Tengku Baharudin Shah JCA:

The appellant was charged in the Sessions Court Johor Bahru for an offence of abetting one Janakee d/o Sangaran Nair (PW1) in cheating Malayan Banking Berhad (MBB) on 22 April 1988 by dishonestly inducing its officer Mohamed Saat bin Jalil (PW9) to deliver to her RM21,076.05 against Employees Provident Fund (EPF) Warrant No. 390692 (P2) by deceiving the said PW9 into believing that she (PW1) was Agnes d/o Valemtine Selix Morris, the person named in the said EPF Warrant P2 which money would not have been so delivered had PW9 not been so deceived. He was found guilty and convicted and was sentenced to a term of three years' imprisonment and fined RM5,000 or five months' imprisonment in default. He failed in his appeal in the High Court against both conviction and sentence and hence came before us. We heard his appeal on 5 October 2004 and this is our decision.

The prosecution adduced its case through 23 witnesses and made available 15 others. The facts gathered from their testimonies are briefly as follows. Sometime in 1988 PW2, an EPF officer, discovered that there had been fraudulent withdrawals of monies standing to the credit of its allegedly deceased member one Lawrence Fernandez a/l A.S. Fernandez (PW5). His enquiries revealed that PW5 was in fact still alive. The second of two withdrawals was vide EPF Warrant P2 which was sent to an address in Johor Bahru as specified in the application form (P11). He lodged a police report which initiated police investigations and culminated in the arrest of the appellant and PW1. PW1 who was charged for cheating in respect of the said second withdrawal of RM21,076.05 was convicted on her own plea of guilty and sentenced accordingly. She then became a witness against the Appellant on the charge of abetting her in committing the said offence. The first withdrawal was made in the name of Ann Selvi w/o A.S. Fernandez purporting to be PW5's mother.

It is the prosecution's case that the appellant had enlisted and secured the services of PW1, an illiterate single mother, through one Jeeva whom she knew for many years and also stayed not far from her house in Semenyih. Jeeva persuaded and brought PW1 to Kuala Lumpur to see the appellant who agreed to employ her as a domestic servant. On their way back, Jeeva had PW1's photograph taken at a photo shop allegedly for the said purpose. Subsequently, the appellant and Jeeva went to PW1's house and took her to a coffee shop where she was asked to affix her thumb print on certain documents in the appellant's presence.

On 21 April 1988, the appellant and Jeeva again visited PW1. While the appellant remained in the car, Jeeva told PW1 to accompany them to her new job. PW1 packed her clothing and told her children that she would be back the next day. She joined Jeeva and the appellant in the car. Along the way, Jeeva alighted from the car and told PW1 to accompany the appellant to Johor Bahru, a place she had not been. The appellant then proceeded to the airport where PW14 was waiting to take back the car. He was also asked to pick them up the next day on their return from Johor Bahru. PW1 then travelled by air with the appellant to Johor Bahru.

PW15 who registered 2 rooms at Hotel Tropical Inn in Johor Bahru in the name of the appellant that evening at 9.02pm knew and recognised him as he was a regular guest there. She also recalled him making the room reservation by phone the same afternoon. PW1 did not however sleep in her hotel room that night as she was scared of being left alone in a strange place. She shared the same room with the appellant. Next morning ie, on 22 April 1988 PW1, who admitted to be a red identity card holder, was shown by the appellant a blue identity card with her photograph on it and he told her that the name on it was not hers. He took her by taxi to a post office where, using the said blue identity card, she collected a letter after affixing her thumb print before the postal clerk PW7.