Criminal Misappropriation of Property

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CRIMINAL MISSAPPROPRIATION

CRIMINAL MISSAPPROPRIATION

OF PROPERTY AND CRIMINAL

OF PROPERTY AND CRIMINAL

BREACH OF TRUST

BREACH OF TRUST

by by Dr. Aspalella A. Rahman Dr. Aspalella A. Rahman UUM COLGIS UUM COLGIS

(2)

IntroductionIntroduction 

Criminal Misappropriation of PropertyCriminal Misappropriation of Property 

Criminal Breach of TrustCriminal Breach of Trust

-- In any manner entrustedIn any manner entrusted - Dominion

- Dominion

- Dishonestly misappropriate, convert, use or  - Dishonestly misappropriate, convert, use or  dispose

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Introduction

Introduction

Offences against property which do notOffences against property which do not

involve threats or the use of violence in the involve threats or the use of violence in the commission of the offence:

commission of the offence: i.

i. Criminal misappropriation of property;Criminal misappropriation of property; ii.

ii.Criminal breach of trust;Criminal breach of trust; iii.

(4)

Criminal Misappropriation

Criminal Misappropriation

of Property

of Property

 s403 PC states:s403 PC states: ‘whoever dishonestly

‘whoever dishonestly misappropriatesmisappropriates oror converts

converts to his own use, or causes any otherto his own use, or causes any other person to dispose of any property, shall be

person to dispose of any property, shall be

punished with imprisonment for a term which punished with imprisonment for a term which shall not be less than six months and not

shall not be less than six months and not

more than five years and with whipping and more than five years and with whipping and shall also be liable to fine.’

(5)

Cont’

Cont’

‘misappropriate’ and ‘conversion’ are not‘misappropriate’ and ‘conversion’ are not

defined under the PC. defined under the PC.

Sohan Lal v Emperor Sohan Lal v Emperor 

‘misappropriate’ means to set apart for or ‘misappropriate’ means to set apart for or assign to the wrong person or a wrong use assign to the wrong person or a wrong use and this act must be done dishonestly.

and this act must be done dishonestly.

Winfield’sWinfield’s casecase

‘conversion’ refers to any act in relation to the ‘conversion’ refers to any act in relation to the goods of a person which constitute an

goods of a person which constitute an

unjustifiable denial of his title to them. If  unjustifiable denial of his title to them. If  denial of title is justified, there is no

denial of title is justified, there is no conversion.

(6)

Cont’

Cont’

Dishonesty is the essential ingredient of theDishonesty is the essential ingredient of the

offence. offence.

 The key factors in determining crimin The key factors in determining criminalal

liability would generally be the nature and liability would generally be the nature and value of the property in question.

value of the property in question.

 The offence is committed when the prope The offence is committed when the propertyrty

is misappropriated or converted by the is misappropriated or converted by the

accused to his own use or when the accused accused to his own use or when the accused causes any person to dispose of the property. causes any person to dispose of the property.

A dishonest misappropriation for a time onlyA dishonest misappropriation for a time only

is a misappropriation within the meaning of  is a misappropriation within the meaning of  the section.

(7)

Cont’

Cont’

No criminal misappropriation of things whichNo criminal misappropriation of things which

have been abandoned. have been abandoned.

 The property must have its owner to rende The property must have its owner to render ar a

person guilty of misappropriation. person guilty of misappropriation.

Where the property is abandoned, anyoneWhere the property is abandoned, anyone

finding and taking it acquires a right to it finding and taking it acquires a right to it

which will be good even as against the former which will be good even as against the former owner.

owner.

H/e, when a thing is accidentally lost, theH/e, when a thing is accidentally lost, the

property is remains in the owner who lost it. property is remains in the owner who lost it.

(8)

Criminal Breach of Trust

Criminal Breach of Trust

See s405 PCSee s405 PC 

Elements of s405:Elements of s405:

i.

i. Being in any manner entrusted with propertyBeing in any manner entrusted with property or with any dominion over property either

or with any dominion over property either solely or jointly with any other person;

solely or jointly with any other person; ii.

ii.Dishonestly misappropriated or converted toDishonestly misappropriated or converted to his own use that property, or dishonestly used his own use that property, or dishonestly used or disposed of that property;

(9)

Elements of s405 (cont’)

Elements of s405 (cont’)

iii. The dishonest use or disposal of the property iii. The dishonest use or disposal of the property

was in violation of any discretion of law was in violation of any discretion of law

prescribing the mode in which such trust is to prescribing the mode in which such trust is to be discharged or of any legal contract,

be discharged or of any legal contract,

express or implied, which he made touching express or implied, which he made touching the discharge of such trust; or

the discharge of such trust; or

iv. Willfully suffers any other person so to do. iv. Willfully suffers any other person so to do.

(10)

s406 PC-punishment of CBT

s406 PC-punishment of CBT

Whoever commits CBT shall be punished withWhoever commits CBT shall be punished with

imprisonment for a term not exceeding ten imprisonment for a term not exceeding ten years and with whipping and shall also be years and with whipping and shall also be liable to fine.

(11)

In any manner entrusted

In any manner entrusted

 The offender is lawfully entrus The offender is lawfully entrusted with theted with the

property and he dishonestly misappropriates property and he dishonestly misappropriates the same or willfully suffers some person to the same or willfully suffers some person to do so, instead of discharging the trust

do so, instead of discharging the trust attached to it.

attached to it.

‘entrust’ includes that person handling over‘entrust’ includes that person handling over

the property must have confidence in the the property must have confidence in the

person taking the property so as to create a person taking the property so as to create a fiduciary relationship between them.

fiduciary relationship between them.

(12)

Entrustment

Entrustment

PP v Husin Mohd Rejab

PP v Husin Mohd Rejab [1994] 3 CLJ 93[1994] 3 CLJ 93 R , the Chairman of a company was charged R , the Chairman of a company was charged under s409 PC.

under s409 PC.

Held: Although there had been some degree Held: Although there had been some degree of interference or influence exercised by R of interference or influence exercised by R

over his staff, the evidence did not necessarily over his staff, the evidence did not necessarily imply the element of entrustment. Unless the imply the element of entrustment. Unless the contrary is shown, the proper authority having contrary is shown, the proper authority having control over a company’s assets, including

control over a company’s assets, including cash, is the BOD and not any one director in cash, is the BOD and not any one director in his individual capacity.

(13)

Entrustment may be

Entrustment may be

gratuitous

gratuitous

Gratuitous- without return benefit.Gratuitous- without return benefit.

Chin Wah v PP

Chin Wah v PP [1940] MLJ 292[1940] MLJ 292

A had borrowed jewellery for use at a party A had borrowed jewellery for use at a party but failed to return it despite frequent

but failed to return it despite frequent requests.

requests. Held:

Held: The The essence of essence of the offence the offence of of CBT CBT is is thethe ‘dishonest’ misappropriation or conversion by ‘dishonest’ misappropriation or conversion by a person of property entrusted to him. The

a person of property entrusted to him. The fact that the entrusting of the property was fact that the entrusting of the property was gratuitous is immaterial. The point is did the gratuitous is immaterial. The point is did the accused dishonestly convert to his own use accused dishonestly convert to his own use the property of which he was the bailee?

(14)

Dominion

Dominion

 The property in respect of which the offence The property in respect of which the offence

is

is alleged alleged to to have have been been committed committed must must havehave been entrusted to the offender or that he has been entrusted to the offender or that he has dominion over the property.

dominion over the property.

 The factor to determine whether  The factor to determine whether there isthere is

entrustment of or dominion over property is in entrustment of or dominion over property is in the degree of control exercised by the

the degree of control exercised by the offender.

(15)

PP V YEOH TECK CHYE

PP V YEOH TECK CHYE

 The 1

 The 1stst accused was the deputy generalaccused was the deputy general

manager and the 2

manager and the 2ndnd accused, the manager of accused, the manager of 

a bank. The 2

a bank. The 2ndnd accused, with the knowledgeaccused, with the knowledge

of the 1

of the 1stst accused, accused, had had granted granted overdraftoverdraft

facilities for amounts in excess of the facilities for amounts in excess of the

approved limit to the third accused and he approved limit to the third accused and he had no such authority.

had no such authority.

Held: There had been entrustment to or Held: There had been entrustment to or

dominion over the property of the bank and dominion over the property of the bank and that the 2

that the 2ndnd accused had no authority to allowaccused had no authority to allow

the overdrawn amounts. the overdrawn amounts.

(16)

Tan Liang Chew v PP

Tan Liang Chew v PP

 The 1

 The 1stst A had been charged under s409 PC inA had been charged under s409 PC in

respect of a RM350,000 housing loan to Tan respect of a RM350,000 housing loan to Tan Eng Hong, who was not eligible for the loan Eng Hong, who was not eligible for the loan and which house belonged to the 1

and which house belonged to the 1stst A. TheA. The

evidence showed that the 1

evidence showed that the 1stst A had sat onA had sat on

committee meeting that recommended committee meeting that recommended

housing loan applications for approval by the housing loan applications for approval by the BOD.

BOD.

Held: Dominion over the property lay with the Held: Dominion over the property lay with the BOD and that the 1

BOD and that the 1stst A had no power toA had no power to

approve housing loans. approve housing loans.

(17)

Dishonestly misappropriate,

Dishonestly misappropriate,

convert, use or dispose

convert, use or dispose

Dishonest intention is the gist of the offence.Dishonest intention is the gist of the offence. 

 The offender must dishon The offender must dishonestly misappropriate,estly misappropriate,

convert or dispose or willfully suffer any other convert or dispose or willfully suffer any other

person to do so in order that an offence of CBT is person to do so in order that an offence of CBT is committed.

committed.

Sathiadas v PP Sathiadas v PP

CBT is complete when there is dishonest CBT is complete when there is dishonest

misappropriation or conversion to one own’ s use, misappropriation or conversion to one own’ s use, or when there is dishonest use in violation of a

or when there is dishonest use in violation of a direction, express or implied, relating

(18)

Cont’

Cont’

 There must be a sufficient posi There must be a sufficient positive act of tive act of 

dishonesty. dishonesty. Cases:

Cases:

Lim Teik Kai v Hallam Nominees Ltd Lim Teik Kai v Hallam Nominees Ltd  

Mohamed Adil v PPMohamed Adil v PP 

PP v Rokiah Suhaili PP v Rokiah Suhaili  

Tong Keng Wah v PPTong Keng Wah v PP 

(19)

Cont’

Cont’

PP v Wong Kim Fatt  PP v Wong Kim Fatt 

‘to establish dishonestly, it is not necessary ‘to establish dishonestly, it is not necessary that the prosecution should establish an

that the prosecution should establish an

intention to retain permanently the property intention to retain permanently the property misappropriated. An intention wrongfully to misappropriated. An intention wrongfully to deprive the owner of the use of property for a deprive the owner of the use of property for a time is sufficient. It is not necessary to prove time is sufficient. It is not necessary to prove in what precise manner the money or

in what precise manner the money or

property was misappropriated. The essential property was misappropriated. The essential thing to be proved is that the accused was thing to be proved is that the accused was actuated by dishonest intention.’

(20)

s407 PC- CBT by carrier, etc

s407 PC- CBT by carrier, etc

‘whoever being entrusted with property as a ‘whoever being entrusted with property as a carrier, wharfinger or warehouse-keeper,

carrier, wharfinger or warehouse-keeper,

commits CBT in respect of such property, shall commits CBT in respect of such property, shall be punished with imprisonment for a term

be punished with imprisonment for a term which shall not less than one year and not which shall not less than one year and not more than ten years and with whipping, and more than ten years and with whipping, and shall also be liable to fine.’

(21)

s408 PC- CBT by clerk or

s408 PC- CBT by clerk or

servant

servant

‘ whoever, being a clerk or servant, or ‘ whoever, being a clerk or servant, or

employed as a clerk or servant, and being in employed as a clerk or servant, and being in any manner entrusted in such capacity with any manner entrusted in such capacity with property, or with any dominion over property, property, or with any dominion over property, commits CBT in respect of that property shall commits CBT in respect of that property shall be punished with imprisonment for a term

be punished with imprisonment for a term

which shall not be less than one year and not which shall not be less than one year and not more than fourteen years and with whipping, more than fourteen years and with whipping, and shall also be liable to fine.’

(22)

s409 PC – CBT

s409 PC – CBT

by public

by public

servant or agent

servant or agent

‘whoever, being in any manner entrusted with ‘whoever, being in any manner entrusted with

property, or with any dominion over property, property, or with any dominion over property, in his capacity of a public servant or an agent, in his capacity of a public servant or an agent, commits CBT in respect of that property, shall commits CBT in respect of that property, shall be punished with imprisonment for a term

be punished with imprisonment for a term

which shall not be less than two years and not which shall not be less than two years and not more than twenty years and with whipping,

more than twenty years and with whipping, and shall also be liable to a fine.’

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