Public Prosecutor

- vs -

Wilson

Judgment

Hashim Yeop A Sani SCJ

(delivering the judgment of the court)

1. This was a reference by the Public Prosecutor under s 66(1) of the Courts of Judicature Act 1964 with the question as follows:

   Whether a time sheet namely Kertas Waktu Kerja Kakitangan Gaji Bulan (Baharu) used in the circumstances described in the judgment in Wilayah Persekutuan Criminal Appeal No 52-35-1986 is a ‘document’ within the meaning assigned to it under s 4(c) of the Prevention of Corruption Act 1961.

2. The respondent was originally charged under s 4(c) of the Prevention of Corruption Act 1961 and was convicted and fined $1,000, in default six months’ imprisonment, by the Sessions Court. The respondent appealed to the High Court. On 9 March 1987, the learned appellate judge reversed the decision of the Sessions Court and acquitted and discharged the respondent. In the petition of appeal, there were not less than 19 grounds of appeal. One of the points considered by the learned appellate judge was the question of the proper interpretation of the words “other document” appearing in s 4(c) of the Prevention of Corruption Act 1961.

3. The facts relied on by the prosecution were that the respondent knowingly used, with intent to deceive the Malayan Railway, a document known as the Kertas Waktu Kerja Kakitangan Gaji Bulan (exh P3) in respect of which the Malayan Railway was interested and which document contained statements which were false in material particulars in that the respondent claimed allowance for working in Kuala Lumpur during a certain period whereas in actual fact he was attending a military training course elsewhere during the same period for which he was already paid. P3 was in fact the time sheet record of the working hours and allowance of a worker. This document was normally prepared by the salaries section of the Malayan Railway but in the instant case it was prepared by the respondent himself.

4. Section 4(c) of the Prevention of Corruption Act 1961 reads:

   4.

   If ....  (c) any person knowingly gives to an agent, or if an agent knowingly uses with intent to deceive his principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal, he shall be guilty of an offence and shall, on conviction, be liable to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding five years or to both.

5. On the interpretation of the words “other document” in s 4(c), the learned appellate judge, following the reasoning of the Court of Appeal in R v Brian Gordon Tweedie (1984) 79 Cr App R 168 ruled that exh P3 does not fall within the meaning of “other document” in s 4(c) of our Act. In Tweedie (1984) 79 Cr App R 168 the accused was instructed by his employers to sell silver and palladium before the close of trading on a particular day because it was thought that the market would start falling. The accused failed to comply with the instruction but made three false entries in the trading sheet of the company purporting to show the sale of silver and palladium. He then handed the trading sheet to a member of the firm’s accounting department. As a result, his employers lost £170,000. The accused was convicted for corruption under the 1906 Act but was acquitted on appeal. In the Court of Appeal, the words “or other document” (also appearing in the UK 1906 Act) were construed ejusdem generis and Lawton LJ said:

   A receipt is made out to someone who has paid a debt. An account is rendered by one person to another. The words ‘or other document’ should, in our judgment, be construed as meaning a document which would pass inter partes.

6. Indeed in Tweedie (1984) 79 Cr App R 168 the document relied on by the prosecution was one to be used “for accounting purposes” only by the employers and never intended to be inter partes and had none of the characteristics of an inter partes document. We can therefore hardly argue against the decision in Tweedie based on the facts before the Court of Appeal.

7. But a more pragmatic approach would appear to have been adopted in Sage v Eicholz [1919] 2 KB 171 which was a case, stated by a metropolitan police magistrate to the King’s Bench Division. There the respondent was originally charged under the UK Prevention of Corruption Act 1906. The facts of that case are as follows. It was the practice of the Metropolitan Water Board to allow to the owners of houses a deduction from the water rates in respect of such portions of their property which had been empty during the quarter for which the rates were payable. The respondent, who was the owner of a block of chambers, handed to an agent of the Board his claims for “empties” in which he fraudulently represented that portions of the block had been empty for a longer period than was in fact the case, thereby obtaining a larger allowance than he was entitled to. The provision of the 1906 Act under which the respondent was charged read as follows:

   If any person knowingly gives to any agent .... any .... document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his knowledge is intended to mislead the principal, he shall be guilty of an offence.

   Bray J said at p 176:

   In my view the words of the Act are perfectly clear and unambiguous. The word ‘knowingly’ is deliberately used in the third paragraph instead of the word ‘corruptly’, and ‘knowingly’ does not necessarily involve any element of corruption. The substitution of the word ‘knowingly’ was probably made because of the great difficulty of proving corruption, and it was thought advisable in a case of the kind dealt with in that paragraph to make the act an offence whether it was done corruptly or not.

   Lawrence J said at p 177:

   The word ‘corruptly’ is used in the first and second branches, and, as my Lord has pointed out, is deliberately omitted from the third. That omission is to my mind readily explained by the fact that it is frequently found impossible to prove that an agent has been corrupted; and in view of that difficulty it was thought sufficient, in order to establish an offence on the part of the giver, to prove that he knowingly gave to an agent a document which contained a statement that was false, erroneous, or defective, intending it to mislead the principal, to prove that the agent, knowing that the document was false, used it with intent to deceive his principal.

8. The same pragmatic approach was adopted by our Federal Court in Nadimuthu v Public Prosecutor [1974] 1 MLJ 20 which was also a reference on the question whether a medical certificate used in the circumstances of that case was a “document” within the meaning of s 4(c) of the Prevention of Corruption Act 1961. The appellant there was also an employee of the Malayan Railway and charged with knowingly using, with intent to deceive his principal, a sick certificate which contained statements false in material particulars which to his knowledge were intended to deceive his principal. The appellant was paid wages for the two days he was supposedly unfit for duty on the strength of those medical certificates. It was held by the Federal Court that the medical certificates were clearly used to claim monetary benefits to which the applicant was not entitled and therefore the medical certificates were “documents” within the meaning of s 4(c) of the Prevention of Corruption Act 1961.

9. In the instant case, the facts clearly showed that the time sheet (exh P3) was clearly used as basis for the respondent’s claim to monetary benefits to which he was not entitled. It cannot be correct to say that exh P3 is meant only for internal use of the department. On the facts, exh P3 is clearly distinguishable from the returns made in Tweedie.

10. We accordingly answered the question in the affirmative and made no other orders.

Cases

R v Brian Gordon Tweedie (1984) 79 Cr App R 168; Sage v Eicholz [1919] 2 KB 171; Nadimuthu v Public Prosecutor [1974] 1 MLJ 20

Legislations

Prevention of Corruption Act 1961: s.4(c)

Representations

Mohd Noor Abdullah (DPP) (Jalaldin Hussain, DPP, with him) for the appellant.

G Sri Ram (Miss S Kanawagi with him) for the respondent.