Yet another case of criminal breach of trust?

This is not a legal document nor does it pretend to be an argument of sorts. These are views of Joe Public who has the knowledge or reads about issues in newspapers.

Depending on who you talk to, there are always differing views when legal issues are discussed. If you had talked to a former attorney-general, he would say that there is no case to answer. If you talk to the current one, he would likely give consent to prosecute.

Let’s assume I am a high-powered government servant. I have been put in charge to collect large sums of money. I had collected more than what was due and the policy is to deposit that amount in a special fund so that refunds can be made to the appropriate parties.

However, on instructions or otherwise, I take a big chunk from that money and transfer it (to a different account) for a different purpose. This money is happily spent while those waiting for their refunds can only sigh and say: “Typical government department. When they want to collect, it is money upfront but when it comes to refunds, they find all kinds of excuses to delay payment.”

Now, if it was my responsibility as a senior Treasury official to handle money, then you’ll get the drift. But please, I am not insinuating or accusing anyone of dishonesty – yet.

I am just trying to put in layman’s terms what Finance Minister Lim Guan Eng (photo) revealed in Parliament on Wednesday – that there’s a monstrous RM18 billion shortfall in the goods and services tax (GST) refunds, which he claimed was misused by the previous administration.

When tabling the Goods and Services Tax (Repeal) Bill 2018, Lim said the total GST refund amounted to RM19.4 billion from the date of its implementation until May 31, 2018.

"However, there is only RM1.486 billion (left) in the refund fund (tabung bayar balik), which is a shortfall of about RM18 billion,” he said.

“The finance minister accused the previous administration of faking the accounts and misappropriating GST refunds to cover-up the government's fiscal deficit.

“What the previous government did was tantamount to the falsification of accounts and misappropriation of GST refunds for other purposes to cover-up the deficit and show a current account surplus.”

Section 409 of the Penal Code

Ronald JJ Wong, a senior Singapeore criminal lawyer, draws the perfect analogy in his commentary: “A, a collector of government money, or a clerk in a government office, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.”

Section 409 of the Penal Code states: Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant or an agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which shall not be less than two years and not more than twenty years and with whipping, and shall also be liable to fine.

Besides, the Act says that it is no defence for any offence to show that the property was openly appropriated or that the appropriation was duly recorded and entered in the books and accounts of any company or association or body of person whether incorporated or not.

Getting back to Guan Eng’s assertions, is anyone surprised? This could be happening in many government departments and agencies. Levies collected are meant for specific purposes. If part of the money is used by the directors to go gallivanting around the world on lawatan sambil belajar, wouldn’t that too be a criminal breach of trust?

I have previously written on such extravagances - salaries and perks enjoyed by those in authority in some agencies.

I have in past columns addressed these issues in the hope that action would be taken, but also nothing positive has been done.

Now, like manna from heaven, a water-tight case has dropped on the laps of our government. Someone must have given the orders to use the money set aside for GST refunds. The officers would not move without direction as per their “saya yang menurutperintah”.

The chief executive of the country’s civil service, the chief secretary to the government Ali Hamsa, has been unusually quiet. While previously he had transferred officers from the Malaysian Anti-Corruption Commission (MACC) without valid reasons, he seems to watch with folded arms as one scam after another surfaces.

Shouldn’t Ali be spearheading the fight against such abuses? Or like the others, is he waiting for instructions? After all, he too signs off as “saya yang menurut perintah”. But under whose orders?

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R. NADESWARAN is a veteran journalist who has written extensively on good governance. Comments: citizen.nades22@gmail.com -Mkini