Rigby J:

This was an appeal from a decision of the learned President of the Sessions Court, sitting in Penang, whereby the appellant was convicted of criminal breach of trust, contrary to s. 408 of the Penal Code, and sentenced to eighteen months' imprisonment.

The particulars of the charge upon which he was convicted were that he "between the 1 May 1959, and 27 August 1959, at No. 7, Weld Quay, Penang, being a manager in the employment of Ahmad bin Haji Jamal, the proprietor of Penang Travels, Penang, and in such capacity, being entrusted with certain property, to wit, cash and cheque deposits, amounting to $6,503.80 did commit criminal breach of trust in respect of the said property".

During the hearing of the appeal Mr. Massie, DPP, intimated to the Court that for reasons to which I will later refer he did not feel that he could support the conviction.

I accordingly allowed the appeal and quashed the conviction and sentence.

The facts of the case were briefly as follows: On or about the beginning of May 1959, the complainant, as the result of representation made to him by the appellant, commenced a business known as Penang Travels, and appointed the appellant as Manager thereof. The business, in its inception, was financed by the complainant. From its early stages the business appears to have been run in a thoroughly unsatisfactory manner. For example, cash deposits were received by the appellant, as Manager, from various members of the public, as deposits for tours to Japan and other foreign countries. Nothing appeared to be done by the appellant to implement these bookings, with the result that the complainant himself was compelled to refund these fees to the dissatisfied and irate customers on various dates towards the end of August. Let it be said at once, however, that the two receipt books produced in evidence during the hearing of the case established that these deposits had, in fact, been paid over by the appellant to the complainant and actually received by the latter. He was, therefore, only repaying to the dissatisfied customers moneys that he had received, but in respect of which no action had been taken by the appellant, as Manager of the business, to implement the undertakings he had given to the customers. However, on the 27 August in consequence of the complaints made to him, the complainant himself made a report to the Police, as a result of which these proceedings were instituted.

The complainant, Ahmad bin Haji Jamal, is himself the cashier of the Federal Transport Company, Butterworth. In that capacity he is, of course, a man used to handling and recording of accounts. Although the business of Penang Travels commenced on 1 May it was not registered until the 15 September - after these proceedings had started. No separate banking account was opened by the complainant in the name of Penang Travels, and such cheques as he received from the appellant arising out of the business, he put into his own bank account. But the most remarkable feature of his evidence was that on his own admission he had no idea of the moneys he had advanced to the appellant to start the business. According to his evidence - and it seems incredible that it should be so - he had kept no accounts of such moneys as he had advanced and he relied entirely for that figure on the appellant's own statement. The sole evidence as to the moneys the appellant had received from the complainant consisted of a receipt - Exh. P24 - dated 24 August 1959, and signed by the appellant. It is worded as follows:

PENANG TRAVELS

(Transportation Arranged)

LAND - SEA - AIR.

Local, Malayan & Foreign Tours.

24 August 1959.

Received from Mr. Ahmad bin Haji Jamal, Proprietor, Penang Travels, Penang, the sum of Dollars Fifteen Thousand, and Fifty-nine and cents Eighteen ($15,059.18) only, being capital in establishing Penang Travels. The total amount is made up of various sums during the period 1 May - 24 August 1959.

PENANG TRAVELS.

(Signed)