COMMERCIAL CRIMES

CRIMINAL MISAPPROPRIATION OF PROPERTY (S. 403 PC)

Whoever dishonestly misappropriates, or converts to his own use, or causes any other person to dispose
of, any property, shall be punished with imprisonment for a term which shall not be less than six months
and not more than five years and with whipping and shall also be liable to fine.

Element 1: Misappropriate/Conversion

1) Sohan Lal v Emperor ( giving money he received after working to mistress=no misappropriation)
 Setting apart for, or assigning to,a wrong person or a wrong use.
2) Tuan Puteh v Dragon
 The accused person Found a cheque payable to one Captain Strong. He attempted to
encash the cheque but could not do so owing to the absence oF Captain Strong's
endorsement. The court found that although there was no conversion since he did not
manage to encash the cheque, he clearly misappropriated the cheque when he
dishonestly attempted to encash it.
3) Durugappa v State of Mysore (withdrew money and got sick, so could not credit the bank,
acquitted)
 ‘converts' means appropriation and dealing with property of another without right as if
it is his own property.

Element 2: Any property- can be moveable or immoveable

Element 3: Dishonestly

1) Chin Ted Lit v PP (BOT case, worked with company, attended to report and agreed to repair
wiring for Rm 350, no receipt issued)
 Whether the Appellant had been dishonest is a question of fact and inference to that
question can be derived from proven facts and circumstances of the case.
2) PP v Wong Tiong Hie (acquitted due to lack of evidence in the benefits gained by D)
 It must be proven that either there is an intention to cause wrongful gain or wrongful
loss.
3) PP v Wong Kim Fatt
 “To establish dishonestly, it is not necessary that the prosecution should establish an
intention to retain permanently the property misappropriated. An intention wrongfully
to deprive the owner of the use of the property for a time is sufficient. It is not necessary
to prove in what precise manner the money or property was misappropriated. The
essential thing to be proved is that the accused was actuated by dishonest intention.”
CRIMINAL BREACH OF TRUST (S. 405 & 406 PC)

Element 1: Entrustment/Dominion

1) R v Salim Jamaat
 The essence of CBT is the existence of entrustment where the accused is proven to have
been entrusted with property or dominion over property.
2) Lai Ah Kau v PP
 Director may have both dominion and entrustment over property.
3) Sinnathamby v PP- servant
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
4) PP v Yeoh Teck Chye –agent
 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.
5) Bahru Zaman v PP
 Clerk at parcel office, received 50 sen for a ticket but no receipt given.
 Held: entrusted by employer to receive money.
CONTRAST
6) Carl Elias Moses v PP
 Entrusted to the shares but not entrusted to the proceeds from the sale.
7) 2 views of entrustment:
 Equity (narrow view): Ng Chye Giat v PP
 Constructive trust (broader view): Gan Beng v PP, Chin Wah v PP

Element 2: Misappropriation/ Conversion

1) Wickrasooriya v PP cited by Suhani Mat Daud v PP

 "It is not necessary or possible in every case of criminal breach of trust to prove in what
precise manner the money was spent or appropriated by the accused, because under
the law even temporary retention is an offence provided that it is dishonest."
2) Gnanasegaran Pararajasingam v PP
 "To use one client's money to settle a solicitor's liability to some other client is a criminal
offence."
3) PP v Lawrence Tan Hui Seng
  Advocate and Solicitor takes a certain sum of money from the Client's Account of the
Firm for the use of the Firm, without authority of the client.
 That it would not make any difference even if the money was taken with the intention
of replacing the sum taken as soon as the firm was able to do so.
4) 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
5) 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. Same outcome: Birunthavathy a/p Ramanaidu v PP

Element 3 (MR): wilfully/dishonest intention

1) S. 23 & 24 PC
2) Mohamed Adil v PP
 But where he is unable to account or renders an explanation for his failure to account
which is untrue, an inference of misappropriation with dishonest intent may readily be
made.
3) 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.
4) Wickrasooriya v PP
 Established that failure to account for money received would cause intent to be inferred.
 Followed by 2017 case, Nasimah by Kamardin v PP