Amicus Curiae’s submission.
The hearing of Amicus Curiae’s submission took around 15 to 20 minutes on September 15, 2016.
Young Amicus was tasked to answer 3 questions.
To the best of my understanding, I summarised what Amicus presented to the 3 judges (Judge of Appeal Chao Hick Tin, and Justices Woo Bih Li and Chan Seng Onn)
Kong Hee, Tan Ye Peng, John Lam, Chew Eng Han, Sharon Tan and Serena Wee have been found guilty of charges under section 409 of Criminal breach of trust (CBT). They are appealing to the high court against both conviction and sentence.
What is section 405 and 409 of the Penal Code and Illustration (d)?
Criminal breach of trust
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes 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 has made touching the discharge of such trust, or wilfully suffers any other person to do so, commits “criminal breach of trust”.
d) But if A, in the last illustration, not dishonestly, but in good faith, believing that it will be more for Z’s advantage to hold shares in the Bank X, disobeys Z’s directions, and buys shares in the Bank X for Z, instead of buying Government securities, here, though Z should suffer loss and should be entitled to bring a civil action against A on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.
Criminal breach of trust by public servant, or by banker, merchant, or agent
Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant, or in the way of his business as a banker, a merchant, a factor, a broker, an attorney or an agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 20 years, and shall also be liable to fine.
Question 1: Whether a person can be said to have “dominion over property” for the purpose of section 409 of the Penal Code, if it has been entrusted to a number of individuals as opposed to one individual and each individual doesn’t have a total control.
The target of this offence is a property offence.
You need to consider whether the accused was entrusted with a sufficient degree of control over the property.
If the accused was able to dispose the property without corporation of external party there is dominion over property. If the accused required 3rd party to approve the disposable then the accused has no dominion over the property.
<He skipped on the question about the rule of precedent>
Question 3: Whether the element of dishonesty is made out in a situation where a person had acted in what he believed would be in the best interests of the victim.
He mentioned that, “Motive is not the same as mens rea.” and “Dishonesty in the Penal Code is not the ordinary meaning.”
Illustration (d) to section 405 shows that it is possible for dishonesty to be absent even though there is misappropriation, because dishonesty is the intention to cause wrongful gain or wrongful loss. Misappropriation, for the purposes of the Penal Code, is just taking or appropriation of the property in a wrongful manner but without the intention to cause wrongful gain or wrongful loss.
He further mentioned that the good faith element in illustration (d) is not really necessary. You can read good faith out of illustration (d) and it doesn’t really make a difference.
He made some analysis points of illustration (d) such as
1. Did Ali had known or believed that bank X shares would have provided a greater return.
2. Did Ali really intend for the returns to go back to Z?
When the transaction was entered into by Ail, when he bought bank X shares, did he believe that it would return more monies than government securities? If the answer is “yes”, he wasn’t intending to cause loss to Z.
When there is a comparable
The crucial factor is did Ali have sufficient facts or are there sufficient objective facts to show that Ali believed that the investment would return something positive or greater than what Z instructed.
When there is no comparable (No Government securities what Z instructed)
The court has to analyze is when Ali makes the investment, did he have sufficient facts to believe that the investments would actually generate a return?
Amicus quoted an example of Ali decides to invest in a company that its whole business is to grow bananas in the Antarctica. It doesn’t work.
He didn’t give a direct answer to the question in court. I would think he was saying an accused person is able to act dishonestly even he had acted in what he believed would be in the best interests of the victim.