The court held that 'possession' under the Minor Offences Ordinance refers only to tangible items, thus invalidating the charge regarding the bank funds as they are 'chose in action'.

Wong Siong Tung J:

INTRODUCTION

[1]The appellant, Ezreen Nasuha bt Razuli, is appealing against her conviction and sentence imposed by the magistrate court for an offence under s 37(1) of the Minor Offence Ordinance 1958. She pleaded guilty to the offence on 11 December 2023, and was consequently fined RM500, in default, imprisonment of seven days.

[2]The offence with which the appellant was charged is as follows:

That you on 26th August 2023 at Lot 424 Jalan Sentosa Salim, in the district of Sibu, in the State of Sarawak, was found in possession of RM1200 (Ringgit Malaysia One Thousand and Two Hundred) which is unlawfully obtained in your CIMB personal account bearing the account number 7033133654 and you have failed to an account satisfactorily of how you came by such thing, thereby you had committed an offence under Section 37 (1) of Minor Offences Ordinance Sarawak and punishable under the same section.

[3]The grounds of the appellant’s appeal can be summarised into two main points as follows:

(a)the charge against the appellant is defective, as it involves monies in a bank account, which are considered a ‘chose in action’ and not tangible property under s 37(1) of the Minor Offence Ordinance 1958; and

(b)non-compliance with s 173(b) Criminal Procedure Code

DEFECTIVE CHARGE

[4]The offence directed at the RM1,200 found in the appellant’s bank account, which was allegedly obtained unlawfully and for which the appellant failed to provide a satisfactory explanation for how the funds got into her account.

[5]Relying on the case as decided in Harpajan Kaur a/p Delib Singh v Public Prosecutor

[6]Learned counsel for the appellant also submitted that the charge did not state that the monies had been withdrawn, meaning the appellant did not have possession of the monies.

[7]The learned DPP on the other hand, submitted that the words ‘anything’ and ‘thing’ in s 37(1) of the Minor Offences Ordinance (Sarawak Cap 56) includes both tangible and intangible property such as monies in the bank account rely on the case of Mok Chee Cheong v Public Prosecutor Pendakwa Raya lwn Linges a/l Ragunathan dan lain-lain kes

[8]All these cases relied on by the learned appellant’s counsel and the learned DPP are decided by the High Court upon interpretation of s 29(1) of the Minor Offences Act 1955

[9]In Harpajan Kaur a/p Delib Singh v Public Prosecutor s 29(1)Minor Offences Act 1955s 156s 422Criminal Procedure Code

[10]The ruling in Harpajan Kaur a/p Delib Singh v Public Prosecutor was followed by the High Court in Pendakwa Raya lwn Ng Wai Kuan dan lain-lain Pendakwa Raya lwn Mohd Redzwan bin Md Yatim dan lain-lain Pendakwa Raya lwn Rokiah bt Abdul Kadir dan lain-lain

[11]In the case of Mok Chee Cheong v Public Prosecutor s 29(1)Minor Offences Act 1955

[12]In Meor Sazali bin Meor Abdullah v Public Prosecutor s 29(1)Minor Offences Act 1955

[13]In Pendakwa Raya lwn Linges a/l Ragunathan dan lain-lain kes, the High Court noted that the DPP has not pursued with the appeal of the ruling in Harpajan Kaur a/p Delib Singh v Public Prosecutor to the Court of Appeal. The High Court in that case, however did not follow the ruling in Harpajan Kaur a/p Delib Singh v Public Prosecutor .

[14]The High Court in Pendakwa Raya lwn Linges a/l Ragunathan dan lain-lain kes, gave a broad interpretation to ‘anything’ and ‘thing’ as ‘property’ under s 29(1)Minor Offences Act

[15]The Minor Offences Ordinance (Sarawak Cap 56) enacted more that 60 years ago, by s 37 provides:

Other Offences

37 Fraudulent possession of property (1)