Edgar Joseph Jr SCJ:

[1] The respondent, Lawrence Tan Hui Seng, an Advocate and Solicitor, was prosecuted in the Sessions Court, Kuala Lumpur, on two counts of criminal breach of trust in contravention of s 409 of the Penal Code; the counts being in the following terms:

First Charge (Amended):

That you on 30 June 1987 at the premises of M/s Abdul Malik and Lawrence Tan, 24th Floor, UMBC Building, Jalan Sultan Sulaiman, in the Federal Territory of Kuala Lumpur, being an attorney of the firm M/s Abdul Malik and Lawrence Tan and in such capacity entrusted with dominion over certain property, to wit, RM12,968.75, belonging to the clients of the said firm, committed criminal breach of trust in respect of the said property and that you have thereby committed an offence punishable under s 409 of the Penal Code.

Second Charge (Amended):

That you between 22 March 1987 and 22 June 1987 at the premises of M/s Abdul Malik and Lawrence Tan, 24th Floor, UMBC Building, Jalan Sultan Sulaiman, in the Federal Territory of Kuala Lumpur, being entrusted with dominion over certain property, to wit, a cumulative sum of RM9,836, belonging to the employees of the firm M/s Abdul Malik and Lawrence Tan, committed criminal breach of trust in respect of the said property and that you have thereby committed an offence punishable under s 406 of the Penal Code.

[2] In the Court of trial, a prima facie case having been established by the prosecution in respect of both charges, the respondent was called upon to enter upon his defence and, at the close of the case for the defence, he was acquitted and discharged thereof on the ground, that as regards the first charge, he had raised a reasonable doubt on the question of dishonest intention and, as regards the second charge, that he had raised a reasonable doubt on the question whether he had dishonestly misappropriated or converted to his own use the money the subject matter thereof.

[3] The Public Prosecutor being dissatisfied with that decision appealed to the High Court, which upheld the acquittals on substantially the same, if not the same grounds, as those advanced by the trial Court, with the result that the appeal was dismissed. The Public Prosecutor then successfully applied to this Court under s 66, Courts of Judicature Act 1964, for leave to refer for its determination, the following questions, which were said to be "questions of law of public interest, which had arisen in the course of the appeal and the determination of which by the High Court, had affected the event of the appeal":

1(a) Whether the element of "dishonesty" for the offence of criminal breach of trust under the Penal Code is in law proved when an Advocate and Solicitor takes a certain sum of money from the Clients' Account of the Firm for the use of the Firm, without authority of the client?

(b) If so, whether it would make any difference if the money was taken with the intention of replacing the sum taken as soon as the Firm was able to do so? and

(c) If "no", whether it would make any difference in Law if, at the time of taking the money from the Clients' Account, the Advocate and Solicitor had obtained the permission of a few clients to use their monies in the Clients' Account but the aggregate sum so authorised to be taken by those clients is less than the amount actually taken?

2. Whether it is criminal breach of trust under the Penal Code when an employer having deducted his employee's contribution to the Provident Fund in accordance with the Employees Provident Fund Act 1951, fails to remit the same to the Fund and such failure is due to the Fund not having the money to do so, it having used the money?

[4] At the hearing before us, we had, following the majority decision in Yue Sang Cheong Sdn Bhd v. Public Prosecutor, [1973] 2 MLJ 77, treated the hearing of this Reference as entitling us to review the entire evidence, so that we were in no way limited to just answering the questions arising therein. In other words, the Reference