Dato' Abdul Aziz bin Mohamad J:

On 17 April 1989 one Harun bin Othman and the appellant were charged in the Sessions Court in Kuala Lumpur. Harun faced a principal charge of criminal breach of trust by an agent under s. 409 of the Penal Code, a first alternative charge of cheating under s. 420 and a second alternative charge of theft by a clerk under s. 381. In all the three charges, the time of commission of the offence was said to be between 1 July and 14 July 1988, the place was said to be at Bank Negara Malaysia in Kuala Lumpur, and the property the subject of the offence was said to be "Malaysian Ringgit 22,200,000". The appellant faced a principal charge and two alternative charges of abetting the respective offences alleged against Harun. The dates were as in the charges against Harun, but the place of abetment was said in all the three charges to be at Bank Bumiputra Malaysia Berhad Menara Dayabumi Branch in Kuala Lumpur.

On 5 May 1989 Harun pleaded guilty to the second alternative charge of theft, the offence for which the penalty prescribed is the least severe of the three. He was convicted and sentenced to five years imprisonment and a fine of RM50,000. He has served his sentence.

The appellant claimed trial on the three charges and was tried by the same Sessions Court judge who had dealt with Harun. At the close of the case for the prosecution, she found that the prosecution had made out a case of theft against the appellant and she acquitted him of the other two charges. After the close of the defence, she found the appellant guilty and convicted him on 17 May 1991. On 18 May 1991 she sentenced him to four years imprisonment and ordered him, under s. 426(i)(b) of the Criminal Procedure Code, to pay compensation of RM333,000 to Bank Negara.

He has now appealed against his conviction and sentence.

Although to constitute the offence of abetment it is not necessary that the act abetted should be committed, in the circumstances of this case - where there is no direct evidence of any arrangement between Harun and the appellant and where the evidence relied upon for proof of abetment is therefore cicumstantial - no charge of abetment against the appellant can stand without it being proved that Harun did commit the related principal offence.

At the trial, the prosecution tendered the record of the proceedings against Harun, which contained a statement of the facts alleged against him and admitted by him. One of the grounds of appeal is that the record should not have been admitted because its admission was harmful in that the learned trial judge was influenced by those admitted facts in coming to a finding that Harun had committed theft and that the appellant had abetted the theft.

I need only say this about this ground. Whatever view one may take about the admissibility of the record of proceedings under the Evidence Act 1950 - which was debated in this appeal - I think it is fundamental that facts alleged by the prosecution and admitted by a person who has pleaded guilty cannot be taken as proven against another person. The facts admitted by a person who has decided to plead guilty may include facts which the prosecution, although believing in them, may not be able to prove were the person to claim trial but which he chooses to admit because he wishes the charge against him to be over and done with. Then again facts alleged and admitted may not be totally accurate, but he is not concerned to have the facts put right since he is pleading guilty and the question of accuracy is not seen by him at the moment as of any importance to him. Aside from those considerations, to accept the admitted facts as proven against another person would be tantamount to accepting the evidence of the person pleading guilty without the other person being given an opportunity to cross-examine him.

Having said that, however, I do not find it necessary, to dispose of this appeal, to consider whether the record of proceedings had i