K Parminder Kaur, 62, and her husband, T Bir Singh, 66, a former pilot, had sought the review, claiming the charges framed against them were defective.

Last December, the appeals court agreed to hear the review premised on a single question of law – whether the punishment for an offence under Section 471 of the Penal Code is prescribed in Section 465 rather than Section 467.

Delivering the court’s unanimous decision, Justice Choo Kah Sing said the charges had been properly framed and were not defective, wrong in law or illegal.

“This court dismisses the revision and maintains the impugned decision dated July 10 last year was correct,” he said in a 24-page judgment posted on the judiciary’s website.

Also on the panel which delivered the decision on Tuesday were Justice Ahmad Zaidi Ibrahim, who chaired the bench, and Justice Azmi Ariffin.

Parminder was convicted for using a forged document to transfer property worth RM550,000 located at Bukit Permata in Gombak, Selangor, at the Selangor land and mines office in Shah Alam on April 10, 2013.

Under Section 467 of the Penal Code, the principal offender and abettor may be sentenced to up to 20 years in prison and a fine, if convicted.

The couple’s lawyer argued that the punishment should be as prescribed for Section 465, which carries a maximum sentence of two years in prison or a fine, or both.

In his judgment, Choo said the forged document was an instrument capable of transferring and creating legal right to land under Section 215 of the National Land Code.

“Hence, this forged document falls within the meaning of a ‘valuable security’ document under (Section 30 of) the Penal Code),” he said, adding that the forged document falls within the specified class of documents listed in Section 467.

He said the public prosecutor did not charge the appellants for forging the document under Section 467 but under Section 471.

Differentiating between the two sections, Choo said, Section 467 deals with a person who forges a document, while Section 471 deals with a person who fraudulently or dishonestly uses it as genuine.

He said that in order to secure a conviction, the public prosecutor was not obliged to prove that the document had been forged or made by duo.

“All that is required is to establish that the accused fraudulently or dishonestly used the forged document as genuine,” he said.

Choo said it is common knowledge that the public prosecutor has vast power to institute criminal proceedings, including selecting the offence to be charged, under Section 376(1) of the Criminal Procedure Code read together with Article 145(3) of the Federal Constitution.

“The public prosecutor had opted to charge the appellants for using a forged document that falls within one of the specific classes of documents in Section 467,” he said.

He said the charge sheet prepared by the prosecution stated that the offence had been committed under Section 471 and is punishable under Section 467.

Choo said the law allows Section 471 to be read with the relevant punishment provision in another offence, in this case, Section 467.

Therefore, he said, it could not be said that the charge was illegally framed or that it was tainted by duplicity.

“If Parliament had intended the punishment for a conviction under Section 471 to be limited to Section 465, Parliament would have explicitly said so,” he said.

However, the lawmakers had left the punishment in Section 471 open, allowing the public prosecutor to choose the appropriate punishment section through the use of the phrase “as if he had forged such document”.

Lawyers Harpal Singh, Yazid Mustafa, Natasha Parvena Loh Velu, Tee Yuan Sheng and Nadim Gulam Rasa appeared for the couple, while deputy public prosecutors Khushairy Ibrahim and Tetralina Ahmed Fauzi represented the prosecution.

On July 10, 2023, a three-member Court of Appeal bench chaired by Justice Hadhariah Syed Ismail maintained the duo’s conviction but reduced their nine-year custodial sentences to six.

Hadhariah, who sat with Justices M Gunalan and Azman Abdullah, said the High Court had not erred in upholding the sessions court ruling on the crucial issue of forgery involving immovable property.

“We are also satisfied with the finding of fact made by the sessions court judge that the memorandum of transfer was forged,” said Hadhariah.

However, she said the nine-year sentence was excessive as the sessions court did not consider certain facts at the point of sentencing.