Criminal Misapppropriation of Property

CRIMINAL MISAPPPROPRIATION OF PROPERTY
S.402A Definition of agent including advocate and solicitor

S. 403 Dishonest misappropriation of property
AR : Misappropriates OR convert to his own use, OR causes any person to
dispose any property
MR : dishonestly ( s.24 of Penal Code )
Property : Includes movable property and non-movable property; does
not belong to accused (Property Movable property as defined in S.
22)
Dalmia DK: Property does not refer to mere movable property. It is wider.
The property however must have values.
Note : Forgery can happen at the same time. Dont have to prove how the
property is obtained and trust. Need only to show the property is given to
the accused and he used the property as if it is his. Property is taken
without consent.
The act is done solely by the accused + The property is legally own, eg
money entrusted to the bank, but the officer misappropriated them
S.404 Dishonest misappropriation of property possessed by a deceased
person at the time of his death (The property must belong to the deceased
at the time of death and had not been in the possession of any person
legally entitled to such possession).
Element:
(i) Property does not belong to the accused (AR)
(ii) Misappropriate or convert to his own use (AR)
(iii) Done dishonestly (MR)
ACTUS REUS
It must be established that the property does not belong to the accused
because AR cannot be fulfilled if the property owned by the accused. How
an owner can converts to his own use??? To illustrate, in Tuan Puteh v
Dragon, the property belongs to his company but not his.
# Sinnathamby v PP: This case involved the taking of quarries from the
Department of Quarries belonging to Jabatan Kerja Raya. The property
involved does not belong to the accused.
[Misappropriate/ Converts]:
# Sohan Lal v Emperor: Misappropriate means to set apart for or
assign to the wrong person or a wrong use and this act must be done
dishonestly.
# Winfields case: Conversion refers to any act in relation to the goods
of a person which constitute an unjustifiable denial of his title to them. If
denial of title is justified, there is no conversion.
# Patrick Dayey v P: To Misappropriate: improperly setting apart for
ones use to the exclusion of the owner. To Convert: dealing with property
of another without the right to as if it is his own property.
# Wong Seng Kwan (Spore case): Conversion is a subset of
misappropriation with the result that a person who has committed
conversion would have also committed criminal misappropriation but not

necessarily the other way round. The act of either misappropriation or
conversion constitutes the actus reus of the offence under S. 403. Unlike
misappropriation, conversion requires the additional element of
acting in manner inconsistent with the rights of the true owner.
# Tuan Puteh v Dragon [misappropriate and convert to own use]
The accused has taken the companys cheque and forged his employers
signature and tried to cash the cheque by bringing it to the bank.
However, the cashing of the cheque failed as the signature could not be
read and the cheque was returned. Held: although there was no
conversion since he did not manage to encash the cheque, he clearly
misappropriate the cheque when he dishonestly attempted to encash it.
* The length of time in misappropriating or converting the property for its
own use, whether temporary or permanent is irrelevant. Refer to
Explanation 1 and the illustration to Explanation 1 to Section 403
# Wickrasooriya v PP: The appellant, an accountant in Sime Darby,
Malacca was convicted on criminal breach of trust in respect of monies he
had received and payable to the company. It was his duty to receive
monies payable to the company, to bank them and to keep proper
accounts. There was evidence that the appellant had received the monies
payable to the firm and in breach of his duty had failed to credit the firm
with the said amounts. The appellant had deliberately withheld these
vouchers to ensure the amounts involved were not credited to the
company accounts while he retained the money and that his intention in
doing so was dishonest.
# Mohamed Adil v PP: The appellant, a headmaster deducted certain
sums from the salaries of the teachers as their contributions to a cooperative society. The general orders required the payment to the society
to be made by crossed cheque but evidence showed that some cheques
were made out payable to cash and endorsed by the appellant. The
contributions were furthermore having not been paid to the society. The
essential thing to be proved in CBT is whether the accused was actuated
by dishonest intentions in misappropriating or converting property
entrusted to him. The accused was entrusted with the money and he
misappropriated them, thus did so dishonestly. Non-accounting or
temporary retention of money is not evidence of an offence unless
there is dishonest intention.
# Khairuddin Hj Musa v PP: The accused had misappropriated the
money owned by Bank Rakyat and converted to his own use when he
withdrawn the money illegally via different transactions.
MENS REA
S. 23 & 24: dishonestly
Presumption in S. 409B (1) presumption that he had acted dishonestly
until the contrary is proven.
* Specific offence of s. 404, other than elements above, must prove that
the property belongs to the deceased.
# PP v Wong Kin 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 Misapppropriation of Property

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CRIMINAL MISAPPPROPRIATION OF PROPERTY

S.402A Definition of agent including advocate and solicitor

conversion would have also committed criminal misappropriation but not

# PP v Wong Kin Fatt To establish dishonestly, it is not necessary that

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