Tuesday, March 31, 2009
hahahaha...poyo lah saya ini :p
slap slap slap
kasi segar sikit
saya masih belum tidur.sejam yg lalu, masih terkial-kial nk siapkan kerja.sekarang sudah siap.hati lapang.mau tidur.tp knapa sy masih disini? ahahaha..tp knapa ayat2 saya amat skema?well i suppose this cud be the result frm a massive reading of law books n journals just to pick up on the subject of cbt.eh, cbt tu bkn cabut lah..cbt adalah criminal breach of trust.haaa saya adalah poyo nk explain2 plk cbt nih. saya adalah penat sgt dan pening kepala.
slap slap slap
eh, dh segar pulak.
bersempena meraikan KJ sebagai ketua pemuda umno yg dilantik dgn sgl hormat dan limpah kurnianya oleh ahli2 umno tanpa sebarang politik wang, makanya saya dengan rendah diri disini ingin berkongsi ilmu dgn anda semua berkenaan CBT..(hahaha..cam tak relevan je ngn KJ nye isu)
anyway, after went through an extensive research tht has caused my brain to become defunctionalized at this moment, (amaran kerajaan msia:membaca terlalu bnyk boleh menyebabkan otak anda bergegar) here im sharing with you guys the outcome of my research..one copy has alredy been emailed to bos sharp at 4am.
nothing's confidential cos i didnt put the client's name. Jadi tiada sebab untuk saman sy.
CRIMINAL BREACH OF TRUST
Relevant sections: s405, 406, 409 and 409B Penal Code
1. S409 reads:
“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 whipping, and shall also be liable to fine.”
2. s409 must be read with s405
2.1 In Syed Abdul Rahman Wan Akil v PP (2008) 2 CLJ 871: court ruled that these two provisions must be read together.
2.2 S405 provides the ingredients of criminal breach of trust.
INGREDIENTS OF CBT
3. The combined reading of s405 and s409 generates the ingredients of the charge for CBT under s409.
3.1 Refer to Syed Abdul Rahman (supra), the ingredients of s409:-
(i) entrusting any person with property or with any dominion over property.
(ii) That person entrusted;
(a) dishonestly misappropriating or converting to his own use that property;or
(b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation-
• of any direction of law prescribing the mode in which such trust is to be discharged; or
• of any legal contract made touching the discharge of such trust.
(iii) the accused must be a public servant/agent
(iv) he must be entrusted, in such capacity, with property.
(v) He must have committed CBT in respect of such prop.
4.1 the word is not defined in penal code
4.2 Jaswantlal v State (1968) Cr LJ 803:
“the expression entrustment carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further, the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them”.
5. The mens rea and the actus reus
5.1 Actus reus : misappropriation, conversion to own use, use or dispose of that property…
5.2 Mens rea : ‘dishonestly’ as reflected in that section.
(misappropriation/conversion to own use/use or dispose of that property)
5.1 the word is not defined in the Code.
5.2 Reference made to Sohan Lal v Emp xxxi (1915) IC 651 at page 653:
“the verb ‘to appropriate’ in this connection means setting apart for, assigning to, a particular person or use; and to ‘misappropriate’ no doubt means to set apart for or assign to the wrong person or a wrong use , and this act must be done dishonestly”
7.1 According to Winfield (10th Edn, p413) conversion is :
“any act in relation to the goods of a persons which constitute an unjustifiable denial of his title to them, by implication therefore if the denial of title is justified, then there is no conviction”
• Government of Pakistan v Seng Peng Sawmills Sdn Bhd & Ors (1979) 1 MLJ 219
• Lam Teik Kai v Hallam Nominies Ltd & Ors (1971) 1 MLJ 146
8.1 Yap Sing Hock v PP (1992) 2 MLJ 714:
“the mens rea element is contained in the word dishonestly”
8.2 The essence of dishonesty is intention: Rex v Lim Soon Gong & 2 Ors (1939) MLJ 10.
8.3 Intention can only be inferred from conduct: Public Prosecutor v Goo Kian (1939) MLJ 291.
8.4 S24 of the Act reads:
“whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, irrespective of whether the act causes actual wrongful loss or gain, is said to do that thing dishonestly”
8.5 wrongful loss and wrongful gain are defined in S23 of the Act:
“wrongful gain is gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss is the loss by unlawful means of property to which the person losing is legally entitled”
- therefore, to be dishonest a person must intend to gain by unlawful
means property to which he is not legally entitled or he must intend to
cause loss by unlawful means of property to which the loser is legally
entitled : Rex v Lim Soon Gong (supra)
8.6 Accordingly,for misappropriation or conversion to amount to an offence of CBT, what is most essential to be prove is not only the retention or the disposal of the property, over the period, but also the criminal intention behind it. Unless such mens rea is established, the offence would nit be taken to have been committed.
9. Proof of dishonestly.
9.1 S409B reads:
(1) Where in any proceeding it is proved –
(b) for any offence prescribed in sections 405, 406, 407, 408 and 409, that any person entrusted with property or with dominion over property had-
(i) misappropriated …
(ii) used or disposed…
It shall be presumed that he had acted dishonestly until the contrary is proved.
10. Explanation of failure to account refutes the presumption of dishonestly.
10.1 misappropriation per se will not amount to conviction of CBT. It must be accompanied with the failure of the accused in giving explanation for his failure to account. This is to rebut the presumption of dishonestly under s409B as stated above.
10.2 Syed Abdul Rahman Wan Akil v PP (supra):
“Conviction of a person for the offence of criminal breach of trust may not, in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion even when a duty to account is imposed upon him; but where he is unable to account or renders an explanation of his failure to account which is untrue, an inference of misappropriation with dishonest intent may readily be made”
- see also Mohamed Ezaz v State of Rajasthan (1981) All Cr R 31
11. Temporary misappropriation.
11.1 Explanation 1 to s403:
“a dishonest misappropriation for a time only is misappropriation within the meaning of this section”.
- the illustration must be read in light of dishonest misappropriation
termed under s405. Thus, it requires a strict proof of mens rea of the
unlawful means of property which cause unlawful gain to the wrongful
person or unlawful loss to the lawful person.
12. Mere retention of the property
12.1 Kinathiyil Yusuf v Thekepurakkal, 1969 Ker LR 602:
“mere retention is not sufficient to constitute the offence. Unless there’s some actual user by him in violation of law or contract. Even if there is such user, there must be dishonest intention”
13. Breach of trust v. Breach of contract.
13.1 It is well settled that every offence of CBT involve civil wrong in respect of which the complainant may seek its redress for damages in the Civil court, but every breach of trust in the absence of mens rea, cannot legally justify a criminal prosecution.
13.2 M.L Chopra 1976 Chand LK 393 (Punj):
“in case if the amount is paid in such a manner the depositee becomes its full owner and is free to use it in anyway he likes, but the same is not paid back under any pretext, then it is not a case of criminal misappropriation or breach of trust, but only breach of contract.”
harapan saya, anda2 semua akan lebih memahami bahawa pecah amanah tidak hanya berlaku atas sebab terdapat penyalahgunaan amanah/harta tersebut. tetapi, pihak pendakwaan juga have to prove the existense of mens rea ie NIAT JAHAT yg amat busuk sekali. niat adalah sesuatu yg didalam fikiran.
bagaimana ya mahu membaca niat yg berlegar2 diruang minda seseorang? not an easy task aite? well, to all my dpp frens, i wish u all the best in your trial proving the existence of mens rea.
i wonder if one's intention, be it bona fide or mala fide is written on their face,
pembunuh, perogol, pengkhianat bangsa dan negara (eh emo lak tetiba), perampok penyamun segala, pembodek bos, penyapu b*nt*t bos dan segala bagai makhluk hina ini, sure terus insaf dan pupus dr muka bumi ini..ahaha
(amende ntah pepagi buta ni si raidahsalwa ni nk emo sorg2)
ok laa..i still hv anor 2 hours to sleep.
better put a stop now sblm merapu ke thp gaban
lagi pon esok ada kes kat industrial court.
maknenye 8.30pg dh kna terpacak kat situ.dh laa puan amelia yg garang thp otomen tu esok
selamat tdur yaa