Gopal Sri Ram JCA:

[1] The appellant was, until his dismissal, a member of the national education service. He was employed as the headmaster of a National Type Chinese Primary School, at Simpang Rengam in the State of Johor. The facts leading up to and upon which, his dismissal was based are important. I shall therefore go into them in some detail here:

[2] The appellant was, as I have said, the headmaster of a school. He was in that capacity entrusted with a sum of RM3,179.00 belonging to the Johore Education Department ("the Department"). This sum constituted the unpaid salary of the school's gardener who had not turned up for work for several months. Under the relevant financial regulations that governed the duties of the appellant, he was obliged to return this sum of money to the Department. He failed to do so. When the Department asked for the return of the money, he told them that it had been sent to them. That was not correct. He had in fact not sent the money across. But in fairness to him it must be said that he had not used any part of it. He had merely kept it with him. Eventually he did send the money to the Department.Because he retained the money he was charged for an offence under s 409 of the Penal Code. Two charges were framed against him. The Sessions Court which tried him on those charges found him guilty, convicted him and imposed a sentence of six months imprisonment. The appellant appealed. The High Court at Muar which heard the appeal affirmed the finding of guilt. But it made an order which had the effect of setting aside the conviction and punishment. It bound the appellant over to be of good behaviour for a period of three years in the sum of RM5,000 without surities The order was made under the provisions ofs 173A(2) of the Criminal Procedure Code ("the Code") which reads as follows:

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(2) When any person is charged before the Court with an offence punishable by such Court, and the Court finds that the charge is proved, but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment or that it is expedient to release the offender on probation, the Court may, without proceeding to record a conviction, make an order either:

(a) dismissing the charge or complaint after such admonition or caution to the offender as to the Court seems fit; or

(b) discharging the offender conditionally on his entering into a bond with or without sureties, to be of good behaviour and to appear for the conviction to be recorded and for sentence when called upon at any time during such period, not exceeding three years, as may be specified in the order."

[3] The reasons for the decision arrived at by the learned Judicial Commissioner who heard the appeal are reported in Hariram Jayaram v. Saraswathy Rajahram, [1990] 1 MLJ 114.

[4] This is what he said upon the issue of guilt:

The explanation of the appellant for retaining the money was that by reason of his transfer he became confused (bingung), worried (runsing) and disappointed and injured in his feelings (kecewa) and also because at one time he wished to return the money but a cheque was mislaid. He said he cashed the 2 cheques in question in order to make it easier to balance the bank account at the end of the month. He gave no effective explanation for keeping the money so long before returning it to the Department. He told a lie when in answer to the Department's request for payment he said the money had been sent to them. I consider he was rightly found guilty of the offences charged.

[5] Having regard to the relevant law, I am entirely satisfied that the learned Judicial Commissioner's decision to uphold the finding of guilt made by the Sessions Court was correct.

[6] The appellant's case was one of criminal breach