana doktor boleh bezakan? Saya bandingan imej sebelah menyebelah salah satu bentuk bulat satu bentuk lonjong. ... Boleh tak doktor jelaskan sikit macam mana doktor boleh kata agak 20 mustahil untuk beza sangat daripada 2016 dengan 2018? Sebab tisu otak yang dah mati memang tak akan kembali kepada normal, jadi tak mungkin sepatutnya saya melihat ct scan yang nomal pada 2018 tersebut, kalau saya, kalau yang di scan itu adalah orang yang sama pada 2016 atau 2017, memang tak mungkin saya akan 25 lihat ct scan yang normal pada tahun 2018. So maksudnya, berdasarkan pemerhatian doktor terhadap ct scan 2016, 2017 dan 2018, apa yang cuba doktor sampaikan ya sebenarnya? Ada kemungkinan ketiga-tiga pesakit pada tahun 2016, 2017 dan 30 2018 itu adalah orang yang berlainan. [23] It was submitted by the Appellant at the lower court that it was incumbent upon the prosecution to call the person who allegedly impersonated the Appellant as a witness. This Court opined that it 35 was misconceived in law as there was no such requirement upon the prosecution. This offence was only discovered after the P2 was submitted by the Appellant to Prudential Assurance and the documents did not support the claim, which was why he was requested to submit further details and to undergo another medical examination. The Appellant failed to comply with the insurance company’s request that he was to submit to another medical examination. The CT Scan done in 2018 was because he was brought to be examined again at Hospital Ampang after the police 5 commenced investigations on the case (there were other similar cases pertaining to the Appellant that the police were investigating). [24] Sections 415 which defines cheating and 420 (the offence of cheating) and 511 (attempt) state:

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 person, or to consent that any person shall retain any 15 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, 20 is said to “cheat”. Explanation 1—A dishonest concealment of facts is a deception within the meaning of this section. Explanation 2—Mere breach of contract is not of itself proof of an original fraudulent intent. 25 Explanation 3—Whoever makes any representation through any person acting as an agent, or otherwise, for him, shall be deemed to have made the representation himself.

Cheating and dishonestly inducing delivery of property 30 Whoever cheats and thereby dishonestly induces the person deceived, whether or not the deception practiced was the sole or main inducement, to deliver any property to any person, or to make, alter, or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment for a term which shall not be less than one year and not more than ten years and with whipping, and shall also be liable to fine. 5

Punishment for attempting to commit offences punishable with imprisonment Whoever attempts to commit an offence punishable by this Code or by any other written law with imprisonment or fine or with a combination of such punishments, or attempts to cause such an offence to be committed, and in such attempt does any act towards the commission of such offence, shall, 10 where no express provision is made by this Code or by such other written law, as the case may be, for the punishment of such attempt, be punished with such punishment as is provided for the offence: Provided that any term of imprisonment imposed shall not exceed one-half of the longest term provided for the offence. 15 [25] The ingredients of the offence of attempted cheating are therefore as follows: i. that the Appellant had attempted to deceive a person by causing him to believe to be true something that is false; 20 ii. the deception must have induced that person to act in a certain manner; iii. the induced act or omission must cause or be likely to cause damage or harm to that person in body, mind, reputation, or property. 25 iv. the fraudulent or dishonest intention must exist at the time of the transaction attempted. [26] Prudential Assurance had commenced processing the claim submitted by the Appellant as soon as it received the form and 30 supporting documents (P2, P3 and P4). No doubt that P6, P7 and P8 were received much later. But all the documents above were submitted by the Appellant. He tried to put the blame on the doctors who had completed the forms even after the complainant’s company had requested vide P5 for further details from him. Based on the evidence of SP4 and SP5 as outlined above, this Court concluded that P3 could not have been an actual CT Scan of the Appellant at the material time on 2.5.2016. He was a young 32 years old man at then and according to SP7, was healthy and appeared to be healthy. 5 SP4 told the court that the CT Scan was “Kes ni dia old infarct, sebab kita dah nampak dia hitam dah. Infarct yang dah lama lah, bukan yang baru terjadi.” According to her, the atrophy meant that “keseluruhan otak telah mengecut”. And she said that she prepared the report based on the image received. She did not counter-check 10 whether the patient was the person whose image she had examined. SP6 who was the technician involved, did not remember the patient’s face as it was a long time ago since the procedure was done. 15 [27] SP5’s evidence reinforced that of SP4’s that it was an old infarct whereas the Appellant’s CT Scan done on 13.3.2018 showed there was no abnormality. Hence, the evidence of these 2 witnesses strengthened the prosecution case that the Appellant could not have been suffering from stroke when the claim form P2 and CT Scan 20 report P3 was submitted by the Appellant to Prudential Assurance. The Appellant was charged for an attempted cheating offence because the monetary payment or claim had not been paid out. The fact that SP1’s company had taken steps to process the claim proved that it had been induced to act upon the false representation 25 made by the Appellant when the relevant forms were submitted. Despite the Appellant claiming that he did not have dishonest intention when submitting the claim, the Magistrate found that his denial had not raised any reasonable doubt on the prosecution case. [28] I did not find anything wrong with the Magistrate’s conclusion that a prima facie case had been proved against the Appellant at the end of the prosecution case and she called for his defence, since she had concluded that there was credible evidence against him in regard to the offence of attempted cheating. The duty of the court 5 then is to consider the evidence given on behalf of the defence and to determine whether the defence has cast a reasonable doubt on the prosecution case. [29] The learned Magistrate after considering the case for the defence 10 found that it was a bare denial and did not raise a reasonable doubt on the prosecution case. In the case of Mohamad Radhi B Yaakob v PP [1991] 3 MLJ 169 the Supreme Court held: “In this connection, counsel for the appellant had referred to us the case 15 of PP v Saimin & Ors [1971] 2 MLJ 16 where Sharma J held that the falsity of the defence does not relieve the prosecution from proving the prosecution's case beyond reasonable doubt. We are of the view that whenever a criminal case is decided on the basis of the truth of the prosecution's case as against the falsity of the defence story, a trial judge must in accordance 20 with the principle laid down in Mat v PP [1963] MLJ 263 go one step further before convicting the accused by giving due consideration as to why the defence story, though could not be believed, did not raise a reasonable doubt in the prosecution case. Thus, even though a judge does not accept or believe the accused's explanation, the accused must not be 25 convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt in the prosecution case. …”. [Emphasis added] [30] In Ali Tan Bin Abdullah v PP [2013] 2 MLJ 676, the appellate court 30 held: “[25] Indeed, mere denial or presenting a bare story of innocence, such as in the circumstances of the present case, cannot amount to reasonable doubt. The court's acceptance of the explanation offered by an accused person must be based upon reason and common sense, and cannot 35 be illogical or irrational. The existence of reasonable doubt is dependent upon the totality of the evidence and on an examination of all the evidence in a fair and reasonable manner and not in isolation. In the present case, the learned JC in his judgment had very meticulously considered the defence of the appellant. The learned JC was satisfied that the appellant 5 had failed to cast any reasonable doubt on the prosecution's case and that the charges were proved beyond reasonable doubt. We are in complete agreement with the learned JC. We are satisfied that the learned JC had not misdirected himself in any way to occasion an error either on the law or the facts to warrant appellate interference. We are unanimous that the learned JC 10 had not made any wrong inferences on the facts before him. We found no merits in this appeal. We accordingly dismissed the appeal and affirmed the convictions and sentences on both the charges.”. [Emphasis added] 15 [31] In regard to what is a “reasonable doubt”, I refer to the case of PP v Saimin & Ors [1971] 2 MLJ 16, Sharma J held: "It has been said that 'reasonable doubt' is the doubt which makes you hesitate as to the correctness of the conclusion which you reach. If under your oaths 20 and upon your consciences, after you have fully investigated the evidence and compared it in all its parts, you say to yourself I doubt if he is guilty, then it is a reasonable doubt. It is a doubt which settles in your judgment and finds a resting place there. Or as sometimes said, it must be a doubt so solemn and substantial as to produce in the minds of the 25 jurors some uncertainty as to the verdict to be given. A reasonable doubt must be a doubt arising from the evidence or want of evidence and cannot be an imaginary doubt or conjecture unrelated to evidence". [Emphasis added] 30 [32] Having considered the evidence of both the prosecution case and defence case, I came to the same conclusion as the learned Magistrate that the Appellant's explanation was not believable and that explanation did not raise a reasonable doubt in my mind as to his guilt. He agreed that he attended all the CT Scan procedures but 35 as proven by the prosecution, particularly SP5 had told the court that upon examining the CT Scan images on the 2 previous occasions as well as the last scan done on 13.3.2018, the shape of the patient’s skull was not the same where one was round and the other more oval. Therefore, she concluded the images were of different persons. The Appellant’s explanation had not raised a doubt at all on the prosecution’s case that had undergone a maximum evaluation by the Magistrate. In fact, she stated at paragraph 51 that 5 she found his evidence to be inconsistent as follows: “51. Berdasarkan pemerhatian Mahkamah ini, keterangan Perayu semasa kes pembelaan sering bercanggah dan menimbulkan persoalan serta kemusykilan. Pada awalnya, Perayu mendakwa tidak ada membuat sebarang tuntutan dengan syarikat Prudential namun kemudiannya mengakui ada membuat 10 tuntutan tersebut. Perayu juga menafikan ada menghantar borang tuntutan kepada syarikat Prudential tetapi kemudiannya menyetujui telah menghantar tuntutan serta dokumen perubatan sokongan bagi tujuan tuntutan itu. Selain itu, bila ditanya tentang kali pertama Perayu ditimpa penyakit strok, tiga jawapan berbeza telah diberikan: pada tahun 2015, 2016, dan 2017.

Di samping itu, timbul kemusykilan pada Mahkamah ini terhadap keterangan Perayu apabila Perayu mengatakan tujuan beliau memaklum pihak syarikat Prudential tentang laporan pakar radiologi (ekshibit P4) yang diterima adalah kerana pihak insurans dikatakan telah memanggilnya untuk 20 mengingatkan tentang bayaran bulanan. Keterangan ini mahkamah sedari bercanggah dengan keterangan SP1 yang mengatakan pembayaran bagi polisi insurans yang dibeli oleh Perayu adalah dengan kekerapan setengah tahun, iaitu bayaran premium dibuat setiap enam (6) bulan dan bukan secara bulanan. Ini disokong dengan Borang Cadangan Insurans Hayat (ekshibit P18) di mana 25 kekerapan bayaran selama setengah tahun telah dipilih oleh Perayu. …

Meskipun terdapat percanggahan dan kemusykilan dari keterangan Perayu semasa kes pembelaan, adalah menjadi tanggungjawabnya tuntuk menjelaskan kelakuan beliau dalam kes ini. Menurutnya, beliau hanya 30

Walau bagaimanapun, berdasarkan keterangan SP1 dan SP2, Perayu 35 telah beri maklum balas dan telah ambil tindakan seperti yang dipohon oleh pihak syarikat pada peringkat awal sahaja. Permintaan susulan, sebagai contoh permintaan syarikat untuk Perayu hadirkan diri bagi menjalani pemeriksaan kesihatan (medical examination) semula tidak diendahkan dan tiada respon dari Perayu diberikan. Perkara ini tidak dicabar atau dipersoalkan 40 oleh peguambela terpelajar semasa SP1 berikan keterangannya. Perayu setakat mengatakan telah hadir namun tidak ingat butiran lanjut apabila disoal oleh Responden semasa pemeriksaan balas.

Pada hemat Mahkamah ini, segala tindakan yang telah (atau tidak) diambil 5 oleh Perayu dalam kes ini dipengaruhi dan juga pada masa yang sama, mempengaruhi fakta persoalan (fact in issue) dalam kes ini: pemprosesan tuntutan manfaat penyakit kritikal dan hilang keupayaan Perayu oleh syarikat Prudential. Seperti yang telah dibincangkan di perenggan 60 di atas, kesemua yang dilakukan oleh Perayu dalam kes ini adalah disebabkan tuntutan manfaat 10 tersebut.

Maklum balas yang diberikan oleh Perayu juga telah mempengaruhi fakta persoalan (fact in issue) kes ini di mana SP1 dan SP2 telah meneruskan tugas mereka dengan melaksanakan tindakan dan siasatan lanjut bagi pemprosesan 15 tuntutan tersebut. Pengeluaran beberapa surat Crisis Cover Claim (ekshibit P13 dan P14 dirujuk) yang merupakan pemberitahuan kepada Perayu tentang status tuntutan adalah fakta berkaitan (relevant fact) hasil dari tindakan Perayu sendiri. … 20

Dalam hal ini, tiada penjelasan diberikan oleh Perayu tentang kelakuannya termasuk tindakan yang telah diambil kecuali dakwaan yang beliau hanya mengikut arahan pihak syarikat Prudential. Walau bagaimanapun, Mahkamah ini berpendapat bahawa kelakuan Perayu di dalam kes ini boleh diterima pakai sebagai bukti melalui kelakuan (conduct) selaras dengan seksyen 8 Akta 25 Keterangan. Ternyata wujudnya bukti bahawa tindakan Perayu dipengaruhi oleh tuntutan manfaat yang dibuat. Ketiadaan penjelasan lanjut dari Perayu tidak menafikan bahawa tindakan yang telah diambil olehnya adalah bagi tujuan menjayakan pemprosesan tuntutan manfaat yang dipohon. 30

Berdasarkan pemerhatian Mahkamah ini, sifat kelakuan Perayu adalah suatu yang positif dan bukan sesuatu yang dinilai melalui persepsi seperti yang dinyatakan dalam kes Parlan bin Dadeh v PP (supra) di atas. Tindakan yang diambil oleh Perayu dalam kes ini telah mengambil masa dan bukan dilakukan serta merta. Jika dinilai fakta kes termasuk keterangan dan bukti yang 35 dikemukakan secara keseluruhannya, inferens yang dapat dibuat adalah Perayu bertujuan untuk menyempurnakan proses tuntutan manfaat tersebut dan itulah inferens yang dibuat oleh Mahkamah ini.

Meskipun Perayu bergantung pada hasil laporan CT Scan dan dokumen 40 yang disediakan oleh Hospital Ampang, keterangan Perayu yang tidak konsisten, bercanggah, dan menimbulkan banyak kemusykilan serta persoalan hanya menguatkan lagi hujahan pihak Responden di mana Perayu sebenarnya tahu keadaan sebenar kesihatannya. Perkara ini disokong dengan keterangan saksi-saksi termasuklah fakta dan bukti yang dikemukakan di hadapan Mahkamah ini. Oleh itu, dengan mengaplikasikan prinsip dalam kes-kes dan nas undang-undang yang dirujuk di atas, Mahkamah ini membuat dapatan bahawa Perayu sememangnya ada niat untuk cuba menipu syarikat Prudential dan sememangnya tahu apa yang beliau lakukan.”. 5 [33] Her detailed analysis showed that the learned Magistrate had considered the defence case, applying the principles in Mat v PP (supra). She did not immediately dismiss his version but she considered that although the defence was not believable, but 10 whether it did raise a doubt in her mind. In the end, the Magistrate found that it did not. There was no explanation from the Appellant about why Dr Yap Hock Hee from Poliklinik Pilah and another doctor from Klinik Loh in Bahau responded to SP1’s company that there was no record at their respective clinics that the Appellant had been 15 treated there (refer to pages 38 and 43 of RRJ3, the documents were part of P12), when he was the one who gave the information to Prudential Assurance about his alleged treatment there. [34] There was also another fact which was not challenged by the 20 defence. This was in regard to the medical questionnaires (P6, P7 and P8) that were submitted admittedly by the Appellant pursuant to the letter P5 addressed to him. The documents appeared to be incomplete or jumbled up but he did not dispute them. 25 [35] Based on the overall evidence, this Court was satisfied that the defence had not raised any reasonable doubt on the prosecution case and that the prosecution had proved its case beyond a reasonable doubt. Therefore, this Court found that the conviction was safe to be upheld. 30 APPEAL AGAINST SENTENCE [36] The Magistrate had considered the appropriate sentence for the Appellant was 2 years imprisonment from the date of conviction, 2 strokes of the rotan and prosecution costs (in default of which 4 months’ imprisonment. The Magistrate took into consideration, 5 amongst others, the Appellant’s antecedents, the seriousness and frequency of this type of offence, the conviction was after a full trial, the large amount that would have been awarded to the Appellant had the transaction been completed and that he was a first offender. 10 [37] There was evidence from SP8 that the Appellant then was also being investigated for other fraudulent claims to separate assurance companies. In order to determine whether he was indeed a first offender, upon checking the court records, I found that the Appellant was convicted by the Sessions Court on 8.3.2022 in Criminal Trial 15 WA-62K- 99-04/2018 after a full trial as follows: i. a charge of s.420 of the Penal Code where he was sentenced to 18 months’ imprisonment and 1 stroke of the rotan; and ii. a charge under s.4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 20 2001 where he was sentenced to 12 months’ imprisonment (both sentences to run concurrently). [38] His appeals against conviction and sentence to the High Court in Criminal Appeal No. WA-42K-3-03/2022 and WA-42K-2-03/2022 25 (before the then Judge of High Court 4) were heard together and later decision was handed down on 28.2.2024. The learned High Court Judge affirmed the conviction and sentence in respect of the cheating charge but found the conviction for the money-laundering charge to be unsafe. The Appellant has filed an appeal to the Court of Appeal in regard to the cheating charge and the matter is still pending hearing there. I would not say then that he was a first offender as his conviction for this case was on 19.4.2024. 5 [39] Nevertheless, after considering the appeal against sentence, by both parties I had dismissed both the DPP’s and Appellant’s appeal. The sentences of 2 years’ imprisonment and 2 strokes of the rotan were maintained as it was the Magistrate’s discretion in the court below. The sentences were for an attempted cheating charge and I 10 found they commensurate with that offence. It may be inadequate but not manifestly inadequate such that the Court should disturb the sentences imposed by the Magistrate. However, given the circumstances, I set aside the order of prosecution costs of RM5,000.00 (in default 4 months’ imprisonment) against the 15 Appellant. It is trite that an appellate court would be slow to interfere or disturb a sentence passed by a lower court unless it is manifestly wrong in the sense of being illegal or unsuitable to the proved facts and circumstances: PP v Mohamed Nor & Ors [ 1985] 2 MLJ 200. 20 [40] The sentencing judge must apply his mind to the factual matrix of the case. In other words, the sentence passed must relate to the facts and circumstances of each case: Govindnan Chinden Nair v PP [1998] 2 CLJ 370. I also refer for guidance to the case of Mohamed Jusoh bin Abdullah and Anor. V Public Prosecutor 25 [1947] MLJ 130, where Willan CJ stated: “In our view no sentence can be assessed by a simple mathematical formula. Many factors must be taken into account according to the circumstances of each individual case. In that respect we would draw attention to the matters which should be taken into account in fixing punishments as set out in Halsbury’s Laws of England (Hailsham Edition) volume 9, para 365: ‘The Court, in fixing the punishment for any particular crime, will take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the 5 offender, the provocation which he has received, if the crime is one of violence, the antecedents of the prisoner up to the time of sentence, his age and character.’” [Emphasis added] 10 [41] In the case of Sinnathurai Subramaniam v PP [2011] 5 CLJ 56, the Court of Appeal there stated: [35] The sentences imposed by the sentencing judges have a signalling effect. If the judge imposes a light custodial sentence, he is sending a message to the whole world at large, so to speak, that the offence is not 15 that serious. And if the judge imposes a binding over under the Criminal Procedure Code, he is saying that the accused should not be charged in the first place at all. So, it can be deduced that when a judge imposes a sentence he is making a statement whether the offence is serious or trivial. It is in these contexts that sentencing judges must be very cautious 20 and must weigh in a balance the gravity of the offence with the proposed sentence. The sentence imposed must always reflect public interest after taking into account the mitigation advanced by the accused. On mitigation, Abdoolcader J (later SCJ) made these erudite remarks in pp v Teh Ah Cheng [1976] CLJU 116; [1976] 1 LNS 116; [1976] 2 MLJ 186, at p. 187: 25 The respondent also puts forward in his plea in mitigation the fact that he is employed and supports an aged mother and step-brothers. He should of course have thought of this before committing the offences and not after; he is in fact pleading hardship arising from the consequences of his own acts and I would reiterate what I had occasion previously to 30 observe in another case that an offender should not expect to excite or harness any sympathy on an ipse dixit by taking the stance of the impetuous youth who killed his parents with an axe and then pleaded in mitigation that he was an orphan. [Emphasis added] 35 [42] Considering all factors in the mitigation on sentence and the facts of the case, this Court viewed that the Appellant deserved the sentence of imprisonment of 2 years (from the date of the appeal decision) and 2 strokes of the rotan. It is hoped that such sentence would send a strong message to the general public at large that crime does not pay, even an attempted crime such as this. 5 CONCLUSION [43] Premised on the above considerations, the Court did not find any error of fact or law such that would justify disturbing the findings by the Magistrate on conviction and sentence, apart from setting aside the order to pay prosecution costs. 10 Order accordingly. Dated on 20 March 2026 Sgd. 15 Noor Ruwena Binti Md. Nurdin Judge High Court Of Malaya, Kuala Lumpur (Criminal Division) 20 Representation 25 For the Appellant: Nurul Syamimi Binti Norazlan Messrs. A M Zaharil & Co., Petaling Jaya 30 For the Respondent: DPP Mohamad Shahrizzat Bin Amadan Pejabat Timbalan Pendakwa Raya, Kuala Lumpur