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2021 MarsdenLR 338
HIGH COURT MALAYA KUALA LUMPUR
PP – Appellant
Versus
LAM EE VON – Respondent
[Criminal Appeal No: WA-42LB-10-03-2019]
A director may establish reasonable doubt in charges of criminal breach of trust if the transactions align with normal business practices and are backed by a defense supported by evidence.
Headnote:(A) Penal Code – Section 409 – Criminal breach of trust by an agent – The prosecution charged the Respondent with two counts of criminal breach of trust; however, the trial court acquitted the Respondent based on a legitimate business practice. (Paras 1-14)
(B) Court's Authority – The trial judge found a prima facie case established but ultimately ruled that the defense raised reasonable doubt regarding the alleged misconduct. (Paras 9, 15)
Facts of the case: The Respondent was accused of transferring company funds into personal accounts without supporting documents, leading to allegations of criminal breach of trust. (Paras 7-10)
Findings of Court: The court upheld the trial judge's decision, agreeing that there was no misdirection of facts or law, and the transactions were in line with business operations. (Paras 25-29)
Issues: The court identified whether the evidence established criminal breach of trust and if the defense's claims were satisfactory. (Paras 16-18)
Ratio Decidendi: The court held that the defense sufficed to create reasonable doubt about the allegations, showing established business practices rather than criminal intent. (Paras 25-30)
Result: Appeal dismissed; trial court's decision affirmed.
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 s 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 Disember 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 s 409 Kanun Keseksaan kerana telah melakukan pecah amanah."
Second Charge
"Bahawa kamu pada 17 Mac 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 s 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 Respondent is 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
