DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG RAYUAN JENAYAH KES NO : 42S ANTARA KHOR SOCK KHIM LAWAN PENDAKWA RAYA JUDGMENT

Transcription

1 DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG RAYUAN JENAYAH KES NO : 42S ANTARA KHOR SOCK KHIM LAWAN PENDAKWA RAYA JUDGMENT INTRODUCTION 1. This is an appeal by the Appellant against the decision of the learned session court judge Butterworth, Penang delivered on whereby the Appellant was convicted on all the 22 charges under section 408 of the Penal Code and sentenced to 2 years imprisonment in respect of each charge. Sentence is to run concurrently. Against that conviction and sentence she has now appealed. For ease of reference the parties would be referred to as Accused and Prosecution as they were in the lower court. 1

2 CHARGES 2. The 22 charges against the Accused are in the following 8 files : 1) / st Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,316.25, telah melakukan 2 nd Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 1,880.00, telah melakukan 2

3 3 rd Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,316.25, telah melakukan 2) / th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,500.00, telah melakukan 5 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga

4 pembayaran gaji pekerja berjumlah RM 1,200.00, telah melakukan 6 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 1,200.00, telah melakukan 3) / th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 1,888.00, telah melakukan 4

5 8 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,039.50, telah melakukan 9 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,789.50, telah melakukan 5

6 4) / th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,238.75, telah melakukan 11 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,000.00, telah melakukan 12 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga

7 pembayaran gaji pekerja berjumlah RM 2,238.70, telah melakukan 5) / th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 1,800.00, telah melakukan 14 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,238.70, telah melakukan 7

8 15 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 1,880.00, telah melakukan 6) / th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,238.75, telah melakukan 8

9 17 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 1,880.00, telah melakukan 18 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,238.75, telah melakukan 7) / th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga

10 pembayaran gaji pekerja berjumlah RM 1,880.00, telah melakukan 20 th Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,240.75, telah melakukan 21 st Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 1,880.50, telah melakukan 10

11 8) / nd Charge : Bahawa kamu pada , di antara jam 9.30 pagi hingga 4.00 pembayaran gaji pekerja berjumlah RM 2,003.70, telah melakukan The Appellant claimed trial to all the charges. The Prosecution applied for all the charges to be tried jointly and it was duly allowed. PROSECUTION S CASE 3. According to SP2, the complainant in this case as well as the director of Awana Sofa (M) Sdn. Bhd., the Accused was employed since 2008 in her capacity as the Human Resource Officer of the company. Her main duty as HR officer was to prepare and process the salaries of all the employees of the company including her own. The company paid salaries to its employees twice monthly, the first was in the middle of the month 11

12 and the second was at the end of each month. The salaries were classified as mid-month advance and end month respectively. As the HR officer the Accused was solely responsible for calculation and preparing the salaries of the workers in the company. The details for computation of salaries were obtained from punch cards, overtime, advances taken, EPF, SOCSO and meal deductions of all the employees. This information gathered would be reduced into a summary worksheet prepared by the Accused. The Accused would also prepare a bank in slip to accompany the salary worksheet. The amount stated in the bank in slip would tally with the total amount stated in the summary worksheet prepared by the Accused. Before going in to see SP2 for his approval and authorization, the Accused would have obtained a cheque issued by the accounts department for the total sum of all the salaries of the employees. The cheque would have been prepared by SP1. The amount contained in the cheque would be taken from the total figure recorded in the summary worksheet. The Accused would then bring the summary salary worksheet, the bank in list and the cheque to SP2 for his approval and signature. According to SP2, the bank in slip just like the cheque, would contain the total amount of the salaries of the employees. The amount written in the bank in slip would tally with the total amount stated in the salary summary worksheet. The salary worksheet would contained the names, IC numbers, bank account numbers and the amount of salary to be received by each and every one of the employees in the company for the particular time of the month be it mid-month advance or end month salary. SP2 said that he would usually only check the 12

13 salary of the Accused in the summary worksheet given to him as there were too many employees for him to keep tabs on. Furthermore the salaries of the other employees were not constant for each pay day. Sometimes there were deductions and at other times there were additions included into the salaries of some of the employees accounts which would vary from month to month. 4. SP2 said that another reason for checking the Accused s salary was because he knew and could remember the salary of the Accused which was a fixed figure and therefore he used to check her salary first before anyone else. 5. According to SP2, after signing the bank in slip and the cheque brought to him by the Accused, she would usually take these documents on the same day to the bank and bank in the cheque for the bank to auto credit the individual salaries of all the employees into their respective accounts. The company operated an account in Public Bank, Bagan Ajam. 6. Sometime in February or March 2012, SP2 was informed by his account clerk (SP1) that the company internal auditors had detected certain irregularities in the salaries of the employees. Both SP1 and SP2 asked the Accused for an explanation. According to SP2, the Accused replied that she would look into the matter but she did not immediately come back to him with any explanation. SP2 also said he became suspicious as to why his signatures in every bank in slip list seemed to be the same 13

14 without any variation from month to month. SP2 said he also compared the salary details from the salary worksheets provided by the bank which is kept by the company. SP2 said he discovered obvious discrepancies and differences in the salaries of the Accused and a number of the other employees between the 2 sets of documents. In short what he discovered was that the differences in the salaries of the employees were all channeled into the Accused s own salary i.e she received more than what she was entitled to. 7. According to SP2, the Accused s salary was only approximately RM 2, per month. This was her salary before deductions of EPF and SOCSO. The total amount of RM 2, consisted of an mid month advance of RM 1, and the balance of RM was computed and paid in the end month salary. 8. SP2 said he lodged a police report (exhibit P41) after his discovery of the misappropriation of salaries. 9. The prosecution called 9 witnesses and tendered a total of 49 documents to support their contention that the Accused was the sole perpetrator of the offence as charged. The documents tendered which are pertinent are as follows (a) Exhibit P1 Summary worksheet; (b) Exhibit P2 Format 49; 14

15 (c) Exhibit P3 Original Bank in list; (d) Exhibit P4 Bank in list kept by the bank; (e) Exhibit P5 Bank in list kept by the company; (f) Exhibit P6 P27 Salary voucher and salary summary worksheet; (g) Exhibit P28 P39 The company s statement of account from until ; (h) Exhibit P40 Salary worksheet; (i) Exhibit P41 Police Report; (j) Exhibit P42 Accused s Statement of Account; and (k) Exhibit P47 Chemist Report. 10. During the trial, the main witnesses i.e SP1 and SP2 narrated to the court what transpired and how the Accused had managed to manipulate the documents and transfer the money into her own account. They referred to a number of documents and painstakingly showed to the court through each document to prove their allegation that there was a manipulation of the salaries of the employees and that all these amounts eventually ended up into the Accused s account. 15

16 11. For their oral testimonies and with the aid of the documents tendered herewith is a summary of the movements of documents as follows 1) The Accused brought exhibit P5(1) (23) to show SP2 for his approval and authorization. Exhibit P5(1) (23) is the bank in list prepared by the Accused. SP2 would go through the details of salaries of all the employees. In all the 23 exhibits contained in exhibit P5, showed the correct and accurate salaries of the employees. As an example, I refer to exhibit P5(1) which is the advance salary for mid January The salary of the Accused is shown as RM for exhibit P25(2) the salary of the Accused at the end of January 2011 is shown as RM 1, The total for the month of January 2011 is RM 2, RM 2, is the salary which the Accused is entitled to receive for January The details show in exhibit P5(1) (23) are the amount salary which the Accused is entitled to receive. 2) In another example, exhibit P6(3) is the advance salary for mid February Exhibit P5(3) shows that the Accused is entitled to receive RM However, when we cross refer this to the contents of exhibit P4(2), it shows that the Accused is entitled to RM 2, which is an increase of RM 1, The salaries of the employees in numbers 13, 18, 19 and 21 have been reduced by RM 1, can be traced to have been pumped into the Accused account 16

17 instead. A perusal of the entire contents of exhibit P5 and P4 will reveal the same modus operandi being exercised. 3) SP1 and SP2 in their evidence analyzed and went through the documents i.e exhibit P3 and P4 and P5 and its their conclusion that the Accused had manipulated the salaries of the other employees in the following amount. Date Amount Taken Case Number Charge Number RM 2, /13 4 th charge RM 1, /13 5 th charge RM 1, /13 6 th charge RM 1, /13 2 nd charge RM 2, /13 1 st charge RM 2, /13 3 rd charge RM 1, /13 7 th charge RM 2, /13 8 th charge RM 2, /13 9 th charge RM 2, /13 10 th charge RM 2, /13 11 th charge RM 2, /13 12 th charge RM 1, /13 13 th charge RM 2, /13 14 th charge RM 1, /13 15 th charge RM 2, /13 16 th charge RM 1, /13 17 th charge 17

18 Date Amount Taken Case Number Charge Number RM 2, /13 18 th charge RM 1, /13 19 th charge RM 2, /13 20 th charge RM 1, /13 21 st charge RM 2, /13 22 nd charge 12. According to SP2, the Accused did not bring exhibit P5(1) (23) to the bank. The Accused instead switched exhibit P5(1) (23) with exhibit P4(1) (23). Exhibit P4(1) (23) has been doctored to increase the salary of the Accused while deducting the salaries of some of the other employees. What is important to be noted is that the Accused is not entitled to the amounts show in exhibit P4 (1) (22). The salaries of the other employees shown in exhibit P4(1) (22) had been deducted and then credited into the Accused s own salary. Therefore in the end result the total amount credited into the bank remains the same but the Accused s salary has increased. It is in the testimony of SP2 that the signatures in exhibit P4(1) (22) are forged and not his. The chemist SP8 has attested to this fact in her evidence. The Chemist Report at exhibit P47 concluded that the signatures are printed reproductions and were not handwritten. DEFENCE CASE 13. The Accused elected to give unsworn evidence from the dock. She did not call any witnesses to give evidence on her behalf. In 18

19 her evidence, the Accused stated that she was the Human Resource Executive for Awana Sofa Sdn. Bhd. From 2008 until 2012 and she earned a salary of RM 2, per month. She said one of her duties was to prepare the salaries of all the local staff and foreign workers twice monthly. The details of their salaries were recorded by her into the salary worksheet. She also prepared a bank in slip together with the salary worksheet. She then passed both the salary worksheet together with the bank in slip to the accounts clerk, SP1 so that SP1 could issue a cheque for the total amount as reflected in the summary salary worksheet. The Accused said the cheque was made payable to Public Bank Bhd, Bagan Ajam and not to her. The Accused said one s the cheque was prepared, she would bring the cheque, the summary worksheet as well as the bank in slip to her boss, SP2 for inspection. According to the Accused, the documents would be returned to her after one day. Once the documents were returned to her with the signature of SP2, the Accused would go to the bank to bank in the bank in slip together with the cheque. She stated that she only submitted two documents to the bank and these were the cheque and the bank in slip. She stated that the monthly salary worksheet and the monthly summary worksheet were filed in the office filing cabinet. 14. The Accused in her testimony maintained that she did not have any shares in the company and had no control whatsoever in the finances of the company. She said she had no power to disburse funds of the company without the authorization of SP2 and stated that she was merely a salaried worker in the company. 19

20 15. She also stated that she was not a signatory of any cheques issued by the company and she was not authorized to transfer any of the company s funds that was deposited into the bank. Finally she maintained that she was never entrusted with money from the company funds and had no control or dominion over the company s money or property. She said that SP1 was the person who kept the cheque book and issued cheques for the company. INGREDIENTS OF THE OFFENCE 16. For the offence of criminal breach of trust pursuant to s.408 Penal Code, the Prosecution must prove these ingredients on a prime face basis (i) The Accused is an employee of the company; (ii) The Accused was entrusted with the property in question or had dominion over it; (iii) It was the Accused who transferred the money into her own account in contravention of her duty; and (iv) The Accused did it dishonestly. PRIMA FACIE CASE 17. I shall first direct myself on the test of prima facie case i.e whether the prosecution had adduced credible evidence to prove 20

21 each ingredient of the offence which if unrebutted or unexplained would warrant a conviction (section 180 of the Criminal Procedure Code). In the case of PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457, the test of a prima facie case is stated as follows ask yourself the question : If I now call upon the accused to make his defence and he elects to remain silent am I prepared to convict him on the evidence now before me? If the answer to that question is Yes, then a prima facie case has been made out and the defence should be called. If the answer is No then, a prima facie case has not been made out and the accused should be acquitted. 18. With the principle in mind, I shall first deal with the ingredient of the charge. 1) Whether the Accused is an employee of Awana Sofa (M) Sdn. Bhd. SP1 and SP2 gave evidence of the duties of the Accused and role played by her as Human Resource officer at the said company. These are undisputed facts. From the evidence adduced by the prosecution, I find that the Prosecution has proven the first element of the charge. 2) Whether the Accused was entrusted with the monies of the company or she had dominion over it It is also undisputed facts that the accused was responsible for preparing and processing the salaries of all the 21

22 employee of the company including her own and also bank in list. It was she who prepared exhibit P3, P4 and P5. This is what SP2 said during examination in-chief that can be seen at page Rekod Rayuan Jilid 1 Tugas-tugas OKT secara khusus kira gaji, mengurus pekerja warganegara asing dan pekerja tempatan, SOCSO, EPF. Untuk bahagian gaji, OKT harus ambil kad punch kad pekerjapekerja sampai saya periksa. 19. The learned session court judge in her judgment was of the view that It is my view based on a thorough perusal and consideration of the evidence of all the pertinent witnesses as well as the relevant documents tendered that the Accused clearly had dominion of the properties entrusted to her. It is not doubted that SP2 signed the cheque which contained the total amounts and the cheque is payable to Public Bank Bhd and not the Accused as pointed out by both learned DPP and counsel. In all the 22 transactions the cheque containing the monies involved are not payable to the Accused. However what is of prime consideration is that the amounts in the bank in list had been manipulated by the Accused from the amounts stated for a number of employees and redirected into the Accused s account. There is evidence to show that ultimately the Accused received the amounts stated in all 22 charges preferred against her. I do not doubt the reliability and credibility of the prosecution s witnesses especially SP1 and SP2 who had painstakingly gone through each document before this court and had shown the court how the monies finally ended up into the Accused s account. The question of who had done this is easily answered with the reply that 22

23 no one else but the Accused had conducted this ingenious exercise of doctoring the figures in the other salaries and then changing her salary to add in the difference into her own salary. The paper trail leads to no one else but the Accused. SP5 and SP7 had testified and there was no challenge to their testimony that it was the Accused and she alone who came to the bank and produced the cheque and the doctored bank in list for the bank to automatically credit into the individual employees accounts. SP1 had entrusted the preparation and processing of the salaries of all the employees to the Accused. He had trusted her to calculate the correct amount and prepare the correct amount of salaries of each employee including hers. Instead the Accused had breached that trust and had instead manipulated the figures so that she received more than what she was entitled to. Being able to do so showed that the Accused had absolute dominion over the property. If she did not have dominion over the property in question, she would not have been able to decrease the salaries of some of the employed and redirect the difference in the amount into her own account. She was clearly entrusted in her duties as HR officer to honestly prepare the correct and accurate salaries of the employees. Entrustment is envisage as property received in the course of employment, whether the person has a right to take it to not, he is entrusted with it. This is my view squarely fit into the role played by the Accused in this state of affairs in Awana Sofa Sdn. Bhd. Hence, even if the cheque was not made out to the Accused as payee, the amount of money that was entrusted to her was the amount as stated in the 22 charges levied against her. She was clearly not entiled to that amount. But that amount ended up in her account. Who is responsible for the money that had made its way into her account? The answer is crystal clear that the Accused was the person entrusted to properly ensure 23

24 that the employees including herself received what is legally their entitlement. The Accused is not entitled to the amounts state in the 22 charges. Therefore I respectfully in disagreement with learned counsel for the defence submission that since the monies mentioned in the cheques for the 22 occasions as enumerated in the charges was never paid to the Accused, it would be clear that the Accused at all material times was not entrusted with the monies that were paid to Public Bank Bagan Ajam as payee. I accept that the Accused was not given the monies directly to be brought to the bank before it was auto credited into the accounts of the employees. However the actions of the Accused did in my view fall squarely into the wording of s.408 of the Penal Code i.e whoever being a clerk or servant, or employed as a clerk or servant and being in any manner entrusted in such capacity with property (emphasis is mine). The section is interpreted widely enough to encompass not only the property being entrusted by the employer to the Accused but also monies entrusted by the employer to the Accused indirectly as a human resource officer. With respect having considered the evidence and the documents tendered into court. I disagree with learned counsel for the defence usage of the interpretation of the relationship of the company with the bank as that of creditor and debtor in the context of this criminal trial, I am here concerned with the ingredients of the offence pursuant to s.408 of the Penal Code specifically whether the Accused had dominion over the monies that were supposed to be credited into the individual accounts of all the employees including herself. The prosecution had adduced evidence to show that she had changed the figures and adjusted the figures in the bank in list and the summary salary worksheet so that she would receive and amount she is not entitled to. That is my opinion showed she had exercised dominion over the monies that she was entrusted with within that span of time. 24

25 Based on the evidence presented the issue of entrustment or dominion over the monies of the company is the central issue in this appeal that need to be addressed. Ratantal s Law of Crimes (Volume Two) which says A person cannot be aid to be entrusted with property within the meaning of this section when he obtains possession of it by means of trick. A trust implies confidence placed by one man in another. It implies necessarily that the confidence was freely given and that there is a true consent. There is no true consent if confidence is obtained as a result of a trick. If there was a trick or deceit, a true consent cannot arise, there can be no entrustment and no offence under section 406, because an essential element of that offence is an entrustment. It is my considered view that the evidence of SP1 and SP2 flows only in one direction i.e it was the Accused who prepared the salary worksheet, salary summaries and bank in lists. There is no evidence going the other way i.e to say that the company s monies were entrusted to her or she had dominion over it. Even if the amount in the bank in list has been manipulated by the Accused and redirected into the Accused account and she received more than what she was entitled to, it could not be said that the Accused had dominion over the company s properties. She is not the signatory to the cheque. The cheque book was kept by SP1. The cheques were written by SP1. Furthermore, the 22 cheque for all the salaries of the staff was paid to the Public Bank as payee and not to the Accused. She deposited the cheque with the bank. This piece of evidence came from PW5 and PW6. I am of the considered view that there can be no 25

26 entrustment within the meaning of the section when property is obtained by cheating or forgery. The accused raised some essential points which I have to mentioned. The learned counsel for the Accused argued that the monies that was deposited by the company belong to the bank. When the company issued a cheques for a certain amount in respect for the salaries of its workers, the said company was merely issuing a direction to the bank to pay its workers their salaries because they had a standing credit for a certain amount with the bank (i.e the bank owes the company a certain sum of money). To me, strictly speaking the money deposited with the bank by the customer belongs to the bank and not the customer as the cheques were addressed to Public Bank and the total amount were credited to Public Bank as payee. The relationship between the banker and customer is said to be one of debtor and creditor as was described by Lord Cottenham in Foley v Hill [1848] 2 HLC 28 (D) where he said that money when paid into a bank, ceases altogether to be the money of the principal, it is then money of the banker, who is bound to return an equivalent by paying a similar such to that deposited with him when he is asked for it That being established to be the relative situation of banker and customer, the banker is not an agent or factor, but he is a debtor. The learned session court judge in her judgment is of the view that the relationship between the banker and creditor has no application in the context of criminal law. Learned counsel 26

27 contended that this statement is plainly wrong. Generally speaking, yes I do agree with the learned counsel contention. But in the context of this particular case, I am of the view that based on the arrangement made between the Public Bank and the company, the money deposited were still monies of the company. There were evidence adduced by the Prosecution that the company had issued specific direction and specific purpose to the bank to pay its worker their salaries because the company had a standing credit with the bank. As such, in my views, Public Bank cannot violate the trust, confidence and contract entered between the parties. Public Bank must honour the cheque once it is issued to them as payee and they must in return credited the amount of money as specified in the cheque and exhibit P4 without fails. Public Bank is bound to abide by the direction given to them by the company. Their hand are tied when such direction are given to them. This clearly show that the money deposited still belongs to the company and the company does not lost control of the amount deposited even though I must say that it is still open to the bank to utilize it any manner as it likes. All this depend on the nature of the transaction and arrangement entered between both parties and not merely upon the legal position employed by the parties. Even if I am wrong on the issue of relationship between the banker and creditor, I am still of the view that this issue is only relevant in the context of whether there is sufficient credible prima facie evidence establishing the essential ingredient of the criminal 27

28 breach of trust offence but it has no nexus with the offence of forgery. ON THE ISSUE OF FORGERY 20. Is there evidence of forgery? This is an important issue which I need to address. It is an undisputed fact that the bank in slip (exhibit P4 (1 22)) was prepared by the Accused. Accused also admitted that she send the bank in slip (exhibit P4) and the cheque to the bank. I do find that exhibit P4 contained false entries and the fact that the said document prepared by the accused contained false entries. Therefore, it fell under the offence of forgery under section 468 and not under section 408 Penal Code. It is worth noting the relevant provision of the Penal Code. Section 463 states Whoever makes any false document or part of a document with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 464(a) provides that Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be 28

29 believed that such document or part of a document was made, signed, sealed or executed or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed. Section 468 states Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment for a terms which may extend to seven years, and shall also be liable to fine. In addition to that, though the Prosecution had proved that the signature of the Accused is a forged document and no evidence was led before the court that the Accused had forged the signature, I am still of the opinion that cumulatively, by linking all the connective pieces of evidence as one integrated whole and not considered separately, I take the view that the Accused had committed the act of forgeries relating to the signature of SP2, otherwise the very concept of proof of circumstantial evidence would be defeated. Thus from the evidence, it is clear that the use of the forged document by the Accused is for the purpose of cheating and the act was done with the clear intention of causing wrongful gain to her. 29

30 CAN THE APPELLATE COURT AMEND THE CHARGE 21. Learned counsel for the accused submitted that there is no provision in the Criminal Procedure Code that allows the Appellate Court to amend the charged against the Accused. With greatest respect, I beg to differ. Let me look at the case of Gurdit Singh v PP [1983] 1 MLJ 264. The relevant passages of the illuminating judgment of Justice Mohamed Dzaiddin (as he then was) are reproduced 1. The appellant was convicted for an offence under section 454 of the Penal Code and sentenced to 4 years imprisonment. He appealed against sentence. The Prosecution pointed out that from the evidence in the Appeal Record, the appellant could not have been convicted for an offence under Section 454, Penal Code. Instead, he should have been convicted for theft in a dwelling house under section 380 of the Penal Code. The Prosecution requested the court to exercise its revisionary powers under the Criminal Procedure Code by substituting a conviction for a charge under section 380 Penal Code. 2. Now, the next question for me to decide is whether or not I am permitted under the law to alter the conviction for another offence, i.e under section 380 of the Penal Code. The powers of the Judge of a High Court in an appeal against sentence to alter a finding is found in section 316(b) of the Criminal Procedure Code where it is stated that at the hearing of the appeal the Judge may in an appeal as to sentence 30

31 (i) reverse the finding and sentence and acquit or discharge the accused, or (ii) alter the finding, maintaining the sentence, or with or without altering the finding reduce or enhance the sentence or alter the nature of the sentence. In Sivalingam v Public Prosecutor (1982) 2 MLJ 172, the Federal Court in a reference on a question of law of public interest held that in hearing an appeal from a conviction the power of the Judge to alter a finding must be exercised subject to sections 166 and 167 of the Criminal Procedure Code. It is stated that the requirements of sections 166 and 167 of the Code must be satisfied before a High Court in the exercise of its appellate jurisdiction alters or substitutes a conviction for a different offence. It is further held that to warrant a substitution there must be clear evidence that a case for the substituted offence would have been made out or established in the court below. In the case referred to, the accused was convicted and sentenced for an offence under section 420 (cheating) of the Penal Code in the lower court. He then appealed against conviction and sentence to the High Court. The appellate Judge found that an offence under section 420 was not proved, but was satisfied that an offence under section 409 (criminal breach of trust) had been established. He therefore substituted the charge to one under section 409 of the Penal Code. He dismissed the appeal and maintained the conviction and sentence. 3. On reference to the Federal Court, Abdul Hamid F.J. said as follows our law clearly allows the Judge of a High Court in an appeal against conviction to alter a finding. Section 316(b) provides that power. This is consistent with section 26 of the Courts of Judicature Act which states that the appellate criminal jurisdiction of the High Court shall 31

32 consist of the hearing of appeals from Subordinate Courts according to any law for the time being in force within the territorial jurisdiction of the High Court. Certain provisions of the Criminal Procedure Code general in nature are also relevant for purposes of hearing such appeals. Sections 166 and 167 of the Criminal Procedure Code are examples of such provisions. In hearing an appeal from a conviction the power of the judge to alter a finding must in our view be exercised subject to sections 166 and 167 of the Criminal Procedure Code. The requirements of sections 166 and 167 of the Criminal Procedure Code must be satisfied before a High Court in the exercise of its appellate jurisdiction alters or substitutes a conviction for a different offence. Although therefore an appellate court is possessed of the power which it can lawfully exercise, it is equally essential that such power be exercised within the confines of the law. The question is to what extent and under what circumstances such power can be invoked. What is clear in our minds is, and we emphasise, that such power must be exercised under limited circumstances and with great caution subject to the restriction imposed by section 167 of the Criminal Procedure Code, and it must be done so as not to prejudice the case of an accused. In our view Ng Ee s case was correctly decided and to warrant a substitution there must be clear evidence that a case for the substituted offence would have been made out or established against the accused in the court below. To put it in another way before there can be an alteration of a finding the appellate court must be satisfied that if the substituted charge had in fact been the original charge, the proceedings at the trial, would have taken the same course, and the evidence recorded have been same. Further, if the substituted charge was one of the charges preferred against the accused or was an alternative charge the prosecution evidence would have been sufficient to satisfy the elements to constitute the charge and the 32

33 accused s evidence must have been substantially unchanged in that the accused s defence would have been the same. Therefore, applying the above principle and on the authority of Sivalingam v Public Prosecutor (supra), I am of the opinion that the requirements of sections 166 and 167 of the C.P.C are satisfied. As such, I substitute the conviction to one under section 380 of the Penal Code and reduce the sentence to three years imprisonment. CONCLUSION 22. As such, after analyzing the evidence as a whole and having considered all the submissions, it is my finding that the unsworn evidence, when considered in totality and evaluated in the light of the prosecution evidence s case, does not raise a reasonable doubt against the whole of the prosecution s case relating to the offence of forgery. I find the accused guilty of 22 charges of forgery under section 468 of the Penal Code and maintained the sentenced of 2 years imprisonment. The sentence is to take effect concurrently. Reason for maintaining the sentence is due to the gravity of the offence and public interest. Accused mitigation as reflected in the Rekod Rayuan Jilid 1 at page 108 has also been taken in consideration. 33

34 Appeal dismissed. Stay of execution pending appeal granted. ( DATO AZMI BIN ARIFFIN ) Hakim Mahkamah Tinggi Malaya di Pulau Pinang. Bertarikh : 11 Ogos Peguamcara : Tetuan C P Ang & Co. bagi pihak perayu. Penasihat Undang-Undang Negeri Pulau Pinang bagi pihak responden. 34