Back
2025 MarsdenLR 951
HIGH COURT (JOHOR BAHRU)
ABDUL MALIK ISHAK, J
MOHD JALANI BIN SALIMAN & ANOR – Plaintiff
Versus
PUBLIC PROSECUTOR – Defendant
CRIMINAL APPEAL NO 51–15 OF 1987
The offence of cheating requires proof of deception that induces loss to the victim, necessitating the prosecution to establish guilt beyond reasonable doubt.
Headnote:(A) Penal Code - Section 420 - Cheating - Offence of cheating defined as inducing a person to part with property by deception - Conviction and sentencing of appellants for presenting false documents to induce a bank to release funds upheld - Standard of proof must establish guilt beyond reasonable doubt - Misapplication of standard by trial court deemed non-prejudicial. (Paras 1, 11, 23, 30, 42, 55)
(B) Standard of Proof - Court emphasized burden lies on prosecution to prove each element of the offence beyond reasonable doubt - Transition from 'prima facie' to 'beyond reasonable doubt' standard clarified through relevant case law. (Paras 11, 30)
(C) Natural Justice - Court finds no denial of fair trial despite absence of detailed judgment by trial court, as evidence overwhelmingly supports prosecution case. (Paras 40, 57)
(D) Common Intention - Court determined that evidence indicated a pre-arranged plan by appellants to cheat the bank, satisfying s 34 of the Penal Code. (Paras 36, 57)
Facts of the case:
The appellants were convicted of cheating a bank by submitting false documents related to letters of credit which misrepresented that plywood had been loaded onto a ship when it had not. The trial court's sentences were ordered to run concurrently for all three charges, each involving significant financial deception. The appeal disputed the application of the legal standards of proof and fairness of trial proceedings.
Findings of Court:
Evidence presented by the prosecution overwhelmingly established that the appellants intentionally deceived the bank, affirming their convictions. The nature of the evidence and testimonies from various reliable witnesses supported the findings beyond reasonable doubt. Appeals against the convictions were dismissed.
Issues: Whether the standards of proof were applied correctly, and whether the appellants received a fair trial considering the trial court's judgment's adequacy. Further, the applicability and evidence supporting common intention among the appellants were questioned.
Ratio Decidendi: The appellate court clarified the transition from the 'prima facie' standard to the requisite 'beyond reasonable doubt' standard. The detailed examination of the totality of evidence indicated that the prosecution met its burden, negating claims of miscarriage of justice. The importance of natural justice upheld as the trial court's conclusions were corroborated by strong evidence.
Result: Appeals dismissed; convictions affirmed with sentences duly modified.
ABDUL MALIK ISHAK J
Preliminary matters
This was an appeal from the decision of the learned magistrate of the Magistrate's Court at Johor Bahru (‘the trial court’) who convicted and sentenced both the appellants after a long and protracted trial. The appeal records were quite voluminous and it was not an easy task to peruse through them. It is significant to mention at the outset that initially there were a number of separate cases and charges involving both the appellants and one other individual by the name of Chin Him Cheong @ Robert Chin (‘Robert Chin’). Several adjournments were granted with charges being amended to suit the occasion. Finally, at p 38 of the appeal record, it was recorded that the prosecution decided to proceed with two cases, viz, A43/83 and A432/81 while the other cases were stood down pending the outcome of these two cases. Amended charges were then tendered as exh P1.
To put matters in perspective, it is appropriate to say that there were three charges framed against each of the appellants and Robert Chin. On 22 December 1986, the trial court convicted and sentenced each of the appellants and Robert Chin as follows:
Each of the first and second appellants
First charge: Seven years’ imprisonment and a fine of RM5,000 in default one year's imprisonment.
Second charge: Seven years’ imprisonment and a fine of RM10,000 in default one year's imprisonment.
Third charge: Seven years’ imprisonment and a fine of RM5,000 in default one year's imprisonment.
These sentences were ordered by the trial court to run concurrently.
[1997] 5 MLJ 551 at 558
Robert Chin
The same sentences were imposed on him in respect of the three charges except that the sentences were ordered by the trial court to run with effect from the date of arrest.
As I said, both the appellants have appealed against their convictions and sentences. Robert Chin took the convictions and sentences for the three charges within his stride and he appeared contented as there was no appeal forthcoming from him.
The petition of appeal itemized quite a number of grounds but the bulk of it were not pursued by the appellants. Thus, what was not pursued at the appeal proper must, consequently, be considered to be withdrawn. It was with this scenario in mind that I proceeded to hear the appeal.
Standard of proof
An argument was advanced that the trial court failed to note that the ingredients required to be proved to establish an offence under s 420 of the Penal Code (FMS Cap 45) (‘the Code’) had not been proved beyond reasonable doubt. It was said that this was a crucial ground, a determining factor, that would decide the fate of the appellants. The classical case of Arulpragasan a/l Sandaraju v PP Khoo Hi Chiang v PP [1994] 1 MLJ 265Arulpragasan, Eusoff Chin Chief Justice succinctly said (at p 11):
The burden is on the prosecution to prove every ingredient which constitutes the offence with which the accused is charged. When, at the close of the case for the prosecution, every ingredient is proved, then there is a case for the accused to answer.
When the case for the prosecution is concluded, it is the duty of the court to scrutinize and evaluate the evidence whether or not there is a case for the accused to answer. If there is no case to answer, the court will acquit and discharge the accused person. If there is a case to answer, then the court will call on the accused to enter on his defence.
Applying Arulpragasan, it was sought to argue that the trial court had applied the wrong standard of proof. It was submitted that there was a clear misdirection in law when the trial court at the end of the case for the prosecution said at p 192 of the appeal record:
This has been a lengthy hearing and after having heard the prosecution, counsel for the first, second and the third accused and after having perused[1997] 5 MLJ 551 at 559 the massive sets of documents, the court is satisfied that the prosecution has made out a prima facie case against the first, second and third accused
