KUALA LUMPUR: The High Court here has quashed a 12-year jail term imposed on a lawyer found guilty of criminal breach of trust (CBT) amounting to about RM2 million in a property transaction as the charge framed against her was defective.
Judicial Commissioner Azhar Abdul Hamid, who allowed the appeal by Nora Hayati Ismayatim, however, ordered a retrial before a new Sessions Court judge.
Azhar delivered his oral grounds last month, and Nora Hayati had filed an appeal to the Court of Appeal on grounds that she was entitled to an acquittal.
Nora Hayati, represented by M Stanislaus Vethanayagam, has also filed a stay of the retrial until the disposal of the appeal.
Stanislaus submitted that his client was entitled to be freed as the prosecution failed to comply with a proviso under the Criminal Procedure Code (CPC) but deputy public prosecutor Joy Jothi Nadrarasan said the oversight was not fatal.
Azhar, who delivered his 14-page written judgment today, said the purpose of framing a charge is to give an accused person a clear, unambiguous and precise notice of the nature of accusation.
He said Sections 152 to 154 of the CPC specify that charges must state precisely the offence, law and the punishable section, time, date, place and manner the alleged offence was committed.
“A charge for an offence of CBT is governed under Section 153(2) of the CPC which is a specific provision,” he said, adding that the charge framed against Nora Hayati was a violation of that provision.
The period stated in the charge exceeded one year, which clearly contravened the said proviso, he said.
As such, he said, any failure to abide by it would render the charge defective and the trial a nullity since the charge preferred against Nora Hayati mentioned “between May 25, 2010 and Feb 20, 2013”, which was clearly beyond the one-year period stated in the proviso.
Nora Hayati had been charged with committing the offence at a legal firm at Jalan Inai, off Jalan Imbi, in Kuala Lumpur as she was in dominion over RM2,068,182.46.
The property at Jalan Ampang belonging to Amir Khalid Hussain was sold in 2010 to a company, Prima Damai Sdn Bhd, and Nora Hayati was appointed to oversee the transaction.
Nora Hayati, in her defence during the trial, said the money was not disbursed to the property owner as legal fees for work done were not settled.
She said she was not well and hardly went to the office and did not know what happened to the money in the client’s account, and the funds were allegedly withdrawn by her employee though she admitted no police report was made.
However, the Sessions Court ruled she had only made out a sham defence after she was charged with the offence. – FMT