Abdul Hamid Omar FJ:

The appellant Syed Abu Bakar bin Ahmad was convicted in the High Court in Borneo at Kuching on 25 September 1982 on two charges, the first amended, as follows:

Amended First Charge:

That you between the 23rd day of February 1974 and the 12th day of December 1974 at the office of the National Bureau of Investigation, Kuching, in the First Division in the State of Sarawak being a public servant namely Director of National Bureau of Investigation, Sarawak and in such capacity entrusted with dominion over certain property, to wit, a sum of money belonging to the Government of Malaysia, committed criminal breach of trust in respect of the said property by misappropriating a sum of RM300 and that you have thereby committed an offence under s. 409 of the Penal Code.

Second Charge:

That you on 31st day of May 1975 at the office of the National Bureau of Investigation, Kuching, in the First Division in the State of Sarawak being a public servant namely Director of National Bureau of Investigation, Sarawak and in such capacity entrusted with dominion over certain property, to wit, a sum of money belonging to the Government of Malaysia, committed criminal breach of trust in respect of the said property by misappropriating a sum of RM500 and that you have thereby committed an offence punishable under s. 409 of the Penal Code.

Upon conviction the appellant was sentenced to one year imprisonment on each charge, both sentences to run consecutively.

The learned trial Judge was satisfied that the appellant, as Director of National Bureau of Investigation (NBI) Sarawak, was a public servant (s. 8 Biro Siasatan Negara Act, 1973). In that capacity from January 1974 to the end of December 1975, a period of two years, he was entrusted with dominion over moneys belonging to the Government of Malaysia and was the operator of the funds known as Secret Service Funds (SSF). It is in respect of the moneys from such fund in the amount stated in both the charges that the learned Judge found the appellant to have committed criminal breach of trust.

The Secret Service Funds (SSF)

Evidence was led before the trial Judge and it is not in dispute that the SSF was under the overall management of the Director-General of NBI at the Headquarters in Kuala Lumpur and to be operated in accordance with a directive called the Inspector-General of Police Directive No. 9 of 28 September 1964. We do not propose to state in detail what the directive is, suffice to say that one of the purposes of the fund was, generally, for the payment of rewards to agents and informers for information leading to the apprehension of criminals.

The appellant as State Director, a secondary operator, had the authority to pay rewards. He was, however, required to keep documents and records such as cash book, receipt book and file containing payment vouchers, receipts and bank statements. As secondary operator he was responsible to the Director-General, nevertheless had authority to authorise payment. He was also the paying officer. In his operation of the SSF in compliance with the directive (No. 9) for every payment the appellant had to fill up payment vouchers and other details such as the number of the vouchers, the amount in words and figures, the purposes of payment, date of authorisation, date of payment and signature of account operator, authorising officer, paying officer and recipient. All the expenditure in each month had to be accounted for in the returns to be submitted before the 10th of the following month covering the previous month's expenditure. He was to certify inter alia that he checked the bank balance and cash balance in hand, the unused receipts and the total expenditure incurred and found to be correct. The returns were required to be sent to the Accountant-General's office in Kuala Lumpur together with bank statement and other relevant documents.

In the operation of the account the operator had not only to fill up all the details in the re