Mohd. Azmi SCJ:

We have allowed this appeal and we now give our reasons for reducing the custodial sentence and setting aside the sentence of fine.

The appellant was convicted in the High Court at Kuala Lumpur on his plea of guilty to a charge of criminal breach of trust offence under s. 409 Penal Code. The charge was in the following terms:

That you on 9 April 1985 at No. 91, Jalan SS 21/1A, Damansara Utama, Petaling Jaya, in the State of Selangor, being an agent of Malaysia Overseas Investment Corporation Sdn. Bhd. to wit, the managing director and in such capacity entrusted with dominion over certain property, to wit, RM338,808.80, committed criminal breach of trust in respect of the said property and you thereby committed an offence punishable under s. 409 of the Penal Code.

After hearing a plea in mitigation from his Counsel, the appellant was sentenced to eight years' imprisonment and a fine of RM100,000 in default another six months' imprisonment. The appeal to us was against the said sentence on the ground that:

(1) The sentence imposed by the trial Judge was manifestly excessive in all the circumstances of the case; and

(2) The trial Judge failed to take into account relevant considerations and/or took into account irrelevant considerations.

Although the classical principles applicable to all sentences were summed up in Reg. v. Sergeant [1974] 60 Cr App R 74 as retribution, deterrence, prevention and rehabilitation, in view of the prevalence of criminal breach of trust cases at the present time, we agreed to adopt the argument of Lawton LJ in Reg. v. Davies [1978] 67 Cr App R 207 and accordingly we held that in this particular case only the elements of retribution and deterrence needed to be considered. As such, binding over the accused under s. 173A or s. 294 Criminal Procedure Code (which in effect is similar to suspended prison sentence) or imposing a term of one day's imprisonment with fine would seldom be a suitable sentence to fit the crime of breach of trust particularly under ss. 408 and 409 of the Penal Code. As stated in PP v. Khairuddin [1982] 1 MLJ 331 @ 332, an authority cited by the learned trial Judge:

The number of people placed in position(s) of trust has been growing steadily and rapidly both in the private and public sectors with corresponding increase in opportunities for such people to make easy money by dishonest means.

... Public interest demands that cases of this nature involving persons in positions of trust, particularly in financial institutions, must be dealt with severely, in the hope that would-be offenders would be deterred. Until it is understood by such people that the normal punishment for helping themselves to their employers' money is to be sent to prison, there will continue to be officials in commercial and cooperative banks and similar institutions, prepared to pilfer the till.

Consequently we agreed with the principle laid down in Reg. v.Barrick [1985] 81 Cr App 78 that in breach of trust cases in general a term of immediate imprisonment would be inevitable, save in very exceptional circumstances or where the amount of money involved was small. This must be the current sentencing policy even if the accused pleaded guilty.

What had caused anxiety to the learned trial Judge in this appeal was the length of the custodial sentence that should be imposed on a managing director of a company for committing breach of trust involving the sum of more than RM300,000 but less than RM400,000. In his 15 page judgment the learned trial Judge relied heavily on two English authorities - Reg. v. Barrick(ante) and Reg. v. Davies (ante), and after comparing them with two local cases - PP v. Khairuddin (ante) and PP v. MuthuLingam [1986] CLJ (Rep) 603 (the latter case was incidentally decided by the learned trial Judge in 1985) he came to the following conclusion:

If this Court is to follow the trend set by these two cases (Khairuddin and Muthu Lingam) on the proper sentence to be passed i