Gunn Chit Tuan J

The appellant was charged for the offence of criminal breach of trust by an agent on March 12, 1981, and the charge against him was as follows:—

"That you between 29.9.1976 and 28.7.1977 at the office of Trengganu Development and Management Berhad, 1st Floor Sim Lim Building, No. 57, Jalan Brickfields, in the Federal Territory, Kuala Lumpur, being an agent, namely the Executive Director of Finance of Trengganu Development and Management Berhad and in such capacity entrusted with certain property, to wit, the funds of the said company, committed criminal breach of trust in respect of the said funds amounting to $390,000/- and that you have thereby committed an offence punishable under Section 409 of the Penal Code."

He claimed trial to the said charge and was on April 10, 1982, convicted thereon and sentenced to imprisonment for three years by the Sessions Court at Kuala Lumpur after a trial of twenty-four days spread over a period of eight months. In order to understand the case for the prosecution and the appellant's defence it would be useful to set out here briefly the background facts of the case. Background Facts:

The offence of criminal breach of trust by an agent was alleged to have been committed by the appellant by what was called 'transfers of fund' amounting to $390,000/- from a company called Trengganu Development and Management Berhad (TDMB) to another company called Klang Jaya Baru Development Berhad (KJDB). TDMB was incorporated on December 1, 1965, as a result of an agreement between the Trengganu State Economic Development Corporation and a company called National Development and Finance Corporation Limited (NADEFINCO Limited). According to the said agreement (exhibit D.72) about 33,500 acres of State land were leased to NADEFINCO Limited for forty-six years subject to a further renewal of another forty-six years. It was also agreed that NADEFINCO Limited do at its own cost and expense "clear, develop and plant the said lands with oil palms" and also to incorporate a subsidiary management company, that is TDMB, to manage, maintain and upkeep the planted land as well as for harvesting, processing, marketing and sale of the oil palm produce from the said lands. The said obligations on the part of NADEFINCO Limited would also bind its subsidiary companies.

By that agreement (exhibit D.72) as well as the memorandum and articles of TDMB (exhibit P.12) NADEFINCO Limited was to have majority representation on TDMB's board of directors. Initially the financing of TDMB was arranged by NADEFINCO Limited but due to the Malayanization policy of Government, it became difficult for the financing to be left to NADEFINCO Limited whose directors were in Singapore. To get over that difficulty another company was incorporated in Malaysia on April 7, 1973, by the name of NADEFINCO Holdings Berhad (NADEFINCO Holdings). NADEFINCO Holdings has since its incorporation been controlled by NADEFINCO Limited through the latter's control of the former's board of directors. NADEFINCO Holdings also controlled the board of directors of KJDB through a majority in the number of directors and eventually NADEFINCO Limited has six subsidiary companies namely, Cindee Development Sendirian Berhad, Syarikat Perlombongan Trengganu Selatan Sendirian Berhad, Malaysia Land Investment Company, Sim Thye Development Limited, TDMB and KJDB. The prosecution's case as found by the Sessions Court.

The learned president found that during the relevant period, that is, between September 29, 1976, and July 28, 1977, the appellant was an executive director of TDMB in-charge of financial matters of that company. He was first appointed an executive director of TDMB in 1976 (exhibit P. 14A) and was responsible for the financial matters of the company, although he was not given specific powers by the board of directors. On November 1, 1976 the appellant also became a director of KJDB which had no shares in TDMB and vice-versa; but NADEFINCO Holdings of