Faelly Jeffrey Lanjungan M:

GROUNDS OF DECISION

[End of Prosecution’s case]

This is a case where both the accused persons was charged under subsection 5(2)Moneylenders Act 1951 [hereinafter referred to as MLA] read together with Section 34Penal Code

Trial for the prosecution’s case proceeded for six (6) days and a total of seven [7] prosecution witnesses was called. Those witnesses are as follows:-

PW1- Sukri bin Mohtar (Administrative Officer at Resident Office Kuching)

PW2- Insp. Hamizan bin Ismail (Raiding Officer)

PW3- Kpl. Ma-In Anak Jacob (Police Photographer)

PW4- Oliver Anak Jenai (Assistant Registrar at SSM)

PW5- Hosain bin Jobeli (Borrower)

PW6- Kon Siaw Mui (former Admin Clerk at Poly Mortgage & Loan Sdn Bhd)

PW7- Insp. Muhamad Ridzuan bin Yusoff (Investigating Officer)

The Charge

The amended charge marked as A read as follows:-

“That you together, on 22.01.2018 at about 3.40pm at Sublot 27, 3rd Floor Panovel Commercial Centre, Jalan Simpang Tiga, in the disctrict of Kuching, in the State of Sarawak, in furtherance of a common intention, had held yourself out in a way as to carrying on the business of moneylending without a valid license and thereby you have committed an offence punishable under subsection 5(2)Moneylenders Act 1951 read together with Section 34Penal Code

Punishment:

Shall be liable to a fine of not less than two hundred and fifty thousand ringgit but not more than one million ringgit or to imprisonment for a term not exceeding five years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.”

Brief facts of the case

On 22.01.2018 at about 15:40 hours, PW2 together with his raiding team from Commercial Crime Investigation Department IPK Sarawak raided a premise by the name of Poly Mortgage & Loan Sdn Bhd (Company No.: 588528-P) located at Sublot 27, 3rd Floor Panovel Commercial Centre, Jalan Simpang Tiga, Kuching, Sarawak suspecting of carrying out moneylending business.

During the raid, there were three (3) person working at the Premise. When PW2 asked one of them by the name of Chan Kim Leong for the relevant license to run their business, Chan Kim Leong was only able to produce Poly Mortgage & Loan Sdn Bhd’s business license and none moneylending lisence issued by Resident Office Kuching was produced by Cham Kim Leong. PW2, suspecting that Poly Mortgage & Loan Sdn Bhd was carrying out a business of moneylending, PW2 and his team then seized all documents and items suspected to be a moneylending business documents and items. The documents seized during the raid at the premise of Poly Mortgage and Loan Sdn Bhd comprises from other different companies too.

Upon investigation by the police, it was revealed that both accused persons are directors of Poly Mortgage & Loan Sdn Bhd since 06.08.2002 (for the first accused) and 23.01.2011 (for the second accused).

The Law

Subsection 5 of the MLA reads:-

“License to be taken out by moneylender

(1)No person shall carry on or advertise or announce himself or hold himself out in any way as carrying on the business of moneylending unless he is licensed under this Act.

(2)Any person who carries on or advertises or announces himself or holds himself out in any way as carrying on the business of moneylending without a valid licence, or who continues to carry on such business after his licence has expired or been suspended or revoked shall be guilty of an offence under this Act and shall be liable to a fine of not less than two hundred and fifty thousand ringgit but not more than one million ringgit or to imprisonment for a term not exceeding five years or to both, and in the case of a second or subsequent offence shall also be liable to whipping in addition to such punishment.”

Elements to be proven according to Subsection 5 of the MLA]

(i)the accused persons carries on or advertises or announces himself or holds himself out in any way as carrying on the business of moneylending; and,

(ii)without a valid licence.

Jurisdicti