IN THE SESSIONS COURT OF KUALA LUMPUR

IN THE FEDERAL TERRITORY, MALAYSIA

CASE NO. WPKL-223NC-02/2023

BETWEEN

PUBLIC PROSECUTION

AND

RAHIM ABDULLAH (NRIC NO. 760205-06-5037)

&

SITI NORA (NRIC NO. 860312-08-3918)

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DEFENCE COUNSEL’S WRITTEN SUBMISSION
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Defence Counsel for the Accused Public Prosecutor

Messrs. CW Partners Advocate and Attorney General Chambers, Malaysia

Solicitors 45, Persiaran Perdana, Presint 4,
No 5, Jalan Semantan, 5012. Kuala
62100 Putrajaya, Wilayah Persekutuan
Lumpur Putrajaya
Tel: (03) 8872 4614
Tel: (03) 3454 3454
Email: [email protected]
[Ref No: CC/AS/R78-523-13 Faks: (03) 6789 7471

[Ref No: IC/LP/SOC-1589-07]

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May it please the Court,

A. INTRODUCTION

1. This is an application for the bail of RAHIM ABDULLAH (NRIC NO. 760205-06-

5896) and SITI NORA (NRIC NO. 860312-08-1234) charged under Section 405

of the Penal Code Act 574 for the offence of criminal breach of trust. This

offence is punishable with imprisonment for a term which shall not be less than

one year and not more than ten years and with whipping, and also a fine by virtue

of Section 406 of the Penal Code Act 574.

B. SUMMARY OF FACTS

2. RAHIM ABDULLAH (hereinafter referred to as “Rahim”) (NRIC NO. 760205-06-

5896) and SITI NORA (hereinafter referred to as “Siti”) (NRIC NO. 860312-08-1234),

who are spouses, have been employees of Densel Sdn Bhd (Company No.

199180375-M) for a span of 15 years, fulfilling pivotal roles within the Finance

Department of the aforementioned company.

3. Rahim has held the position of General Manager of Finance, wielding considerable

responsibility over the financial operations of the organization. Similarly, Siti has held

the position of Finance Executive which carries significant responsibilities to the

organization. However, recent scrutiny of the company's financial records by

management has revealed irregularities, implicating both parties in an alleged

breach of trust. It has been brought to light that the couple allegedly diverted
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company funds. Consequently, a substantial sum, amounting to approximately

RM30,000,000 (Thirty Million Ringgit Malaysia Only), remains unaccounted for within

the company's financial ledger.

4. Rahim suffers from an onset of coronary artery disease which necessitates constant

medical attention. Details of his condition and the medical care he requires may be

found in Tab A of the Bundle of Documents of the Defence.

5. On the other hand, Siti is 28 weeks pregnant, and is at risk of various complications

that come with a pregnancy at her age. The specifics of which may be found in Tab

B of the Defence’s Bundle of Documents.

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C. ARGUMENTS FOR BAIL

6. The defence counsel submits that the offence charged against our clients under

Section 405 of the Penal Code Act 574 which carries the punishment of

imprisonment for a term which shall not be less than one year and not more than ten

years and with whipping, and shall also be liable to fine, is categorized as a non-

bailable offence under the First Schedule of the Criminal Procedure Code Act

593. As such, Section 388 of the Criminal Procedure Code Act 593 shall be

applicable to the present proceedings.

7. The court in PUBLIC PROSECUTOR v WEE SWEE SIANG [1948] 1 MLJ 114

provided a non-exhaustive list of grounds that courts may consider in granting a

person bail for non-bailable offences under Section 388 of the Criminal Procedure

Code Act 593. The grounds are as follows:

(1) Whether there was or was not reasonable ground for believing the
accused guilty of the offence.

(2) The nature and gravity of the offence charged.

(3) The severity and degree of punishment that might follow.

(4) The danger of the accused absconding if released on bail.

(5) His character, means and standing.

(6) The danger of the offence being continued or repeated.

(7) The danger of the witnesses being tampered with.

(8) Opportunity to the accused to prepare the defence.

(9) The long period of detention of the accused and probability of further
period of delay.
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8. The case of PUBLIC PROSECUTOR v DATO' BALWANT SINGH (NO 1) [2002] 4

MLJ 427, serves as a relevant precedent concerning non-bailable offences,

especially due to its applicability to the present case. The court in this case had

elucidated upon the legal principles concerning the exercise of discretion in granting

bail for non-bailable offences under Section 388 of the Criminal Procedure Code.

The court held that the restriction imposed under Section 388 of the Criminal

Procedure Code whereby the court shall not grant bail to any person if there are

reasonable grounds to believe that have committed an offence punishable by death

or imprisonment for life does not apply to the instances enumerated in the proviso to

Section 388(1) CPC with the result that bail may be granted at the discretion of the

court. Where an application for bail is made in a case punishable with, inter alia,

death the court must first determine whether the proviso is applicable. If the proviso

is applicable, the resultant matter is whether the court should grant bail in the

exercise of its discretion. In the cited case, the court decided that the medical

condition of the accused qualifies him as a sick and infirm person within the meaning

of the proviso to Section 388(1) of the Criminal Procedure Code Act 593. He was

therefore not affected by the restriction on Section 388(1) and entitled to be

enlarged on bail at the discretion of the court notwithstanding any reasonable

grounds that the accused may be guilty of the offence charged. The prosecution's

submission on the availability of medical facilities in the prison was not a relevant

factor in making a determination on the accused's health.

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9. This case emphasizes the significance of the accused’s health as a factor in granting

bail. As such, it is submitted that the principle of the above case is to be applied to

the present case and that Rahim qualifies as a sick and infirm person within the

meaning of the proviso to Section 388(1) of the Criminal Procedure Code Act 593

owing to the coronary artery disease suffered by him as disclosed.

10. For Siti, her current health condition and circumstances should also be considered

in granting bail. Ms Siti is currently pregnant and already has 3 children of the tender

age of 8, 5 and 1 years old. Additionally, Ms Siti is a breastfeeding mother who is

currently experiencing a high-risk pregnancy. It is submitted that the harsh

conditions of prison will not be able to accommodate to her specific needs and would

be detrimental to her health as well as the well-being of all of her children.

11. In reference to Siti, the court should also take into account her status as an

elderly, pregnant woman at 28 weeks’ gestation, facing heightened health risks due

to her advanced age and potential complications from other underlying medical

conditions. Siti's pregnancy is currently at 28 weeks, with only 8 to 10 weeks

remaining until she delivers the baby. Granting bail to Siti is imperative to facilitate

her preparation for childbirth and ensure access to appropriate medical care.

12. Furthermore, it is submitted that the circumstances of this case bring it within the

proviso to Section 388(1) of the Criminal Procedure Code Act 593, whereby the

court has the discretion to release Siti on bail as she is a woman. As such, the
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principle of the case of PUBLIC PROSECUTOR v DATO' BALWANT SINGH (NO

1) [2002] 4 MLJ 427 as discussed above should apply to Siti as well.

13. Referring to the case of CHE SU BINTI DAUD v PUBLIC PROSECUTOR [1978]

2 MLJ 162, this case has analogous facts to the present case as the accused in

both cases are breastfeeding women who are mothers to multiple children. In the

cited case, the accused was charged with drug trafficking under Section 39(B)(1)(a)

of the Dangerous Drugs Ordinance 1952 which was punishable with death or

imprisonment for life. The court granted her bail based on the reasoning that the

status of the accused along with all other considerations of factors to grant bail

amounted to exceptional and very special reasons and the exercise of discretion to

grant bail under Section 388(1) of the Criminal Procedure Code was justified. As

such, it is submitted that the circumstances of the accused, Siti in the current case

should also amount to exceptional and special reasons for the court to exercise their

jurisdiction in granting bail, even more so considering the offence committed in the

present case is not as serious as the one in the cited case.

14. As for the ground of danger of absconding on bail, it is submitted both Rahim and

Siti are unlikely to abscond owing to their character, means and standing as tenured

employees of Densel Sdn Bhd. Furthermore, the circumstances of their infirmity of

health as discussed above further exacerbate the fact that they are in position to

abscond.
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15. Moreover, if the court still has doubts as to this ground, it is submitted that the

court may impose the condition of requiring both of the accused parties to surrender

their passports in order to prevent them from absconding. This is supported by the

aforementioned case of PUBLIC PROSECUTOR v DATO' BALWANT SINGH (NO

1) [2002] 4 MLJ 427 where the court had ordered for the surrender of all passports

to the court as one of the conditions of bail.

16. As for the ground of danger of witness tampering, although Rahim and Siti both

hold considerably high positions in Densel Sdn Bhd, they are currently suspended

as employees of the corporation pending the outcome of this case. As such, it is

submitted that there is little risk of them tampering with witnesses as they no longer

have any control or authority over any of the employees within the corporation and

are no longer privy to any of the current proceedings within the corporation.

17. Furthermore, it is submitted that granting bail to Rahim and Siti would not pose a

risk of the offense being perpetuated or repeated. The nature of the offence of

criminal breach of trust under Section 405 of the Penal Code does not lend itself to

easy repetition, nor does it entail personal harm or injury to public interest. In

addition, the current status of Rahim and Siti as suspended employees lends

credence to this argument as they no longer have any access to any assets of

Densel Sdn Bhd. Therefore, the court should consider granting bail based on the

defendants' health and circumstances.

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D. BAIL BOND AMOUNT & CONDITIONS

18. In light of the circumstances presented and the arguments set forth, we

respectfully propose the following factors for the consideration of this Court in

determining the bail bond amount and attached conditions.

19. Section 389 of the Criminal Procedure Code states that the amount for a bail

bond shall be fixed with due regard to the circumstances of the case as being

sufficient to secure the attendance of the person arrested, but shall not be

excessive.

20. Additionally, the case of ZULKIFFLEE BIN HJ HASSAN v PUBLIC

PROSECUTOR [1987] 2 MLJ 527 states that the requirements as to bail are

merely to secure the attendance of the accused at the trial. The purpose

of bail is to secure his appearance on a certain date to answer the

charges against him. Bail is not intended to be punitive and excessive bail

ought not to be required.

21. Furthermore, the court may impose conditions such as the surrendering of

passports, requiring the accused to report to the police periodically, and any other

such conditions as the Court may think fit attached to the grant of bail following the

case of PUBLIC PROSECUTOR v DATO' BALWANT SINGH (NO 1) [2002] 4 MLJ

427 as discussed above.

22. As such, it is submitted that the above principles as well as the condition of both of

the accused parties as ailing and frail individuals in need of medical care and

attention along with their numerous dependants in the form of children should be
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taken into account by the Court in consideration of the bail bond amount.

Dated this on 4th April 2024

Prepared by

CHONG KAI BING

DEFENCE COUNSEL

I, Chong Kai Bing, as the defence counsel in this matter, hereby certify that this written
submission is submitted on behalf of the Defence, with an address for service at Level No
5, Jalan Semantan, 5012. Kuala Lumpur

Prepared by

WONG XIN YI

DEFENCE COUNSEL

I, Wong Xin Yi, as the defence counsel in this matter, hereby certify that this written
submission is submitted on behalf of the Defence, with an address for service at No 5,
Jalan Semantan, 5012. Kuala Lumpur.