MOHD ZULFADLI BIN NAYAN v Pendakwa Raya

ja-42r-2-06-2025 High Court (Mahkamah Tinggi) 16 December 2025 • JA-42R-2-06/2025 • 59 min read
19 cases cited (0 SG, 19 foreign)

Outcome

a) The conviction is safe.

Quoted verbatim from the judgment of High Court (Mahkamah Tinggi) (ja-42r-2-06-2025). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

CRIMINAL LAW: Corruption — Public servant accepting valuable thing without consideration — Offence under s 165 Penal Code — Ingredients of offence — Whether accused was public servant — Whether accused accepted valuable thing for himself — Whether acceptance was without consideration — Whether accused knew intermediary had connection with his official functions — Whether "menyetuju terima" in charge equates to "accepts" or "agrees to accept" — Distinction between "menyetuju terima" and "bersetuju untuk menyetuju terima" under authoritative Malay text of MACC Act 2009 — Whether release of detained vessel prior to date of payment negated connection with official functions — Whether prosecution required to prove accused was actually responsible for investigation and that investigation was in fact conducted — Whether connection between intermediary and official functions sufficient or whether connection must be attributed to source of money — Maritime Zone Director of Malaysian Maritime Enforcement Agency accepting cash in connection with detained vessel CRIMINAL PROCEDURE: Charge — Validity — Whether charge was defective — Whether charge sufficiently particularised — Whether naming intermediary rather than source of money as person having connection with official functions rendered charge defective — Requirements of ss 152 and 153 Criminal Procedure Code — Whether curative provisions of ss 156 and 422 Criminal Procedure Code applicable — Amendment of charge — Fourth amendment confined to change of time — Whether failure to explain rights under s 162 Criminal Procedure Code after amendment occasioned failure of justice — Whether accused represented by counsel who made no application to recall witnesses could complain of denial of s 162 rights — Prima facie case — Maximum evaluation test — Whether prima facie case established at close of prosecution case — Appellate standard — Whether conviction safe — Proper function of appellate court in criminal appeal — Whether appellate court should disturb findings of fact based on credibility CRIMINAL PROCEDURE: Alibi — Defence of alibi — Notice of alibi under s 402A Criminal Procedure Code — Whether alibi witness not named in notice of alibi admissible — Mandatory nature of notice requirements — Internal contradictions between notice of alibi and oral testimony of accused — Whether alibi demolished by contradictions among defence witnesses themselves — Whether alibi was afterthought — Failure to disclose alibi to investigating officer — Failure to put alibi to prosecution witnesses during cross-examination — Whether accused required to prove alibi beyond reasonable doubt or merely raise reasonable doubt EVIDENCE: Accomplice evidence — Whether giver and intermediary of gratification are accomplices — Section 52(1) MACC Act 2009 — Whether witnesses regarded as accomplices by reason only of giving or delivering gratification — Whether pre-MACC authorities on accomplice corroboration applicable to prescribed offences under MACC Act 2009 — Statutory presumption — Section 50(3) MACC Act 2009 — Condition precedents for invocation of presumption — Whether primary facts must be proved before presumption arises — Standard of rebuttal on balance of probabilities — Whether failure to raise reasonable doubt on lighter burden means failure to rebut presumption on heavier burden — Adverse inference — Section 114(g) Evidence Act 1950 — Whether failure to obtain call detail records warrants adverse inference — Distinction between suppression of evidence in possession and failure to obtain evidence — Credibility — Trial judge's advantage of seeing and hearing witnesses — Whether appellate court should disturb credibility findings — Whether direct eyewitness testimony may be accepted despite gaps in documentary evidence CRIMINAL LAW: Sentencing — Offence under s 165 Penal Code — Sentence of twenty months' i

Practice Areas

Criminal Law Criminal Procedure Evidence

Judges (1)

Atan Mustaffa Yussof Ahmad Delivered

Counsel (6)

The Law Chambers of Fazaly Ali Firm Wan Haron Sukri & Nordin Firm Chan Lee Lee Counsel Prosecution Dato' Sukri bin Hj Mohamed Counsel Appellant Mohd Fazaly Ali Bin Mohd Ghazaly Counsel Appellant Syed Muhd Syafiq bin Syed Abu Bakar Counsel Appellant

Parties (2)

Pendakwa Raya Respondent Mohd Zulfadli bin Nayan Appellant

Case Significance

Illustrates the ingredients of the section 165 Penal Code offence of a public servant accepting a valuable thing without consideration, the construction of menyetuju terima in the charge, and the operation of the statutory presumption under section 50(3) of the Malaysian Anti-Corruption Commission Act 2009.

This High Court decision at Johor Bahru concerns an appeal against conviction and sentence for a corruption offence under section 165 of the Penal Code — a public servant accepting a valuable thing without consideration. The appellant, a maritime enforcement officer holding the rank of a zone director, had been convicted after a full trial in the Sessions Court and sentenced to 20 months' imprisonment. The charge was that he had, as a public servant, menyetuju terima (accepted) for himself cash of RM10,000 without consideration, passed through an intermediary, knowing that the giver had a connection with his official functions — namely his responsibility for the investigation of a vessel that had been detained by the Malaysian Maritime Enforcement Agency. The vessel was owned by a company and operated by a businessman who was among the prosecution's sixteen witnesses.

On appeal the court examined the ingredients of the offence: whether the appellant was a public servant, whether he accepted the valuable thing for himself, whether the acceptance was without consideration, and whether he knew the intermediary had a connection with his official functions. It also considered the meaning of menyetuju terima in the charge and the distinction, under the authoritative Malay text, between accepting and merely agreeing to accept, and the operation of the statutory presumption under section 50(3) of the Malaysian Anti-Corruption Commission Act 2009, together with the argument that the vessel's release before the date of payment negated any connection with his official functions.

The court held that the conviction was safe, the trial judge having committed no reversible error of law or fact and having correctly applied the ingredients of section 165 and the statutory presumption, and that his credibility findings were open to a court that had seen and heard the witnesses. It held the sentence was neither manifestly excessive nor inadequate. The appeal against conviction and sentence was dismissed and both affirmed. The judgment illustrates the elements of the section 165 offence and the treatment of the anti-corruption presumption.

Summary

The appellant, a Maritime Zone Director of the Malaysian Maritime Enforcement Agency, appealed his conviction under Section 165 of the Penal Code for accepting RM10,000 cash without consideration from a person connected to his official duties regarding a detained vessel. The High Court dismissed the appeal, finding the conviction safe as the trial judge properly evaluated credibility, correctly applied the statutory presumption under Section 50(3) of the MACC Act 2009, and the alibi defence was demolished by internal contradictions. The sentence of 20 months' imprisonment was affirmed.

What was the appellant convicted of, and was the conviction upheld?

The appellant, a maritime enforcement officer, was convicted under section 165 of the Penal Code of accepting RM10,000 in cash without consideration, through an intermediary, knowing the giver had a connection with his official functions over a detained vessel. The High Court held the conviction safe, finding no reversible error and a correct application of the offence's ingredients and the section 50(3) MACC Act presumption, and affirmed both conviction and the 20-month sentence.

What did the court say about the meaning of the charge and the presumption?

The court considered the meaning of menyetuju terima (accepting) in the charge and the distinction under the authoritative Malay text between accepting and merely agreeing to accept, and the operation of the statutory presumption under section 50(3) of the Malaysian Anti-Corruption Commission Act 2009, holding the trial judge had applied the law correctly, including on the argument that the vessel's earlier release negated the connection with official functions.

Statutes Cited

Criminal Procedure Code
s 402A
Evidence Act
s 114(g)
MACC Act 2009
s 17(a) s 50(3) s 52 s 52(1) s 55(1) s 67
Malaysian Maritime Enforcement Agency Act 2004
s 7(2)
Merchant Shipping Ordinance 1952
s 504(1)
Penal Code (Cap 574)
s 165 s 21(i)

Cases Cited (19)

MY (19)
[1951] MLJ 11 [1969] 2 MLJ 89 [1976] 2 MLJ 256 [1982] 1 MLJ 83 [1997] 3 CLJ 150 [1999] 4 MLJ 433 [2004] 1 CLJ 57 [2005] 1 CLJ 389 [2005] 5 MLJ 409 [2009] 1 CLJ 154 [2012] 3 MLJ 476 [2013] 9 CLJ 692 [2014] 5 MLJ 455 [2015] 1 CLJ 579 [2015] 3 CLJ 439 [2015] 6 MLJ 509 [2015] 8 CLJ 769 [2022] 4 CLJ 125 [2024] 9 CLJ 117

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (ja-42r-2-06-2025)