Mokhtar Sidin J

This is an appeal by the accused person, Dato' Yap Peng @ Yap Piang Tau, against the decision of the learned sessions court judge who had found him guilty of two offences punishable under s 409 of the Penal Code (FMS Cap 45). The appeal is both against the conviction and the sentence. For the purposes of this appeal, it is appropriate for me to state the two charges preferred against the appellant:

First charge:

That you between 28 April 1986 and 3 May 1986, at the Federal Territory of Kuala Lumpur, being an agent of Koperasi Sepadu Bhd, to wit, the chairman and in such capacity entrusted with the dominion over certain property to wit, RM2,600,000 committed criminal breach of trust in respect of the said property and that you have thereby committed an offence punishable under s 409 of the Penal Code.

Second charge:

That you between 28 April 1986 and 2 May 1986, at the Federal Territory of Kuala Lumpur, being an agent of Koperasi Sepadu Bhd, to wit, the chairman and in such capacity entrusted with the dominion over certain property to wit, RM500,000 committed criminal breach of trust in respect of the said property and that you have thereby committed an offence punishable under s 409 of the Penal Code.

As can be seen, the charges are almost identical except for the amounts. From the record of appeal, it is clear that the first charge was in respect of a loan purported to be given to one Justin Gomez (PW1) and the second charge was in respect of another loan purported to be given to one Ong Siew Kok (PW2).

It was common ground that at the material time, the appellant was the chairman of the board of directors of Koperasi Sepadu Bhd, hereinafter referred to as the Koop, and also the chairman of the executive committee ('exco') of the said Koop. The appellant was also at the material time the chairman of Dayapi Holdings. The main offices of the Koop and Dayapi Holdings were situated in the same building which was at 84/86, Jalan Ipoh, Kuala Lumpur. It is clear from the evidence that the appellant, before he left for Australia, told one PW15 (Wong Wee Loon) that he might be in need of money for the purposes of investments in Australia. Whether the investments were for himself or for the Koop was one of the issues being raised during the appeal which would be dealt with later. For that purpose, the appellant left instructions to PW15 who was the administration and financial manager to prepare the necessary applications to the Koop for three separate loans under three different names of members of the Koop (all of them were in existence and not fictitious). Two of those loans are the subject matter of this appeal. According to PW15, the names given to him were those of PW1, PW2 and one other person by the name of Cheah Chin Huat which is not relevant to this appeal. It is obvious to me that the appellant left those instructions because he was not sure how much was actually required by him for the investments. He would only know the figure when he reached Australia. The appellant also gave instructions to PW15 to collect the necessary collaterals for those loans from his sister by the name of Yap Tai Moi. The appellant, being one of the signatories to the cheques of the Koop, signed three blank cheques for the purposes of those loans. The appellant told PW15 that he would give the necessary instructions from Australia as to the amounts to be taken by those three named persons.

On 2 May 1986, the appellant called PW15 from Perth, Australia and informed PW15 the amounts to be taken viz in the name of PW1 the sum of RM2.6m (which is the subject matter of the first charge) and in the name of PW2 the sum of RM500,000 (which is the subject matter of the second charge). PW15 was also told by the appellant to prepare the necessary cheques, approval forms and cheques for those loans and told PW15 to get the necessary collaterals for those loans from his sister. PW15 was also told by the appellant to cash the cheques and to hand