A.

Criminal Misappropriation of Property

B. 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) LEB140117

Tan 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 property

shall 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 accused

b)

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

Musa
Facts :

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 Trust

Section 405 of the Penal Code : Whoever

i.

1st element : entrusted with the property, or with any dominion

over property Accused is the credit controller, so hes 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 days

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 days imprisonment and a fine of RM3,000 in default three

months for the RM50,000 and

on the two other charges to one days imprisonment and a fine of

RM2,000 in default two months on each count.

B. Criminal Breach of Trust

Punishment

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 : Whoever

i.

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 Prosecutor8 MLJ 314

Ng Chye Giat v Rex7 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 Rex7 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
-THE END-