CRIMINAL MISSAPPROPRIATION OF

PROPERTY AND CRIMINAL BREACH OF

TRUST

by
Dr. Aspalella A. Rahman
UUM COLGIS

1
 Introduction
Criminal Misappropriation of Property
Criminal Breach of Trust
- In any manner entrusted
- Dominion
- Dishonestly misappropriate, convert, use or dispose

2
Introduction
Offences against property which do not involve threats
or the use of violence in the commission of the offence:
i. Criminal misappropriation of property;
ii. Criminal breach of trust;
iii. Cheating

3
Criminal Misappropriation of
Property
s403 PC states:
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.

4
Cont
misappropriate and conversion are not defined
under the PC.
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.

5
Cont
Dishonesty is the essential ingredient of the offence.
The key factors in determining criminal liability would
generally be the nature and value of the property in
question.
The offence is committed when the property is
misappropriated or converted by the accused to his
own use or when the accused causes any person to
dispose of the property.
A dishonest misappropriation for a time only is a
misappropriation within the meaning of the section.
See Explanation 2 to s403 PC.
6
Cont
No criminal misappropriation of things which have
been abandoned.
The property must have its owner to render a person
guilty of misappropriation.
Where the property is abandoned, anyone finding and
taking it acquires a right to it which will be good even
as against the former owner.
H/e, when a thing is accidentally lost, the property is
remains in the owner who lost it.

7
Criminal Breach of Trust
See s405 PC
Elements of s405:
i. Being in any manner entrusted with property or with
any dominion over property either solely or jointly
with any other person;
ii. Dishonestly misappropriated or converted to his
own use that property, or dishonestly used or
disposed of that property;

8
Elements of s405 (cont)
iii. The dishonest use or disposal of the property was in
violation of any discretion of law prescribing the mode
in which such trust is to be discharged or of any legal
contract, express or implied, which he made touching
the discharge of such trust; or

iv. Willfully suffers any other person so to do.

9
s406 PC-punishment of CBT
Whoever commits CBT shall be punished with
imprisonment for a term not exceeding ten years and
with whipping and shall also be liable to fine.

10
In any manner entrusted
The offender is lawfully entrusted with the property
and he dishonestly misappropriates the same or
willfully suffers some person to do so, instead of
discharging the trust attached to it.
entrust includes that person handling over the
property must have confidence in the person taking
the property so as to create a fiduciary relationship
between them.
Entrustment includes bailments.

11
Entrustment
PP v Husin Mohd Rejab [1994] 3 CLJ 93
R , the Chairman of a company was charged under
s409 PC.
Held: Although there had been some degree of
interference or influence exercised by R over his staff,
the evidence did not necessarily imply the element of
entrustment. Unless the contrary is shown, the proper
authority having control over a companys assets,
including cash, is the BOD and not any one director in
his individual capacity.

12
Entrustment may be gratuitous
Gratuitous- without return benefit.
Chin Wah v PP [1940] MLJ 292
A had borrowed jewellery for use at a party but failed
to return it despite frequent requests.
Held: The essence of the offence of CBT is the
dishonest misappropriation or conversion by a person
of property entrusted to him. The fact that the
entrusting of the property was gratuitous is
immaterial. The point is did the accused dishonestly
convert to his own use the property of which he was
the bailee?
13
Dominion
The property in respect of which the offence is alleged
to have been committed must have been entrusted to
the offender or that he has dominion over the property.
The factor to determine whether there is entrustment
of or dominion over property is in the degree of
control exercised by the offender.

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 PP V YEOH TECK CHYE
The 1st accused was the deputy general manager and
the 2nd accused, the manager of a bank. The 2nd
accused, with the knowledge of the 1st accused, had
granted overdraft facilities for amounts in excess of the
approved limit to the third accused and he had no
such authority.
Held: There had been entrustment to or dominion
over the property of the bank and that the 2nd accused
had no authority to allow the overdrawn amounts.

15
 Tan Liang Chew v PP
The 1st A had been charged under s409 PC in respect of
a RM350,000 housing loan to Tan Eng Hong, who was
not eligible for the loan and which house belonged to
the 1st A. The evidence showed that the 1st A had sat on
committee meeting that recommended housing loan
applications for approval by the BOD.
Held: Dominion over the property lay with the BOD
and that the 1st A had no power to approve housing
loans.

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 Dishonestly misappropriate, convert,
use or dispose
Dishonest intention is the gist of the offence.
The offender must dishonestly misappropriate, convert or
dispose or willfully suffer any other person to do so in order
that an offence of CBT is committed.

Sathiadas v PP
CBT is complete when there is dishonest misappropriation
or conversion to one own s use, or when there is dishonest
use in violation of a direction, express or implied, relating
to the mode in which the trust is to be discharged.
17
Cont
There must be a sufficient positive act of dishonesty.
Cases:
Lim Teik Kai v Hallam Nominees Ltd
Mohamed Adil v PP
PP v Rokiah Suhaili
Tong Keng Wah v PP
PP v Muthu Lingam

18
Cont
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
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.

19
s407 PC- CBT by carrier, etc
whoever being entrusted with property as a carrier,
wharfinger or warehouse-keeper, commits CBT in
respect of such property, shall be punished with
imprisonment for a term which shall not less than one
year and not more than ten years and with whipping,
and shall also be liable to fine.

20
s408 PC- CBT by clerk or servant
whoever, being a clerk or servant, or employed as a
clerk or servant, and being in any manner entrusted in
such capacity with property, or with any dominion over
property, commits CBT in respect of that property
shall be punished with imprisonment for a term which
shall not be less than one year and not more than
fourteen years and with whipping, and shall also be
liable to fine.

21
 s409 PC CBT by public servant or
agent
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 CBT 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
shall also be liable to a fine.

22