522 Current Law Journal [2019] 7 CLJ

SARIMAH PERI v. PP A

HIGH COURT MALAYA, SHAH ALAM

AHMAD FAIRUZ ZAINOL ABIDIN JC
[CRIMINAL APPEAL NO: BA-41S-25-04-2018]
22 FEBRUARY 2019
B

CRIMINAL LAW: Penal Code – Section 424 – Ingredients – Complainant duped

into depositing monies into accused’s bank account – Whether charge against
accused mentioned ingredients of offence – Whether ingredients of offence proved –
Whether accused had intention to commit offence – Whether accused acted
dishonestly or fraudulently C

CRIMINAL PROCEDURE: Charge – Defective charge – Complainant duped into

depositing monies into accused’s bank account – Accused charged under s. 424 of
Penal Code – Whether charge mentioned ingredients of offence – Whether accused
aware of charges proffered against her – Whether there was ambiguity in charge –
D
Whether judge certain which limb of charge needed to be proven by prosecution –
Whether accused acted dishonestly or fraudulently
CRIMINAL PROCEDURE: Statements – Accused’s statement to police –
Statement under s. 112 Criminal Procedure Code (‘CPC’) – Complainant duped into
depositing monies into accused’s bank account – Accused charged under s. 424 of E
Penal Code – Trial judge found prima facie case established and accused had
intention to commit crime based on accused’s s. 112 statement – Whether outside
permitted ambit of s. 113 of CPC – Whether trial judge could only consider evidence
presented by prosecution
The complainant (‘PW1’) had transferred RM259,990, via cash deposits, F
after she was asked to do so by one Fredrick whom she got acquainted with
via Facebook. According to PW1, Frederick told her that (i) he was a director
at Shell, an oil and gas company; (ii) he would be paid USD4.25 million after
his contract expires with Shell and this was allegedly evinced by a certificate
of deposit (‘P2’) issued by the bank; and (iii) before Shell could transfer G
USD4.25 million to him, he had to settle his debts with Shell. PW1 decided
to help but later realised that she was duped into transferring such monies
after doing more than 30 transfers into the account of one Sarimah Peri (‘the
appellant’). Fredrick informed PW1 that Sarimah Peri was the person in
charge for all expatriate accounts in Shell and the debts would be settled
H
faster if payment was made to a personal account of a trusted person of Shell.
PW1 continued making the transfers into the account provided by Fredrick.
PW1 then verified the authenticity of P2 with the bank only to discover that
the bank did not issue such document. PW1 lodged a police report and this
led to the appellant being charged at the Magistrate’s Court under s. 424 of
the Penal Code (‘PC’). The charge against the appellant initially read ‘… I
 [2019] 7 CLJ Sarimah Peri v. PP 523

A secara tidak jujur dan secara fraud telah mendorong dia menyerahkan wang
kepada kamu ...’ . However, it was later amended to ‘… secara curangnya
telah menolong menyimpan wang milik …’ (‘the amended charge’). The
Magistrate relied on the contents of the appellant’s statement to the police,
under s. 112 of the Criminal Procedure Code (‘s. 112 statement’) to conclude
B that (i) a prima facie case had been established at the end of the prosecution’s
case; and (ii) the appellant acted in a manner that suggested she had the
necessary intention to commit the crime. The appellant was called to enter
her defence. In her defence, the appellant submitted that (i) she had gotten
acquainted with one Frank Ben; (ii) Frank Ben had asked her to open several
C
bank accounts for his use and she received payments of RM500 for opening
the said accounts; and (iii) she had never met Frank Ben, Fredrick or PW1.
At the conclusion of the trial, the Magistrate found the appellant guilty and
sentenced her to two years’ imprisonment. Hence, the present appeal. In
support of her appeal, the appellant submitted that (i) the ingredients of s. 424
of the PC had not been proven; (ii) she had no control over the accounts; and
D
(iii) there was no proof that she acted dishonestly or fraudulently.
Held (allowing appeal; acquitting and discharging appellant):
(1) The amended charge referred to ‘menyimpan’. The elements of s. 424
of the PC make no mention of ‘menyimpan’. The definition of ‘keep’
E and ‘conceal’ are nowhere similar. To ‘conceal’ something would
connote an intention to deprive someone of the whereabouts of the said
property. It is akin to hiding and this is in contrast to the mere use of
the word ‘keep’. There was an error on the part of the Magistrate when
she used the term ‘menyimpan’ in the amended charge. In a criminal
F charge, the accused has the right to be given notice of the charge against
him. Any ambiguity must be resolved in the accused’s favour (paras 12,
18 & 20)
(2) In her decision, the Magistrate interchangeably used the terms
‘menyembunyikan’, ‘memindahkan’ and ‘mengalihkan’. The
G inconsistent use of the terms by the Magistrate begged the question of
what was the actual element that was being contemplated in deciding the
case. In considering a charge, an arbiter must be certain which limb of
the charge is to be proven by the prosecution. By interchanging the
terms, the Magistrate misdirected herself on the exact ingredient to be
H considered. Such errors could not be cured as it went to the crux of the
charge. The Magistrate amended the charge to include an element that
was not within the ambit of the law and considered elements of the
charge interchangeably without determining the exact element, as stated
in the charge. (paras 22, 24 & 26)
I
524 Current Law Journal [2019] 7 CLJ

(3) The Magistrate fell into error when she relied on the contents of the A
s. 112 statement at the prosecution stage of the trial. The Magistrate not
only relied on the contents of the s. 112 statement but went to impute
mens rea on the part of the appellant. This was outside the permitted
ambit of s. 113 of the CPC. The Magistrate could only consider the
evidence as presented by the prosecution. She was not entitled to rely B
on the contents of a statement devoid of proof. The duty to prove a case
in a criminal trial rests solely with the prosecution and remains with the
prosecution. (paras 39 & 40)
(4) If the contents of the s. 112 statement was disregarded, the prosecution
was only left with the evidence of PW1 and PW2, a bank officer who C
testified that the accounts in which the monies were deposited into
belonged to the appellant. Except for the mention that PW1 had paid
into the account of one ‘Sarimah Peri’, there was no other evidence that
could establish the appellant’s role in the commission of the crime.
There was failure to show how the appellant had assisted in the D
commission of the offence. Furthermore, the essential thing to be proven
in cases under s. 424 of the PC was whether the accused was actuated
by the intention to cause the wrongful loss or wrongful gain which
would, in turn, show that he or she had acted dishonestly. The evidence
of PW1 and PW2 did not even show a tinge of such evidence to make
E
any inference of dishonest intent. (paras 3 & 42)
(5) PW1 only complained that she was duped into transferring the monies
into the account of a person named ‘Sarimah Peri’. The mere mention
of the name of the appellant and the use of the account of the appellant
could not, automatically, mean that the appellant assisted in the F
concealment or removal of the monies. The prosecution could not rely
on the mere statement of PW1 to implicate the appellant. Unless there
was a presumption, the imputation of assisting in such a concealment or
removal of property, without proof, must fail. (paras 51 & 54)
Case(s) referred to: G
Ahmad Najib Aris v. PP [2009] 2 CLJ 800 FC (refd)
Attan Abdul Gani v. PP [1969] 1 LNS 12 HC (refd)
Balachandran v. PP [2005] 1 CLJ 85 FC (refd)
Emmanuel Yaw Teiku v. PP [2006] 3 CLJ 597 FC (refd)
Mohamad Deraman v. PP [2011] 3 CLJ 601 CA (refd)
PP v. Adetunji Adeleye Sule [1993] 3 CLJ 113 SC (refd) H
PP v. Ahmad Puteh & Ors [1987] 1 CLJ 488; [1987] CLJ (Rep) 853 HC (refd)
PP v. Hairul Din Zainal Abidin [2001] 6 CLJ 480 HC (refd)
PP v. Lin Lian Chen [1992] 4 CLJ 2086; [1992] 1 CLJ (Rep) 285 SC (refd)
PP v. Ma’arif [1969] 1 LNS 134 HC (refd)
PP v. Yuvaraj [1969] 1 LNS 116 PC (refd)
Rex v. Kavena Ismail Sahib [1937] 1 LNS 71 HC (refd) I
 [2019] 7 CLJ Sarimah Peri v. PP 525

A Tan Boon Kean v. PP [1995] 4 CLJ 456 FC (refd)

Woolmington v. PP [1935] AC 462 (refd)
Yap Sing Hock & Anor v. PP [1992] 4 CLJ 1950; [1992] 1 CLJ (Rep) 356 SC (refd)
Legislation referred to:
Criminal Procedure Code, ss. 112, 113(3), 158
B Evidence Act 1950, ss. 27, 32(1)(i), (j), 79
Penal Code, ss. 24, 424
For the appellant - A Ravi Kumar; M/s Ravi & Co
For the respondent - Rizal Azani; DPP
Reported by Najib Tamby
C
JUDGMENT
Ahmad Fairuz Zainol Abidin JC:
Introduction

D [1] The appellant was charged under s. 424 of the Penal Code. At the
Magistrate’s Court, after a full trial, the Magistrate found the appellant guilty
and went on to sentence the appellant to two years imprisonment. The
appellant then appealed to this court and upon considering the submissions
and evidence available in the records of appeal, this court allowed the appeal.
The appellant was acquitted and discharged. The Public Prosecutor filed an
E
appeal against the decision. This is the grounds of judgment of this court.
The Charge
Original Charge
Bahawa kamu pada 25/06/2015 bertempat di No. 40 Jalan Raja
F
Nala 18, Taman Saujana Bukit Kapar, Pekan Kapar 42200 Kapar,
di dalam Daerah Klang, di dalam Negeri Selangor, telah menipu
Koo Sai Lee (No. KPT: 761007145402) untuk memasukkan wang
bertujuan menolong membayar untuk menamatkan kerja kontrak
di Shell (Oil & Gas), Miri dan dengan itu kamu dengan secara
G tidak jujur dan secara fraud telah mendorong dia menyerahkan
wang kepada kamu berjumlah RM251,990.00 secara memasukkan
wang ke dalam akaun bank milik kamu yang mana dia tidak akan
menyerahkan wang tersebut kepada kamu sekiranya tidak
diperdayakan sedemikian, dengan itu kamu telah melakukan suatu
kesalahan di bawah Seksyen 424 Kanun Keseksaan yang boleh
H dihukum di bawah seksyen yang sama.
Amended charge
Bahawa kamu pada 15/3/2016 hingga 30/3/2016 bertempat di No.
40, Jalan Raja Nala 18, Taman Saujana Bukit Kapar, Pekan Kapar,
42200 Kapar di dalam Daerah Klang di dalam Negeri Selangor
I dengan secara curangnya telah menolong menyimpan wang milik
Koo Sai Lee (No. Kad Pengenalan: 761007-14-5402) berjumlah
526 Current Law Journal [2019] 7 CLJ

RM251,990.00 ke dalam akaun CIMB milik kamu yang bernombor A

7060603268 yang mana kamu mengetahui wang tersebut bukanlah
milik kamu. Dengan itu kamu telah melakukan satu kesalahan di
bawah Seksyen 424 Kanun Keseksaan yang boleh dihukum di
bawah seksyen yang sama.
The Prosecution Case B
[2] The prosecution case anchored on PW1, the complainant in this case.
She informed the court that she transferred RM259,990 via cash deposits after
she was asked to do so by one Fredrick Cheng (“Fredrick”) whom she got
acquainted via Facebook. It was in evidence that PW1 was told by the said
Fredrick that he was a director at Shell, an oil and gas company. Fredrick C
told PW1 that he will be paid a sum of USD 4.25 million after his contract
expires with Shell. This was evidenced by a Certificate of Deposit (P2)
purportedly issued by Alliance Bank Malaysia Berhad. PW1 was also shown
a bank document purportedly from one Alley Access Bank. It showed a
balance of USD4.25 million. This was purportedly the sum that was D
transferred by Shell into Fredrick's account. However, before Fredrick could
be paid and the said sums released to him, he had to settle his debts with
Shell. PW1 claimed that she wanted to help Fredrick as the latter was having
some problems in settling the said debts. She only realised that she was duped
into transferring such monies after doing more than 30 transfers to the
E
account of one Sarimah Peri (subsequently identified as belonging to the
appellant). Fredrick informed Sarimah Peri was the person in charge for all
expatriate accounts in Shell. It was told to PW1 that if the payment was made
to a personal account of a trusted person of Shell, the debts would be settled
faster. PW1 then made the transfers into the account provided by the said
Fredrick. It was after transferring the said amounts that she verified with F
Alliance Bank on the authenticity of P2 only to find that the bank did not
issue any such a document. She then reported to the police which culminated
in P1 being filed. During cross-examination, PW1 was confronted with an
excerpt of messages which PW1 admitted were exchanges between her and
Fredrick. She admitted that they had struck a friendship but denied that she G
was promised anything in return for the help that she would render. She
admitted that she never met Fredrick and the persons he mentioned
introduced to her.
[3] The second prosecution witness was a CIMB Bank officer who
testified that the accounts in which the monies were deposited into belonged H
to the appellant. From the records, she admitted that the account could have
been operated by persons other than the appellant. The third witness for the
prosecution was the investigating officer (“IO”). His evidence explained the
subsequent actions taken by him after the report P1 was lodged. It was
admitted by the IO that the case involved fictitious characters. The IO was I
 [2019] 7 CLJ Sarimah Peri v. PP 527

A convinced that Fredrick Cheng did not exist. The IO also admitted that there
was no communication between Fredrick Cheng and the appellant. The IO
explained that this was an African scam case where all characters were
fictitious.
The Defence Case
B
[4] The defence called three witnesses. The appellant produced a witness
statement that explained at length on how she got acquainted with a person
by the name of Frank Ben. The witness statement was marked as D14. In
essence, she said that Frank Ben had asked her to open several bank accounts
for his use. She received payments of RM500 for purposes of opening the
C
said accounts. She also said that initially Frank Ben had promised to come
to Sarawak to collect the cards issued by the banks but instead, a Malay lady
by the name of Asmah came to collect the cards sometime in February 2016.
She had never met the said Frank Ben and neither has she met Fredrick
Cheng. She has also not met the complainant PW1 until after her arrest.
D DW2 was an immigration officer who confirmed that the appellant had not
travelled out of Sarawak between 1 March 2016 and 31 March 2016. DW3
was the appellant’s son in law. He had produced excerpts of conversations
between the appellant and the said Frank Ben and was marked as IDD20.
The Appeal
E
[5] Before this court, counsel for the appellant advanced several
arguments. Firstly, it was argued that the ingredients of s. 424 have not been
proven by the prosecution. Secondly, the appellant had no control over the
accounts. Thirdly, it was argued that there was no proof that the appellant
F had acted dishonestly or fraudulently. Fourthly, that the appellant had acted
under a mistake of fact under s.79 of the Penal Code. In closing, the two
years’ imprisonment was also submitted as excessive.
Analysis By This Court
[6] It is a principle of law that when a case comes before an appellate
G
court, the said matter takes the form of a continuation of a trial and it is open
to the appellate court to order or determine if the various findings of the trial
court are correct. (See Public Prosecutor v. Ma’arif [1969] 1 LNS 134; [1969]
2 MLJ 65; Ahmad Najib Aris v. PP [2009] 2 CLJ 800; [2009] 2 MLJ 613;
Mohamad Deraman v. PP [2011] 3 CLJ 601; [2011] 3 MLJ 289).
H
[7] As such, it is incumbent upon this court to examine the facts presented
at trial to see if there was sufficient evidence established by the prosecution
to establish a prima facie case.

I
528 Current Law Journal [2019] 7 CLJ

Section 424 Of The Penal Code A

[8] Vohrah and Hamid on the Malaysian Penal Code: Commentaries, Cases and
Sample Charges; Printworks Publishing 2006, provides that the elements
required to be proven by the prosecution are as follows:
Dishonest or fraudulent removal or concealment of property B
424. Whoever dishonestly or fraudulently conceals or removes any
property of himself or any other person, or dishonestly or fraudulently
assists in the concealment or removal thereof, or dishonestly releases any
demand or claim to which he is entitled, shall be punished with
imprisonment for a term which may extend to five years, or with fine, or
C
with both.
Commentary
This section prescribes the punishment for dishonest or fraudulent
concealment or removal of any property.
Guide To Practice And Procedure Practice D

The prosecution has to prove the following:

1. That the accused:
(a) concealed or removed any property; or
E
(b) assisted in its concealment or removal; or
(c) released any demand or claim to which he was entitled.
2. That he did so dishonestly or fraudulently.
Analysis By The Magistrate
F
[9] Given that the Magistrate had found the appellant guilty as per the
amended charge, it is pertinent to examine how she had arrived at the said
finding.
[10] The Magistrate had at length, justified her actions in amending the
charge at the end of the prosecution case. This was done after the prosecution G
applied to the court to do so. This court had perused the steps taken by the
Magistrate. The amendment and the subsequent action by the Magistrate to
read the charge and allow the recall of witnesses is consistent with s. 158 of
the CPC. It was according to law.
[11] The Magistrate had amended the charge to read as: H

Bahawa kamu pada 15/3/2016 hingga 30/3/2016 bertempat di No. 40,

Jalan Raja Nala 18, Taman Saujana Bukit Kapar, Pekan Kapar, 42200
Kapar di dalam Daerah Klang di dalam Negeri Selangor dengan secara
curangnya telah menolong menyimpan wang milik Koo Sai Lee (No. Kad
Pengenalan : 761007-14-5402) berjumlah RM251,990.00 ke dalam akaun I
 [2019] 7 CLJ Sarimah Peri v. PP 529

A CIMB milik kamu yang bernombor 7060603268 yang mana kamu

mengetahui wang tersebut bukanlah milik kamu. Dengan itu kamu telah
melakukan satu kesalahan di bawah Seksyen 424 Kanun Keseksaan yang
boleh dihukum di bawah seksyen yang sama.
[12] It can be seen that the charge refers to “menyimpan”. The elements
B of s. 424 makes no mention of “menyimpan”. The dictionary translation of
“menyimpan” according to the Dewan Bahasa dan Pustaka dictionary translates
it to be:
Definisi: 1 menaruh sesuatu di tempat yg selamat supaya tidak hilang dsb:
Dia ~ kain bajunya di dlm almari. 2 mengemaskan sesuatu supaya
C tersusun atau teratur semula: Selepas puas bermain, Adli ~ barang-barang
permainannya. 3 meme-gang (rahsia dsb) teguh-teguh; merahsiakan: Dia
memang tidak dpt ~ rahsia. ~ hati memendam atau menaruh rasa suka,
cinta dsb terhadap seseorang secara diam-diam. (Kamus Pelajar Edisi
Kedua)

D
[13] When translated to English, “simpan” according to the Kamus
Dwibahasa Oxford Fajar (Edisi Kelima) (Melayu ke Inggeris) defines “simpan”
as:
Keep; remain or cause to remain in a specified state or position; put aside
for a future time.
E [14] Words and Phrases and Maxims Legally Defined, vol. 10; LexisNexis
2012 defines keep as follows:
To hold, to retain in one's power or possession, not to lose or part with,
to preserve to retain: to preserve in the same state or tenor; to maintain
or carry on; conduct or manage, to have the control and management, as
F for example, to have the control and management of places where liquors
are sold, of bawdy-houses, of gambling establishments etc, to have in
possession, use care or custody, hence to use and enjoy; to maintain,
support as in a prison, or asylum; so also as applied to animals, to tend
to feed to pasture, to supply with necessaries of life. As an intransitive
verb, to remain sound, sweet, fresh or the like; (as) Meat will keep for two
G days.
[15] Conceal on the other hand, is defined in the Oxford Dictionary as:
keep secret (from); not allow to be seen or noticed.
[16] Words and Phrases and Maxims Legally Defined, vol. 10; LexisNexis
H 2012 defines conceal as:
TO CONCEAL, HIDE, SECRET. Concealing has simply the idea of not
letting come to observation; hiding that of putting under cover; secreting
that of setting at a distance or in unfrequented place; whatever is not seen
is concealed, but whatever is hidden or secreted is intentionally put out
I of sight. A thief conceals himself behind a hedge; he hides his treasures
in the earth; he secrets what he has stolen under his Cloak.
530 Current Law Journal [2019] 7 CLJ

CONCEALED DANGER. A concealed danger has been defined to be A

danger which is not known or obvious to the licensee using reasonable
care.
[17] Augustine Paul J (then FCJ) in PP v. Hairul Din Zainal Abidin [2001]
6 CLJ 480 referred to the Websters’ New World Dictionary, 3rd edn when
seeking the definition of “keep”. It was quoted to mean as follows: B

to take care of, or have and take care or charge of; specific: ( a) to protect;
guard; defend (b) to look after; watch over; tend.
[18] This court is of the view that there was an error on the part of the
Magistrate when she used the term “menyimpan” in the amended charge.
C
[19] In the case PP v. Ahmad Puteh & Ors [1987] 1 CLJ 488; [1987] CLJ
(Rep) 853, Lim Beng Choon J relied on the dictionary meaning to find a
definition of the word “conceal” and went on to say – The meaning of
“conceal” as defined in the Shorter Oxford Dictionary is “to keep from the
knowledge or observation of others” or “to put or keep out of sight or notice, D
to hide.” (See Tan Boon Kean v. PP [1995] 4 CLJ 456; [1995] 3 MLJ 514).
[20] The definition of keep and conceal are nowhere similar. To conceal
something would connote an intention to deprive someone of the
whereabouts of the said property. It is akin to hiding. This is in contrast to
the mere use of the word keep. In a criminal charge, the accused has the right E
to be given notice of what the charge is against him. Any ambiguity must be
resolved in the accused's favour.
[21] As such, by the Magistrate amending the charge upon the request of
the prosecution to one as stated above tantamount to the Magistrate
preferring a charge that does not exist under the law. There is no such F
ingredient of keeping under s. 424 of the Penal Code.
[22] Throughout the decision of the Magistrate, she had interchangeably
used the terms “menyembunyikan”, “memindahkan” and “mengalihkan” in
her grounds of judgment. This can be seen at para 22 where it was stated as:
G
Tertuduh telah menyembunyikan harta iaitu wang milik pengadu dalam
akaun CIMB miliknya dan membantu dalam menyembunyikan dan
memindahkan wang tersebut secara tidak jujur atau dengan kata lain
membantu menipu Pengadu.
[23] The Magistrate had used the term “mengalihkan” in para 29 where it H
was stated as:
Saya sekali lagi menegaskan bahawa pertuduhan kes ini adalah di bawah
Seksyen 424 KK. Tertuduh telah dituduh kerana membantu mengalihkan
wang Pengadu ke dalam akaun miliknya dan Tertuduh dengan tidak jujur
melakukan perbuatan ini.
I
 [2019] 7 CLJ Sarimah Peri v. PP 531

A [24] The inconsistent use of the terms by the Magistrate begs the question
of what was the actual element that was being contemplated by the
Magistrate when she was deciding the case. In considering charges, an arbiter
must be certain which limb of the charge is to be proven by the prosecution.
By interchanging the terms, the Magistrate misdirected herself on the exact
B ingredient to be considered. Such errors cannot be cured as it went to the
crux of the charge.
[25] Even if the Magistrate had rightly used the term “mengalihkan” which
in effect means removal of the said monies, it resulted in her considering an
element that was not in the amended charge. Granted, s. 424 does provide
C for the actus reus of removal, nevertheless, what is incumbent on the
Magistrate is for her to consider only the elements that are in the charge that
she herself had inserted. There was no discussion on “menyimpan” (keep).
[26] A conclusion that can be drawn from the above analysis is that the
Magistrate had firstly, amended the charge to include an element that is not
D within the ambit of the law and secondly, considered elements of the charge
interchangeably without determining the exact element as stated in the
charge.
The Reliance On The Appellant’s Statement Under s. 112 Of The CPC To
The Police (IDD 13)
E
[27] It is trite that it behoves that defence to state its case as early as
possible (see Public Prosecutor v. Lin Lian Chen [1992] 4 CLJ 2086; [1992] 1
CLJ (Rep) 285. It is for that reason that the appellant could have introduced
the s. 112 of the Criminal Procedure Code (“CPC”) statement by the
F appellant (IDD13) to the police during investigations.
[28] It is the finding of this court that the Magistrate had considered the
contents of the said statement in determining the case against the appellant.
[29] For ease of reference, the relevant portion of the Magistrate’s
judgment is reproduced as follows:
G
[22] Peguambela juga turut membangkitkan isu bahawa Penama Fredrick
Cheng merupakan orang yang bertanggungjawab menipu Pengadu
dan bukannya Tertuduh, namun berdasarkan intipati pertuduhan ini
[di bawah Seksyen 424 KK] yang mana Tertuduh telah
menyembunyikan harta iaitu wang milik Pengadu dalam akaun
H simpanan CIMB miliknya dan dia membantu dalam menyembunyikan
dan memindahkan wang tersebut secara tidak jujur atau dengan
kata lain membantu menipu Pengadu.
[23] Walaupun Peguambela menegaskan bahawa Tertuduh tidak pernah
mendorong Pengadu untuk membuat apa-apa kemasukan wang ke
I dalam akaun Tertuduh. Saya dengan ini merujuk kepada Rakaman
Percakapan Beramaran Tertuduh [IDD 13].
532 Current Law Journal [2019] 7 CLJ

[24] Dalam rakaman percakapan itu, Tertuduh menceritakan bahawa dia telah A
berkenalan dengan Frank Ben melalui laman Facebook pada bulan
November 2015, Tertuduh tidak pernah bertemu dengan Frank Ben dan
hanya berhubung melalui Facebook dan telefon. Frank Ben ada meminta
wang daripada Tertuduh bagi membantunya kerana telah ditahan di KLIA.
Oleh kerana Tertuduh tidak mempunyai wang, Frank Ben telah meminta
Tertuduh untuk membuka 1 akaun bank bagi tujuan wang dimasukkan bagi B
membantu Frank Ben. Tertuduh bersetuju untuk menolong Frank Ben dan
telah menerima wang sebanyak RM750.00 yang dimasukkan ke dalam
akaun Tertuduh.
[25] Tertuduh kemudiannya telah membuka 3 akaun bank [CIMB, RHB
dan Hong Leong] di Malaysia atas nama Tertuduh. Tertuduh telah C
membuka akaun CIMB [nombor akaun 7060603268] di CIMB
Asajaya, Sarawak. Tertuduh mengakui telah menyerahkan kad
ATM beserta nombor pin kepada seorang perempuan melayu
berasal daripada Selangor. Tertuduh hanya mengetahui mengenai
kemasukan wang Pengadu setelah dia ditahan oleh pihak polis pada
5/4/2016. D

[26] Berdasarkan rakaman percakapan ini [IDD 13] jelas menunjukkan

Tertuduh telah menerima wang daripada Frank Ben untuk membuka akaun
bank bagi tujuan kemasukan wang dan jelas juga bahawa Tertuduh
mengetahui mengenai akaunnya akan digunakan oleh individu lain dan
tindakan menyerahkan kad ATM kepada penama Asma juga adalah E
dalam pengetahuan dan kerelaan Tertuduh atas niat membantu Frank Ben.
Oleh yang demikian saya berpendapat elemen pertuduhan Seksyen 424 KTJ
adalah dipenuhi oleh pihak pendakwaan kerana Tertuduh sedar apa yang
dilakukan olehnya dengan menerima wang untuk membuka akaun serta
menyerahkan kad ATM setelah akaun dibuka. Ada kemungkinan Tertuduh
menerima habuan. F
[27] Namun menerima habuan atau tidak ianya bukanlah satu elemen yang
perlu dipenuhi pihak pendakwaan kerana dalam kes ini, perbuatan
Tertuduh membuka akaun bank dengan duit yang diberikan oleh Frank Ben
jelas menunjukkan bahawa elemen kedua iaitu Tertuduh melakukan dengan
cara tidak jujur atau penipuan dipenuhi oleh pihak pendakwaan. Jika G
Tertuduh berniat jujur sudah semestinya dia tidak akan membuka 3 akaun
dengan menggunakan wang individu yang hanya dikenali melalui social
media dan dia juga semestinya tidak akan sesenangnya menyerahkan kad
ATM beserta nombor pin kepada orang yang tidak dikenali. Saya
berpendapat segala tindakan Tertuduh ini berdasarkan pengakuan dalam
IDD 13 ini jelas menunjukkan Tertuduh sedar akan perbuatannya ini dan H
dia tidak didorong oleh mana-mana pihak.
[28] Peguambela juga membangkitkan isu bahawa pihak polis sepatutnya
meminta CCTV daripada pihak bank bagi membuktikan bahawa
bukan Tertuduh yang mengeluarkan duit berjumlah RM251,990.00
melalui ATM. Peguambela juga turut membangkitkan bahawa pada
I
tarikh 6 April 2016, [berdasarkan Ekshibit P8-mukasurat 2] terdapat
pengeluaran wang dan semasa itu Tertuduh ada dalam tahanan
pihak polis.
 [2019] 7 CLJ Sarimah Peri v. PP 533

A [29] Saya sekali lagi menegaskan bahawa pertuduhan kes ini adalah di
bawah Seksyen 424 KK. Tertuduh telah dituduh kerana membantu
mengalihkan wang Pengadu ke dalam akaun miliknya dan Tertuduh
dengan tidak jujur melakukan perbuatan ini. Bukan menjadi elemen
di bawah Seksyen 424 KK untuk membuktikan bahawa Tertuduh
yang mengeluarkan kesemua wang-wang itu.
B
[30] Saya merujuk juga kepada keterangan SP 2 yang mengatakan wang
ada kemungkinan dikeluarkan oleh pihak lain atau oleh Tertuduh
sendiri melalui ATM atau online transfer. SP 2 mengatakan juga
walaupun dalam tahanan polis ada kemungkinan duit boleh
dikeluarkan oleh Tertuduh. Akaun Tertuduh hanya ditutup oleh
C Tertuduh setelah Tertuduh telah ditangkap oleh pihak polis.
Walaupun Tertuduh tidak berada di Semenanjung Malaysia - [sepertimana
dokumen D 12 – Pengesahan Rekod Maklumat/Pergerakan Keluar Masuk
Tertuduh] berdasarkan dokumen bank dan slip transaksi Pengadu
kemasukan wang tetap berlaku ke dalam akaun Tertuduh. Jika benar
akaun Tertuduh digunakan oleh orang lain, memandangkan Tertuduh
D berada di Sarawak dan Pengadu berada di Klang, tindakan OKT
sepertimana dalam IDD 13 –rakaman percakapan Tertuduh, Tertuduh tahu
dan sedar setiap tindakannya.
[31] Saya juga ingin merujuk kepada peruntukan Seksyen 24 KK dan
Seksyen 23 KK iaitu;
E Section 24 – Dishonestly
Whoever does anything with the intention of causing wrongful gain
to one person, or wrongful loss to another person, irrespective of
whether the act causes actual wrongful loss or gain, is said to do
that thing “dishonestly”.
F
Explanation – In relation to the offence of criminal misappropriation
or criminal breach of trust it is immaterial whether there was an
intention to defraud or to deceive any person.
Section 23 – wrongful gain and wrongful loss

G “Wrongful gain” is gain by unlawful means of property to which the

person gaining is not legally entitled.
“Wrongful loss” – is the loss by unlawful means of property to
which the person losing it is legally entitled.
A person is said to gain wrongfully when such person retains
H wrongfully, as well as when such person acquires wrongfully. A
person is said to lose wrongfully when such person is wrongfully
kept out of any property as well as when such person is wrongfully
deprived of property.

I
534 Current Law Journal [2019] 7 CLJ

[32] Berdasarkan kes di hadapan saya ini peruntukan Seksyen 24 dan 23 A

KK ini merujuk kepada perbuatan Tertuduh dalam kes ini. Tertuduh
telah melakukan secara tidak jujur atau penipuan, Tertuduh telah membantu
menyimpan RM251,990.00. Pengetahuan atau niat Tertuduh dapat
dibuktikan melalui perbuatan Tertuduh itu sendiri. Sepertimana yang saya
nyatakan setelah Peguambela menggunakan rakaman percakapan Tertuduh
– IDD 13, ianya jelas menunjukkan bahawa Tertuduh mengenai B
pengetahuan dan menerima wang daripada individu untuk membuka akaun.
Tujuan Tertuduh membuka 3 akaun ini adalah atas arahan individu dan
Tertuduh telah rela hati berbuat demikian malah turut bersetuju
menyerahkan kad ATM kepada individu yang kononnya tidak dia kenali.
(emphasis added)
C
[30] It was upon the reliance on IDD 13 that the Magistrate concluded that
a prima facie case had been proven by the prosecution at the end of the
prosecution case.
[31] The Magistrate referred to specific points in the statement to conclude
that the appellant had acted in a manner that suggested the appellant had the D
necessary intention to commit the crime. (See para. 32).
[32] The Magistrate went on to conclude that the appellant had received
payments to open the account. It also was her finding that appellant
voluntarily opened the account based on the instructions of an individual.
The Magistrate also relied on IDD13 to arrive at a finding that the appellant E
had given the ATM card to an unknown person. (See para. 32).
[33] It was based upon the reliance of IDD13 too that the Magistrate had
concluded that the prosecution had established a prima facie case. However,
none of the prosecution witnesses (PW1 & PW2) said anything that was
F
stated in IDD13.
[34] The reliance on the s. 112 statement of the appellant by the Magistrate
was a misdirection on her part. The CPC was amended via Act A1304 which
introduced s. 113, where it expressly states that no statement made by any
person to a police officer in the course of a police investigation made under G
s. 112 of the CPC shall be used in evidence.
[35] The only exception when the statement is permitted to be used in court
is when it is used:
(i) To impeach the credit of the person who gave the statement;
H
(ii) In the case of an accused, to support his evidence in support of his
defence;
(iii) In relation to an identification parade;
(iv) To admit information leading to discovery under s. 27 of the Evidence I
Act 1950;
 [2019] 7 CLJ Sarimah Peri v. PP 535

A (v) To admit statements of persons under s. 32(1)(i) and (j) of the Evidence
Act 1950;
(vi) As evidence against a person who is charged with any offence in relation
to the making of the statement or the content of the same, the said
statement shall be used as evidence.
B
The above essentially sums up the provision of s. 113 of the CPC on when
the said statement can be used.
[36] In the context of the current appeal, s. 113(3) of the CPC allows the
appellant to introduce IDD13. For convenience, s. 113(3) is reproduced as
C follows:
s. 113(3)
Where the accused had made a statement during the course of a police
investigation, such statement may be admitted in evidence in support of
his defence during the course of the trial.
D
[37] The development of the usage of statements recorded from an accused
person under s. 113 of the CPC (“cautioned statements”) prior to its current
form today, was discussed in the Supreme Court case of Public Prosecutor
v. Adetunji Adeleye Sule [1993] 3 CLJ 113; [1993] 2 MLJ 70. The apex court
discussed cases and explained the extent of the use of a cautioned statement
E
made by an accused person. Edgar Joseph Jr SCJ in delivering the decision
explained as follows:
Having said that, we would add that if, and when, the respondent gives
evidence to the same effect as his cautioned statement, he is entitled to take
advantage of it and to point out that it is consistent with his evidence. Furthermore,
F
as was rightly pointed out in R v. Donaldson 4, a purely exculpatory
statement made by a defendant out of court ‘is evidence at the trial in that
it is evidence that the defendant made the statement and of his reaction which is part
of the general picture which the jury have to consider but it is not evidence of the facts
stated’. It follows, as the court did in fact hold in Donaldson 4, that it is a
G
misdirection to say that anything which a defendant may have said in his
out of court statement is not evidence in the case save in so far as it may
consist of an admission. To the same effect is R v. McCarthy (GJ) 5, in
which the trial judge had refused to admit oral and written self-
exculpatory statements made out of court by the accused to the police on
the ground that they were self-serving. The accused had told the police
H at the time of making the statements that they were at liberty to check
his movements if they so wished. It was held, on appeal, that that was
a misdirection. Lawton LJ in delivering the judgment of the Court of
Appeal said this at p 145:

I
536 Current Law Journal [2019] 7 CLJ

He (counsel for the respondent) pointed out that although the A

details were not evidence of the facts, the reaction of McCarthy when
questioned by the police officer at the beginning of the interview was something
which the jury could properly take into account as having some relevance
to the genuineness of the defence of alibi. In our judgment (counsel) was
right.
B
One of the best pieces of evidence that an innocent man can
produce is his reaction to an accusation to crime. If he has been told,
as the respondent was told, that he was suspected of having committed a
particular crime at a particular place and he says at once, 'That cannot be
right, because I was elsewhere' and gives details of where he was, that is
something which the jury can take into account. C

(emphasis added)
[38] Hence, the appellant was entitled to introduce the statement as a basis
to introduce her defence as early as possible, to show reaction or basis for
action (in opening the account) upon being confronted by the police during
D
investigation. More so, it was permitted under s. 113(3) of the CPC.
[39] It is based on the above principles that this court is of the opinion that
the Magistrate fell into error when she relied on the contents of the s. 112
statement of the appellant at the prosecution stage of the trial. The Magistrate
not only relied on the contents of the said statement but went to impute mens E
rea on the part of the appellant. This was outside of the permitted ambit of
s. 113 of the CPC.
[40] The Magistrate can only consider the evidence as presented by the
prosecution. She is not entitled to rely on the contents of a statement devoid
of proof. It is trite that the duty to prove a case in a criminal trial rest solely F
with the prosecution and remains with the prosecution. (see Woolmington
v. PP [1935] AC 462). The only exception is when there is a reverse onus
clause or presumption of law that operates (PP v. Yuvaraj [1968] 1 LNS 116;
[1969] 2 MLJ 89; Attan bin Abdul Gani v. Public Prosecutor [1969] 1 LNS 12;
[1970] 2 MLJ 143b). G
[41] If the Magistrate had applied the correct law with regards to the use
of accused person statements, she would not have taken into consideration
the factual averments of the appellant in the said statement.
[42] Sifting through the evidence, if the contents of IDD13 is disregarded,
H
on the facts, the prosecution is only left with the evidence of PW1 and PW2.
As mentioned above, except for the mention that PW1 had paid into the
account of one “Sarimah Peri”, there is no other evidence that can establish
the appellant’s role in the commission of the crime. There was failure to
show how the appellant had assisted in the commission of the offence.
I
 [2019] 7 CLJ Sarimah Peri v. PP 537

A [43] On the element of “dishonestly”, resort must be had to s. 24 of the

Penal Code. The definition reads as follows:
Whoever does anything with the intention of causing wrongful gain to
one person, or wrongful loss to another person, irrespective of whether
the act causes actual wrongful loss or gain, is said to do that thing
B “dishonestly”.
[44] Therefore, the essential thing to be proven in cases under s. 424 of the
Penal Code is whether the accused is actuated by the intention to cause the
wrongful loss or wrongful gain which will in turn show that he or she acted
dishonestly.
C
[45] In the germane decision of the Supreme Court in Yap Sing Hock & Anor
v. PP [1992] 4 CLJ 1950, the apex court discussed the term dishonestly in
s. 24 of the Penal Code. It also went on to discuss the meaning of intention.
It held as follows:
D Intention, at present, has acquired a special meaning as follows.
Intention means that a man intends to commit the offence or do the forbidden act
as prescribed by law that is described by law, If at or before time of the commission
of the offence or the doing of the forbidden act, an accused person has foresight,(that
is knows in advance) that his conduct will lead to the commission of the offence or
the doing of the forbidden act as described or prescribed by law, irrespective of whether
E
he knows it is such an offence or such a forbidden act, so described or as prescribed
by law and he desires the commission of such an offence or doing of such a forbidden
act. (emphasis added)
[46] Going back to the current appeal, in order to show that the appellant
acted dishonestly, it had to be shown that she had the intention to cause
F
wrongful loss to PW1 as outlined in Yap Sing Hock (supra). There must be
foresight on the part of the appellant that what she did (in opening the
account) will result in wrongful loss or wrongful gain to someone.
[47] Intention however is not easily proven. Richard Malanjum FCJ (now
G
CJ) in Emmanuel Yaw Teiku v. PP [2006] 3 CLJ 597 held as follows:
It should be borne in mind that proof of intention or knowledge is generally inferred
from proved facts and circumstances. It is difficult to do so by other means unless
there is a clear admission by the person himself. This difficulty had been
acknowledged in the case of Chan Pean Leon v. PP [1956] MLJ 237 when
Thomson J said this (at p 239):
H
Intention is a matter of fact which in the nature of things cannot be
proved by direct evidence. It can only be proved by inference from the
surrounding circumstances. Whether these surrounding circumstances
make out such intention is a question of fact in each individual case.
(emphasis added)
I
538 Current Law Journal [2019] 7 CLJ

[48] It is therefore, the duty of the prosecution to prove from available A

evidence, the acts of the appellant to enable an inference of such dishonest
intention. Unfortunately in the current appeal, the evidence of PW1 and
PW2 did not even show a tinge of such evidence to enable this court to make
any inference of dishonest intent.
Other Factual Considerations B

[49] The charge had stated that the offence took place in Klang between the
dates of 15 March 2016 and 30 March 2016. However, nowhere in the
evidence was it shown by the prosecution how the appellant had assisted in
the commission of the offence on the said days but for the fact that those days
C
relate to the dates in which PW1 deposited the said monies into the
appellant’s account.
[50] If the case of the prosecution intended to implicate the appellant
because she had opened the CIMB account on 28 January 2016, certainly,
it cannot mean that there is an imputation of guilt proven by the prosecution D
merely by the act of PW1 depositing the said monies into the account. The
operative act that needs to be proven per the ingredients of the offence in
s. 424 is the assistance in concealing or removing the property. This
however, was not proven by the prosecution.
[51] What was presented by PW1 was only with regards a complaint by E
her to say that she was duped into transferring the monies into the account
of a person named Sarimah Peri. It is the view of this court that by the mere
mention of the name of the appellant and the use of the account of the
appellant, cannot automatically mean that the appellant had assisted in the
concealment or removal of the monies. Unless there is a presumption, the F
imputation of assisting in such a concealment or removal property without
proof, must fail.
[52] It is perhaps instructive for this court to highlight the early case of Rex
v. Kavena Ismail Sahib [1937] 1 LNS 71; [1937] 1 MLJ 242 on how s. 424
of the Penal Code was applied. Terriell AG CJ in delivering the guidance G
held as follows:
The only point of substance in the appeal was that s. 405 of the Penal
Code is not applicable to the facts as proved. The section reads:
Whoever being in any manner entrusted with property, or with any
dominion over property, dishonestly misappropriates or converts to H
his own use such property etc.
Now the mortgage of a tongkang is in essence more akin to an F.M.S.
charge of land than to an English mortgage, where the legal estate is
transferred to the mortgagee. Under the Merchant Shipping Acts the
mortgagor of a tongkang remains the owner for the purpose of the Acts. I
 [2019] 7 CLJ Sarimah Peri v. PP 539

A All that the mortgagee acquires are certain rights, such as a power of sale,
and a right under certain circumstances to take possession. The
mortgagee’s rights are certainly rights of property, but they are incorporeal
rights. They are in no sense movable or corporeal property. There is no
definition of “property,” as distinct from movable property which is
defined in s. 22 of the Penal Code but in the opinion of the Court,
B “property” for the purpose of s. 405 of the Penal Code must be something
tangible, and a mere incorporeal right does not fall within the purview of
the section. There is the further difficulty that even if such incorporeal
right could be the subject of criminal breach of trust, the mortgagee’s
rights were never “entrusted” to the Appellant, and without such an
“entrustment” a conviction under s. 405 cannot stand.
C
It is clear however that the verdict of the jury involved a finding that the
Appellant made away with the two tongkangs by altering them and
registering them in other persons' names with a view to defrauding the
complainant. The offence proved seems clearly to fall under s. 424 of the Penal Code
in that the Appellant was found to have dishonestly or fraudulently concealed or
D removed the two tongkangs in question. Sections 176 and 177 sub-s. 1 of the
Criminal Procedure Code are accordingly applicable, and it was open to
the jury to convict the Appellant of the offence which he is shown to have
committed although he was not charged with it. (emphasis added)
[53] Rex v. Kavena Ismail Sahib (supra) is a classic case of how s. 424 of the
E Penal Code can best be used. It is in stark contrast to the facts in this current
appeal.
The Findings Of This Court
[54] The learned DPP had assiduously argued that the prosecution had
F
successfully proven its case and that there was no error by the Magistrate
when she called for the appellant to enter her defence and ultimately in
finding the appellant guilty. With due respect, this court is unable to agree
with the DPP. The prosecution cannot rely in the mere statement of PW1
to implicate the appellant. Apart from the account belonging to the appellant,
there were no other evidence produced by the prosecution that could show
G
a prima facie case of the appellant assisting in either concealing or removing
the said monies.
[55] This court is of the view that for a successful prosecution under s. 424
of the Penal Code in particular if the charge is one that relates to assisting
H
the concealment or removal of property, the prosecution must show the overt
act by the accused to assist in the concealment or removal of the property.
[56] Merely by proving the opening of an account by an individual without
more, cannot tantamount to him or her assisting the commission of the
offence. There must be other evidence available that can show either
I collusion or active participation on the part of the account holder.
540 Current Law Journal [2019] 7 CLJ

Conclusion A

[57] This court reiterates the concern over how the charge was preferred
against the appellant and how the Magistrate had gone on to analyse the
ingredients of the charge. This court had also raised the concern of how the
s. 112 statement was used by the Magistrate in concluding that the
prosecution had proven its case. This was a misdirection on the part of the B
Magistrate as she had taken into account evidence not proven by the
prosecution but instead relied on contents of a s. 112 statement given by the
appellant during investigation.
[58] In the foregoing, this court is of the firm opinion that the Magistrate
C
had erred when she found that the prosecution had established a prima facie
case. It would not have passed the test laid down in Balachandran v. PP [2005]
1 CLJ 85; [2005] 1 AMR 321 and a host of other high authorities on the
subject. The appellant ought to have been acquitted and discharged at the end
of the prosecution case.
D
[59] This court is satisfied that based on the defective charge and the
misdirection of the Magistrate, it was sufficient for this court to arrive at the
above decision. As such, counsel’s argument on the applicability of s. 79 of
the Evidence Act 1950 does not require any consideration by this court.
[60] The bitter experience of having served eight months in prison before E
she was ordered to be released by this court would serve a reminder to her
to be careful when befriending strangers especially when the encounter was
made through social media.
[61] Order accordingly.
F