Lam Ee Voon

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA CRIMINAL APPEAL NO. WA-42LB-10-03/2019 BETWEEN PENDAKWA RAYA ... APPELLANT AND LAM EE VON ... RESPONDENT JUDGMENT INTRODUCTION [1] The appeal herein is against the decision of the Sessions Court which had acquitted and discharged the Respondent (“the Accused”) for the offence under Section 409 of the Penal Code. THE CHARGE [2] Two (2) charges proffered against the Respondent at the trial court are as follows: First Charge “Bahawa kamu pada 28.12.2016 di Syarikat Big E Harvest Sdn. Bhd. (1208008-K) di Lot GF-08B & 08C, The Waterfront @ Desa Park City, No. 5, Persiaran Residen Desa Park City, 52200 Kuala Lumpur sebagai seorang agen iaitu Pengarah Big E Harvest Sdn. Bhd. (1208008-K), diamanahkan dengan penguasaan ke atas wang syarikat telah melakukan pecah amanah jenayah ke atas wang syarikat di mana kamu telah dengan curangnya memindahkan wang syarikat yang berjumlah RM6,070.90 dari akaun Hong Leong (2240030324) ke dalam akaun Hong Leong Bank (22400018834) Milikan Big E Foods Sdn. Bhd. Dengan demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 409 Kanun Keseksaan kerana telah melakukan pecah amanah.” Second Charge “Bahawa kamu pada 17.03.2017 di Syarikat Big E Harvest Sdn Bhd (1208008-K) di Lot GF-08B & 08C, The Waterfront @ Desa Park City, No. 5, Persiaran Residen Desa Park City, 52200 Kuala Lumpur sebagai seorang agen iaitu Pengarah Big E Harvest Sdn Bhd (1208008-K), diamanahkan dengan penguasaan ke atas wang syarikat telah melakukan pecah amanah jenayah ke atas wang syarikat di mana kamu telah dengan curangnya memindahkan wang syarikat yang berjumlah = RM3000.00 dari akaun Hong Leong (22400030324) ke dalam akaun Maybank (114179473395) milikan kamu. Dengan demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 409 Kanun Keseksaan kerana telah melakukan pecah amanah.” BACKGROUND [3] In November 2016, SP6 and the Respondent set up a company Big E Harvest Sdn. Bhd. (“the Company’) to run a japanese restaurant named “The Fat Fish” located at Desa Park City, Kuala Lumpur (“TFF Desa Park”). Both are the sole directors and shareholders but the Respondent is in charge of the whole administration and operation of TFF Desa Park while SP6 merely a sleeping partner. [4] The Respondentis also one of the directors and shareholders at the company Big E Foods Sdn. Bhd. (“BE Foods”) which also own a japanese restaurant named “The Fat Fish” located at Mont Kiara and operated since 2015. [5] SP1 is the account officer at BE Harvest and was appointed by SP6 in March 2017. On attending the BE Harvest’s account, SP1 realized that there are two (2) transactions from BE Harvest to a Hong Leong Bank account owned by BE Foods in which the Respondent is one of the directors and a Maybank account personally owned by the Respondent. [6] The first transaction was on 28 December 2016 where a sum of RM6,070.90 have been credited via a cheque into the BE Foods’ Hong Leong Bank account (“the First Transaction”). Meanwhile, the second transaction was on 17 March 2017 which a sum of RM3,000.00 have been credited via a cheque into the Respondent's personal Maybank account (“the Second Transaction’). [7] SP1 enquired the Respondent on both transactions but to no avail which then had led her to inform SP6. Upon instruction by SP6, a police report was lodged by SP1 on 16 November 2017 (refer P7). [8] | SP6 informed that based on the Company's financial system, each and every transaction within the Company must be provided with supporting documents such as invoices, purchase order or delivery order. SP6 further testified that he had numerously signed a blank cheque for the Company since he is always travel oversea for other business purpose. According to SP6, the Respondent refused to see him to explain on both transactions but merely asked her account clerk, Goh Ee Von to issue two (2) payment vouchers dated 13 March 2017 and 16 December 2017 respectively (refer P1 and P2) to SP1 without any supporting documents. [9] At the end of prosecution case, the learned trial judge ruled that a prima facie case has been established against the Respondent. The three (3) elements under Section 409 of the Penal Code have been proven whereby: i. The Respondent is an agent of the Company; ii. The Respondent as the director was entrusted with and had control over the Company’s financial transaction; and iii. |The Respondent dishonestly had committed criminal breach of trust in respect of the First Transaction and the Second Transaction. [10] In her defence, the Respondent elected to give sworn evidence. The Respondent also called her account clerk, Goh Yee Von (SD2) as the witness. [11] The defence put forth could be summarized as below: i. The First Transaction was made as the repayment for the advance payment made by the BE Foods to the contractor, Nafas Juta Resources for the renovation and hostel rental on behalf of the Company. ii. The Second Transaction was the petty cash for the purchase of the Company's daily essentials such as vegetables, fresh seafoods and other retail products. [12] The learned trial judge in his finding was in the opinion that the defence by the Respondent could not be regarded as an afterthought based on the Alcontara Ambross Anthony v PP [1996] 1 CLJ 705. Neither, there are merely a bare denial per Edgar Joseph Jr, SC/ in PP v Lin Lian Chen [1992] 4 CLJ 2086; [1992] 1 CLJ (Rep) 285 SC. [13] Further, on the judicial appreciation of the facts before the court, the learned trial judge was of the view that both transactions were made in the usual business operation. when one of the directors was only a sleeping partner while the whole operation of the company run solely by the other. SP6 admitted that since he is always out of the country for his other business purposes, he would only sign and had on numerous occasions signed blank cheques for the Respondent to make any payment on behalf of the Company. [14] Nonetheless, the trial judge also in the opinion that ‘not because a few transactions involving payments of monies less than ten thousand dollars in respect of advance payments made in the ordinary course of business transactions by a prudent business person deems it as offence has been committed when the so called offence is a just mere business impropriety’. [15] Therefore, the trial judge found that the defence had succeeded to raise a reasonable doubt on the case of the prosecution case. The Respondent then is acquitted and discharged forthwith. - ISSUES [16] Both the prosecution and the Respondent were in agreement that sufficient evidence were led to prove the first and second element of the charge, ie that the Respondent was an agent and that the Respondent was entrusted with money belonging to Big E Harvest Sdn. Bhd. [17] Having gone through the evidence adduced by the Prosecution, this court agreed and found that these two elements had been successfully proven by the prosecution. Testimony from SP1, SP2 and SP6 and P23 (Corporate Information from SSM) showed that the Respondent was at that material time a director of the said company whilst testimony from SP1 and SP6 confirmed that the Respondent was entrusted or had control over money belonging to Big E Harvest Sdn. Bhd. [18] The learned trial judge had this to say at the end of the prosecution - case when he ruled that the prosecution had established a prima facie case against the Respondent for both charges: “Pihak pembelaan juga telah menimbulkan pembelaan diperingkat pendakwaan bahawa apa yang dilakukan oleh OKT bukannya penyelewangan tetapi.tindakan wajar diatas alasan pembayaran tersebut merupakan pembayaran balik di atas alasan wang tersebut telah didahulukan oleh Big E Foods untuk pihak Big E Harvest Sdn. Bhd. Di dalam menguatkan lagi pembelaan, beberapa email dan perbualan dalam whatsApp group telah cuba dimasukkan bagi menunjukkan bahawa tiada penyelewengan wang syarikat berlaku. Pada pendapat mahkamah ini, komunikasi yang berlaku diantara OKT dan SP1 hanya menunjukkan komunikasi diantara pekerja dan majikan berkaitan urusan kewangan syarikat yang biasa di dalam urusan perniagaan. Tetapi ia masih tidak menjelaskan kenapa kedua-dua cek milik syarikat Big E Harvest bagi jumlah RM3,000/- dan RM6,070/- telah dipindahkan keakaun peribadi OKT dan syarikat E Foods Sdn. Bhd. dengan tidak mengikut prosidur tetap kewangan = syarikat. Tambahan pula di atas permintaan OKT sendiri maka SP6 telah menandatangani cek-cek kosong bagi tujuan bayaran kepada pembekal- pembekal serta lain-lain urusan kewangan syarikat. Oleh itu tidak timbul isu Big E Foods Sdn. Bhd. telah true owner wang syarikat yang dikatakan telah dibayar bagi pihak Big E Harvest Sdn Bhd. Tambahan dengan tingkah laku (conduct) OKT yang tidak memberikan kerjasama kepada SP1 selaku pegawai akaun syarikatnya sendiri dan kepada SP6 yang juga rakan pengarah OKT sendiri. Malah menurut SP6 sendiri, OKT telah enggan berjumpa dengan SP6 dan hanya menyuruh pembantunya yang bukan pekerja syarikat Big E Harvest Sdn. Bhd. untuk mengeluarkan baucer-baucer bayaran (P1 & P2) tanpa dikepilkan dokumen-dokumen sokongan sepertimana yang telah ditetapkan di dalam prosidur tetap kewangan_ syarikat. OKT merupakan pengurus yang berpengalaman dan bukannya orang baru dalam dunia perniagaan. cetees , saya memutuskan bahawa di atas maximum evaluation test bahawa_ pihak pendakwaan- telah berjaya mengemukakan keterangan yang telah mengaitkan tertuduh dengan pertuduhan melakukan pecah amanah jenayah wang RM3,000/- dan RMG,070/- secara curang seperti yang terdapat di dalam pertuduhan-pertuduhan ke atasnya di hadapan mahkamah ini. beeenens , Mahkamah memutuskan disini bahawa_ pihak pendakwa telah berjaya membuktikan kes prima facie ke atas OKT ......” (pages 31-33 Rekod Rayuan Jilid 1) [19] The defence put forth by the Respondent and the finding of the learned trial judge on this defence are as stated earlier in para [11] — [14]. [20] It was submitted by the prosecution that for the first charge, a cheque belonging to Big E Harvest Sdn. Bhd. for the said amount was deposited into the account of Big E Food Sdn. Bhd. and for the second charge a cheque belonging to Big E Harvest Sdn. Bhd. was deposited into the Respondent’s personal account. [21] These two transactions were said to be carried out without a complete payment voucher i.e. there was no breakdown of the payment, and that additional documents such as invoice, receipt were not submitted. And that these payment vouchers were only submitted 6 10 months after the cheque was cashed and the second voucher was only submitted after these incident was referred to the police. [22] All these resulted in the monies could not be accountable and could only point to one thing, that the Respondent had committed a criminal breach of trust and that he had wrongly benefitted from it. [23] The prosecution also contended that defence put forward by the Respondent are nothing more than a whimsical or fanciful doubt. [24] The Respondent in his reply contended that the trial judge did not err in his finding as it was supported by the evidence of SD2 who clearly stated that all the relevant documents to support the two payment vouchers were duly delivered to SP1 and SP1 had confirmed in her evidence that these two cheque were not an issue as the payments made were accounted for. FINDING OF THIS COURT [25] Combing through the evidence of SP1, SP2.and SD2 it appeared that numerous communications occurred between them with regards to 11 the said two transactions related to the two charges against the Respondents. Copies of the emails and WhatsApp communications between them were tendered as exhibits, namely D10, D11, D14, D37, D39, D40 and D46. [26] Based on the exhibits stated above and testimony of SP1, it can be concluded that it was a normal and acceptable practice for this company for petty cash payments and other type of expenses to be made in advance and accepted without any problems. [27] Even SP6 admitted that since he is always out of the country for his other business purposes, he would only sign and had on numerous occasions signed blank cheques for the Respondent to make any payment on behalf of the Company. [28] The learned trial judge had addressed his mind to these instances before coming to a finding that both transactions were made in the usual business operation and therefore the defence put forward is not a defence of bare denial or afterthought. (pages 39-42 Rekod Rayuan Jilid 1). 12 DECISION [29] Based on the reasons discussed above this court find that there was no misdirection of facts or law on the part of the learned trial judge in coming to his findings. There is no reason for this court to disturb his: finding or decision. (P’ng Hun Sun v Dato’ Yip Yee Foo [2013] 6 MLJ 523, Mohd Yusri Wangsor & Anor v PP [2014] 4 MLJ 875). [30] The appeal by the prosecution is therefore dismissed and decision. of the learned trial judge affirmed. (DATO’ AZHAR BIN ABDUL HAMID) - JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR Dated: 2 November 2021 Parties: Puan Joy Jothi A/P Nadrarasan - Appellant Deputy Public Prosecutor Attorney General’s Chambers, Malaysia Encik Ragunath Kesavan - Respondent Encik Tai Yong Fung & Ng Yong Yee Tetuan Chris Lim Su Heng 13