CRIMINAL LAW II - CHAPTER 6 : COMMERCIAL CRIMES

INTRODUCTION
 If facts shows that the defendant has misappropriate property , or breach of trust because
he had misused the property given to hum or he had used deception (fraudulently) to obtain
property, then relevant offence is criminal misappropriation (CMA) , criminal breach of
trust (CBT) or cheating respectively
 Thus, there are 3 types of commercial crimes
i. criminal misappropriation of property (CMA) ,
ii. criminal breach of trust (CBT) or
iii. cheating

I. CRIMINAL MISAPPROPRIATION (CMA) - S.403

 happens when initially one possesses any property lawfully or validly but due to a
change in the intention of the person or due to some new fact of knowledge
unknown to that person before, the continued possession or retention of such
property becomes unlawful, wrongful or fraudulent.
 The essence of the offence deals with the misappropriation or conversion of one’s
property initially obtained in an innocuous (harmless) manner by the accused to his
own use and benefit. (A gets thing in neutral way/ found and take)
 There are differences between theft and criminal misappropriation
i. Theft - defendant had taken someone else’s property without consent
ii. CMA - takes other person’s property with consent but later defendant had
misappropriated or converted the property which is in his possession
 Section 403 , defendant dishonestly misappropriates, or converts the property to his
own use, or cause any other person to dispose of any property is liable for
imprisonment not less than 6 months or not more than 5 years with whipping and fine
i. AR : criminal misappropriate of property or converting the property for his
own use
 “misappropriate and conversion is not define under 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
Winfield’s case
‘conversion’ refers to any act in relation to the goods of a
person which constitutes an unjustifiable denial of his
right to them (treat goods as theirs when they are not)

 Misappropriation is wider than conversion

 Tuan Puteh v Dragon
FACTS : 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.
HELD : 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

 Explanation 2 of Section 403 : No CMA for things which

has been abandon
Durugappan v State of Mysore
Established that appropriating or dealing with another person’s
property as if it is his own may not amount to conversion but if dealt
with the property in way that is inconsistent with right of legal
owner then constitute to AR of Section 403

ii. MR : acted dishonestly / have dishonest intention

 Dishonest misappropriation – deal with the property in a
manner inconsistent with the rights of its original owner with
the intention of causing wrongful gain to one person or
wrongful loss to another
 Section 24 , Dishonestly mean defendant acted with the
intention of causing wrongful gain to one and wrongful
loss to another
 Section 23,
a. wrongful gain is unlawful gain of property where
gaining is not legally entitled
b. Wrongful loss is unlawful loss of property where
person losing is legally entitled
 Explanation 1 of Section 403 : Need not necessary that
owner had suffered actual loss but prove that there is
intention to cause temporary loss to the owner is sufficient
 Explanation 2 of section 403 : not guilty of an offence if
proven that there is not dishonestly misappropriate of
property that the defendant found.
 Proof of dishonestly is to be inferred from the circumstances
if case
 Silence is amount to dishonestly if proven that there is
concealment of facts and vice versa

iii. Property may be movable or immovable

 Section 409B
  presume to act dishonestly until proven otherwise so burden of proof shift to
accused to prove he did not act dishonestly
 The general rule is that the prosecution has to prove that the defendant
had acted dishonestly , however in certain instances (s.403-409) where
prosecution does not have legal burden to prove that defendant had acted
dishonestly as Section 409B clearly stipulated that the defendant is
presumed to acted dishonestly until contrary evidence is adduced.
 Thus, this rebuttable presumption shift the burden to the person so accused
with the misappropriation to show the contrary effect

Phillip Among @ Daniel Dell Fidelis v PP [2014] 1 LNS 1629 -

FACTS : victim has appointed accused to act as his agent to arrange for the delivery
of cargo and trusted that accused will act in good faith. Thus, victim had
mad full payment of purchase price to appellant but the cargo was never
reach destination as agreed and unable to find accused
HELD : not guilty under section 403 as there is evidence shows that since victim had
fail to make full payment of the timber logs and caused appellant to made
full payment by himself thus no misappropriation of property.

Public Prosecutor v Wong Tiong Hie [2014] MLJU 1779

FACTS : respondent and the complainant are partners in a company and after
winding up the business, the parties signed a consent judgment for the
division of the assets of the company after the taking of an audit and
alleged that defendant had misappropriated a four wheel drive vehicle
which was registered under the company name by transfer the vehicle to
another
HELD : Respondent was not liable under section 403 as there was no evidence that
the vehicle was transfer to other and no evidence that the signature of the
complainant was forged.

II. CRIMINAL BREACH OF TRUST (CBT) o= s.405 p= 406 -409

 Closely related to CMA as the offence of CBT is established when dishonest
misappropriation or conversion took place
Sathiadas v PP [1970] 2 MLJ 24
FACTS : Appellant a traffic clerk employed by the Malaysia-Singapore
Airways Ltd was charged under section 408 for received monies
from consignees of cargoes but had not made any relevant entries in
the sales returns and had not submitted the monies to the Kuala
Lumpur head office of the company.
HELD : Prosecution can proves that appellant was entrusted with money for a
specific purpose and that he has failed to account for it or has done
something which is clearly indicative of his dishonest intention
 Happen due to own accord or by 3rd party or authority to be entrusted.
  CBT can be raised when facts shows that the property is given to defendant either by
entrustment or consented to be kept by defendant but defendant has dishonestly
misappropriate the property
 Section 405 - define criminal breach of trust
 AR :
i. Required to show who was the defendant entrusted with the property
or dominion over the property
ii. Prove that defendant dishonestly
a. there was misappropriation or conversion of using
b. disposing of the entrusted property violating the law or
c. using or disposing the property in violation of legal contract
iii. Proved that accused willfully suffered other person to do so (a-b)

 MR :
i. Dishonestly or voluntariness (for AR 1 and 2)
ii. Willfulness (for AR 1& 3)
 Thus, prosecution can show that the defendant had acted dishonestly and victim has
suffered as result of the defendant’s act and all the element under section 405 is
proven then defendant will be liable for CBT

III. CHEATING