Home > Breach of Natural Justice, Case Law Studies, Natural Justice > At the conclusion of the trial, it was the finding of this court that the accused person’s defence did not cast a reasonable doubt at the stage of the prosecution’s case, nor did it on a balance of probabilities sufficiently address the evidence pertaining to the charge at the defence stage: M JEFREE MD YUSOFF V. PP HIGH COURT SABAH & SARAWAK, KOTA KINABALU

At the conclusion of the trial, it was the finding of this court that the accused person’s defence did not cast a reasonable doubt at the stage of the prosecution’s case, nor did it on a balance of probabilities sufficiently address the evidence pertaining to the charge at the defence stage: M JEFREE MD YUSOFF V. PP HIGH COURT SABAH & SARAWAK, KOTA KINABALU

M JEFREE MD YUSOFF V. PPHIGH COURT SABAH & SARAWAK, KOTA KINABALU[CRIMINAL APPEAL NO: L44-07-2008]ABDUL RAHMAN SEBLI JC24 SEPTEMBER 2008

JUDGMENT

Abdul Rahman Sebli JC:

[1] The charge against the appellant was as follows:

Bahawa kamu, pada 16 haribulan Mac 2006 jam lebih kurang 1000 hrs bertempat di Pos Malaysia Bhd Kompleks Ujana Kewangan, Wilayah Persekutuan Labuan, di dalam Wilayah Persekutuan Labuan, sebagai seorang yang mempunyai dominasi keatasnya dan juga kapasiti sebagai Pengurus Cawangan Pos Malaysia Bhd Ujana Kewangan telah melakukan Pecah Amanah Jenayah keatas harta tersebut yang bernilai RM22,000 (wang tunai). Oleh itu, kamu telah melakukan kesalahan dibawah seksyen 408 Kanun Keseksaan.

[2] He claimed trial to the charge at the end of which he was found guilty by the learned magistrate and sentenced to 18 months’ imprisonment and two strokes of the rotan. He was also fined RM5,000 in default six months’ imprisonment. Among the grounds of appeal is that the learned magistrate failed to apply the correct test in dealing with the defence. There is merit in the complaint. In his grounds of decision it is clear that the learned magistrate had placed a burden on the appellant which the law did not. This is what he said:

At the conclusion of the trial, it was the finding of this court that the accused person’s defence did not cast a reasonable doubt at the stage of the prosecution‘s case, nor did it on a balance of probabilities sufficiently address the evidence pertaining to the charge at the defence stage. (emphasis added)

[3] What the learned magistrate is saying is that not only had the defence failed to cast a reasonable doubt in the prosecution‘s case but had also failed to rebut the prosecution‘s evidence on a balance of probabilities. A pronouncement such as this is confusing and should be avoided in dealing with a case where no legal burden is placed on an accused person. The phrase “on a balance of probabilities” is normally associated with the civil burden of proof. It is trite that in criminal law unless by statute the onus is reversed the accused has no duty to prove or disprove anything. The burden throughout is on the prosecution to prove its case beyond any reasonable doubt. What is required of the accused to entitle him to acquittal is merely to raise a reasonable doubt in the prosecution‘s case. By applying the “balance of probabilities” test in dealing with the defence the learned magistrate had clearly misdirected himself on the burden of proof. The offence which the appellant was charged with no doubt requires the appellant to explain what happened to the money that was entrusted to him: Sathiadas v. PP [1970] 1 LNS 142. But to require the appellant to “address” the prosecution evidence on a balance of probabilities is to go beyond asking for explanation. It is shifting the burden of proof.

[4] The learned magistrate should have followed the procedure laid down in Mat v. PP [1963] 1 LNS 82. In that case Suffian J (as he then was) explained that if the magistrate did not believe the story of the defence, he was nevertheless bound to consider whether the defence, though disbelieved by him, had not raised any reasonable doubt in his mind. In other words if, despite having rejected the defence the magistrate is nevertheless less than sure of the accused’s guilt then he must acquit for then there would be a lingering doubt in his mind as to the guilt of the accused. An accused person can only be convicted if the court is sure of his guilt which is another way of saying that the case is “proved beyond reasonable doubt”. By asking whether the appellant had on a balance of probabilities sufficiently answered the prosecution‘s case the learned magistrate had imposed on the appellant a duty heavier than to merely raise a reasonable doubt. This is not a correct approach. On this ground alone the conviction cannot stand.

[5] The question is whether I should order a retrial. Where the prosecution has adduced all the evidence it has and the evidence has established a prima facie case against the accused which if unrebutted would warrant his conviction, then the failure of justice occasioned by the trial court in placing the wrong burden of proof on the accused cannot be laid to the door of the prosecution: Mahadi v. PP [1969] 1 LNS 103. But has the prosecution adduced sufficient evidence to prove a prima facie case against the appellant? One of the ingredients of the charge which the prosecution needed to prove is the element of entrustment. In this regard the prosecution‘s case is that the RM22,000 cash, the subject matter of the offence was in the custody of the appellant and therefore entrusted to him before it was discovered missing on 16 March 2006. It was disclosed in evidence that at closing time on 15 March 2006 the total amount of cash deposited with Pos Malaysia at the Ujana Kewangan branch of which the appellant was manager was RM27,937.10 but that when Jainap binti Osman (PW1) took over duties from the appellant on 16 March 2006 only a sum of RM5,937.10 cash was handed to her by the appellant. There was therefore a shortfall of RM22,000. There is no evidence however to show when, from whom and for what purpose the RM22,000 was handed to the appellant, if at all it was handed to him. The prosecution‘s evidence of entrustment is solely and entirely based on the document called “Kira-Kira Wang Tunai Ketua Pejabat Pos” (P5) which is actually a record of the monies received by the Ujana Kewangan branch of Pos Malaysia from the public on 15 March 2006. The prosecution did not call any witness to prove the contents of P5. In the absence of oral evidence to prove the contents of P5 clearly the document is hearsay and does not constitute proof of entrustment. In PP v. Anuar Afandi [1999] 4 CLJ 545 Nik Hashim J (as he then was) in holding that the prosecution failed to prove entrustment quoted with approval the following passage from Ratanlal & Dhirajlal’s Law of Crimes 24th edn:

Mere entries in books of account without any oral evidence as to the nature of business and the mode of keeping account is not sufficient to prove entrustment.

[6] Being hearsay and therefore inadmissible in evidence P5 should have been disregarded by the learned magistrate. It was his duty to disregard all inadmissible evidence regardless of whether there was objection or otherwise to its production. Had P5 been disregarded there would have been no proof of entrustment. Without proof of entrustment there would have been no prima facie case against the appellant and his defence should not have been called. Against this background to order a retrial would in my view be to give the prosecution a second bite at the cherry which I was not prepared to do.

[7] In the circumstances the conviction and sentence were set aside and in substitution thereof the appellant was ordered to be acquitted and discharged.

[2008] 1 LNS 502

  1. No comments yet.
  1. March 21, 2014 at 8:56 pm
    seo marketing firm
  2. March 23, 2014 at 8:41 am
    https://www.youtube.com/watch?v=eWTOIadTEv4
  3. March 26, 2014 at 8:57 am
    recreational vehicles
  4. March 27, 2014 at 2:25 pm
    http://youtube.com/watch?v=01RMkcQ-nwM
  5. April 5, 2014 at 8:41 am
    seo españa
  6. April 7, 2014 at 9:54 am
    como posicionarse en google
  7. May 6, 2014 at 11:53 pm
    posicionarse en google
  8. May 7, 2014 at 12:02 am
    a forever recovery rehab facility
  9. May 7, 2014 at 2:17 am
    Merit Financial scams
  10. May 7, 2014 at 2:23 am
    drug addiction rehabs
  11. May 7, 2014 at 4:12 am
    using video to increase your website traffic to your site
  12. May 7, 2014 at 7:51 am
    corey blake
  13. May 7, 2014 at 9:53 am
    website design by perth seod
  14. May 7, 2014 at 2:01 pm
    seo services
  15. May 7, 2014 at 4:09 pm
    addiction by forever recovery
  16. May 7, 2014 at 5:13 pm
    forever recovery drug addict
  17. May 7, 2014 at 6:52 pm
    posicionamiento web profesionales
  18. May 7, 2014 at 7:33 pm
    a forever recovery
  19. May 7, 2014 at 7:38 pm
    posicionamiento google
  20. May 7, 2014 at 9:47 pm
    posicionamiento en google
  21. May 7, 2014 at 10:06 pm
    servicios seo
  22. May 7, 2014 at 10:15 pm
    seo solutions australia
  23. May 8, 2014 at 3:49 am
    Rosland Capital vs goldline
  24. May 8, 2014 at 9:00 am
    life insurance for seniors
  25. May 8, 2014 at 9:21 am
    seo consultants
  26. May 8, 2014 at 10:21 am
    a forever recovery blog
  27. May 8, 2014 at 2:06 pm
    rehab centers
  28. May 8, 2014 at 2:15 pm
    ford dealers
  29. May 8, 2014 at 3:16 pm
    mortgage life insurance rates
  30. May 8, 2014 at 5:50 pm
    drug addiction recovery statistics
  31. May 8, 2014 at 7:25 pm
    drug addiction rehabs
  32. May 8, 2014 at 8:13 pm
    Merit Financial gold ira specialist
  33. May 9, 2014 at 1:57 am
    empresa de diseño web
  34. May 9, 2014 at 3:29 am
    accessories
  35. May 9, 2014 at 4:26 am
    seo marketing
  36. May 9, 2014 at 4:34 am
    2013 ford fiesta
  37. May 9, 2014 at 4:41 am
    Capital Gold Group ratings
  38. May 9, 2014 at 4:57 am
    affiliate marketing
  39. May 9, 2014 at 7:54 am
    german shepherd
  40. May 9, 2014 at 4:48 pm
    search engine optimisation professional
  41. May 9, 2014 at 7:23 pm
    pet arthritis
  42. May 9, 2014 at 8:29 pm
    seo expert australia
  43. May 9, 2014 at 9:21 pm
    orlando seo services 10 answer why should
  44. May 9, 2014 at 11:26 pm
    search engine optimisation company
  45. May 10, 2014 at 12:05 am
    arthritis cat treatment
  46. May 10, 2014 at 12:20 am
    replacement car parts
  47. May 10, 2014 at 2:04 am
    seo services usa
  48. May 10, 2014 at 3:08 am
    dog arthritis symptoms
  49. May 11, 2014 at 2:01 am
    whole life vs term insurance
  50. May 11, 2014 at 5:02 am
    addiction by forever recovery
  51. May 11, 2014 at 7:03 am
    local seo services
  52. May 11, 2014 at 7:22 am
    diseno web
  53. May 11, 2014 at 8:42 am
    final expense life insurance
  54. May 11, 2014 at 10:28 am
    lesleys homepage besuchen
  55. May 11, 2014 at 1:39 pm
    www.4searchengineoptimization.com
  56. May 11, 2014 at 10:52 pm
    link building service
  57. May 12, 2014 at 4:56 am
    veterans life insurance
  58. May 12, 2014 at 9:48 am
    posicionar web
  59. May 12, 2014 at 2:55 pm
    indexed universal life insurance
  60. May 12, 2014 at 4:23 pm
    search engine optimisation companies in perth
  61. May 12, 2014 at 5:41 pm
    term life insurance for seniors
  62. May 12, 2014 at 10:26 pm
    20 great plugins compatible
  63. May 13, 2014 at 1:55 am
    www.4searchengineoptimization.com/
  64. May 13, 2014 at 3:37 am
    final expense life insurance companies
  65. May 13, 2014 at 4:48 am
    seo perth consultants
  66. May 13, 2014 at 7:08 am
    whole life insurance rates
  67. May 13, 2014 at 10:09 am
    life insurance definition
  68. May 13, 2014 at 12:19 pm
    google
  69. May 13, 2014 at 12:41 pm
    seo packages
  70. May 13, 2014 at 7:42 pm
    list of life insurance companies
  71. May 14, 2014 at 6:21 pm
    4searchengineoptimization.com
  72. May 15, 2014 at 5:50 am
    www.youtube.com/
  73. May 15, 2014 at 10:20 am
    posicionar web
  74. May 15, 2014 at 6:53 pm
    Quirk Volkswagen
  75. May 16, 2014 at 2:05 am
    Jim Glover Chevrolet
  76. May 16, 2014 at 6:24 am
    Florissant Kia
  77. May 16, 2014 at 6:56 am
    Florissant Kia
  78. May 16, 2014 at 7:34 am
    Jim Glover Chevrolet MO
  79. May 16, 2014 at 12:06 pm
    Cerame Kia
  80. May 17, 2014 at 8:17 am
    Jim Glover Chevrolet in St Louis, MO
  81. May 20, 2014 at 12:45 pm
    money per hour
  82. May 21, 2014 at 1:11 pm
    employment law lawyers
  83. May 23, 2014 at 9:01 am
    overtime laws in california
  84. September 9, 2014 at 4:56 am
    DL3 local conservatories
  85. October 12, 2014 at 3:41 pm
    real estate attorney mn
  86. November 7, 2014 at 10:30 pm
    advanced warfare trickshotting
  87. November 9, 2014 at 6:05 am
    AlythNew friendly builders
  88. May 17, 2015 at 1:23 pm
    victorian conservatory Alva
  89. September 29, 2015 at 1:19 am
    conservatories Tralee

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: