Che man che mud

But, on the evidence for the prosecution, did the appellant, in law, abet the offence of criminal breach of trust by Harun?

Abetment by instigation is out of the question, because there is no evidence for it.
As to abetment by conspiracy, from the evidence there is no doubt that there was a plan to divert a credit amount in Bank Negara from the Accountant-General's account to Bank Bumiputra's account and, from there, and so that the credit could be converted to money, to a private account in Bank Bumiputra. For the success of the plan certain people had to be engaged for certain roles. Harun was to effect the diversion and the appellant was to provide the facilities for the final destination and encashment of the credit. The mastermind could have been Harun or someone else. The appellant received for certain RM333,000.00 for his part. He might have received more. However, from the evidence, it cannot be said that he was the mastermind.

There is no evidence as to the circumstances in which the appellant took on the role that the

evidence showed he actually played. There are only probabilities that arise from the entire evidence. It is probable that the appellant had taken part in the formation of the whole plan right from the beginning with Harun and others, such as Norlah Khan. If that had been the case, he could be said to have engaged with one or more other person or persons in a conspiracy for the commission of breach of trust by Harun, and he would have abetted the commission of that offence by Harun. On the other hand - more so if one recalls what happened to Abdullah bin Che Man the businessman - it is equally probable that the appellant had been approached by someone, either Harun or someone else, and been offered the part he was to play and given instructions as to what he was supposed to do. The appellant might have asked where the money was coming from and he might have been told that Harun would take care of that, that the appellant did not need to concern himself with that problem and that all that he needed to do was to open the account and later issue the cheques and so on. If that had been the case, the appellant could not be said to have engaged with one or more other person or persons in a conspiracy for the commission of breach of trust by Harun.

In any case, if there had been an engaging in a conspiracy by the appellant, the time and place could not have been as in the charge, but earlier and at some place or places other than the Dayabumi branch of Bank Bumiputra.

Because there is no direct evidence of conspiracy involving the appellant, or any one else for that matter, and the evidence for the prosecution lays itself open as well to the probability that the appellant did, as to the probability that he did not, engage in any conspiracy for the commission of criminal breach of trust by Harun, there is no proof beyond reasonable doubt of abetment by conspiracy by the appellant.

For abetment by aiding, it is necessary to determine at what point in time Harun committed the criminal breach of trust. In my opinion it was not later than the time when the teller at the Kuala Lumpur branch of Bank Negara received the debit voucher that Harun had forged for crediting the RM22.2 million into Bank Bumiputra's account. After that the credit went into Bank Bumiputra's account and there is no evidence that Harun was entrusted with that account or with dominion over it, so that Harun's instruction to Bank Bumiputra Money Market to transfer RM22.2 million from that account to the Dayabumi account could not constitute an act of breach of trust, and the appellant's opening of the Dayabumi account could not constitute abetment of that act by aiding.

The offence of criminal breach of trust by Harun having been committed before the time Bank Bumiputra's account was credited, the opening of the Dayabumi account by the appellant cannot be said to have facilitated the doing of anything by Harun up to and including that point in time. It may be that Harun would not have performed his part of the plan in Bank Negara unless there was an account ready to which the amount of RM22.2 million would finally be credited, but nonetheless the facility provided by the account was a facility not for the commission of the criminal breach of trust but for the subsequent gathering of the fruit of the crime.

Therefore, on the evidence, the appellant did not, in law, abet the criminal breach of trust by Harun.
As to the offence of cheating, although the charge against the appellant did not specify who it was that Harun was alleged to have cheated, it must be taken from the charge against Harun that it was the management of Bank Negara and that the deception consisted in the presentation of the forged debit voucher to transfer RM22.2 million into the account of Bank Bumiputra. Therefore, if at all Harun committed the offence of cheating, it was the case for the prosecution that the offence was committed when the teller, upon being handed the forged voucher, credited the account of Bank Bumiputra, which is the same point in time as the offence of criminal breach of trust was, in my opinion, committed. I need not make a finding as to whether there was an offence of cheating because, even if there was, the appellant, for the same reasons as I have given in respect of criminal breach of trust, did not, on the evidence, abet the commission of the offence of cheating by Harun, whether by instigation, by conspiracy, or by aiding.

I think the learned trial judge was right in not finding that the prosecution had made out a case to answer on the principal charge or the first alternative charge.

In the result, I allow the appeal, quash the conviction of the appellant and set aside the sentence. As the compensation order under section 426(i)(b) of the section 426(i)(b) of the Criminal Procedure Code could only have been made against a convicted person, I also set aside that order.