Tong Kim Fong

Tong Kim Fong

Prosecution proved beyond reasonable doubt each ingredient of s.408 offences: accused was a long‑serving trusted employee entrusted with company cheque book, and dishonestly completed pre‑signed cheques to deposit company funds into his personal account; accused's explanations were afterthoughts, failed to rebut statutory presumption under s.409B and defense documents were inadmissible or unsupported; therefore conviction on all 26 counts and concurrent imprisonment and fines were appropriate.

Citation
WA-3-62K-(175-183)-08/2017 (Mahkamah Sesyen)
Parties
Accused/appellant: Tong Kim Fong; Prosecution/respondent: Pendakwa Raya
Court
175-183
Jurisdiction
Malaysia
Judgment Date
28 July 2020
Case Number
WA-3-62K-(175-183)-08/2017 (Mahkamah Sesyen)
Procedural Posture
Criminal / Conviction and Sentencing in Sessions Court; Appeal Lodged to High Court
Outcome
Accused convicted on all counts under section 408 Penal Code; sentence imposed and appeal lodged
Legal Topics
Criminal Breach of Trust (sections 405/408 Penal Code), Prima Facie Test and Burden of Proof (section 173 Cpc), Evidence Admissibility and Computer Records (evidence Act 1950 Ss.90 a, 65, 66), Presumption of Dishonesty (section 409 B Penal Code), Concurrent Vs Consecutive Sentencing; One‑transaction and Totality Principles
Source Language
Malay/English
Criminal Law Evidence Law Sentencing Law Criminal Breach of Trust (sections 405/408 Penal Code) Prima Facie Test and Burden of Proof (section 173 Cpc) Evidence Admissibility and Computer Records (evidence Act 1950 Ss.90 A,65,66) Presumption of Dishonesty (section 409 B Penal Code) Concurrent Vs Consecutive Sentencing; One‑transaction and Totality Principles

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Parties

Tong Kim Fong

Accused/appellant

Pendakwa Raya

Prosecution/respondent

Procedural Posture

Criminal / Conviction and Sentencing in Sessions Court; Appeal Lodged to High Court

Legal Issues

  1. 1 Whether prosecution made out a prima facie case to call accused to defend
  2. 2 Whether accused was a servant and was entrusted with company property
  3. 3 Whether accused dishonestly misappropriated company funds into personal account

Ratio Decidendi

Prosecution proved beyond reasonable doubt each ingredient of s.408 offences: accused was a long‑serving trusted employee entrusted with company cheque book, and dishonestly completed pre‑signed cheques to deposit company funds into his personal account; accused's explanations were afterthoughts, failed to rebut statutory presumption under s.409B and defense documents were inadmissible or unsupported; therefore conviction on all 26 counts and concurrent imprisonment and fines were appropriate.

Court Disposition

Accused convicted on all counts under section 408 Penal Code; sentence imposed and appeal lodged

Orders

  • Convicted of 26 counts of criminal breach of trust under section 408 Penal Code
  • Sentenced to 10 years' imprisonment commencing from date of sentence; imprisonment on multiple counts ordered to run concurrently