A. Criminal Misappropriation of PropertyB. Criminal Breach of Trust PP v Khairuddin Hj Musa [1981] CLJ (Rep) 234 : Criminal

Misappropriation of Property

Chin Wah v PP (1940) 9 MLJ 292: Criminal Breach of Trust

Tay Suet Yee (Ashley) LEB140117Tan Yen Thung (Agnes) LEB140115

A. Criminal Misappropriation of Property Section 403 of the Penal Code : “Whoever i. dishonestly misappropriates, or ;ii. converts to his own use, or ;iii. causes any other person to dispose of any propertyshall be punished with imprisonment for a term which shall not be less than 6 months and not more than 5 years, and with whipping, and shall also be liable to fine”

Elements to be proven :

a) The property does not belong to the accusedb) Accused has “misappropriated” or “converted to his own use” or

“caused any other person to dispose of that property”c) The accused had a dishonest intention / dishonestly

Public Prosecutor v Khairuddin Hj MusaFacts : The accused is a Credit Controller of Bank Rakyat Kuala Lumpur, Accused pleaded guilty to one charge of criminal breach of

trust of RM 20,000 belonging to Bank Rakyat on 7 Jan 1976, an offence under s. 408 of the Penal Code.

Also to 3 charges of dishonest misappropriation of money amounting to RM109,975 under s. 403 of the Code. He admitted for dishonestly misappropriating I. RM35,000 between 14 May 1975 and 16 May 1975; II. RM24,975 on 8 September 1975 and III. 50,000 on 10 December 1975.

Criminal Misappropriation of Property

1st element : “the property does not belong to the accused” The money that was misappropriated belongs to Bank Rakyat and not

the accused himself

2nd element : “misappropriates” or “converts to his own use” Accused misappropriated the money by unlawfully withdrawing the sum

of RM 109,975 from Bank Rakyat through a few transactions, and converted to his own use.

3rd element : “dishonestly” from Section 24 of Penal Code Intention of causing wrongful gain – Accused himself Wrongful loss to another – Bank Rakyat

Criminal Breach of TrustSection 405 of the Penal Code : Whoeveri. 1st element : entrusted with the property, or with any

dominion over property – Accused is the credit controller, so he’s given the control/ authority of the money collection

ii. 2nd element : dishonestly misappropriates or converts to his own use – Withdrew the money for his personal purposes

Issue : The sentence passed by the lower Court did not reflect the gravity of the offences and would only encourage others to commit the same offence with impunity - records of this case were called for revision by Mohd. Azmi J with a view to determine the propriety of sentence passed by the President

Held : On the CBT charge, the sentence of one day’s

imprisonment be enhanced to eighteen months in addition to the fine of RM2,000

Affirm the sentences imposed on the other three charges of dishonest misappropriation > one day’s imprisonment and a fine of RM3,000 in default

three months for the RM50,000 and on the two other charges to one day’s imprisonment and a

fine of RM2,000 in default two months on each count.

B. Criminal Breach of TrustPunishment of CBT in Section 406 : Imprisonment

not exceeding 10 years, and with whipping, and shall be liable to fine.

Section 405 of the Penal Code : Whoeveri. entrusted with the property, or with any dominion over

property either solely or jointly (power)ii. Dishonestly misappropriates or converts to his own use, or ;iii. Dishonestly uses or disposes of that property

i. -in violation of any law prescribing the mode in which such trust is to be discharged [disobeyed the law, for e.g selling it off at a wrong price]

ii. -of any legal contract, express or implied

Chin Wah v Public Prosecutor

Facts of the case :The complainant lent the gold necklace (which is the subject matter of the charge) to the accused, for the accused's wife to wear it at a party. The necklace was not returned to the complainant, although she frequently asked for its return.Eventually the accused admitted that he had pawned it. (given to pawnbroker as a security).

Held:

As the essence of the offence of criminal breach of trust is the "dishonest" misappropriation or conversion by a person of property entrusted to him, the appellant was rightly convicted.

Cases referred to : Gan Beng v Public Prosecutor 8 MLJ 314  Ng Chye Giat v Rex 7 MLJ 126 Ragubir Kurmi 1 UPLR 69

Howes J. was of the opinion that the transaction between the parties was of a purely civil nature, and that the criminal law should never have been invoked. > Ng Chye Giat v Rex 7 MLJ 126 "A loan of jewellery to another does not create any legal trust within the

meaning of section 405 of the Penal Code; even if a promise to return the same within a stated time. The mere pawning of the jewellery by the person to whom it is lent, will not amount to criminal breach of trust".

Murray Aynsley J in the case of Gan Beng v. PP 8 MLJ 314 dissented from this decision, and held that the wording of s. 405 was wide enough to include bailment (deliver good to someone without transferring ownership), and that when a person borrowed a bicycle and misappropriated it, he was rightly convicted under this section.

Decision following Murray Aynsley J, and considered that the accused was rightly convicted.

The point is, did the accused dishonestly convert to his own use the property of which he was the bailee? The evidence accepted by the Magistrate proved beyond all doubt that he did.

1st element : entrusted with the property – jewellery lent to him for his wife to wear in a party [does not belong to him]

2nd element : converted a property that does not even belong to him, to his own use - by pawning the jewellery

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