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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN RAYUAN JENAYAH NO: 42S-76-12/2015 ANTARA RUZAINI BINTI ROSLI ... PERAYU LAWAN PENDAKWA RAYA ... RESPONDEN JUDGMENT 2 INTRODUCTION [1] The accused in this case is appealing against the decision of the Sessions Judge (“SJ”) sentencing her to 7 years’ imprisonment (to run concurrently from the date of sentence) for 10 charges under s. 471 of the Penal Code read together with s. 467 of the same. FINDINGS OF THE SJ The gist of the learned SJ’s findings are as follows: The cheques were forged [2] This is based on SP3’s evidence that she did not sign those cheques because the receivers were not suppliers to Selecta Enterprise, which was corroborated by SP8, SP2, SP5 and SP7. Not only that, expert evidence (SP8) confirmed that the signature of the cheques were forged. [3] Furthermore, SP2, SP5 and SP3’s evidence showed that some of the cheques were transferred to two accounts over which the accused had control and access of and the evidence of SP2 and SP5 showed that they had no knowledge of 3 transactions relating to the mentioned accounts after the accounts were handed over for the accused’s use. [4] There was also evidence that part of the monies were transferred to SP7 (an employee of SP3) when SP7 was to be paid his salary in cash and the amount transferred was not the same as his salary. SP7 had testified that the accused had borrowed his bank account and he would withdraw the monies and give them to the accused. [5] The learned SJ took the view that there was a material failure by accused to explain why company-owned cheques were issued and deposited to accounts where the accused had control and access of. The accused had used as genuine the forged cheques [6] The learned SJ found that the cheques in question had been deposited in the accounts of SP2, SP5, and SP7, and the accused’s handwriting was on the front and back of the cheques; 4 [7] According on SP7’s evidence, 6 out of 10 of the cheques were paid into his account by the accused based on the handwriting on the front and back of the cheques. [8] To the learned SJ, the fact that the accused’s handwriting was on the cheques showed that she used as genuine the cheques and the accused herself had admitted that it was her handwriting on those cheques; [9] In the SJ’s view, being supervisor of the petrol station meant that the accused was aware that SP3’s signature was required before any payments could be made and she also knew that the recipients of the cheques were not suppliers entitled to receive payment from Selekta Enterprise. The accused had reason to believe that the cheques were forged and had used as genuine the forged cheques [10] This ingredient was present as the accused by virtue of her position as supervisor of the company must have had reason to believe that the cheques were forged. There was also a failure on the accused’s part to challenge SP3’s evidence. 5 The accused’s defence [11] With regard to the accused’s defence, the learned SJ found that there was no dispute by the accused that the cheques were prepared by her and deposited in the accounts of SP2, SP5 and SP7. If the cheques were prepared and deposited by someone else, the accused would not have known that monies were deposited in said accounts. [12] The learned SJ held that the non-production of the logbook and CCTV recordings were not fatal to the Prosecution’s case as they are corroborative evidence and in this case the Prosecution had proven its case successfully. [13] Referring to the accused’s police report (D18), the learned SJ felt that it was an afterthought because in it the accused stated that on 6.8.2011 she received an SMS from the complainant’s husband asking her to repay the monies that she misappropriated. This showed that D18 was made after the complainant and her husband found out about the accused’s wrongdoing. 6 SUBMISSIONS BY THE ACCUSED [14] The accused’s appeal rests on the following grounds: i. the failure by the SJ to take note of material discrepancies in the evidence of SP2 (the complainant), SP7, SP9, SD1 and SD2 ii. SP2, SP7, SP9 and SD1’s evidence that the company’s cheques were not managed by the accused alone as two other supervisors had access to those cheques. iii. SP2, SP7, SP9 and SD1’s evidence that the cheques were kept in a locked drawer in a special room for the accused contrasts with the evidence of SP7 and SD1 that there was no special room and many employees had access to said room including other supervisors. iv. SP2, SP7, SD1’s evidence that if the accused was on leave, someone else would prepare the voucher and cheques which contrasts with SP3’s evidence that only the accused handled the cheques. 7 v. failure of the SJ to find that SP2 acted with mala fide against the accused as SP2 is facing financial difficulties and the accused is just a convenient scapegoat vi. failure of the SJ to invoke s. 114(g) Evidence Act 1950 for the Prosecution’s failure to produce evidence / a sample of the accused’s signature, the CCTV recordings and logbook. SUBMISSIONS BY THE PROSECUTION [15] On the other hand, we have the prosecution’s submissions which can be summarized as thus: i. SP3’s evidence confirming that the signatures on the cheques were not hers which is supported by SP8 who is an expert document examiner. ii. the failure of the Prosecution to produce a sample of the accused’s signature was not used to cross-examine SP9. 8 iii. The Prosecution does not have a burden to compare the sample signature with the accused’s signature as its duty is to show that the signatures are not SP3’s. iv. SP3 and SP7 have both confirmed that the handwriting on the cheques is the accused’s and SP7’s evidence is especially credible as he revealed that he was “more than a friend” to the accused (see p 169, Rekod Rayuan Jilid 1). v. The signature of the cheques were so different that it prompted SD2 (an officer of Al-Rajhi Bank) to contact SP3 for verification (see p 246, Rekod Rayuan Jilid 1). DECISION [16] Section 471 of the Penal Code reads: “Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.” 9 [17] Under s. 471 the Prosecution has to prove that the document in question is forged and the accused fraudulently or dishonestly used as genuine the forged document. [18] The evidence shows that the documents were indeed forged. Secondly, the fact that various amounts were banked into accounts over which the accused had control and access and withdrawn by her subsequently was never explained plausibly. [19] In my view, the learned SJ has made the correct finding of fact as to the elements of the offence and rightly convicted the accused. Having answered that in the affirmative the remaining issue confronting the court is whether the sentence meted out on the accused is adequate. [20] Under s. 467 of the Penal Code, the accused “shall be punished with imprisonment for a term which may extend to twenty years, and shall be liable to fine.” [21] In the case of PP v Jaffa bin Daud (1981) 1 MLJ 315 Mohamed Azmi J (as he was then) expressed the correct stand for the sentencing principle:- 10 “Sentence according to law ”means that the sentences must not only be within the ambit of the punishable section, but it must also be assessed and passed in according with established judicial principles..” The accused in this case is a first offender (PP v Nazarudin Ahmad & Ors [1993] 2 CLJ 543 at 547 referred). She has three children who require the care of their mother. In light of this, I am of the opinion that the sentence of seven (7) years imprisonment imposed by the learned SJ is manifestly excessive. A more appropriate punishment would be imprisonment of three (3) years for each charge, and the sentences are to run concurrently commencing today. The appellant’s appeal is hereby allowed as to the extent of her sentence. (SURAYA OTHMAN) Judge, Criminal Court, High Court of Malaya, Shah Alam, Selangor. Dated 25th April 2017 11 Cases (s) referred to: