NUR AZWANI BINTI BADLISHAH

2017683628
LWB04I

TOPIC:

LAW555 - CRIMINAL LAW II FINAL ASSESSMENT

COURSE CODE:

LAW555 – CRIMINAL LAW II

PREPARED BY:

NUR AZWANI BINTI BADLISHAH

2017683628

CLASS:

LWB04I

PREPARED FOR:

SIR ASHRAN BIN HJ IDRIS

1
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

QUESTION 1
Ray is an airplane repossessor who works on a free-lance basis. He repossesses
airplanes that had fallen into default of payment by the hirer and returns it to the
owner for a fee. On one occasion, Ray managed to repossess a light airplane for
Katebang Sdn Bhd. However, before Ray could return the plane to Katebang Sdn Bhd,
the company had closed down and gone into liquidation. The liquidation process took
a long time and Ray decided to rent the plane to private operations available. Ray
managed to make quite a large sum of money out of this venture.
Eventually the liquidation process of Katebang Sdn Bhd was completed and Ray
returned the plane to Buck, an officer appointed by the Companies Commission of
Malaysia to take charge of all assets of Katebang Sdn Bhd.
Buck took possession of the plane and kept it in a hangar. The recovery of the plane
was never reported by Buck. Instead, he sold the plane to a third party using forged
documentations and kept the proceeds of the sale.

Explain whether Ray and Buck had committed any criminal offences.
(20 marks)

ANSWER FOR QUESTION 1

The first issue that need to be considered is whether Ray’s action of renting the plane
belonged to Katebang Sdn Bhd to private operations and gained a large sum of money
through the venture and the act of Buck in selling the said plane to a third party using forged
documentations and keeping the proceeds of the sale to himself can both be constituted as an
offence of criminal breach of trust by public servant or agent under Section 409 of the Penal
Code.

In Malaysia, criminal breach of trust is governed by section 405 to 409B of the Penal
Code. Section 409 of the Penal Code explains on the criminal breach of trust by public
servant or agent. As per this provision, it states that whoever, being in any manner entrusted
with property, or with any dominion over property, in his capacity of a public servant or an
agent, commits criminal breach of trust in respect of that property, shall be punished with
imprisonment for a term which shall not be less than two years and not more than twenty
years and with whipping and fine. In general, the duty of the person stated in this section is of
a confidential nature and involves huge power of control on property. Penal Code imposes
severe punishment for this type of criminal breach of trust amongst all other categories of
breach of trust as it will be detrimental to the public and to them individually.

2
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

Section 402A of the Penal Code defined “agent” as to include any corporation or
other person acting or having been acting or desirous or intending to act for or on behalf of
any company or other person or whether as agent, partner, co-owner, clerk, servant,
employee, banker, broker, auctioneer, architect, clerk of works, engineer, advocate and
solicitor, accountant, auditor, surveyor, buyer, salesman, trustee, trustee, executor,
administrator, administrator, liquidator, trustee within the meaning of any legislation relating
to trusteeship or bankruptcy, receiver, director, manager, or other officer of any company,
club, partnership or association or in any other capacity either alone or jointly with any other
person and whether in his own name or in the name of his principal or not. Likewise,
“company”, “director” and “officer” also being defined in this provision.

Public servants were mainly governed in Section 409 of the Penal Code. Public
servants are on the government’s payroll and perform public functions. Public servants
possess huge power and have access to various facilities. Thus, they will be tried more
judiciously. If they are proved to commit criminal breach of trust, they will lose their job as
well as their pension. Heavy sentence also being imposed by the court as deterrence for them.

Section 21(i) of the Penal Code describes public servants as every officer whose duty
it is, as such officer, to take, receive, keep or expend any property, on behalf of Government,
or to make any survey, assessment, or contract on behalf of Government, or to execute any
revenue process, or to investigate, or to report on any matter affecting the pecuniary interests
of Government, or to make, authenticate, or keep any document relating to the pecuniary
interests of Government, or to prevent the infraction of any law for the protection of the
pecuniary interests of Government, and every officer in the service or pay of Government, or
remunerated by fees or commission for the performance of any public duty.

Explanation 1 of this provision states that persons falling under any of the
descriptions (a) to (j) in this section are public servants, whether appointed by Government or
not. Explanation 2 states that wherever the words “public servants” occur, they shall be
understood of every person who is in actual possession of the situation of a public servant,
whatever legal defect there may be in his right to hold that situation.

3
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

In order to establish the offence of criminal breach of trust by public servants or

agents under Section 409 of the Penal Code, the prosecutor is required to establish three
elements. Firstly, the accused must be proved to be a banker, merchant, manufacturer, broker,
lawyer, public servant or agent. This is illustrated as in the case of SIVALINGAM v
PUBLIC PROSECUTOR [1982] 2 MLJ 172 whereby (FC: Lee Hun Hoe CJ (Borneo),
Abdul Hamid FCJ and Abdoolcadeer J) stated that the necessary ingredients for an accused to
be charged under Section 409 of the Penal Code is that he must be a either a public servant,
banker, merchant, etc and that he must be entrusted with property in his capacity of such
public servant, banker, etc.

For the second element, the accused in that capacity is being entrusted with the
property or with any dominion over property. For entrustment, in criminal breach of trust, the
accused must be lawfully entrusted with the property and he dishonestly misappropriate the
property or wilfully allows some person to do so, instead of discharging the trust attached to
it. There can be no criminal breach of trust unless the accused is proved to have been
entrusted with property or dominion over the property. In the absence of such prove, it is said
to be an offence of criminal misappropriation. In the case of EMPEROR V J MAC IVER &
ANOR [1936] AIR 1, it was held by the court that the word entrustment conveys that the
person handing over the property must have confidence in the person taking the property so
as to create a fiduciary relationship between them.

For dominion, in order to prove a trust of dominion over property, mere control over
the property is insufficient. The prosecutor must prove that the dominion is as a result of
entrustment. The degree of control exercised by the offender is illustrated as in the case of
SINNATHAMBY V PUBLIC PROSECUTOR [1948-1949] MLJ 75. In this case, the
accused was an employee of a Public Works Department Quarry. The learned District Judge
was of the view that by virtue of his contract of services, the accused was in position to
exercise dominion over the stone and he did exercise that dominion prior to committing the
breach of trust as he received 10£ from a contractor in return for leaving some stones in a
place that was later discovered.

The third element is the accused had committed criminal breach of trust of that
property. In the case of MUHAMMAD FAISAL SUNDARAJAN BIN ABDULLAH v

4
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

PUBLIC PROSECUTOR [1998] 7 MLJ 465, Abdul Wahab J stated that, in a charge under
section 409 of the Penal Code, the amount taken from the property by the accused is not the
ingredients of the offence. It is important to prove that the evidence of dishonest taking or
converting to his own use of property that he is entrusted with. In NAVARATNAM v
PUBLIC PROSECUTOR [1973] 1 MLJ 154, it is stated that the essential thing to be
proved in the case of criminal breach of trust is whether the accused’s act in dishonest
manner or not.

By virtue of the case PUBLIC PROSECUTOR v RENGASAMY [1974] 1 MLJ 23,

Wan Hamzah J stated that in the case where a government officer has been entrusted with the
keeping of government revenue and it is discovered the money entrusted to him is not to be
found in the places which he is authorized by the government financial regulations or the
departmental regulations to keep the money, this gives rise to an inference that he had
misappropriated the money.

Section 409A states that no defence for any offence of sections 403, 404, 405, 406,
407, 408 and 409 to show that the property was openly appropriated or that the appropriation
was duly recorded and entered in the books or accounts of any company or association or
body of person whether incorporated or not. Explanation in this provision provides that the
property of a company shall be regarded as belonging to the company notwithstanding that
the directors of the said company are, either singly or jointly, entitled to the entire beneficial
interest, of the shareholding in the said company.

Section 409B (1)(b) states that where in any proceeding it is proved that any offence
prescribed in section 405, 406, 407, 408 and 409, that any person entrusted with property or
with dominion over property had (i) misappropriated that property; and (ii) used or disposed
of that property in violation of any direction of law prescribing the used or disposed of that
property in violation of any direction of law prescribing the mode in which such trust is to be
discharged or of any legal contract, express or implied which he had made touching the
discharge of such trust; or (iii) suffered any person to do any of the acts described in
subparagraph (i) or (ii) above, it shall be presumed that he had acted dishonestly until the
contrary is proved.

5
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

As in the case of HJ MAAMOR BIN HJ ABDUL MANAP v PUBLIC

PROSECUTOR [2002] High Court held that section 409A is applicable when firstly, the
open appropriation or the recording of the appropriation is set up as defence by the accused.
Secondly, there must be evidence to show that there was appropriation of property. Next,
section 409B can be relied by the prosecutor when there is an absence of direct evidence to
establish dishonest intention. It must be proved first that the accused had misappropriated the
sum of money involved.

In applying to the recent situation, the fact that Ray decided to rent the plane to
private operations available due to Katebang Sdn Bhd had closed down and gone into
liquidation in which the process took a long time, proved that he had committed criminal
breach of trust by public servant or agent under Section 409 of the Penal Code. The original
duty entrusted to Ray as an agent of Katebang Sdn Bhd was to repossess the light airplanes
that had fallen into default of payment by the hirer and returns it to the Katebang Sdn Bhd for
a fee. As he made a large sum of money out of the venture, he may be liable under this
offence if all the three elements are proved.

In applying to the recent situation, as Buck does not report the recovery of the
airplane to Katebang Sdn Bhd, sold the plane to a third party using forged documentations
and kept the proceeds of the sale, he may be liable under this offence if all the three elements
in Section 409 are proved.

There are three elements that need to be proved in order to establish the offence under
Section 409 of the Penal Code. Firstly, the accused must be proved to be a banker, merchant,
manufacturer, broker, lawyer, public servant or agent. In applying to this element, in Ray’s
case, under section 402A of the Penal Code as well as the ingredient for a charge under
section 409 as illustrated by the court in SIVALINGAM v PUBLIC PROSECUTOR, Ray
is said to fall under the definition of an agent. Although his job as an airplane reposessor is
merely on freelance basis, as he managed to get a job to repossess the light airplane belongs
to Katebang Sdn Bhd, he is said to be entrusted with the airplane or has the dominion with
the airplane in his capacity as an agent and therefore, must act on behalf of Katebang Sdn
Bhd. This element is established.

6
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

In applying to the first element, in Buck's case, the fact that Buck is an officer
appointed by the Companies Commission of Malaysia to take charge of all assets belonged to
Katebang Sdn Bhd, by virtue of section 409 of the Penal Code, he is said to fall under the
definition of public servant. In addition, by virtue of section 21(i) of the Penal Code, Buck is
a public servant as he is a government’s officer appointed to take charge of all assets
belonged to Katebang Sdn Bhd on behalf of Government. According to the explanation 1 and
2 under this section, as Buck falls under subsection (i) of this section whether or not he was
appointed by the government, he is said to be a public servant, he must understand of every
person who is in actual possession of the situation of a public servant. This element is
established.

For the second element, the accused in that capacity is being entrusted with the
property or with any dominion over property. In applying the second element to Ray's case,
by virtue of EMPEROR v J MAC IVER & ANOR, Ray was lawfully entrusted with the act
of repossessing the light airplanes belonged to Katebang Sdn Bhd. Even though he was a
repossessor works in freelance basis, he gained confidence from Katebang Sdn Bhd to
manage the property so as to create a fiduciary relationship between them. This element is
satisfied.

Meanwhile, for Buck, under the second element, he is said to have dominion over the
light airplanes belonged to Katebang Sdn Bhd. By virtue of the cases SINNATHAMBY V
PUBLIC PROSECUTOR, as he was an officer appointed by the Companies Commission of
Malaysia, he was in position to exercise dominion over the airplanes. This element is
established.

For the third element, the accused had committed criminal breach of trust of that
property. By virtue of the case of MUHAMMAD FAISAL SUNDARAJAN BIN
ABDULLAH v PUBLIC PROSECUTOR and PUBLIC PROSECUTOR v
RENGASAMY, it is important to prove that the evidence of dishonest taking or converting
to his own use of property that he is entrusted with. In applying this element to Ray's case,
Ray's action of renting the airplanes to private operations available and consequently make
quite a large sum of money out of this venture, if he use the money for his own purpose, it
proved and gave an inference that he was dishonestly misappropriate and used the property

7
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

for his own use in contrast with the original duty that does not entrusted him to do so.
However, by virtue of the case NAVARATNAM v PUBLIC PROSECUTOR, if the money
from the renting was to be given by Ray to Katebang Sdn Bhd, there is no valid inference that
he had dishonestly misappropriate and used the property.

In applying the third element to Buck's case, as Buck sold the plane to a third party
using forged documentations and kept the proceeds of the sale to himself, it is a valid
evidence to prove Buck's dishonest taking or converting to his own use of the plane. By
virtue of the case of MUHAMMAD FAISAL SUNDARAJAN BIN ABDULLAH v
PUBLIC PROSECUTOR and PUBLIC PROSECUTOR v RENGASAMY, it can be
inferred that Buck was dishonestly misappropriate the duty that has been in exercising his
dominion over the airplanes. It is said to be satisfied.

In conclusion, both Ray and Buck can be held liable for the offence of criminal breach
of trust by public servant under Section 409 of the Penal Code and be punished under the
same section with imprisonment for a term which shall not be less than two years and not
more than twenty years and with whipping and fine. However, if Ray succeed to prove that
the third element is not satisfied, he will not be liable for this offence.

8
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

QUESTION 3
Choon had befriended Gan when she was 15 years old. At the time, Choon was still in
school, while Gan was a drop-out. It was a known fact to Choon that Gan is involved
with gangsters and indulged in various illegal activities and often involving violence.
She became his girlfriend at the time, mainly as an act of rebellion against her
controlling parents. She willingly had sexual intercourse with Gan a few times. They
later drifted apart when Choon was preparing for her SPM examinations.
Recently, Choon came across Gan again at a night club. They chatted for a while and
Choon was made to understand that Gan is still with his illegal activities. Gan later
asked Choon to go with him and Choon followed reluctantly. They went to Gan’s
place and he made it clear that he wanted to have sexual intercourse with her. She
refused but he tore her clothes off violently. When she is naked and lying down, Gan
could not effect a penetration due to the fact that she kept her legs together. Gan then
told her, that, if she did not cooperate he will smash her face into a pulp. Choon then
parted her legs and they had sexual intercourse.
Choon later made a police report, claiming that Gan had raped her.

Discuss the offence and criminal liabilities of Gan.

(20 marks)

ANSWER FOR QUESTION 3:

The first issue that need to be considered in this question is whether the act of Gan who had
sexual intercourse with Choon when she was 15 years old as well as his recent act of forced
and threatened to smash Choon’s face into a pulp which consequently made her submitted to
sexual intercourse will rendered him liable for the offences of rape under the circumstances in
Section 375 of the Penal Code and be punished under section 376(2) of the Penal Code.

Section 375 of the Penal Code defines “sexual intercourse” to mean a penetration that
is sufficient to constitute the sexual intercourse necessary in the offence of rape. In order to
establish the offence of rape, one must prove that a man has sexual intercourse with a woman
under any one of the seven situations stated in subsections (a) to (g) under Section 375 of the
Penal Code.

Section 375 (c) of the Penal Code provides for the offence of rape where there is
consent but the consent is vitiated by the manner in which the consent had been obtained
under fear or misconception of fact. The first limb in section 375(c) states that “a man is said
to commit rape if the woman gives her consent to the act and the consent has been obtained
by putting her in fear of death or hurt to herself or any other person…” It is to be noted that
the element of fear that is important here is the fear of death or hurt. Section 319 defines

9
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

“hurt” as “whoever causes bodily pain, disease, or infirmity to any person is said to cause
hurt”. Under Section 90 of the Penal Code, it is provided that consent of a person is not a
consent as intended by the Penal Code if a consent is given under fear of injury, or the person
knows or has reason to believe that the consent was given in consequence of such fear.

Section 376(2)(b) of the Penal Code provides on the punishment where it states that
whoever commits rape on a woman under the circumstances where at the time of, or
immediately before or after the commission of the offence, puts her in fear of death or hurt to
herself or any other person, shall be punished with imprisonment for a term of not less than
ten years and not more than thirty years and shall also be liable to whipping.

In the case of PUBLIC PROSECUTOR v ALING BIN AYUN [1970] 2 MLJ 160,
the complainant was tying the firewood she collected into bundles. As she was doing this, a
man grabbed her from behind and overpowered her. He threatened her with a chopper which
subsequently made her submitted to have sexual intercourse with him. It was held by the
court that she was put in fear of her life which consequently caused her to give herself to the
assailant. The court satisfied that she did not consent to the intercourse.

In the case of PUBLIC PROSECUTOR v TEO ENG CHAN & ORS [1988] 1
MLJ 156, it was argued that the absence of injury tended to show consent. That is true where
an accused used physical force to get the victim to submit to sexual intercourse. There was no
such allegation here. The victim, named Kay, was overawed into submission by the conduct
of Teo, Sim and Ng, by the whereabouts of the events, a deserted quarry on a dark night and
by the presence of three men outside the cabin when the fourth, Yap, was alone with her.
Before sex, Teo, Sim and Ng threatened Kay with either or both, a beating or a call to the
others to come up. Either of these threats was more than adequate to put Kay in fear of hurt to
herself. Section 376(2) only requires “hurt” here bears its ordinary meaning and is not
restricted to the types of hurt referred to in Section 319. The court held that Teo, Sim and Ng
each put Kay in fear of hurt by their various respective utterances immediately prior to each
having sexual intercourse with her without her consent, which is considered as rape under
section 375, and punishable under section 376(2) of the Penal Code. Yap was found guilty of
simple rape under Section 375 read with section 376(1).

10
NUR AZWANI BINTI BADLISHAH
2017683628
LWB04I

Section 375(g) of the Penal Code states that “a man is said to commit rape with or
without consent, when she is under sixteen years of age.” Under this section, it is rape to have
sexual intercourse with a woman under 16 years of age, with or without her consent. It is
known as statutory rape. If a woman under the age of 16 years old, his consent is not relevant.
As in the case of JAMALUDDIN BIN HASHIM v PUBLIC PROSECUTOR [1999] 4
MLJ, the accused was charged under section 376 for statutory rape of a girl aged 14 years
and 4 months. The court held that the necessary ingredient to be proved by the prosecution is
that the victim at the time of the offence, was under 16 years old. In this case, the prosecution
has completely failed to adduce a prima facie evidence (birth certificate) and the ingredient to
be beyond reasonable doubt.

By virtue of Section 376(2) of the Penal Code, the punishment for statutory rape
differs for situations with consent and without consent. Typically, the punishment for
statutory rape is up to 20 years in prison and the offender is also liable to whipping.

In applying to the recent situation, by virtue of the case PUBLIC PROSECUTOR v

ALING BIN AYUN, Gan's action who used violent and threatened to smash Choon’s face
into a pulp if she does not cooperate and subsequently caused Choon to submit to have sexual
intercourse with him can be considered falls under the offence of rape where the consent is
vitiated by the manner in which the consent had been obtained under fear or misconception of
fact by virtue of section 375 of the Penal Code. Gan is said to commit rape and it is an invalid
consent as it obtained by putting Choon to fear of hurt or death to herself.

In conclusion,

11