PENDAKWARAYA Puan Izalina binti Abdullah ( - Jabatan Peguam Negara) Dato' Hasnal Rezua Merican & En. Muzammil Merican (Tetuan Kamarul Hisham & Hasnal Rezua)

PENDAKWARAYA Puan Izalina binti Abdullah ( - Jabatan Peguam Negara) Dato' Hasnal Rezua Merican & En. Muzammil Merican (Tetuan Kamarul Hisham & Hasnal Rezua)

The High Court upheld the Sessions Court discharge because the prosecution failed to prove a prima facie case under s.409: the accused's authority was limited by MOA and co-signatory board control so no entrustment of funds was proven; handwriting evidence was inconclusive due to missing cheque-class specimens and contradictory evidence about signatures; several cheques were shown to be for authorized purposes (salary, Safe Clinic) and material witnesses and seized files were not called/produced creating reasonable doubt; charges were defective for failing to specify the mode of breach and the correct gross sums as required by procedure; accordingly s.409B presumption was inapplicable and...

Citation
WA-42K-(4-5)-09/2020 (Mahkamah Tinggi)
Parties
Appellant (prosecution): Pendakwa Raya; Respondent (accused): Tina Fazlita binti Fadzil
Court
4-5
Jurisdiction
Malaysia
Judgment Date
20 April 2021
Case Number
WA-42K-(4-5)-09/2020 (Mahkamah Tinggi)
Procedural Posture
Criminal Appeal / Appeal Judgment High Court on Prosecution's Appeal Against Sessions Court Discharge
Outcome
Appeal by the prosecution dismissed; Sessions Court order discharging respondent upheld; respondent discharged and released without being called to enter defence on all three charges
Legal Topics
Criminal Breach of Trust (s.405/409 Penal Code), Entrustment Vs Custody, Forgery/signature Analysis, Sufficiency and Particulars of Charge (s.153, S.154, S.156 Cpc), Presumption Under S.409 B Penal Code, Failure to Call Material Witnesses (adverse Inference S.114(g) Evidence Act)
Source Language
Malay/English
Criminal Law Corporate/trust Law Evidence Law Criminal Procedure Criminal Breach of Trust (s.405/409 Penal Code) Entrustment Vs Custody Forgery/signature Analysis Sufficiency and Particulars of Charge (s.153, S.154, S.156 Cpc) +2 more

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Parties

Pendakwa Raya

Appellant (prosecution)

Tina Fazlita binti Fadzil

Respondent (accused)

Procedural Posture

Criminal Appeal / Appeal Judgment High Court on Prosecution's Appeal Against Sessions Court Discharge

Legal Issues

  1. 1 Whether the prosecution proved entrustment/dominion over YTSS funds
  2. 2 Whether signatures on cheques were proven forged and attributable to the respondent
  3. 3 Whether respondent dishonestly misapplied or converted foundation funds for own use

Ratio Decidendi

The High Court upheld the Sessions Court discharge because the prosecution failed to prove a prima facie case under s.409: the accused's authority was limited by MOA and co-signatory board control so no entrustment of funds was proven; handwriting evidence was inconclusive due to missing cheque-class specimens and contradictory evidence about signatures; several cheques were shown to be for authorized purposes (salary, Safe Clinic) and material witnesses and seized files were not called/produced creating reasonable doubt; charges were defective for failing to specify the mode of breach and the correct gross sums as required by procedure; accordingly s.409B presumption was inapplicable and...

Court Disposition

Appeal by the prosecution dismissed; Sessions Court order discharging respondent upheld; respondent discharged and released without being called to enter defence on all three charges

Orders

  • Appeal dismissed
  • Respondent discharged and released without being called to enter defence on all three charges under s.409 Penal Code