MUHAMMAD HAFIZ BIN AB RASHID v Pendakwa Raya

Case Significance

Confirms that without proof of entrustment or dominion over the property a charge of criminal breach of trust under section 408 of the Penal Code cannot stand, and that rebutting the section 409B presumption of dishonesty renders the conviction unsafe.

This Court of Appeal decision at Putrajaya concerns a conviction for criminal breach of trust by a servant. The appellant, a syarie lawyer engaged through a law firm, had been charged under seksyen 408 Kanun Keseksaan (section 408 of the Penal Code) with dishonestly misappropriating RM7,000 belonging to a client of the firm for his own benefit. The Sessions Court had convicted him after finding a prima facie case and calling him to enter a defence, and the High Court had affirmed that conviction. The appellate issues centred on the elements of criminal breach of trust and the operation of the presumption of dishonesty under section 409B of the Penal Code, together with the admissibility and weight of the contract documents and the effect of sections 91 and 92 of the Evidence Act 1950. The court analysed whether the essential element of entrustment or dominion over the property had been established, that is, whether the money received was a trust held on behalf of the firm. It concluded that this element had not been proved: the money received was not a trust held for the firm, so no relationship of entrustment existed, and the credibility and admissibility of the supporting evidence were seriously in doubt. Emphasising that the appellate task in a criminal case is to ask whether the conviction is safe rather than merely whether it is wrong, the court held that the prosecution had failed to prove its case beyond a reasonable doubt and that the defence had not only raised a reasonable doubt but had rebutted the section 409B presumption of dishonesty. The court unanimously found merit in the appeal, held the conviction unsafe, set aside the conviction and sentence of the Sessions Court as affirmed by the High Court, and ordered the appellant dibebaskan dan dilepaskan (acquitted and discharged) of the charge. The judgment is a clear illustration of how a failure to prove entrustment defeats a charge of criminal breach of trust.