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2023 MarsdenLR 41
HIGH COURT MALAYA KUALA LUMPUR
PP – Appellant
Versus
VASANTA AMARASEKERA – Respondent
[Criminal Appeal Nos: WA-41H-40-10-2022 & WA-41S-25-10-2022]
The court emphasized that proving forgery requires establishing 'dishonestly' or 'fraudulently,' and direct evidence from witnesses is preferred over expert testimony, particularly in the context of a Will.
Headnote:(A) Penal Code - Section 467 - Forgery of a Will - The accused was charged with forging a Will, convicted, and sentenced to 18 months imprisonment. The appeal focused on the conviction and the sufficiency of evidence. The court found that the prosecution failed to prove the essential element of 'dishonestly' or 'fraudulently' making the Will. The evidence of handwriting experts was inconclusive, and direct testimony from witnesses was preferred. (Paras 23, 24, 38, 46, 80)
(B) Evidence - Handwriting Experts - The court emphasized that direct evidence from witnesses who observed the signing of the Will should be preferred over expert opinions. The accused's defense was not sufficiently challenged by the prosecution. (Paras 34, 42, 70)
(C) Appeal - The court found that the learned Magistrate erred in her findings and failed to appreciate the evidence properly. The conviction was set aside, and the accused was acquitted. (Paras 80)
| Table of Content |
|---|
| 1. accused charged with forgery of a will. (Para 1 , 2 , 3 , 4) |
| 2. factual background surrounding the will. (Para 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 3. magistrate's reliance on handwriting expert evidence. (Para 16 , 17 , 18) |
| 4. accused's contentions against the conviction. (Para 19 , 20 , 21 , 22) |
| 5. elements of forgery under penal code. (Para 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33) |
| 6. importance of intent in forgery charges. (Para 35 , 36 , 37) |
| 7. court's analysis of evidence and testimonies. (Para 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53) |
| 8. evaluation of handwriting experts' credibility. (Para 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65) |
| 9. importance of direct evidence in forgery cases. (Para 66 , 67 , 68 , 69 , 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78) |
| 10. conclusion and acquittal of the accused. (Para 79) |
[1] Vasanta a/l Amarasekera, ("the accused") was charged with an offence of forgery of a Will under s 467 of the Penal Code before the Magistrate Court. He was found guilty of the charge and was convicted and sentenced to a one (1) year and six (6) months imprisonment from the date of sentence.
[2] Before this Court, the Public Prosecutor appealed against the sentence imposed by the Magistrate Court whilst the accused appealed against the conviction and sentence.
The Charge
[3] The charge against the accused reads:
"Bahawa kamu pada 13 Jun 2005, di antara jam 9.00 pagi sehingga 6.00 petang, beralamat di Tetuan Amara & Co, D3-15, Pangsapuri Impian Kota, Jalan Kg. Atap, Kuala Lumpur, dalam daerah Dang Wangi, di dalam Wilayah Persekutuan Kuala Lumpur, kamu telah melakukan pemalsuan tandatangan wasiat Last Will and Testament mendiang Adamberage Ananda Rex Alwis, (No KP: 480327-10-5695) bertarikh 13 Jun 2005 dan kamu adalah dengan ini telah melakukan kesalahan di bawah s 467 Kanun Keseksaan."
[4] The prosecution called ten (10) witnesses to give evidence whilst the accused had called 2 (two) witnesses apart from himself, to testify at the defence stage.
Brief Facts
[5] The accused was an Advocate & Solicitor.
[6] Sometime in June 2005, he was approached by a family friend of his, one Adamberage Ananda Rex and known to the accused as Rex ("Rex") who came to his office wanting to make a Will. The accused then drafted the Will.
[7] The complainant, one Nyo Aye Aye (PW3) who is from Myanmar was married to Rex since 11 November 1995.
[8] On 1 March 2006, Rex passed on.
[9] According to PW3, Rex did not leave any Will. The family members started to look for any Will and testament of the late Rex. PW6 was then appointed by PW3 to initiate proceeding for letter of administration.
[10] Subsequently, the family members of the late Rex had advertised notice in the newspaper seeking for any party who would have known of any Will by the late Rex and to refer the matter to Messrs. Fauzi, Ngah & Neasa, Advocates & Solicitors.
[11] The accused having made aware of Rex's demise had forwarded the original copy of the Will to Messrs. Fauzi, Ngah & Neasa, the lawyers acting for the family of the late Rex.
[12] Messrs. Fauzi, Ngah & Neasa then applied to the Kuala Lumpur High Court for grant of probate and in this regards, both the accused and PW4 affirmed the affidavits for the said purpose. Both the accused and PW4 averred that they had witnessed the late Rex signing P5, the Will (the "Will").
[13] On 19 July 2006, the Grant of Probate was issued by the Kuala Lumpur High Court and the accused's brother, DW3 is the executor of the Will.
[14] PW3 challenged the Will and denied that Rex had ever signed the Will. PW3 filed a suit to challenge the Will and the suit was dismissed without a full trial.
[15] In the present matter, the learned Magistrate found that the prosecution succeeded in proving beyond reasonable doubt the charge preferred against the accused under s 467 of the Penal Code.
Summary Of The Magistrate's Findings
[16] In assessing the evidence, the le
