You are on page 1of 6

NICHOLAS NAVARON

CRIMINAL MISAPPROPRIATION
SECTION 403 (ELEMENTS):
1. Misappropriated the property of another person; or
2. Converted the property of another person to ones own use; or
3. Disposes off the property of another person; with
4. Dishonest intention
Refer illustrations (b), (c), (d) & (f) (the third illustration)
DIFFERENCES BETWEEN CMP & THEFT
1. ILLUSTRATION (e) IN THE THIRD ILLUSTRATION
A finds a purse with money, not knowing to whom it belongs; he afterwards discovers that it
belongs to Z, and appropriates it to his own use. A is guilty of an offence under this section
2. CMP is an offence against ownership while theft is an offence against possession
DEFINITION OF MISAPPROPRIATION
No definition from the penal code
Sohan Lal v Emperor
Setting apart, or assigning to a particular person or use; and to misappropriate means to set
apart for or assign to the wrong person or a wrong use and this act must be done
dishonestly
Tuan Puteh v Dragon
A broader definition of misappropriation was adopted. Here, it means the retention by the
wrong person to the exclusion of the rightful owner
DEFINITION OF CONVERSION
No definition from the penal code
Durugappa (1956)
To appropriate and use anothers property without permission as if it were ones own
The accused must not only retain the property to the physical exclusion of the real owner,
but also divert it to his own use
DEFINITION OF DISHONESTY
SECTION 24 (WRONGFUL LOSS/GAIN) & SECTION 23 (GAIN BY UNLAWFUL MEANS/CAUSE THE
VICTIM TO BE KEPT OUT OF HIS PROPERTY)
Rex v Batly
Even if misappropriation was transitive/for a short time, there will still be CMP
Bhagiram Dome v Abar Dome
NICHOLAS NAVARON
When possession had been innocently acquired, but subsequent retention was with dishonest
intention, CMP arises

Compare : Illustrations (a) & (f)
Factors in determining liability:
a) The nature of the property less common like a ringgit or uncommon like a million?
b) Value of the property
c) Identifying features which indicate the owner
d) Sufficient effort to trace the owner
e) Reasonable time to allow the property to be claimed
Refer Explanation 2 at the second segment


















NICHOLAS NAVARON
CRIMINAL BREACH OF TRUST
SECTION 405:
THERE ARE FOUR ELEMENTS OF CRIMINAL BREACH OF TRUST:
1. ENTRUSTMENT OR DOMINION
2. DISHONEST INTENTION
3. MISAPPROPRIATION OR CONVERSION OR DISPOSAL
4. VIOLATION OF LAW (IF ANY)
Entrustment & Dominion
Entrustment
Entrustment covers those persons whose position is analogous to that of trustees. It may be
in any manner

Jaswantlal
The person handing over the property must have confidence in the person taking his
property so as to create a fiduciary relationship between them

Harihar Prased Dubey v Tulsi Das Mundha & Ors
The person who transfers possession of the property to the second party still remains the
legal owner of the property; and the person in whose favour possession is so transferred has
only the custody of the property to be kept or disposed by him for the benefit of the other
party

Bahru Zaman bin Ali v PP
The appellant was a clerk in Parcels Office, Malayan Railways. A passenger handed 50 cents
to him in demurrage charge. He was not given any receipt. When questioned, the appellant
denied receiving any money
Held : When the money is given to any person in his official capacity, whether he has a
right to take it or not, he is entrusted with it within the meaning of section 406 of the
Penal Code

Chin Ted Lit v PP
The appellant was at all material times, the officer in charge of the Sarawak Electricity
Supply Corporation (SESCO) in Serian, East Malaysia. He attended to a report of damaged
electricity wire at a house. He agreed to repair the wire for RM350. No receipt was issued for
payment. He was charged and convicted under section 405 of the Penal Code

R v Tan Ah Seng
There can even be entrustment for the purpose of an illegal transaction. The accused
received $40 for the purpose of renting a house to be used by some prostitutes. He
misappropriated the money
NICHOLAS NAVARON
Held : The definition in any manner as stipulated in section 405 is wide enough to cover
entrustment for an illegal purpose

Dominion
The factor that would appear to determine whether there is entrustment of or dominion
over property is in the degree of control exercised by the offender
The bigger you are, the bigger your responsibility, the more dominion you have over the
property

Sinnathamby v PP
The appellant was an employee of a Public Works Department quarry. He received $10 from
a contractor in return for leaving some stones in a place from where it was later recovered.
The court was of the view that the exercise of possession of dominion over property may be:
1. The legal incidents of the contract of service; and
2. The effect of the position to exercise dominion by virtue of the existence of the contract
of service
Even if he were not entrusted with it, there was a dominion
PP v Yeoh Teck Chye
The first accused was the Deputy General Manager and the second accused, the manager of
a bank. The second accused, with the knowledge of the first accused, had granted overdraft
facilities for amounts in excess of the approved limits to the third accused. He had no such
authority to approve these excess overdrawn amounts.
The court was of the view that there had been entrustment to or dominion over the
property of the bank and that the second accused had no authority to allow the overdrawn
amounts
Dishonest Intention
Sections 24 & 23
Sathiadas v PP
CBT is an offence of the act, not the consequence of the act. It regards the dishonest use of
the property, in violation of the direction relating to the mode in which the trust is to be
discharged

Mohamed Adil v PP
The non-accounting of or the temporary retention of property entrusted is not sufficient
evidence

PP v Wong Kim Fatt
However, the failure of the accused to account for the money proved to have been received
by him or giving a false account as to its use is generally a strong circumstance against the
accused
NICHOLAS NAVARON

The accused was charged for criminal breach of trust under section 408 in respect of a sum of
$16, 000 between 5 July 1976 and 14 April 1977 at the office of Allen & Gledhill, Johore
Bahru

PP v Ibrahim Musra
The accused was the chief cashier of the Sabah Bank Berhad in Tawau. He did not report the
shortage of RM 38, 901.64 which was a bank practice. He was unable to explain the shortage
when asked
Held : Actual conversion may be inferred from the conduct of the accused such as his failure
to report the missing money, failure to forward soiled and mutilated notes to Bank Negara
etc.

Misappropriation, Conversion or Disposal
Mohamed Adil v PP
The appellant, a headmaster, had deducted certain sums from teachers salaries as their
contributions to the co-operative society but the money deducted was not remitted to the
society.
Payment should have been made by way of crossed cheques but the cheques were made
out payable in cash and endorsed by the appellant, which were not paid to the society
Held : Justly convicted

PP v Rokiah Suhaili
The accused, a teacher from Sekolah Nusa Laila Puteri who had been assigned to collect
school fees, did not forward the fees.
Held: Her appeal was dismissed as there were discrepancies in the accounts and falsification
of the receipts

Violation of direction of law or of any legal contract
Murni bin Haji Mohamed Taha v PP
The appellant was a paymaster of an army camp. He was entrusted with money and was to
use cheques issued by the Treasury to pay serving soldiers. Discrepancies were revealed and
the appellant was convicted on charges of criminal breach of trust. One question was
whether he had used or disposed of the property in violation of law or a contractual term.
The contractual term included a direction for the officer to follow a Regulation which had
ceased in operation.
Held : The appellant had breached a contractual term, regardless of the expiration of the
Regulation


NICHOLAS NAVARON
WILFULLY SUFFERS ANY OTHER PERSON TO DO SO
YEOW FOOK YUEN & ANOR V R
The first accused, the treasurer, wilfully suffered the secretary to dishonestly misappropriate $7, 500
from the funds of the union without any authority, instead of banking into the unions bank account
Held : Conviction upheld

DEFENCE OF CONSENT
PERIASAMY S/O SINNAPAN V PP
The board of director had a general meeting and ratified the act of Periasamy. This amounted to a
consent which is a defence to CBT. Consent is a defence which can be given before and after

By comparison
YEOW FOOK YUEN & ANOR V R
No consent can be given after.
BUT AT THE END OF THE DAY, RELY ON PERIASAMY. ESTABLISH FIRST THE ELEMENT OF CONSENT