FIRDAUS RIZAL BIN ABDUL MANAN v Pendakwa Raya [Pegawai Pendakwa]

Case Significance

Affirms a solicitor's conviction for criminal breach of trust under section 409 of the Penal Code over client-account monies, finding exclusive dominion, dishonesty and non-disbursement, with the section 409B and 24 presumptions supporting dishonest intent; a stay pending appeal was granted on medical and hardship grounds.

This High Court (Ipoh) decision is a criminal appeal against conviction and sentence for criminal breach of trust. The appellant, a lawyer and partner of a firm, had been convicted by the Sessions Court on two counts of criminal breach of trust under section 409 of the Penal Code involving monies received in the firm's client account. The Sessions Court had sentenced the appellant, for each of the two charges, to three years' imprisonment, two strokes of the cane and a fine of RM5,000 (in default one year's imprisonment), the imprisonment terms to run concurrently from the date of judgment.

On the facts underlying the charges, the appellant, as a solicitor entrusted in that capacity with dominion over property, namely the proceeds of a sale of a house held in the firm's client account, was alleged to have committed criminal breach of trust in respect of those monies. On appeal, the High Court found that the appellant had exclusive dominion over the client account, had acted dishonestly, and had failed to disburse the funds to the parties rightly entitled to them. It held that the four essential elements of criminal breach of trust, as identified in How Chee Hong v Public Prosecutor, were satisfied, and that the statutory presumptions under sections 409B and 24 of the Penal Code supported the findings of dishonest intent.

The court dismissed the appeal and affirmed the conviction and sentence of the Sessions Court. It nonetheless granted a stay of execution of the sentence pending appeal, on the existing bail terms, having regard to the appellant's serious medical conditions, financial hardship and dependent children, so that the appellant would not commence serving the sentence while the appeal remained pending but had to continue to comply with the bail terms already imposed. The judgment is a clear application of the elements of criminal breach of trust to solicitors' client-account monies.