JUDGMENT

GROUNDS OF DECISION

In the Sessions Court, Kuala Lumpur the appellant (the accused) was charged under s409 of the Penal Code for criminal breach of trust by a public servant thus -

Bahawa kamu pada 6.7.1994 jam Iebih kurang 11.00 pagi di pejabat Pendaftaran Mahkamah Tinggi Jenayah, Jalan Duta di dalam Wilayah Persekutuan Kuala Lumpur sebagai seorang penjawat Awam iaitu seorang kerani di pejabat tersebut telah diamanahkan dengan suatu harta iaitu Wang tunai berjumlah RM 65,000/-dan kamu telah melakukan Pecah [2] Amanah Jenayah terhadap harta tersebut dan dengan demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seskeyn 409 Kanun Keseksaan."

He was convicted on the charge and sentenced to 5 years' imprisonment from 6.11.1995.

He appealed to the High Court against conviction and sentence and I dismissed his appeal.

The provision under which the accused was charged, 5 409, as is relevant to the charge, reads as follows -

"409. Whoever, being in any manner entrusted with property ... in his capacity of a public servant... commits criminal breach of trust in respect of that property shall be punished with imprisonment for a term which shall not be less than two years and not more than twenty years and with whipping, and shall also be liable to fine."

[3] There are several presumptions provided in the Penal Code in relation to s409 and one of them, relevant to this case, s409B(l)(b) reads as follows -

"409B. Where in any proceeding it is proved

(a)...(b) for any offence prescribed in sections 405, 406, 407 and 409, that any person entrusted with property or with dominion over property had(i) misappropriated that property;(ii)...(iii)...it shall be presumed that he had acted dishonestly until the contrary is proved."

The accused was a Court Reporter and concurrently carried on duties as a clerk in the Registry of the Criminal Law Division of the High Court, Kuala Lumpur on the relevant date. One of his duties was to collect Court fines and credit the monies to the Federal Government. According to PW7, the cashier at the Finance Division at the Federal Court, the accused was the only one from the Criminal Division who came to the Finance Division to deposit the fines collected by him. There is no dispute that the accused, as a public [4] servant within the meaning of s21 of the Penal Code, received a sum of RM 65,000 in cash on 6.7.1994 and that sum was a fine. The order of a fine and I day's imprisonment had been imposed on a man, Lim Yan Loo, in a Magistrates' Court on his conviction for an offence relating to illegal lotteries and when the man withdrew his appeal in case WPRJ 41-193-93 against his conviction and sentence in the High Court (Court No.2), the High Court on 6.7.1994 ordered the man to pay up his fine and serve the sentence of imprisonment. There was another appellant in case WPRJ 41-193-93 and the case against that person was postponed to another date for hearing.

The prosecution evidence which was not challenged through cross-examination showed that all proceedings in High Court No.2 were concluded for the day at about 10.00 am. Court Interpreter, Puan Mangalasothy (PW4), at between 10.30 am to 11.00 am brought the relevant file (after a minute of the order of the Court order had been entered into the file) and the step brother (PW5) of Lim Yan Loo (PW6), who had been ordered to pay the fine, to see the accused. PW5 paid the fine of PW6 to the accused.

There is no dispute that when the accused received the fine no official receipt was issued. An official receipt will be issued in triplicate (one for the payer, one for the Government Auditors and another for the office) and a computer imprint of relevant details relating to the payment will appear on the [5] receipts and that is done at the Finance Division. At the relevant date the Finance Division was situated in a different building a few kilometres away from the Registry. There is also no dispute that the accused himself issued an acknowledgemen