JUDGMENT

Shaik Daud Ismail JCA:

The appellant, an advocate and solicitor, was charged on 30 September 1993 before the Kuala Lumpur Sessions Court with two counts of criminal breach of trust. On the first count, he was charged that between 12 June 1987 and 19 May 1988, as an agent, in that in his capacity as the solicitor of the estate of one Tee Seng Pun @ Tee Seng Yeat (deceased) and being entrusted with dominion over a sum of RM6,576.16, he had committed criminal breach of trust of the said sum and had thereby committed on offence under s. 409 of the Penal Code. On the second count, he was charged that other vehicle through a firm of solicitors Messrs. Tong Teck Yong & Co. on 18 October 1983. Eventually, the appellant's firm Messrs. P.G. Segran & Associates took over the case. The appellant's firm was also involved in making a claim with the Employees Provident Fund (EPF). It is common ground that the firm of Messrs. P.G. Segran & Associates was wholly owned by the appellant. The case was eventually settled out of Court and a consent judgment was recorded by the High Court on 19 May 1987 whereby the Court ordered as follows:

(a) the complainant was awarded RM98,700;

(b) RM8,000 was awarded to the estate of Tee Seng Pun;

(c) the complainant was also awarded an additional RM11,300 as compensation;

(d) the complainant's son was awarded RM2,500 as compensation;

(e) the complainant's sister awarded RM2,500 as compensation;

(f) costs agreed or to be taxed to plaintiffs.

Following this consent order, Pacific and Orient Insurance Sdn. Bhd. made four payments to the appellant totalling RM133,000, which included RM10,000 as agreed costs, to be paid over to the plaintiffs as ordered by the Court. The amounts were then paid to the appellant's firm which went into the client's account at the then United Asian Bank. This amount represented the subject matter of the second between 22 September 1987 and 27 May 1988 being an agent and in his capacity as solicitor of one Ng Ju Hiang, Ng Juey Hung, Tee Yit Hong and the estate of one Tee Seng Pun @ Tee Seng Yeat (deceased) and being entrusted with dominion over a sum of RM133,000, he had committed criminal breach of trust of the said sum and had thereby committed an offence under s. 409 of the Penal Code.

After a lengthy trial, the Sessions Court convicted the appellant and sentenced him on the first count to imprisonment for 12 months and on the second count to imprisonment for 18 months. The Court also ordered the sentences to run concurrently. His appeal to the High Court was on 21 March 1995 dismissed and the Court confirmed the convictions and sentences imposed. In addition, the High Court purporting to act on its own volition under the provisions of s. 322 ordered the appellant to pay RM10,000 as costs in default of which he shall suffer an additional imprisonment of 12 months. The appellant was eventually released on bail pending appeal to this Court.

The facts of the case that on 19 September 1981 Ng Ju Hiang the complainant together with her sister Ng Juey Hong and son Tee Yit Hong were travelling in a taxi driven by her husband Tee Seng Pun. An accident occurred and Tee Seng Pun died and the complainant, her sister and her son were injured. As a result of the accident, the complainant took legal action against the driver, of the charge.

In respect of the first charge, the subject matter was the EPF contribution belonging to the late husband of the complainant. EPF made a direct payment of RM6,576.16 to the complainant by issuing her a warrant dated 13 October 1986 for the payment. The complainant then deposited this warrant into her savings account at the Public Bank Bhd. She then dutifully informed the appellant of this payment. On hearing this, the appellant requested her to hand over the EPF money to him so that he could distribute the same to all the beneficiaries after obtaining letters of administration of the estate of her late husband. Believing the appellant, the co