NOR BADLI MUNAWIR BIN MOHAMAD ALIAS LAFTI [Suruhanjaya Pencegahan Rasuah Malaysia (SPRM)]

WA-42R-10-10/2019 Kand. 87 27/06/2022 16:19:29 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA. CRIMINAL APPEAL NO: WA – 42R – 10 – 10/2019 BETWEEN NOR BADLI MUNAWIR BIN MOHAMAD ALIAS LATFI … APPELLANT AND PUBLIC PROSECUTOR … RESPONDENT (In the matter of Sessions Court Kuala Lumpur In the Federal Territory, Malaysia. Arrest Case No: WA-62R-001-01/2017 Arrest Case No: WA-62R-002-01/2017 Arrest Case No: WA-62R-007-03/2017 Arrest Case No: WA-62R-008-03/2017 PUBLIC PROSECUTOR V. NOR BADLI MUNAWIR BIN MOHAMAD ALIAS LATFI) 1 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal JUDGMENT Introduction [1] In this judgment, the parties are referred to as they were at the trial court. The accused was charged with five counts of criminal breach of trust (“CBT”) under section 409 of the Penal Code and five counts of money laundering under section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (“AMLATFA”). [2] At the close of prosecution, the learned trial judge made a finding of a prima facie case and ordered the accused to enter his defence on all charges except for one charge under the AMLATFA. In acquitting and discharging the accused at the end of the prosecution’s case for that one particular charge under the AMLATFA, the learned trial judge accepted the accused’s alibi. The learned trial judge found that at the material time, the accused was in Singapore and could not have committed the money laundering offence in Kuala Lumpur. [3] At the close of defence, the learned trial judge convicted the accused of all remaining charges. For each offence of CBT, the accused was sentenced to imprisonment for the period of 7 years. This sentence of imprisonment was ordered to run concurrently. For each offence of money laundering, the accused was sentenced to imprisonment for the period of 4 years. This sentence of imprisonment was also ordered to run concurrently. The learned trial judge further ordered for the sentence of 2 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal imprisonment for CBT and money laundering to be served consecutively. [4] The accused appealed against both the conviction and sentence. Having examined the record of appeal and considered the submissions of the learned counsel and the learned DPP, I dismissed the appeal against the conviction for CBT and money laundering. However, I allowed the appeal against sentence. The sentence of 7 years imprisonment for each CBT offence was set aside and substituted with a sentence of 5 years imprisonment. The sentence of 4 years imprisonment for each offence under the AMLATFA was set aside and substituted with a sentence of 3 years imprisonment. The charge [5] For ease of reference, the charges are abbreviated and referred to as follows: Charges for Criminal Breach of Trust Arrest Case No: WA-62R-001-01/2017: (“CBT 1”) “PERTUDUHAN PERTAMA Bahawa kamu di dalam bulan April 2013, di Pejabat THHE Fabricators Sdn Bhd, Tingkat 23, Tower B, Menara UOA Bangsar, No. 5, Jalan Bangsar Utama, di dalam Wilayah Persekutuan Kuala Lumpur, sebagai Ketua Pegawai Eksekutif syarikat TH Heavy Engineering Bhd dan di dalam kapasiti tersebut, diamanahkan dengan suatu harta iaitu sekeping cek Maybank bertarikh 30.4.13 bernombor 681488 berjumlah RM400,000.00 telah melakukan pecah amanah jenayah dan adalah dengan ini melakukan satu kesalahan yang boleh dihukum di bawah seksyen 409 Kanun Keseksaan.” 3 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (“CBT 2”) “PERTUDUHAN KEDUA Bahawa kamu di dalam bulan Jun 2013, di Pejabat THHE Fabricators Sdn Bhd, Tingkat 23, Tower B, Menara UOA Bangsar, No. 5, Jalan Bangsar Utama, di dalam Wilayah Persekutuan Kuala Lumpur, sebagai Ketua Pegawai Eksekutif syarikat TH Heavy Engineering Bhd dan di dalam kapasiti tersebut, diamanahkan dengan suatu harta iaitu sekeping cek Maybank bertarikh 26.06.13 bernombor 753749 berjumlah RM570,000.00 telah melakukan pecah amanah jenayah dan adalah dengan ini melakukan satu kesalahan yang boleh dihukum di bawah seksyen 409 Kanun Keseksaan.” (“CBT 3”) “PERTUDUHAN KETIGA Bahawa kamu di dalam bulan Jun 2013, di Pejabat THHE Fabricators Sdn Bhd, Tingkat 23, Tower B, Menara UOA Bangsar, No. 5, Jalan Bangsar Utama, di dalam Wilayah Persekutuan Kuala Lumpur, sebagai Ketua Pegawai Eksekutif syarikat TH Heavy Engineering Bhd dan di dalam kapasiti tersebut, diamanahkan dengan suatu harta iaitu sekeping cek Maybank bertarikh 26.06.13 bernombor 753760 berjumlah RM430,000.00 telah melakukan pecah amanah jenayah dan adalah dengan ini melakukan satu kesalahan yang boleh dihukum di bawah seksyen 409 Kanun Keseksaan.” Arrest Case No: WA-62R-002-01/2017: (“CBT 4”) “PERTUDUHAN PERTAMA Bahawa kamu di dalam bulan September 2013, di Pejabat THHE Fabricators Sdn Bhd, Tingkat 23, Tower B, Menara UOA Bangsar, No. 5, Jalan Bangsar Utama, di dalam Wilayah Persekutuan Kuala Lumpur, sebagai Ketua Pegawai Eksekutif syarikat TH Heavy Engineering Bhd dan di dalam kapasiti tersebut, diamanahkan dengan suatu harta iaitu sekeping cek Maybank bertarikh 09.09.13 bernombor 802984 berjumlah RM600,000.00 telah melakukan pecah amanah jenayah dan adalah dengan ini melakukan satu kesalahan yang boleh dihukum di bawah seksyen 409 Kanun Keseksaan.” 4 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (“CBT 5”) “PERTUDUHAN KEDUA Bahawa kamu di dalam bulan Oktober 2013, di Pejabat THHE Fabricators Sdn Bhd, Tingkat 23, Tower B, Menara UOA Bangsar, No. 5, Jalan Bangsar Utama, di dalam Wilayah Persekutuan Kuala Lumpur, sebagai Ketua Pegawai Eksekutif syarikat TH Heavy Engineering Bhd dan di dalam kapasiti tersebut, diamanahkan dengan suatu harta iaitu sekeping cek Maybank bertarikh 30.10.13 bernombor 834262 berjumlah RM575,800.00 telah melakukan pecah amanah jenayah dan adalah dengan ini melakukan satu kesalahan yang boleh dihukum di bawah seksyen 409 Kanun Keseksaan.” Charges for Money Laundering Arrest Case No: WA-62R-007-03/2017: (“AMLATFA 1”) “PERTUDUHAN PERTAMA Bahawa kamu pada 2 Mei 2013 antara jam 06.00 petang dan 08.00 malam di Old Town White Coffee Ara Damansara, Oasis Square, No. 2, Jalan PJU 1A/7A, Petaling Jaya, dalam daerah Petaling, dalam Selangor, telah melibatkan diri dalam penggubahan wang haram, dengan menerima wang tunai berjumlah RM400,000.00 daripada Murhasmee bin Mukhtar, Pengarah Syarikat Bicara Sepakat Sdn Bhd yang merupakan hasil daripada suatu aktiviti haram dan oleh itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 4(1)(a) Akta Pencegahan Penggubahan Wang Haram dan Pencegahan Pembiayaan Keganasan 2001.” (“AMLATFA 2”) “PERTUDUHAN KEDUA Bahawa kamu pada 26 Jun 2013 antara jam 06.00 petang dan 08.00 malam di Old Town White Coffee Ara Damansara, Oasis Square, No. 2, Jalan PJU 1A/7A, Petaling Jaya, dalam daerah Petaling, dalam Selangor, telah melibatkan diri dalam penggubahan wang haram, dengan menerima wang tunai berjumlah RM570,000.00 daripada Murhasmee bin Mukhtar, Pengarah Syarikat Bicara Sepakat Sdn Bhd yang merupakan hasil daripada suatu aktiviti haram dan oleh itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 4(1)(a) Akta Pencegahan Penggubahan Wang Haram dan Pencegahan Pembiayaan Keganasan 2001.” 5 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (“AMLATFA 3”) “PERTUDUHAN KETIGA Bahawa kamu pada 11 September 2013 antara jam 06.00 petang dan 08.00 malam di Old Town White Coffee Ara Damansara, Oasis Square, No. 2, Jalan PJU 1A/7A, Petaling Jaya, dalam daerah Petaling, dalam Selangor, telah melibatkan diri dalam penggubahan wang haram, dengan menerima wang tunai berjumlah RM600,000.00 daripada Murhasmee bin Mukhtar, Pengarah Syarikat Bicara Sepakat Sdn Bhd yang merupakan hasil daripada suatu aktiviti haram dan oleh itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 4(1)(a) Akta Pencegahan Penggubahan Wang Haram dan Pencegahan Pembiayaan Keganasan 2001.” Arrest Case No: WA-62R-008-03/2017: (“AMLATFA 4”) “PERTUDUHAN PERTAMA Bahawa kamu pada 27 Jun 2013 antara jam 02.00 dan 04.00 petang di THHE Fabricators Sdn Bhd, B-23-1, Tower B, Menara UOA Bangsar, No. 5, Jalan Bangsar Utama 1, 59200 Kuala Lumpur, dalam daerah Kuala Lumpur, dalam Kuala Lumpur, telah melibatkan diri dalam penggubahan wang haram, dengan menerima wang tunai berjumlah RM430,000.00 daripada Mohd Razip bin Mohammad, Pengarah Syarikat Coral Intoil yang merupakan hasil daripada suatu aktiviti haram dan oleh itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 4(1)(a) Akta Pencegahan Penggubahan Wang Haram dan Pencegahan Pembiayaan Keganasan 2001.” (“AMLATFA 5”) “PERTUDUHAN KEDUA Bahawa kamu pada 1 November 2013 antara jam 03.00 dan 04.00 petang di Restoran Leaf Dining, No. 5-1, Jalan Solaris 1, Solaris Mont Kiara, 50480 Kuala Lumpur, dalam daerah Kuala Lumpur, dalam Kuala Lumpur, telah melibatkan diri dalam penggubahan wang haram, dengan menerima wang tunai berjumlah RM570,000.00 daripada Hanaffi bin Daud, Pengarah Syarikat RL Offshore Sdn Bhd yang merupakan hasil daripada suatu aktiviti haram dan oleh itu kamu telah melakukan suatu kesalahan yang boleh dihukum di bawah seksyen 4(1)(a) Akta Pencegahan Penggubahan Wang Haram dan Pencegahan Pembiayaan Keganasan 2001.” 6 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal The case for the prosecution [6] The accused was the Chief Executive Officer for TH Heavy Engineering Bhd. (“THHE”). THHE was involved in the business of fabrication of offshore oil and gas facilities. The broad facts presented by the prosecution were that the accused had instructed for payments to be made by THHE to certain companies. These payments were purportedly meant for work done pursuant to certain agreements but they were in fact, not due. Some of the cheques for the payments were signed by the accused himself together with another signatory whereas other cheques were signed by two other authorized signatories. These cheques were later encashed by the respective payees and the monies were in turn given back to the accused. [7] The salient facts of the case for the prosecution in respect of each charge were as follows: CBT 1 & AMLATFA 1 [8] In early April 2013, Murphy Sarawak Oil Co. Ltd (“Murphy”) awarded THHE with the PERMAS development project (“PERMAS project”). For this project, THHE appointed Bicara Sepakat Sdn Bhd (“Bicara Sepakat”) as its subcontractor. [9] At the end of April 2013, the accused told his General Manager of Finance (PW20) that RM400,000.00 needed to be paid to the Murphy guys urgently for the award of the PERMAS project. A total of RM2 million need to be paid and the RM400,000.00 was just an initial payment. For this purpose, the 7 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal accused told PW20 that Bicara Sepakat will facilitate the arrangement. [10] PW20 then instructed the accounts executives (PW18 and PW4) to prepare the cheque for payment to Bicara Sepakat. PW20 also instructed for the cheque to be remitted directly into the account of Bicara Sepakat because the accused wanted it done urgently. The cheque (Exhibit P15) was signed by PW20 and counter-signed by the accused. [11] PW6 was the director for Bicara Sepakat. PW6 and PW8 are spouses. PW6 said she was asked to generate a sham invoice for the payment. After the RM400,000.00 was credited into the account of Bicara Sepakat, PW6 instructed PW5 to prepare a payment for “repayment of advances” to a director. PW5 then prepared the payment voucher (Exhibit P44) and the cheque (Exhibit P46) for payment. [12] After the cheque was encashed, PW6 and PW8 went to Kuala Lumpur to meet the accused. They met at the Old Town White Coffee café at Ara Damansara in Petaling Jaya. At the meeting, PW8 handed over the cash of RM400,000.00 to the accused. PW8 explained that although he felt awkward about the whole episode, he had to do it nevertheless as he was put in a spot. Bicara Sepakat had business dealings with THHE and obviously PW8 did not want anything to jeopardize that position. 8 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal CBT 2 & AMLATFA 2 CBT 3 & AMLATFA 3 [13] Two months later in June 2013, the accused instructed PW20 to prepare another payment of RM1 million for the Murphy guys. The accused told PW20 to make it up as payment for “consultancy” and instructed it to be made in two separate cheques. One was for RM570,000.00 to be made payable to Bicara Sepakat and the other was for RM430,000.00 to be made payable to Coral Intoil Sdn Bhd (“Coral Intoil”). [14] PW20 then instructed PW18 and PW4 to prepare the cheques. Both cheques (Exhibits P27 and P26) were signed by PW20 and counter-signed by the accused. After the cheques were prepared and signed, the accused later instructed PW20 to ensure that the payments were credited directly into the respective accounts of Bicara Sepakat and Coral Intoil. As a result, new cheques as well as the bank remittance forms had to be prepared and signed. [15] Two replacement cheques (Exhibits P16 and P10) were then prepared. By this time, the accused was not in the office. As such, the replacement cheques were signed by PW20 and counter-signed by another authorized signatory for THHE, PW19. [16] PW8 said he received a telephone call from the accused on 26.06.2013. The accused told PW8 that RM570,000.00 has been credited into the account of Bicara Sepakat. The accused 9 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal told PW8 to withdraw the amount and hand over the cash to him. PW8 later checked the company’s accounts and found that the RM570,000.00 had indeed been credited. PW8 then asked PW6 to make the cash withdrawal. [17] A payment voucher (Exhibit P45) and a cheque for RM570,000.00 (Exhibit P47) were prepared by the finance clerk of Bicara Sepakat. The payment voucher was made out as “repayment of loan”. Later, PW6 went to the bank together with PW8 to encash the cheque. On the same day they went to Kuala Lumpur and met the accused again at the Old Town White Coffee café at Ara Damansara in Petaling Jaya and handed over the cash to the accused. [18] The executive director of Coral Intoil (PW13) testified that the accused had asked him for a favour. PW13 said the accused wanted him to withdraw cash of RM430,000.00 and handed it over to him because the accused said he needed it to pay up the Murphy guys. PW13 was initially reluctant but had to give in ultimately because he was concerned of the business that Coral Intoil had with THHE under a certain teaming agreement. Naturally, PW13 did not want Coral Intoil to lose the business deal with THHE. [19] In anticipation of the RM430,000.00 payment as indicated by the accused, PW13 instructed the company’s accounts executive to prepare a cheque (Exhibit P80) for RM431,028.00. Out of the RM431,028.00, RM430,000.00 was meant to be given 10 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal to the accused whereas the additional RM1,028.00 was for PW13’s own use. The additional sum of RM1,028.00 had nothing to do with the accused. [20] Towards the end of June on 26.06.2013, PW13 received the cheque for RM430,000.00 (Exhibit P26) from THHE. It was then deposited into the company’s account. A sham invoice (Exhibit P18) was generated and a sham receipt (Exhibit P88) was issued. However, the RM430,000.00 cheque (Exhibit P26) from THHE was later found to have been dishonoured. Upon inquiry, the accused explained to PW13 that that cheque had been replaced with another for purposes of direct remittance into the account of Coral Intoil. [21] The next day on 27.06.2013, PW13 checked the accounts again and found the money had in fact been credited. PW13 then encashed the cheque (Exhibit P80) he earlier had prepared. In the afternoon on the same day, PW13 called up the accused and said that he was already enroute to meet the accused at the Bangsar office of THHE. PW13 met the accused at the Bangsar office and handed over to the accused a bag containing the money. They met for a brief two or three minutes. The accused thanked him and PW13 left. CBT 4 and AMLATFA 4 [22] Sometime in September 2013, the accused instructed PW20 to prepare a cheque for RM600,000.00 made payable to Bicara Sepakat. According to the accused, this was the final 11 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal balance for the RM2 million payment to be given to the Murphy guys. [23] Again, PW20 instructed PW18 and PW4 to prepare the payment voucher and the cheque. PW4 said she was instructed to generate a sham payment voucher in favour of Bicara Sepakat although she did not receive any invoice from Bicara Sepakat. The cheque (Exhibit P17) was signed by PW20 and counter- signed by the accused. It was then credited directly into the account of Bicara Sepakat. [24] After that, the accused informed PW8 that the money has been credited into the account of Bicara Sepakat. After verifying the remittance, PW8 and PW6 went to the bank and PW6 issued a cheque (Exhibit P48) to withdraw cash of RM600,000.00. For this transaction, Bicara Sepakat generated a sham invoice (Exhibit P21) to THHE to justify receipt of the RM600,000.00. [25] PW6 gave the RM600,000.00 to PW8 and then both of them later set off again to Kuala Lumpur to meet the accused. In Kuala Lumpur, PW8 handed over the money to the accused at the Old Town White Coffee café at Ara Damansara in Petaling Jaya. CBT 5 and AMLATFA 5 [26] At the end of October 2013, the accused told PW20 that a final payment of RM575,800.00 was still needed to be made to the Murphy guys. At first, PW20 was hesitant as RM2 million had 12 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal earlier been paid to the Murphy guys. The accused reasoned that in actual fact, the amount which should be paid to the Murphy guys was 1.5% of the PERMAS contract sum amounting to RM2,575,833.00. [27] The accused then told PW20 to prepare the payment. This time, the accused instructed it to be made payable to RL Offshore Sdn Bhd (“RL Offshore”). Once again PW20 instructed PW18 and PW4 to prepare the payment voucher and the cheque. There was no invoice received from RL Offshore. Both the payment voucher and the cheque were signed by PW20 and counter-signed by the accused. [28] On the same day, PW11 said that he met PW20 and the accused at the PJ Hilton hotel. PW11 was the chief executive officer for RL Offshore. At the meeting, PW11 was given the RM575,800.00 cheque (Exhibit P7). The accused then asked PW11 to encash the cheque and hand over to him cash of RM570,000.00. The accused said PW11 could keep the balance of RM5,800.00. [29] The RM575,800.00 cheque (Exhibit P7) was credited into the account of RL Offshore the next day. The day after, PW11 withdrew cash of RM570,000.00 through 3 cheques (Exhibits P81A, P81B and P81C). After that, PW11 met the accused at about 3:00 pm at the Restoran Leaf Dining at Mont Kiara and handed over the money. PW11 said he was constrained to agree 13 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal with the demands made by the accused because RL Offshore then was still pretty much tied-up to the PERMAS project. [30] On a separate but related incident, RL Offshore made a claim for RM1 million from THHE. This claim was in respect of a milestone payment under the PERMAS project. RL Offshore made this claim vide invoice No. 039/13 (Exhibit P6). For this claim, THHE only paid RL Offshore the sum of RM424,200.00 instead of the RM1 million claimed. This was the result of the project accounts which showed that the sum of RM575,800.00 had already been “paid” by THHE to RL Offshore. [31] This “short-payment” annoyed PW11. He insisted for full payment of the milestone claim. Due to the insistence by PW11, the accused turned to PW8 and told PW8 that Bicara Sepakat has to stand in to make good the demand made by PW11. PW8 said he had no choice in the circumstances but to oblige. A cheque (Exhibit P49) for the amount was later made out and encashed by PW6. Sometime in July 2014, PW6 delivered the cash to PW8 to be given to PW11. The case for the defence Problems in management systems [32] Towards the end of 2011, THHE and all its subsidiaries were involved in migration of the company’s computerized management systems. In the process, there were a number of complaints received by the finance department in terms of discrepancies in recorded payments to the contractors. The 14 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal management system recorded payments more than that claimed by the contractors. These were teething problems during the migration which caused delays in payments to the contractors for THHE Fabricators. Among the contractors involved were Bicara Sepakat, Coral Intoil and RL Offshore. [33] In the oil and gas industry, a delayed payment would inevitably cause delays in completion of the works by the contractors as their liquidity was limited. In the long run, the inability of the contractors to complete the works within time would delay the completion of the whole project. Ultimately, THHE Fabricators would have to shoulder exorbitant liability in liquidated damages for late delivery imposed by the project owners or clients. [34] The management of THHE and THHE Fabricators were then under tremendous pressure to avoid liquidated damages from being imposed. Any delay in the completion of the projects would jeopardise the company’s reputation and affect the company’s ability to secure future tenders. In fact, delays had already occurred in one of the projects and THHE Fabricators had to pay more than RM2.7 million in liquidated damages. Towards the end of December 2013 SHELL had imposed liquidated damages against THHE Fabricators amounting to more than RM5.3 million. [35] As a measure to overcome the problems due to the migration of the management systems, the top management of 15 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal THHE together with the finance department decided to accelerate payments to its contractors. THHE started making advance payments to certain contractors and used the term “consultancy” as a general heading to describe payments made to contractors for temporary works (“advance payment arrangements”). Bicara Sepakat Sdn Bhd [36] Bicara Sepakat was one of the contractors for the PERMAS project awarded by Murphy to THHE Fabricators. It was a small-scale company with limited financial capability and depended largely on its progress claims. For that reason, THHE Fabricators made advance payments to Bicara Sepakat to assist its cash flow, procurement of equipment and mobilisation. [37] Due to the inability of THHE Fabricators to generate purchase orders in time arising out of teething issues with the new management systems, payments to Bicara Sepakat were delayed. This has resulted in Bicara Sepakat to experience a bad cash flow position. Completion of the Shell D12 – Laila project was also delayed. Ultimately, a penalty for delays was imposed against THHE Fabricators. [38] A total of 3 advance payments were made to Bicara Sepakat. The accused admitted having counter-signed the cheques for 2 payments. The other signatory was PW20. One was for the sum of RM400,000.00 and the other was for the sum of RM600,000.00. 16 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal [39] The accused admitted having counter-signed a cheque dated 25.06.2013 for the sum of RM570,000.00 payable to Bicara Sepakat. It was for an advance payment but it was not the subject of any charge. However, the accused denied any knowledge of the cheque dated 26.06.2013 for RM570,000.00 which was the subject matter of CBT 2. Coral Intoil Sdn Bhd [40] Coral Intoil was one of the contractors for THHE Fabricators for the Shell D12 – Laila project. Sometime in the middle of September 2012, both THHE Fabricators and Coral Intoil entered into a teaming agreement whereby both parties agreed to collaborate in the preparation and submission of tenders for works. [41] The accused admitted having counter-signed a cheque dated 25.06.2013 for the sum of RM430,000.00 for Coral Intoil. According to the accused, it was for an advance payment but it was not the subject matter of any charge. However, the accused said he had no knowledge of the cheque made out the day after on 26.06.2013 for RM430,000.00 which was the subject matter of CBT 3. RL Offshore Sdn Bhd [42] RL Offshore was one of the contractors for THHE Fabricators. Sometime towards the end of July 2013, RL Offshore was awarded a project by THHE Fabricators. It was one of the packages in the PERMAS project. Payment for this project 17 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal was based on milestone achievements. There were five milestones and for each milestone the payment was valued at RM1 million. [43] In early October 2013, RL Offshore issued an invoice for RM1 million to THHE Fabricators. It was for the 1st milestone claim. However, at that time THHE Fabricators was experiencing some financial difficulties. [44] At the end of October 2013, the accused accompanied by PW20 met PW11 at the PJ Hilton hotel. At the meet-up, the accused explained to PW11 the issues faced by THHE Fabricators and asked for his understanding. After that, the cheque for RM575,800.00 was handed over to PW11. According to the accused, arrangements were made for the payment to RL Offshore to be made in two tranches. The first tranche was for RM575,800 and the next tranche was for RM424,200.00. Payments were validly made and accused did not receive any money [45] The accused maintained that all the cheques were validly signed by him in his capacity as the CEO of THHE or as a director for THHE Fabricators. They were payments rightfully made for works and services rendered by the respective contractors. The accused denied ever demanding for or receiving any of the monies. 18 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal [46] According to the accused, during investigations all his assets as well as those belonging to his family were not forfeited under the AMLATFA. The accused said this was due to the fact that all the assets were not proceeds of any unlawful activities or proceeds of any offence of criminal breach of trust under section 409 of the Penal Code. [47] According to the accused, PW20 was not a credible witness because his evidence was self-serving and suffered from various contradictions. The accused said PW20 was a witness who had the tendency to distort evidence to save his own skin. The basis of this challenge rests on two separate civil actions taken against PW20. [48] In respect of AMLATFA 4, the accused had an alibi. On that day, he was in a meeting with DW5 of PricewaterhouseCoopers at his office at about 3:00 pm. His personal assistant (DW3) could confirm that he did not leave his office at all during the meeting. As such, there was no way that he could have met PW13 from Coral Intoil to receive the RM430,000.00 as alleged in AMLATFA 4. Analysis and findings Duty of an appellate court in appeals against conviction [49] In considering an appeal against conviction, the duty of an appellate court is to ascertain whether the conviction is safe and not whether the decision is wrong. (See: Mohd Johi Said & Anor v. Public Prosecutor [2005] 1 CLJ 389 CA; [2005] 5 MLJ 19 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 409; [2004] 2 MLRA 425; [2004] 6 AMR 825, Mohamad Deraman v. Public Prosecutor [2011] 3 CLJ 601 CA; [2011] 3 MLJ 289; [2010] 3 MLRA 602; [2011] 3 AMR 513). [50] In dealing with findings of facts arrived at by the trial judge, it is not for the appellate court to make its own. Legally speaking, that function is reserved for the trial judge as an appellate court is fettered by lack of audio-visual advantage enjoyed by the trial court. (See: PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 FC; [2005] 6 MLJ 393; [2005] 2 MLRA 590; [2005] 6 AMR 203). [51] It is trite that this Court at the appellate stage is entitled to subject the evidence to a revision and re-evaluation in determining the issued raised in the appeal even if the grounds of decision of the trial judge as appearing in the appeal records is found lacking in specific findings. (See: Ahmad Najib bin Aris v. Public Prosecutor [2009] 2 CLJ 800 FC; [2009] 2 MLJ 613; [2009] 1 MLRA 58; 2009] 4 AMR 473). [52] It has been held that the exceptions to the principles of appellate intervention on findings of facts made by the trial judge are as follows: (a) the judgment is based upon a wrong premise of fact or of law, 20 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) there was insufficient judicial appreciation by the trial judge of the evidence of the circumstances placed before him, (c) the trial judge has completely overlooked the inherent probabilities of the case, (d) that the course of events affirmed by the trial judge could not have occurred, (e) the trial judge had made an unwarranted deduction based on faulty judicial reasoning from admitted or established facts, or (f) the trial judge had so fundamentally misdirected himself that one may safely say that no reasonable court which had properly directed itself and asked the correct questions would have arrived at the same conclusion. (See: Mohd Yusri Mangsor & Anor v. Public Prosecutor [2014] 7 CLJ 897 CA; [2014] 4 MLJ 875; [2014] MLRAU 284). Credibility of witnesses [53] At the onset, I shall first deal with the credibility of witnesses as it is related to all charges in respect of the CBT and AMLATFA offences. The position of the law in this respect has been reiterated by His Right Honourable Arifin Zakaria CJ (as he then was) in Dato’ Seri Anwar Ibrahim v. PP & Another Appeal 21 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal [2015] 2 CLJ 145 FC; [2015] 1 MLRA 609. It may be summarized as follows: (a) the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see: Bhojraj v. Sitaram AIR [1936] PC 60), (b) being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability of a fact in issue must be the prime consideration (see: Muniandy & Ors v. PP [1966] 1 LNS 110; [1966] 1 MLJ 257), (c) if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see: Khoon Chye Hin v. PP [1961] 1 LNS 41; [1961] MLJ 105), (d) discrepancies and contradictions there will always be in a case. In considering them, what the court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence worthless and untrustworthy (see: De Silva v. PP [1964] 1 LNS 32; [1964] MLJ 81), 22 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (e) one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments (see: Ugar v. State of Bihar AIR [1965] SC 277), (f) there will always be discrepancies because every witness does not remember the same thing and he does not remember accurately every single thing that happened. The question is whether existence of certain discrepancies is sufficient to destroy their credibility. There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other (see: PP v. Datuk Haji Harun bin Haji Idris (No 2) [1976] 1 LNS 184; [1977] 1 MLJ 15), (g) in the absence of any contradiction and in the absence of any element of inherent improbability, the evidence of any witness, whether a police witness or not, who gives evidence on affirmation, should normally be accepted (see: PP v. Mohamed Ali [1962] 1 LNS 99; [1962] MLJ 257). [54] In finding that the prosecution’s witnesses were credible, the learned trial judge reasoned that the prosecution’s witnesses were consistent in their evidence despite the rigorous cross- examination. According to the learned trial judge, she had no 23 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal reason to reject the evidence of PW20 despite the challenge by the defence that PW20 may be a self-serving witness and there were various contradictions in his testimony. [55] In Moh Chuan Pin v. Public Prosecutor [2009] 6 CLJ 420 FC; [2018] Supp MLJ 453; [2009] 2 MLRA 467, the Federal Court reiterated the position of advantage accorded to trial judges in assessing the credibility of witnesses and the usual approach adopted by appellate courts in respect of the same. The apex Court referred to the following passage in the judgment of Lord Hoffmann in Ryan v. Jarvis [2005] UKPC 27 which reasoned as follows: “It is of course most unusual for an appellate tribunal to reverse a trial judge’s findings on credibility on the ground that the evidence which he rejected has the ring of truth. The true or false note is generally more audible to the judge who hears and sees the witnesses than to the appellate court reading the record.”. [56] The learned counsel anchored the challenge on the credibility of the prosecution’s witnesses on the following grounds: (a) that the learned trial judge failed to critically evaluate the conduct and behaviour of PW20 as a whole, (b) that the learned trial judge failed to consider the defence evidence which showed that PW8, PW11 and PW13 was not credible as they may have retained the monies they withdrew for their own purpose, and 24 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) that the conviction was based on the evidence of PW8 and PW20 whose credibility was clearly at stake. [57] In my considered view, the learned trial judge had correctly considered and assessed the credibility of PW8, PW11, PW13 and PW20 in accordance with established legal principles. In her grounds of judgment, the learned trial judge had considered certain material facts. These facts are material as they may be used as a testbed in assessing the credibility of the relevant witnesses in the circumstances of present appeal. They are as follows: (a) instructions were given for cheques to be prepared even without any invoices or claims for payments, (b) sham invoices and sham receipts were made for the various payments, (c) certain cheques were encashed and the monies were personally delivered to the accused, (d) certain cheques were replaced pursuant to instructions for payments to be credited directly into the recipients’ bank accounts despite no request for such direct remittances, (e) PW11 of RL Offshore went on to claim for the balance payment of RM575,800.00 in respect of the 1st 25 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal milestone claim despite a cheque for the same amount has been prepared and paid out, (f) at the request of the accused, PW8 had to make good the claim made by PW11 whereas the payment should be made by THHE instead, (g) at the material times, Bicara Sepakat, Coral Intoil and RL Offshore all had subsisting projects with THHE, (h) as the finance executives of THHE, PW4 and PW18 were merely following instructions and had no authority of their own to prepare the cheques for the respective amounts without instructions. Both of them had not gained anything. [58] Had the payments were for valid reasons, there would not be questions about instructions for cheques being prepared without any claim for payments, there would not be sham invoices and receipts issued, there would not be similar claims made despite payment for the same amount having been “made”, there would not be payments having had to be made by Bicara Sepakat to RL Offshore. [59] I am of the considered view that the findings of the learned trial judge in respect of credibility and assessment of the totality of the evidence accords with the probabilities of the case. They did ring true. In assessing credibility of the witnesses, I am thus 26 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal of the considered view that the learned trial judge had properly availed herself of the audio-visual advantage. The charges for criminal breach of trust [60] In a charge for criminal breach of trust under section 409 of the Penal Code, the prosecution must prove the following ingredients: (a) that the accused was an agent, (b) that the accused was entrusted with property in his capacity as an agent, (c) that the accused committed criminal breach of trust in respect of that property, (d) that there was dishonest intention on the part of the accused. [61] Credible evidence to establish a prima facie case may include the use of presumptions, inferences or anything other than direct evidence. They may be — (a) by adducing credible direct evidence of that ingredient; (b) by drawing inferences of fact, i.e., adducing credible circumstantial evidence, from which the ingredient can be inferred; or 27 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) by invoking presumptions of law, i.e., adducing credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists. (See: Abdullah Atan v. PP [2020] 9 CLJ 151 FC; [2020] 6 MLJ 727; [2020] 6 MLRA 28; [2020] 7 AMR 1). [62] In an offence for criminal breach of trust under section 409 of the Penal Code, the law provides for the operation of a rebuttable presumption of having so acted dishonestly under section 409B(1)(b) of the Penal Code. In order to invoke this presumption, it is incumbent on the prosecution to prove the basic or primary facts necessary to give rise to that presumption. This is done by adducing evidence to prove any of the facts under subparagraph (i), (ii) or (iii). [63] The prosecution took the stance that the accused had misappropriated the property. This is a fact governed under subparagraph (i) of 409B(1)(b) of the Penal Code. Once it is proved that the accused was entrusted with property and had misappropriated that property, the rebuttable presumption of the accused having so acted dishonestly applied until the contrary is proved. This is aligned with the observations made the Court of Appeal in Public Prosecutor v. Cho Sing Koo & Anor [2015] 4 CLJ 491 CA; [2015] 4 MLJ 689; [2015] 2 MLRA 67; [2014] AMEJ 1382. Being a rebuttable presumption, it was for the accused to adduce evidence to rebut the presumption on the balance of probabilities. 28 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal Whether the accused was an agent [64] The fact that the accused was the chief executive officer for THHE was not dispute by the defence. The learned trial judge made a finding that the accused was appointed as the CEO for THHE. The learned trial judge also found that the role and function of the accused as the CEO was explained by PW14. Based on the definition of the word “agent” in section 402A of the Penal Code, it was found that the accused was an agent within the meaning of the law as intended by the Code. In this regard, I find that the learned trial judge had correctly found that the prosecution had succeeded in establishing this ingredient. Whether there was entrustment [65] In Sathiadas v. Public Prosecutor [1970] 1 LNS 142; [1970] 2 MLJ 241; [1970] 1 MLRH 166, His Royal Highness, the late Raja Azlan Shah J. (later LP) made the following observations with regard to the elements necessary to make out a case for entrustment: “The gist of the offence of criminal breach of trust is entrustment and dishonest misappropriation or conversion to own use. Once the prosecution have succeeded in proving the receipt of the money for a particular purpose the case of entrustment is made out. Dishonest misappropriation or conversion to own use involves wrongful gain to the appellant or wrongful loss to his employers for the period of the retention of the money. That must depend on the facts and circumstances of each case. Criminal breach of trust is not an offence which counts as one of its factors, the loss that is the consequence of the act, it is the act itself, which in law, amounts to an offence. The offence is complete when there is dishonest misappropriation or conversion to one's own use, or when there is dishonest user in violation of a direction, express or implied, relating to the mode in which the trust is to be discharged. 29 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal It may be observed that mere retention of money would not necessarily raise a presumption of dishonest intention but it is a step in that direction. The fact that money entrusted to be used for a particular purpose, was not used for such purpose; that there was retention for a sufficiently long time would, together with other facts and circumstances justify the inference that the appellant had dishonestly misappropriated or converted the money to his own use. There was the intention in the appellant to deprive his employers of their monies, and the appellant misappropriated the monies for a time, intending to make it good eventually when any further retention became impossible.”. [66] It has been accepted by the court in Rex v. Lee Siong Kiat [1934] 1 LNS 66; [1935] 1 MLJ 53; [1934] 1 MLRH 70, that the word ‘trust’ in the expression ‘criminal breach of trust’ as found in the Penal Code is used in a far wider and more popular sense. In Aisyah Mohd Rose & Anor v. Public Prosecutor [2016] 1 CLJ 529 CA; [2016] 1 MLJ 840; [2016] 1 MLRA 203; [2016] 1 AMR 521, the Court of Appeal too was of the view that the expression ‘in any manner entrusted’ in section 409 of the Penal Code has a wide application as it encompasses a situation whereby the entrustment may be direct as well as indirect. [67] Central to the offence of criminal breach of trust is the dishonest misappropriation or conversion to the accused’s own use or the dishonest use of the property in violation of the direction of the trust, either expressly or impliedly. In delivering the decision of the Court of Appeal in Aisyah Mohd Rose (supra.), Her Ladyship Tengku Maimun Tuan Mat JCA (now CJ) said as follows: “[35] To bring home the charge of criminal breach of trust, the prosecution must prove that the first appellant was entrusted with 30 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal the cheques or that the first appellant had dominion over the cheques. The gist of the offence is, that there is dishonest misappropriation or conversion to one’s own use or that there is dishonest user in violation of a direction, express or implied, relating to the mode in which the trust is to be discharged (see Sathiadas v. PP [1970] 1 LNS 142; [1970] 2 MLJ 241).”. [68] At the onset, the learned trial judge correctly observed that the accused was one of the authorized signatories for the company’s accounts. This was evidenced by the directors’ resolution. Directors’ resolutions are meant to document the decisions and actions authorized by the board of directors as a means of accountability to the company – the separate corporate entity. They embody the parameters of actions which the board of directors had authorized to be made on behalf of the company. As one of the authorized signatories of the company’s accounts, undoubtedly it was imperative that the accused was under a duty to ensure that any expenditure incurred and payments made by the company must be one which was proper and valid. Anything done contrary to this premise would be a violation of that authorization. [69] The learned trial judge found that the accused was entrusted with the five cheques which were the subject of the CBT charges in his capacity as the CEO of THHE. Being the person with the authority to sign the cheques for the company, it was found that the accused had the control and power of disposal over the company funds. The learned trial judge noted the fact that there were other officers of the company who were authorized as signatories of the company cheques as well. 31 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal However, that did not absolve the accused from the fact that he was entrusted with and had dominion over the company’s funds and he was in fact the person who had given instructions and directions for all the impugned payments. [70] The learned trial judge also observed the wide application of the expression “in any manner entrusted” in section 409 of the Penal Code to encompass a situation whereby the entrustment may either be direct or indirect as was the case with the present appeal when issuance of the impugned cheques was entrusted to the accused as the CEO for THHE having dominion over them. [71] The learned counsel contended that there was no entrustment of the cheques by the company to the accused and that the accused had no dominion over the cheques. It was also contended that since the trust property were the cheques, there cannot be misappropriation or conversion of the cheques within the meaning of section 405 of the Penal Code as all the cheques were in fact properly paid out to and received by the named payees. [72] The learned counsel for the accused relied amongst others on the case of Che Man Che Mud v. Public Prosecutor [1994] 4 CLJ 823 and contended that a distinction must be drawn between property in cheque and property in cash. The learned counsel further argued that misappropriation of the cheques can only occur if the named payee did not receive the cheques but this was not the case in the present appeal. 32 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal [73] With respect, I am unable to agree with this contention. This was not a case whereby the particular cheques per se were entrusted with the accused. This was a case where the company’s funds were entrusted with the accused. That to my mind, would be properly giving the expression ‘in any manner entrusted’ a broad meaning and in consonant with the purpose of the offence under section 409 of the Penal Code. [74] In Che Man Che Mud (supra.), the observations of the learned High Court Judge which were relied upon by the learned counsel relates to the meaning of “movable property” in the context of the offence of theft under section 378 of the Penal Code. In that case, it was decided that the subject of theft must be “movable property” but not incorporeal property. However, the learned High Court Judge in Che Man Che Mud (supra.) expressly qualified that the same cannot be said in cases of criminal breach of trust. In delivering his decision, His Lordship Abdul Aziz bin Mohamad J. said at page 835 (CLJ) as follows: “In criminal breach of trust and cheating, the subject is not confined to movable property, but may include incorporeal property.”. [75] In the context of the present appeal, it was clear that the accused was entrusted with dominion over the property of THHE including the cheques which are the subject matter of the present appeal. The accused exercised control and dominion over the payments which were made. This is evident from the fact that his instructions for payments to the respective companies had to be complied with by PW20 despite no invoices being issued for them 33 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal and no payments were then due to the respective companies. As the accused had the necessary control and dominion over payments to be made, the fact of entrustment of property must be said to have been established. Surely the accused would not be designated as one of the authorized signatories for the company’s accounts if he had no dominion over the property of the company. [76] Secondly, if that were the position of the law then the accused in the present appeal could not be said to have committed criminal breach of trust despite having authorized payments which were not due and then pocketing the cash when the cheques were encashed. Authorizing and directing issuance of the cheques when payments were not due was clearly an act in direct violation of the position of trust held by the accused as the CEO and as one of the authorized signatories of the company’s accounts as well as the mandate pursuant to the directors’ resolution. [77] Pocketing the cash for himself instead was certainly an act of misappropriation. I cannot imagine how it can be argued otherwise. As such, it is my considered view that the learned trial judge had correctly found the ingredient of entrustment having been established by the prosecution. 34 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal Whether there was criminal breach of trust [78] The learned trial judge found that the accused had misappropriated the impugned cheques in the following instances: (a) it was the accused who had directed PW20 to prepare cheques for payment to Bicara Sepakat on three occasions and once each to Coral Intoil and RL Offshore respectively. These five payments were purportedly meant for the Murphy guys but they were instead encashed and ultimately ended up with the accused, (b) all cheques for the respective payments were made on the instructions of the accused. Although only three of the cheques were signed by PW20 and counter-signed by the accused, the two replacement cheques were signed by PW20 and only counter-signed by PW19 because the accused was not in the office then. The replacement cheques had to be prepared because it was the accused who had later instructed for them to be credited directly into the respective bank accounts of Bicara Sepakat and Coral Intoil instead. PW19 had no knowledge as to the reasons for the payments made when he counter-signed those cheques, 35 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) all five payments made out through the respective cheques were not properly nor validly done as they were without valid invoices and supporting documents from Bicara Sepakat, Coral Intoil and RL Offshore, (d) PW8, PW11 and PW13 confirmed that these payments were not related to work done and that neither Bicara Sepakat, Coral Intoil or RL Offshore did make a claim for them, (e) the invoices issued were a sham and made up, (f) the accused took undue advantage of the then existing contractual relationship which the respective companies had with THHE by implicitly placing PW8, PW11 and PW13 in an awkward position should they refuse to toe the line. [79] The crux of the ingredient of the offence was the dishonest misappropriation by the accused of the cheques being the property of THHE. I am of the considered view that the findings made by the learned trial judge were well supported by the evidence of PW20, PW4, PW18, PW8, PW11 and PW13 as well as various other strong circumstantial evidence. Further, the fact that the cheques were made payable to Bicara Sepakat, Coral Intoil and RL Offshore respectively and later encashed was never disputed by the defence. In this instance, I have no 36 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal reasons to disagree with the findings made by the learned trial judge. Whether there was dishonest intention [80] Having made a finding of fact that the accused had misappropriated the cheques when the cash eventually ended up with the accused, the learned trial judge invoked the presumption of having so acted dishonestly under section 409B(1)(b)(i) of the Penal Code. In this regard, I am of the considered view that there was overwhelming evidence to show misappropriation of the company’s monies by the accused. Since the primary facts necessary to give rise to the presumption under section 409B(1)(b)(i) of the Penal Code have been proved, I have no hesitance to find that the rebuttable presumption against the accused of having so acted dishonestly has been correctly applied by the learned trial judge. [81] In the circumstances, it my considered view that the learned trial judge had correctly arrived at her finding of a prima facie case in respect of all the charges for criminal breach of trust against the accused. The charges for money laundering [82] Money laundering is an offence under section 4(1) of the then Anti Money-Laundering and Anti-Terrorism Financing Act 2001. It provided as follows: 37 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal “Offence of money laundering 4. (1) Any person who — (a) engages in, or attempts to engage in; or (b) abets the commission of, money laundering, commits an offence and shall on conviction be liable to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding five years or to both. (2) A person may be convicted of an offence under subsection (1) irrespective of whether there is a conviction in respect of a serious offence or foreign serious offence or that a prosecution has been initiated for the commission of a serious offence or foreign serious offence.”. [83] The term “money laundering” itself was defined under section 3 of the AMLATFA as the commission of various types of acts in relation to proceeds of any unlawful activity. The definition of “money laundering” under section 3 of the AMLATFA was as follows: “Interpretation 3. (1) In this Act, unless the context otherwise requires — “money laundering” means the act of a person who — (a) engages, directly or indirectly, in a transaction that involves proceeds of any unlawful activity; (b) acquires, receives, possesses, disguises, transfers, converts, exchanges, carries, disposes, uses, removes from or brings into Malaysia proceeds of any unlawful activity; or (c) conceals, disguises or impedes the establishment of the true nature, origin, location, movement, disposition, title of, rights with respect to, or ownership of, proceeds of any unlawful activity, where — 38 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (aa) as may be inferred from objective factual circumstance, the person knows or has reason to believe, that the property is proceeds from any unlawful activity; or (bb) in respect of the conduct of a natural person, the person without reasonable excuse fails to take reasonable steps to ascertain whether or not the property is proceeds from any unlawful activity;”. [84] In construing the true meaning of the term “money laundering”, the meaning of three other related terms under the AMLATFA must be ascertained. They are “proceeds of unlawful activity”, “unlawful activity” and “serious offence”. In logical sequence, these terms were defined under the then AMLATFA as follows: “proceeds of an unlawful activity” means any property derived or obtained, directly or indirectly, by any person as a result of any unlawful activity;”, “unlawful activity” means any activity which is related, directly or indirectly, to any serious offence or any foreign serious offence;”, “serious offence” means — (a) any of the offences specified in the Second Schedule; (b) an attempt to commit any of those offences; or (c) the abetment of any of those offences;”. [85] Based on the scheme of the then AMLATFA, the charges and facts of the present appeal, the ingredients of the offence of money laundering under section 4(1)(a) are as follows: (a) that the accused was engaged in money laundering, 39 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (b) the act of money laundering was the receipt by the accused of the proceeds of an unlawful activity, (c) the proceeds of the unlawful activity were the monies obtained as a result of the unlawful activity, (d) the unlawful activity was the offence of criminal breach of trust under section 409 of the Penal Code. [86] In this regard, the crux of the ingredient of the offence of money laundering insofar as the accused is concerned was the receipt by the accused of the monies paid out under the respective impugned cheques. Whether the accused did receive the monies which originated from the impugned cheques [87] The learned trial judge made a finding that the accused had engaged in money laundering — (a) when he received RM570,000.00 from PW8 on 26.06.2013 between 6:00 pm to 8:00 pm at the Old Town White Coffee café at Ara Damansara in Petaling Jaya for the AMLATFA 2, (b) when he received RM430,000.00 from PW13 on 27.06.2013 between 2:00 pm to 4:00 pm at the accused’s office for the AMLATFA 3, 40 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (c) when he received RM600,000.00 from PW8 on 11.09.2013 between 6:00 pm to 8:00 pm at the Old Town White Coffee café at Ara Damansara in Petaling Jaya for the AMLATFA 4, and (d) when he received RM570,000.00 from PW11 on 01.11.2013 between 3:00 pm to 4:00 pm at the Leaf Dining restaurant at the Solaris, Mont Kiara in Kuala Lumpur for the AMLATFA 5. [88] The evidence in this regard came chiefly from PW8, PW6, PW11 and PW13. Although the accused raised the defence of alibi and challenged receipt of the sum of RM430,000.00 from PW13 on 27.06.2013, the learned trial judge found that the presence of the accused at the place and at the material time was not disputed by the accused. PW13 confirmed that he did go to the accused’s office after having had the money withdrawn from the bank. As such, it was found that it was not improbable for PW13 to have met the accused and delivered the money to him. After all, PW13 explained that it only took a short while to deliver the money. [89] The findings of facts made by the learned trial judge in this regard were well-supported in evidence. I hold the considered view that they have been properly arrived at by the learned trial judge and thus should not be disturbed on appeal. 41 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal Whether the monies were proceeds of unlawful activities [90] In finding that the prosecution has established this ingredient, the learned trial judge made a finding that the prosecution has succeeded in proving the predicate offence of criminal breach of trust against the accused under section 409 of the Penal Code. It was found that the prosecution had also proved that the monies received by the accused were the proceeds of the offence of criminal breach of trust. [91] On the facts and circumstances surrounding the receipt of the monies by the accused, the learned trial judge found that objectively, it may be inferred that the accused knew or had reasons to believe that the monies were the proceeds of the predicate offence of criminal breach of trust of which the accused himself was involved in. The fact that the offence of criminal breach of trust under section 409 of the Penal Code was a “serious offence” within the meaning of section 3(1) of the then AMLATFA was also not in dispute. [92] Based on these reasons, I hold the considered view that the learned Sessions Court Judge had made a correct finding of a prima facie case in respect of the four charges of money laundering against the accused. The defence against charges for criminal breach of trust [93] In considering the defence, the learned trial judge made the following findings of facts: 42 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) the problems caused by migration of the computerized management systems had no relevance to THHE having to describe payments to its subcontractors as “consultancy”. Although the accused said this course of action was approved by the top management of THHE but there was nothing to show that it was in fact decided as such. On the other hand, the testimony of PW4 and PW18 that the payments made were not in accordance with the financial procedures of THHE ought to be accepted as true since as accounts executives they must be taken to know the procedures for payments, (b) the fact remained that none of the companies made any claims for payments from THHE insofar as the impugned cheques were concerned. Bicara Sepakat had never received any advance payment in the real sense of the word. Bicara Sepakat had never undertaken the works described by the accused and denied having made any such claims for advance payments. Coral Intoil did not make any claim under the teaming agreement. PW13 said he had to agree with the accused’s plan just to protect the business interest of Coral Intoil, (c) the accused’s claim that he had no knowledge of the two replacement cheques was a bare denial. It was the accused who directed the change in mode of payment. 43 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal As such, the cheques which the accused had initially counter-signed had to be replaced, (d) PW11 only received the sum of RM424,200.00 out of the total RM1 million for the 1st milestone claim and insisted to be paid in full. This has led to PW8 being instructed by the accused to make good the shortfall by paying the difference of RM575,800.00 to RL Offshore. Payment of the sum of RM575,800.00 was confirmed by PW7, the bank officer from Maybank at Kuala Terengganu branch. Therefore, the accused’s claim that the cheque for RM575,800.00 was meant as part payment for the invoice issued by RL Offshore could not be true, (e) the evidence of DW2 centred on PW20 when PW20 was appointed as a consultant for the DW2’s company. DW4 had no knowledge about migration of the computerized systems because he was not employed at THHE then. DW6 touched on matters which occurred between January and April 2014 whereas the charges were in relation to incidents between April and November 2013. The evidence of DW8, DW7 and DW9 were at best neutral and had no bearing to the charges. [94] The learned counsel for the accused argued that there was no wrongful loss to the company in respect of the sum of RM575,800.00 in relation to CBT 5. According to the learned 44 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal counsel, the accused had not acted dishonestly in that he had no intention of causing wrongful loss to the company because PW11 did in fact made a claim for works done, namely the 1st milestone claim. [95] I am however, not persuaded with the contention of the learned counsel. In cases of criminal breach of trust, the elements of wrongful loss and wrongful gain being the constituent elements of the ingredient of dishonest intention are dealt with by way of the presumption under section 409B(1)(b) of the Penal Code. All that was necessary for the prosecution to prove was the primary facts giving rise to the presumption. In the present appeal, the primary facts were the misappropriation of property by the accused which fell under subparagraph (i) of section 409B(1)(b) of the Penal Code. On the facts, I am in complete agreement with the learned trial judge that the accused has failed to rebut the presumption on the balance of probabilities and that the defence has not raised a reasonable doubt in the prosecution’s case. The defence against charges for money laundering [96] The learned trial judge found that the defence in respect of the money laundering charges was nothing but a bare denial. The challenge made by the defence that PW8 made the withdrawals to finance his lavish lifestyle and to make payments to the Insolvency Department to discharge his bankruptcy had no basis. Although PW8 was a bankrupt, he was only discharged in the year 2015 whereas the incident took place in the year 2013. 45 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal [97] For AMLATFA 4, although the accused claimed that he was in a meeting with DW5 at the material time and produced a notice of alibi, the learned trial judge found that there was in fact sufficient window for PW13 to hand over to him the cash of RM430,000.00 between 2:00 pm up to the time immediately before DW5 came for the meeting. Although DW3 said she had never left her desk, she did leave her desk for a while when she went to the toilet and the prayer room. The evidence of PW13 that DW3 was not there at her desk when he arrived at the accused’s office and that PW13 had went straight into the accused’s room made sense as it occurred between the Zohor prayer time and before DW5 arrived. [98] PW13 said he did not have to register himself for a visitor’s pass since he was provided with one (Exhibit P160) much earlier and had the express permission of the accused to come to the office. After all, all PW13 did was just to carry the bag with the money and left it with the accused near the table. It took nothing more than a mere 2 to 3 minutes. [99] In respect of the defence of alibi, the following principles may be distilled from the decision of the apex court in Public Prosecutor v. Azilah Hadri & Anor [2015] 1 CLJ 579 FC; [2015] 1 MLJ 617; [2015] 1 MLRA 431; [2015] 1 AMR 641: (a) the accused must adduce credible evidence that can cast a reasonable doubt over the prosecution’s case, namely evidence of particulars of the place where he 46 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal claimed he was at the time of the commission of the offence, (b) if successful in establishing the alibi, the accused’s acquittal should be assured as he could not have committed a crime when he was physically away from the scene of crime, (c) the burden of proving the commission of an offence by an accused person never shifts away from the prosecution whilst the burden of establishing that defence of alibi lies on the accused person, (d) mere service of a notice of alibi on the prosecution is not sufficient to substantiate the truth of such notice even though an accused person does not assume the burden of proving its truth. The burden is still on the prosecution to prove its falsity by evidentially establishing the presence of the accused person of having been at the scene of the crime at the material time. The falsity of that notice will crystallise once the prosecution successfully establishes a prima facie case, (e) if the prosecution fails to establish prima facie case, then the need by the accused person to prove his alibi defence does not arise; but once the prosecution discharges his prosecutorial burden of 47 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal proof that led to the establishment of the prima facie case, it then becomes incumbent upon the accused person to cast a reasonable doubt that he was elsewhere. [100] In dealing with the defence of alibi, it is also pertinent to bear in mind of the following principles: (a) the defence of alibi must preclude the possibility that the accused could have been physically present at the place of the crime or its vicinity at or about the time of its commission, (b) the defence of alibi must be considered in the light of the totality of the evidence and the court’s impression of the witnesses and from that totality to decide whether the alibi might reasonably be true, (c) once the trial court accepted that the alibi evidence could not be rejected as false, it was not entitled to reject it on the basis that the prosecution had placed before it strong evidence linking the accused to the offences. The acceptance of the prosecution’s evidence could not, by itself alone, be a sufficient basis for rejecting the alibi evidence. Something more was required. The evidence must have been, when considered in its totality, of the nature that proved the alibi evidence to be false. 48 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (See: Pathmanabhan Nalliannen v. PP & Other Appeals [2017] 4 CLJ 137 FC; [2017] 3 MLJ 141; [2017] 3 MLRA 247; [2017] 3 AMR 105). [101] At the onset, it is pertinent to bear in mind that the offence under AMLATFA 4 was alleged to have been committed at the accused’s own office at the Menara UOA, Bangsar. In considering the defence in this regard, one should not isolate a particular piece of evidence raised by the accused and have it detached from the totality of the case which has been established by the prosecution at the prima facie stage. The proper approach is for the trial judge to consider the defence of alibi against the whole of the evidence placed before the court. [102] The learned trial judge has made a finding that PW13 had indeed delivered the money to the accused at his office. There was also a finding made as to the credibility of PW13 as a witness. In essence, it has been established on a prima facie basis on the strength of credible evidence that the money was delivered to the accused. This can only be displaced by evidence which could raise a reasonable doubt as to whether the money had in fact, been delivered to the accused as PW13 said he did. [103] In the first place, it must be clear that the offence was alleged to have been committed at the accused’s own office between 2:00 pm to 4:00 pm. By his own notice of alibi, the accused did not dispute that he was in his office on that material 49 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal date. The only dissent he had was that PW13 had not met him between the hours of 2:00 pm and 4:00 pm. [104] The meeting on 27.06.2013 was scheduled between 3:00 pm and 5:00 pm and DW5 arrived between 10 to 15 minutes before the scheduled time. When shown the entry log for the accused’s office, it showed that DW5 entered at 2:49 pm and exited at 3:54 pm. Although DW3 said she did not see PW13 coming to see the accused on the same day and that she had never left her desk during the 1:00 pm to 2:00 pm lunch hour and then between 2:00 pm to 4:00 pm, DW3 nevertheless agree in cross-examination by the learned DPP that she could have gone to the ladies and left for prayers for a few minutes. DW3 also added that if at all she left her desk, it was definitely not during the meeting or before or prior to the meeting DW5 with the accused. [105] In finding that PW13 did in fact handed the money over to the accused at his office, the learned trial judge made a factual finding that it was not improbable for PW13 to have met the accused and delivered the money to him as PW13 only took between 2 to 3 minutes to do it. In my view, the learned trial judge was entitled to examine the alibi on a preponderance of the evidence and consider whether it was capable of raising or creating a reasonable doubt as to the guilt of the accused. In the present appeal, the learned trial judge had done just that and I am unable to find any cogent reasons to disagree with such a finding of fact nor do I find it against the weight of the evidence. 50 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal After all, it must not be forgotten that the accused in fact did not dispute that he was in his office at the material time. Failure to challenge the defence in cross-examination [106] The learned counsel for the accused contended that the learned trial judge had erred as she failed to judicially consider the defence case. In arguing this position, the learned counsel mainly contended that the learned trial judge failed to consider that the prosecution has failed to challenge a number of evidence put forward during the defence case. In support of this, the cases of Wong Swee Chin v. Public Prosecutor [1981] 1 MLJ 212 and Tan Kim Ho & Anor v. Public Prosecutor [2009] 3 CLJ 236 were relied on. In both cases, the well-established principle is that failure to cross-examine a witness on a crucial part of the case amounts to an acceptance of the witness’ testimony. [107] In Wong Swee Chin (supra.), the appellant was charged with possession of firearms and ammunition under section 57(1) of the then Internal Security Act 1960. The appellant was convicted at the trial court and had his appeal eventually dismissed by the Federal Court. At the conclusion of the trial, the learned trial judge held, inter alia, that failure of the defence to challenge two of the prosecution’s witnesses during cross- examination amounted to a clear admission of the fact of possession. This finding was one of the grounds of appeal raised by the learned counsel. 51 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal [108] In dismissing the appeal and delivering the decision of the Federal Court in that regard, His Royal Highness the late Raja Azlan Shah CJ (Malaya) (as His Royal Highness then was) ascribed to the following: (a) a correct statement of the law is that failure of the defence to cross-examine the prosecution’s witnesses on the matter merely goes to the credibility of their testimony, (b) there is a general rule that failure to cross-examine a witness on a crucial part of the case will amount to an acceptance of the witness’ testimony, (c) the exception of the general rule is where — (i) the story (testimony) is itself of an incredible or romancing character, (ii) the abstention arises from mere motives of delicacy, (iii) when counsel indicates that he is merely abstaining for convenience to save time, (iv) where several witnesses are called to the same point, it is not always necessary to cross-examine them all. 52 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal [109] It must be pertinently observed that the rule is of general application. Not in all cases a failure to cross-examine a witness must amount to acceptance of that witness’ testimony. [110] The evidence which the learned counsel sought to argue as having been “accepted” by the prosecution by its failure to cross-examine essentially are the following: (a) the accused did not receive the money, (b) the accused was in a meeting with DW5 with at his office. [111] Failure of the prosecution to challenge the narrative of the defence in cross-examination does not amount to acceptance of the defence by the prosecution. Unlike failure of the defence to challenge the evidence of the prosecution during the prosecution’s case (see: Wong Swee Chin) which amounted to acceptance by the defence of the evidence of the prosecution, at the defence stage the prosecution has succeeded in establishing each and every ingredient of the offence and it is for the defence to raise a reasonable doubt in the prosecution’s case. [112] In the present appeal, the defence too has a duty to rebut the presumption on the balance of probabilities. Whether or not the prosecution “accepted” the defence by its omission to cross- examine the accused is immaterial. It is a finding which must be made by the trial court as to whether the defence was capable of 53 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal raising a reasonable doubt and rebutting the presumption on the balance of probabilities. [113] Conversely, even if the prosecution were to agree with the narrative of the defence at the defence stage, that does not mean that the accused is entitled to an acquittal unless the court finds that such a position taken by the prosecution in conceding to the defence does raise a reasonable doubt in the prosecution’s case and successfully rebutted the presumption on the balance of probabilities. As such, with respect I am unable to agree with the contention of the learned counsel on this score. Whether the defence has raised a reasonable doubt in the prosecution’s case [114] I have analysed the reasons for the findings made by the learned trial judge at the end of the case for the defence. It is my considered view that there is no error in the findings made by the learned trial judge. Whether or not the defence is capable of raising a reasonable doubt is a question of fact. It has been held that 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. (See: Nenggani Asmo v. Public Prosecutor [2013] 1 LNS 265; [2014] 1 MLJ 501; [2013] MLRAU 122). [115] In Azhar Lazim v. Public Prosecutor [2012] 1 LNS 262 CA; [2012] 5 MLJ 1; [2012] 3 MLRA 484; [2012] AMEJ 0081, His Lordship Abdul Malik Ishak JCA explained as follows: 54 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal “[27] A credible defence is a defence that answers the evidence of the prosecution. It is purely a question of fact whether the explanation of the defence is capable of raising a reasonable doubt.”. [116] In considering the defence against the totality of the evidence, I have no reasons to disagree with the findings made by the learned trial judge. The defence was nothing more than a bare denial bereft of merits and incapable of rebutting the presumption raised under section 409B(1)(b)(i) of the Penal Code. Whether the sentence was manifestly excessive [117] The accused was sentenced to imprisonment for the period of 7 years for each offence of CBT and imprisonment for the period of 4 years for each offence of money laundering. The learned trial judge ordered for the sentence of imprisonment for CBT and money laundering respectively, to run concurrently. The sentence of imprisonment between the CBT offences and the money laundering offences were ordered to run consecutively. In total, the accused would have to serve 11 years of imprisonment for the total of 9 charges. [118] The approach taken by appellate courts in considering appeals against sentence is grounded on generally recognized principles as decided in a number of case laws. Albeit non- exhaustive, the position may be summarized as follows: 55 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal (a) the question of whether the appellate court would have imposed a different sentence if it were the court of first instance is not a relevant factor to consider unless the sentencing court has erred in principle or had imposed a sentence which is manifestly excessive or manifestly inadequate; (See: Public Prosecutor v. Sulaiman Ahmad [1992] 3 CLJ Rep 447; [1992] 4 CLJ 2283; [1993] 1 MLJ 74; [1992] 2 MLRH 420, Adam Atan v. PP [2009] 1 CLJ 33; [2008] MLJU 402; [2008] 2 MLRA 600, PP v. Karthiselvam Vengatan [2009] 4 CLJ 632 CA; [2011] 4 MLJ 212; [2009] 1 MLRA 702 and PP v. Mohammad Yunus [2018] 2 CLJ 749 CA; [2017] MLJU 1838; [2017] MLRAU 466) (b) in considering whether the sentence imposed is manifestly excessive or otherwise, public interest must always be the first and foremost consideration; (See: Iwan Bujang Dara & Anor v. Public Prosecutor [2017] 1 LNS 285 CA; [2017] 3 MLJ 630; [2017] SSLR 1 and Amir Hassan Ali Usin v. PP [2019] 3 CLJ 325 CA; [2018] 6 MLJ 421; [2018] MLRAU 289; [2018] 6 AMR 213.) (c) in fixing the punishment for any particular crime, the court will consider the nature of the offence, the circumstances under which it was committed, the degree of deliberation shown by the offender, the 56 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal 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; (See: Mohamed Jusoh bin Abdullah and Another vs. PP [1947] 1 LNS 73; [1947] 13 MLJ 130 and Mohd Khir bin Toyo lwn. PP [2013] 5 CLJ 323 CA; [2013] 4 MLJ 801; [2013] 5 MLRA 392; [2013] 4 AMR 220.) (d) a court should, when sentencing an accused, take into account all considerations relevant to the case, including the gravity of the offence, the circumstances surrounding the commission of the offence, the antecedents of the accused, the deterrent effect that punishment is to have, any factor that warrants special attention either in favour of or against the accused and above all the public interest. Reasons must be given for imposing a particular sentence to enable an appellate court to ensure that there has been no error in principle; (See: PP v. Tengku Mahmood Iskandar & Anor [1973] 1 LNS 124; [1974] 1 MLJ 110; [1974] 1 MLRH 347 and Lim Guan Eng v. PP & Other Appeals [1998] 3 CLJ 769 CA; [1998] 1 MLRA 457; [1998] 3 AMR 2079.) (e) there can be only general guidelines in sentencing. No two cases can have exactly the same facts to the minutest detail. Facts do differ from case to case and ultimately each case has to be decided on its own 57 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal merits. In practice, sentences do differ not only from case to case but also from court to court. All things being equal these variations are inevitable if only because of the human element involved. But, of course, there must be limits to permissible variations. (See: Public Prosecutor v. Loo Choon Fatt [1976] 1 LNS 102; [1976] 2 MLJ 256 and PP v. Dato’ Waad Mansor [2005] 1 CLJ 421 FC). [119] Broadly speaking, appellate intervention in the sentence imposed by the trial court is warranted if it is satisfied that any of the following four grounds are made out: (a) the sentencing judge had made a wrong decision as to the proper factual basis for the sentence; (b) there had been an error on the part of the trial judge in appreciating the material facts placed before him; (c) the sentence was wrong in principle; or (d) the sentence imposed was manifestly excessive or inadequate. (See: PP v. Ling Leh Hoe [2015] 4 CLJ 869 CA; [2015] MLJU 1006; [2015] MLRAU 138; [2015] 5 AMR 325). 58 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal [120] In considering the discretionary power of the court in determining the length of a custodial sentence, there are several factors which must be taken into account. These general principles were laid down in following words by the apex Court in the case of Mohd Abdullah Ang Swee Kang v. PP [1987] 2 CLJ 405 SC; [1988] 1 MLJ 167; [1987] 1 MLRA 43: “In assessing the length of custodial sentence, the court must look at the overall picture in perspective by considering, firstly, the gravity of the offence committed; secondly, the facts in the commission of the offence; thirdly, the presence or absence of mitigation factors, and fourthly, the sentences that have been imposed in the past for similar offences to determine the trend of sentencing policy, if any. The fact that a sentence of imprisonment is imposed as a deterrence does not justify the sentencer in passing a sentence of greater length than the facts of the offence warrant. The gravity of the type of offence involved must be considered in the light of the particular facts of the offence. As stated by James LJ in R. v. Ladd & Tristam [1975] Crim LR 50; Encyclopedia of Thomas Current Sentencing Practice p. 1058: We have to look at the overall picture of what is the right sentence for the total involvement, the total degree of criminality involved, and we have to keep the sentences in perspective with the sentences that have been passed on other occasions for offences involving criminal activity of this kind, though of course varying in their gravity. Clearly a deterrent element has to be involved, but because the offences are very serious, it does not necessarily follow that on the particular facts very long sentences are justified.”. [121] Sentencing is an exercise of judicial discretion to carefully balance the perspectives between the offence committed and the principles of retribution, deterrence, prevention and rehabilitation to serve the ultimate ends of justice. While a sentence must reflect the gravity of the offence and serve as a lesson to the accused and a deterrent to would-be offenders, I am of the 59 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal considered view that this Court must also consider the ensuing collateral damage or hardship which may be caused to the family of the accused should the accused be sentenced to a lengthy term of imprisonment. A long period of incarceration imposed on the accused may cause further and aggravated harm to the accused’s family and this consequence should also be borne in mind by the sentencer. [122] In the present appeal, I am of the considered view that justice would be best served if the accused is given the opportunity to turn over a new leaf. In the circumstances, I hereby order as follows: (a) the sentence of 7 years imprisonment for each offence of CBT is set aside and substituted with the sentence of 5 years imprisonment. This sentence of imprisonment shall run concurrently, (b) the sentence of 4 years imprisonment for each offence of money laundering is set aside and substituted with the sentence of 3 years imprisonment. This sentence of imprisonment shall run concurrently, (c) the sentence of imprisonment between the offence of CBT and money laundering shall run consecutively. 60 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal Conclusion [123] On the premise of the reasons as discussed above, I dismissed the appeal against conviction and allowed the appeal against sentence. Dated 27 June 2022. sgd AHMAD SHAHRIR MOHD SALLEH JUDGE HIGH COURT OF MALAYA KUALA LUMPUR. For the appellant: Hisyam bin Abdullah @ Teh Poh Teik (Messrs. Hisyam Teh) Kitson Foong Chew Jee San Van Shir Mooi (Messrs. Kit & Associates) Chetan Lachman Jethwani Ivy Shu (Messrs. Chetan Jethwani & Company) For the respondent: Rasyidah Murni binti Adzmi Mohd ‘Afif bin Ali Deputy Public Prosecutors Malaysian Anti-Corruption Commission 61 S/N FnDmwr5Z5EKbvLDCNARGMw **Note : Serial number will be used to verify the originality of this document via eFILING portal