Pendakwa Raya v Faizoull bin Ahmad

Appellant(s):

• Pendakwa Raya
• [Pendakwa Raya]

Respondent(s): Faizoull Bin Ahmad

• YA Dato' Azmi Bin Ariffin
• YA Datuk Noorin binti Badaruddin
• YA Datuk Meor Hashimi bin Abdul Hamid

• The respondent was charged in the Sessions Court with two counts of abetment of criminal breach of trust (CBT) under Section 109 read with Section 409 of the Penal Code, while a co-accused (who later passed away) was charged with the principal offence of CBT.
• The charges stemmed from the alleged dishonest disposal of FELDA funds totalling over RM47 million for a Sturgeon Project, purportedly without the approval of the FELDA Board of Directors.
• Both accused were convicted by the Sessions Court. The respondent appealed to the High Court, which allowed his appeal, setting aside the conviction and sentence, leading to the Public Prosecutor's appeal to the Court of Appeal.

• Whether the trial judge committed serious misdirections in law by conflating the elements of the principal offence of CBT with those of abetment and failing to make distinct findings on the specific mode of abetment.
• Whether the prosecution had proven the essential elements of abetment beyond reasonable doubt, particularly regarding instigation, command, conspiracy, or intentional aid.
• Whether the prosecution's failure to produce crucial audio recordings of a key Board meeting and the existence of conflicting minutes warranted an adverse inference against the prosecution and raised reasonable doubt.

• The Court of Appeal unanimously agreed with the High Court's findings, affirming that the trial judge's approach contained fundamental misdirections that vitiated the entire proceedings and rendered the conviction unsafe.
• The Court held that the prosecution failed to establish beyond reasonable doubt the essential elements of abetment as defined under Section 107 of the Penal Code, including the respondent's dishonest intention or a causal link between his actions and the alleged CBT.
• The Court upheld the High Court's decision that an adverse inference should be drawn against the prosecution due to the unexplained deletion of crucial audio recordings of a Board meeting and the discrepancies in the meeting minutes, which severely weakened the prosecution's case.