Low Hop Bing JCA (delivering judgement of the court)

APPEAL

The appellant (‘the accused’) was charged, in the first instance, before the Kota Bharu Magistrate’s Court, with criminal breach of trust punishable under s 408Penal Code1997, at the Machang branch of Bank Pertanian Malaysia, the accused being a servant, to wit, the branch manager, and having been entrusted with RM304,000, did commit the said offence relating to the said sum.

He was found guilty, convicted and sentenced to three years imprisonment and three strokes of whipping. His appeal against the conviction and sentence was dismissed by the High Court. Pursuant to leave granted by this court, he has lodged this appeal. Meanwhile, there was a stay of execution of the sentence, pending disposal of this appeal.

A reference hereinafter to a section is a reference to that section in the Penal Code.

The narrative of facts will be unfolded in our deliberation of the five grounds raised in this appeal.

THE ACCUSED’S RESIGNATION ON 9 JULY 1997

This ground of appeal advocated by learned defence counsel Mr Manjeet Singh Dhillon is that, upon resignation on 9 July 1997, the accused was no longer the branch manager of Bank Pertanian Machang, and hence not a servant under s 408.

Learned deputy public prosecutor Mr Awang Armadajaya bin Awang Mahmud argued that on 9 July 1997, the accused was still the branch manager and had conducted himself in such capacity when he directed SP6 and SP7 to process his Malayan Banking Bhd (MBB) cheque for RM167,000 and to make payment to his Patriot Perdana Account at Bank Pertanian Malaysia. Being the subordinates, SP6 and SP7 did as directed by the accused.

We note that the trial court had accepted the evidence adduced through Bank Pertanian’s personnel manager (SP3) that on 9 July 1997, the accused was still the branch manager, as the accused’s resignation had yet to be accepted by Bank Pertanian, and the accused had continued to direct SP6 and SP7 to honour his MBB cheque for RM167,000. This was clearly confirmed in the computer printout which showed that the transaction took place on 9 July 1997 at 10.59.03 hours. The accused’s conduct, in directing SP6 and SP7 to clear his MBB cheque and disburse cash into his Patriot Perdana Account on 9 July 1997 and to further remit the money to the recipient, clearly indicated that the accused had not relinquished his post as the branch manager. In every sense of the word, he was still the branch manager in charge when he gave the said directive to his subordinates, SP6 and SP7. His purported resignation does not ipso facto exonerate him from his criminal liability for the directive given to his subordinates and the transaction that had taken place on that date, as alluded to above.

ADMISSIBILITY OF COMPUTER DOCUMENTS

Relying on Hanafi bin Mat Hassan v Public Prosecutor s 90AEvidence Act 1950

The learned deputy supported the admissibility of the computer-generated documents, as had been done in Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 4 CLJ 6 (CA).

For ease of reference, we tabulate these computer-generated documents of Bank Pertanian Machang as follows:

The question that falls to be determined under this head is whether, at the trial, these computer-generated documents have been legally admitted under s 90A.

Section 90A merits reproduction in extenso as follows:

90AAdmissibility of documents produced by computers,