Penalties for Dishonest Misappropriation of Property in Singapore
What is Dishonest Misappropriation of Property and Its Elements
The adage “finders keepers, losers weepers” may be a tempting thought if you find something valuable on the street. However, be careful if you find yourself in possession of someone else’s valuables. If you do not return them you may be committing the offence of dishonest misappropriation of property under section 403 of the Penal Code.
Grab driver Christopher Chan Fook Choy learnt this the hard way when he kept for himself cash and a phone that belonged to his passengers who had left them behind in his car. Chan was sentenced to 3 weeks’ jail on 1 count of dishonest misappropriation of property.
Dishonest misappropriation of property is committed where:
- The misappropriation concerns a movable property;
- The accused was not entitled to immediate and exclusive possession of the property;
- The accused misappropriated or converted such property to his own use; and
- The accused possessed a dishonest intent at the time of such misappropriation or conversion.
The item that has been dishonestly misappropriated must be movable property.
The Penal Code defines movable property as corporeal (i.e. tangible) property that is not attached to the earth, or permanently fastened to anything attached to the earth.
An example of movable property would be a bag. On the other hand, a tree which is growing out of the ground would be considered “attached to the earth” and hence would not be a movable property.
Misappropriation/conversion of property that you’re not entitled to
Misappropriation refers to the act of pocketing property that does not belong to an individual. On the other hand, conversion involves dealing or using someone else’s property as though it were your own.
An example of misappropriation as well as conversion occurred in May 2019 where a Grab driver was mistakenly transferred about $33,600 by Grab. Grab contacted the driver informing him of the erroneous transfer, but the driver refused to return the money (i.e. misappropriating it), used it to pay his own bills (i.e. converting it), and could not be contacted. The driver was sentenced to a 3-month imprisonment term.
The accused must have had a dishonest intention when misappropriating or converting the property. This means that they must have the intent to cause wrongful gain (such as for themselves) or loss to the victim.
This includes a situation where the accused gains possession of someone else’s property in a way that is not necessarily illegal (e.g. by taking property found on the street) but later misappropriates or converts the property for his/her own usage.
Typically, examples of dishonest misappropriation involve persons finding property that has been accidentally left behind or left unattended by the owner, and using the property for themselves.
In August 2019, a woman was convicted of dishonest misappropriation for taking a Samsung handphone left behind by another woman in a toilet. She was confronted for taking the phone but denied doing so.
Taking the phone from the toilet would not be illegal in and of itself, if she had done so with the intention to return it to its owner. However, the fact that she subsequently knew the owner of the phone but refused to return it, indicated her dishonest intention, and meant she had committed dishonest misappropriation. The woman was sentenced to a 1-week imprisonment term.
Alternatively, if the woman had sold the phone, without reasonably trying to locate the owner, she would have also committed dishonest misappropriation. This is because failing to attempt to locate the owner would indicate the lack of intention to return the phone, and hence a dishonest intention.
Aggravated Dishonest Misappropriation of Property
If the dishonest misappropriation involved the taking of property from a deceased person, and the accused knew it belonged to a deceased person at the time of his death, the accused would have committed aggravated dishonest misappropriation under section 404 of the Penal Code.
Differences between Misappropriation of Property and Other Property Offences
The Penal Code provides for a number of different offences, including criminal breach of trust and theft, which also involves the taking of property and dishonesty.
The most important difference between the offences lies in how the accused initially comes into possession of the property and when the dishonest intention is formed.
For dishonest misappropriation, the accused initially comes across the property in a neutral manner, (e.g. by finding a purse that was dropped by someone else). However the accused subsequently forms a dishonest intention by misappropriating the property for his/her own use (e.g. he/she sells the purse instead of trying to return it).
Conversely, for the offence of theft, the property is first found in someone’s possession and the accused moves the property with a dishonest intention to take it. Here, the dishonest intention is formed from the very beginning as theft is committed the moment the property was dishonestly taken from the possession of its owner.
Criminal breach of trust (CBT) on the other hand, involves the accused being entrusted with the property, or given control of it by another person. Subsequently, the accused then dishonestly uses or disposes of the property in abuse of trust.
CBT is similar to dishonest misappropriation in that the dishonesty aspect of the offence does not occur at the moment when the accused comes into possession of the property. Rather, it only occurs when the person entrusted with the property later dishonestly uses or disposes of the property in abuse of trust.
The distinctions between CBT and dishonest misappropriation is the fact that for CBT, the accused was entrusted with the property, and misappropriated it in breach of that trust. Dishonest misappropriation on the other hand has no such requirement for an element of trust between the accused and the original owner of the property. The accused also had not been entrusted with the property (that was then misappropriated) in the first place.
As a result, dishonest misappropriation is considered a less serious offence than CBT and has lower penalties.
Penalties for Dishonest Misappropriation of Property
Misappropriation of property
The penalties for dishonest misappropriation of property are a jail term of up to 2 years and/or a fine.
Aggravated dishonest misappropriation of property
The penalties for aggravated dishonest misappropriation of property, where the property was taken from a deceased person, are a jail term of up to 3 years and a fine.
If the offender was employed as the deceased’s clerk or servant at the time however, the maximum jail term is 7 years.
Factors that the court will consider when sentencing
Broadly, there are 2 types of factors the court will consider when deciding the accused’s sentence:
- Aggravating factors; and
- Mitigating factors.
Aggravating factors are factors that indicate the level of gravity of the crime and may increase the sentence. These include:
- The magnitude of the crime (e.g. the value of the misappropriated property)
- The effect of the crime on the victim (i.e. the severity of the harm caused to the victim)
- Whether the accused is a repeat offender
Mitigating factors on the other hand are circumstances that may result in the sentence being reduced. These may indicate reduced blame on the accused, or that the accused is remorseful and has a lower chance of reoffending. These include if the accused:
- Made a plea of guilt. This is an indication of remorse, especially if the guilty plea is made early on in the proceedings
- Had a previous record of good character (e.g. the accused’s background, reputation and contributions to the community)
- Made voluntary restitution of the misappropriated property (i.e. the timely return or payment of the property may indicate remorse)
- Cooperated with the authorities
Seizure of stolen property
The police may seize property that has been dishonestly misappropriated. The court may subsequently make an order for the property to be returned to the victim.
Is Dishonest Misappropriation of Property an Arrestable Offence?
Dishonest misappropriation and its aggravated form are both non-arrestable offences. This means that if a person is suspected of committing dishonest misappropriation, a warrant for arrest from the court must be obtained before the police can arrest them.
Hence if you are a victim of dishonest misappropriation and you wish to pursue the matter, you will have to file a Magistrate’s Complaint to the court.
A Magistrate’s Complaint is a complaint filed to the State Courts by someone seeking redress for an offence that has been committed against them. The Magistrate will review your complaint and can choose to do any of the following:
- Order for both the victim and the alleged offender to attend Criminal Mediation
- Issue a summons for the alleged offender to assist with the complaint
- Direct the police to conduct an investigation into the complaint
- Dismiss the case
Will Dishonest Misappropriation of Property Result in a Criminal Record?
Yes, committing any kind of dishonest misappropriation offence (whether aggravated or non-aggravated) will result in you having a criminal record.
However, you may be able to have your criminal record treated as spent after a period of time. This simply means that your record will be wiped clean. To qualify for having your record spent, you must first meet the following criteria:
- If you were given a prison sentence, your imprisonment term must have been not more than 3 months;
- If you were given a fine, the fine imposed on you must have been not more than $2,000;
- You must not have any other conviction on your criminal record; and
- You must not have any previous spent record on the register.
If you meet these criteria, you then have to remain crime-free for at least 5 consecutive years, starting from the date of your release from prison, or from the date that your sentenced was passed if you were given a fine.
Once you accomplish this, your record will be spent automatically, and you will be able to legally declare that you do not have a criminal record.
Should I Hire a Lawyer If I’ve been Charged with Dishonest Misappropriation?
If you have been charged with dishonest misappropriation of property, you may want to discuss your options with a criminal lawyer.
While it is possible for you to represent yourself, there are many procedures, documents and legal principles that you must be familiar with if the matter goes to trial. A lawyer can assist you with all this, as well as advise you on whether you should claim trial or plead guilty.
Even prior to when the prosecution decides whether to press charges, a lawyer can help you apply for bail, submit representations to the prosecution to either reduce your charges or have them dropped altogether.
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