The prosecution must prove beyond reasonable doubt the elements of the offense of criminal breach of trust, including the existence of agency and dishonesty.

JUDGMENT

Aslam Zainuddin JC

[1] The Respondent who was the accused in this case was charged for an offence under s 409 of the Penal Code in the Sessions Court below. At the end of the prosecution case, the learned Sessions Court judge found that the prosecution had failed to make out a prima facie case against the Respondent on the charge preferred against him and therefore ordered the Respondent to be acquitted and discharged of the same. The Public Prosecutor being aggrieved, has filed an appeal to the High Court. The English translation of the charge against the Respondent reads as follows:

'That you on 1/8/2017 at the Kuala Lumpur Road Transport Department, 53300 Setapak, in Wangsa Maju District, in the Federal Territory of Kuala Lumpur as an agent entrusted by Faigam Tuning PLT Company to sell a BMW car model M6, valued at RM411,370.00, committed criminal breach of trust by fraudulently selling the car without the consent and knowledge of the owner and failed to hand over the sale proceeds of RM411,370.00 to Faigam Tuning PLT Company, and you have committed an offence punishable under s 409 of the Penal Code and if convicted you may be imprisoned for a term of not less than two years and not more than twenty years, and whipped, and shall also be fined.'

[2] One preliminary matter which I want to touch on is the defective notice of appeal filed by the prosecution. In the said notice it was stated that the prosecution is appealing against the inadequacy of the sentence imposed by the Sessions Court. However, in this case, the Respondent was acquitted and discharged by the Court below so there is no question of him being sentenced at all. (See page 3 of the appeal record volume 1)

[3] In PP v. Hwong Yu Hee & Ors, [2015] 11 MLJ 138 , the learned judge said:

"[12] Section 307 of the Criminal Procedure Code (' CPC ') provides that any person who is dissatisfied with any judgment, sentence or order pronounced by any magistrates' Court in a criminal case or matter to which he is a party may prefer an appeal to the High Court against that judgment, sentence or order in respect of any error in law or in fact or on the ground of the alleged severity or of the alleged inadequacy of any sentence by lodging, within fourteen days from the time of the judgment, sentence or order being passed or made. Section 303A provides that any reference to a magistrates' Court shall be deemed to include a reference to a sessions Court.

[13] As stated above, the notice of appeal filed by the DPP is in respect of three counts only and did not appeal against all the five charges preferred against the accused. There is no other notice of appeal in respect of the other two charges or counts or in respect of all five charges against the three accused persons. The notice of appeal also did not state whether the appeal is in respect of any error in law or in fact.

[15] If the appeal is in respect of three charges or three counts only as stated in the notice of appeal, she did not set out which of the three charges out of the five charges which were the subject matters of the appeal and for which they had been acquitted and been discharged. Reading the notice of appeal the accused would not be in any position to know and should not be left wondering which of the three out of the five charges are on appeal against them. The notice of appeal as it stands is defective."

[4] See also the Court of Appeal case of PP v. Ismail bin Abd Wahab , [2014] 1 MLJ 541.

[5] Based on the above, the notice of appeal filed by the prosecution is actually defective. Be that as it may, I now propose to go into the merits of the appeal proper.

[6] The facts of the case as can be gleaned from the Respondent's submission is as follows:

"The Prosecution had called a total of six (6) Prosecution witnesses in an attempt to establish a prima facie case against the Accused as follows:

1. Fabian Hung Hing Fung ("SP1") who is also the complainant;

2. Abdullah bin Shikh Mohamed ("SP2") who is the d