JUDGMENT

Raja Azlan Shah J:

The appellant was convicted of criminal breach of trust under s. 408 of the Penal Code. Three charges were preferred against him. The first charge relates to a period between 5 April 1966 and 8 April 1966 of cash amounting to $450.10; the second charge is in respect of a period between 17 May 1966 and 26 May 1966 of a sum of $291.00 and the third charge relates to a period between 2 June 1966 and 3 June 1966 of a sum of $515.10. He was convicted on all three charges and sentenced to 12 months' imprisonment, the sentences to run concurrently. This is an appeal against both conviction and sentence.

The appellant was the traffic clerk employed by the Malaysia-Singapore Airways. He was at the relevant time posted to the Customs Warehouse, Railways Goods Shed, Kuala Lumpur. His duties were to receive inward parcels from the airport and to contact the consignees to take delivery of the goods and in due course to receive payments in respect of airfreight charges. It was then his duty to prepare the daily sales returns i.e., red returns together with all the payments. He was required to submit them to the Kuala Lumpur head office at Campbell Road. The learned president found as a fact that on all three separate occasions mentioned in the charges the appellant received the monies from the consignees but he did not make any relevant entries in the sales returns and up to this day he had not remitted the monies to the Kuala Lumpur head office.

I must now inquire whether such findings are justified.

With regard to the first charge the evidence shows that the goods did arrive and the consignees had taken delivery and paid for the air-freight charges. That is borne by the evidence of Shanmugam (PW 9) the despatch clerk of the East Asiatic Company, the consignees of the goods. He testified that he took delivery of the goods from the appellant and paid the money to him and that he obtained a signed receipt from the appellant, which was produced as Exh. P10. His evidence was not seriously challenged. The learned president saw no reason to disbelieve him.

With regard to the second charge the evidence also shows that Societa Commissaria, Kuala Lumpur, the consignees, had taken delivery of the goods and had paid $291.00 representing air-freight charges. Sabtu bin Haji Othman (PW 14) the clearance clerk of the consignees testified that he took delivery and paid the appellant the sum of $291.00 and obtained the receipt, which was produced as Exh. P11 His evidence was not shaken.

The third charge relates to a consignment of sports shoes ordered by Messrs. Nahar & Co., Kuala Lumpur. They had received the goods for which they had paid $515.10 representing air-freight charges, but Muniandy (PW 16), the salesman, who took delivery could not remember to whom he had paid the money.

The prosecution further relies on the appellant's alleged statement which is one of the grounds of appeal. It was said that the statement was taken after one hour of grilling and that was sufficient to make the "appearance" that the statement was not voluntary. It was further suggested that the procedure adopted by the learned president was not in strict compliance with normal procedure in that the appellant was never given an opportunity to rebut the statement.

In my judgment two matters require consideration. First, was the statement voluntary and secondly the probative value of the statement. Before ruling on the admissibility of the statement the learned president heard four witnesses who were connected with the taking of the statement. He heard the evidence of Enche Suleiman bin Haji Musa (PW 1) the accountant of Malaysia-Singapore Airlines, who discovered the discrepancy in the sales returns. Enche Suleiman said that no inducement, threat or promise was ever held out to the appellant before signing the statement. He admitted in cross-examination that it took him nearly an hour to go through the various documents with the appellant and th