KAMINI A/P SATHASIVAM

KAMINI A/P SATHASIVAM

Omission of the express words 'Universiti Malaya' in the charge did not prejudice Perayu's ability to defend; the prosecution adduced sufficient evidence to satisfy the elements of cheating under s420 (dishonest inducement causing delivery of money and resulting loss); absence of witness Vijayan was not fatal as he was not a material witness whose omission made the prosecution case unsustainable; sentencing was within lawful range and properly considered aggravating and mitigating factors, therefore conviction and sentence were affirmed and prosecution's cross-appeal on sentence was dismissed.

Citation
CB-41S-6-08/2020 (Mahkamah Tinggi)
Parties
Perayu/appellant: Kamini A/P Sathasivam; Respondent/prosecution: Pendakwa Raya
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 April 2021
Case Number
CB-41S-6-08/2020 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal / High Court Determination on Appeal
Outcome
Appeal dismissed; conviction and sentence by trial court affirmed; prosecution's cross-appeal against sentence dismissed
Legal Topics
Cheating (section 420 Penal Code), Particulars of Charge (section 153 Criminal Procedure Code), Adverse Inference (section 114 Evidence Act 1950), Sentencing Principles
Source Language
Malay/English
Criminal Law Evidence Law Procedural Law Cheating (section 420 Penal Code) Particulars of Charge (section 153 Criminal Procedure Code) Adverse Inference (section 114 Evidence Act 1950) Sentencing Principles

Case Brief

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Parties

Kamini A/P Sathasivam

Perayu/appellant

Pendakwa Raya

Respondent/prosecution

Procedural Posture

Criminal Appeal / High Court Determination on Appeal

Legal Issues

  1. 1 Whether the charges contained sufficient particulars (omission of 'Universiti Malaya') under s153 KPJ
  2. 2 Whether the prosecution proved the elements of cheating under s420 Penal Code
  3. 3 Whether failure to call witness (Vijayan) permits adverse inference under s114(g) Evidence Act 1950 or otherwise vitiates conviction

Ratio Decidendi

Omission of the express words 'Universiti Malaya' in the charge did not prejudice Perayu's ability to defend; the prosecution adduced sufficient evidence to satisfy the elements of cheating under s420 (dishonest inducement causing delivery of money and resulting loss); absence of witness Vijayan was not fatal as he was not a material witness whose omission made the prosecution case unsustainable; sentencing was within lawful range and properly considered aggravating and mitigating factors, therefore conviction and sentence were affirmed and prosecution's cross-appeal on sentence was dismissed.

Court Disposition

Appeal dismissed; conviction and sentence by trial court affirmed; prosecution's cross-appeal against sentence dismissed

Orders

  • Convictions and concurrent sentences of the trial court are affirmed
  • Cross-appeal by the prosecution to increase sentence is dismissed