Wong Seng Kwan v PP

• Jurisdiction: Singapore
• Judgment Date: 17 April 2012
• Date: 17 April 2012
• Docket Number: Magistrate's Appeal No 462 of 2010
• Court: High Court (Singapore)

Wong Seng Kwan

Plaintiff

and

Public Prosecutor

Defendant

[2012] SGHC 81

Steven Chong J

Magistrate's Appeal No 462 of 2010

High Court

Criminal Law—Offences—Property—Criminal misappropriation of property—Duties of finder to avoid criminal liability

Criminal Law—Offences—Property—Criminal misappropriation of property—Elements of offence—Whether words ‘to his own use’ applied to misappropriation limb of s 403 Penal Code (Cap 224, 2008 Rev Ed)—Section 403 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing—Charge—Alteration—Whether High Court exercising appellate criminal jurisdiction had power to alter charge—Section 256 (b) (ii) Criminal Procedure Code (Cap 68, 1985 Rev Ed)

On 10 June 2012, the appellant (‘Wong’) found a wallet on the floor of the Marina Bay Sands Casino (‘the Casino’). The complainant (‘Sun’), who was the owner of the wallet, was a Chinese national. Sun's evidence was that her wallet contained, inter alia, cash of about $200, her Chinese identity card, a Singapore credit card and a China bank card. There was video evidence showing that Wong picked up the wallet within the Casino and went to the toilet. Wong was arrested soon after he came out of the toilet but he was not holding the wallet. The wallet could not be recovered even after the security personnel of the Casino conducted a search of the toilet. Later, in a statement to the police, Wong admitted to picking up the wallet and removing the cash from the wallet, and stated that he was remorseful.

Wong was charged under s 403 of the Penal Code (Cap 224, 2008 Rev Ed) (‘s 403’) for dishonest misappropriation of property. The trial judge accepted Sun's evidence and Wong's confession and found that Wong picked up the wallet and subsequently took the cash from the wallet. Wong was convicted and was fined $2,000. Wong appealed.

During the hearing, the Prosecution applied under s 256 (b) (ii) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) to amend the charge by striking out the words ‘to his own use’ from the charge.

Held, allowing the Prosecution's application to amend and dismissing the appellant's appeal:

(1) In order to make out the offence of dishonest misappropriation of property, the Prosecution had to prove the following elements beyond reasonable doubt: the movable property (‘chattel’) had to belong to some person other than the accused person; there had to be an act of misappropriation or conversion to his own use; and the accused person had to possess a dishonest intention: at [19].

(2) The offence was not made out if the chattel was abandoned property. Whether or not a lost chattel had been abandoned was essentially a question of fact to be inferred from the surrounding circumstances; and this was ultimately an exercise of common sense: at [21].

(3) The common law distinguished between ownership and possession of property. Ownership was the highest possible right in a thing. In the normal state of affairs, the possession of a chattel was the outward expression of ownership. When a chattel was lost by the true owner, he lost possession but not ownership. When a finder found and asserted possession over a chattel, he acquired good title against the whole world except the true owner; and this was the concept of relativity of title: at [25] to [28].

(4) Where a person found and decided to take possession of a lost chattel, Explanation 2 to s 403 required the finder to take reasonable steps to discover and give notice to the owner, and to keep the lost chattel for a reasonable time to allow the owner to claim it, to avoid criminal liability. Explanation 2 also stated that what were reasonable means, or what was a reasonable time in such a case, was a question of fact. The finder was not obliged to undertake extraordinary steps or incur disproportionate expenses in order to locate the true owner of the lost chattel: at [35].

(5) While the spectrum of circumstances of how a person might find a lost chattel might be wide, what amounted to reasonable steps that a finder should take to locate the true owner would depend on all the circumstances of the case, including, the place where the lost chattel was found; the nature and value of the lost chattel; and the nature of identifying features on the lost chattel: at [36] to [38].

(6) As explained in Illustration (f) to s 403, a finder should keep the lost chattel for a reasonable time to enable the owner to claim it, before dealing with it. On finding a valuable chattel with no apparent identification, the finder would commit an offence if he sold what he found immediately, thereby preventing the true owner from ever claiming it back: at [40].

(7) When a person found a lost chattel which he knew had not been abandoned, which was of some value and where the true owner could possibly be identified and located, the prudent course of action would be to report the lost chattel to the police, not because the finder was legally obliged to do so, but because it was the best and most pragmatic way for the finder to discharge his duty in taking reasonable steps to locate the owner: at [41].

(8) The phrase ‘to his own use’ in s 403 applied only to the misappropriation limb of the offence and not the conversion limb. To read the requirement of ‘to his own use’ into the misappropriation limb would render the conversion limb otiose, because there would be no instance involving conversion that did not also fall within the meaning of misappropriation: at [51].

(9) The High Court judge hearing a magistrate's appeal had an implied power under s 256 (b) (ii) of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) to allow an amendment to the charge in the manner proposed by the Prosecution. The proposed amended charge was read and explained to Wong, who informed the court that his defence remained unchanged. The proposed amendment was allowed because it did not prejudice Wong: at [48] and [49].

(10) The act of appropriating the wallet was committed when Wong picked the wallet up. By taking the cash from the wallet, and disposing of the wallet with the identifying documents, Wong had clearly intended to cause wrongful gain to himself and wrongful loss to the true owner. The element of dishonesty was thus satisfied: at [55] to [57].

Armory v Delamirie (1722) 1 Str 505; 93 ER 664 (refd)

Garmaz s/o Pakhar v PP [1996] 1 SLR (R) 95; [1996] 1 SLR 401 (refd)

PP v Neo Boon Seng [2008] 4 SLR (R) 216; [2008] 4 SLR 216 (refd)

R v Angus [2000] QCA 29 (refd)

Sohan Lal v Emperor AIR 1915 All 380 (refd)

Tan Tze Chye v PP [1997] 1 SLR (R) 876; [1997] 2 SLR 505 (refd)

Tat Seng Machine Movers Pte Ltd v Orix Leasing Singapore Ltd [2009] 4 SLR (R) 1101; [2009] 4 SLR 1101 (refd)

Tuan Puteh v Dragon (1876) 3 Ky 86 (refd)

Criminal Procedure Code (Cap 68,1985 Rev Ed) s 256 (b) (ii) (consd)

Penal Code (Cap 224,2008 Rev Ed) s 403 (consd) ; ss 23,24, Ch XVII

Manoj Nandwani (Gabriel Law Corporation) for the appellant

Sanjna Rai (Attorney-General's Chambers) for the respondent.

Steven Chong J

Introduction

1 Are finders keepers? One could be forgiven for thinking that the law on such a simple question is relatively settled. However, as demonstrated in this case, a finder can in certain circumstances attract criminal liability.

2 It is important to recognise that civil liability for property claims has a direct bearing on criminal liability in respect of offences under Ch XVII of the Penal Code (Cap 224, 2008 Rev Ed), collectively known as ‘Offences Against Property’. Therefore, an understanding of the scope and content of property rights in civil law is essential for a proper interpretation of criminal law provisions relating to property offences. As fittingly observed by Lord Macaulay in his book, Speeches and Poems, with the Report and Notes on the Indian Penal Code(Riverside Press, 1867) at p 432:

There is such a mutual relation between the different parts of the law that those parts must all attain perfection together. That portion, be it what it may, which is selected to be first put into the form of a code, with whatever clearness and precision it may be expressed and arranged, must necessarily partake to a considerable extent of the uncertainty and obscurity in which other portions are still left.

This observation applies with peculiar force to that important portion of the penal code which we now propose to consider. The offences defined in this chapter are made punishable on the ground that they are violations of the right of property; but the right of property is itself the creature of the law. It is evident, therefore, that if the substantive civil law touching this right be imperfect or obscure, the penal law which is auxiliary to that substantive law, and of which the object is to add a sanction to that substantive law, must partake of the imperfection or obscurity. It is impossible for us to be certain that we have made proper penal provisions for violations of civil rights till we have a complete knowledge of all civil rights; and this we cannot have while the law respecting those rights is either obscure or unsettled. As the present state of the civil law causes perplexity to the legislator in framing the penal code, so it will occasionally cause perplexity to the judges in administering that code. If it be matter of doubt what things are the subjects of a certain right, in whom that right resides, and to what that right extends, it must also be matter of doubt whether that right has or has not been violated.

[emphasis added]

3 The appellant, Wong Seng Kwan, was convicted in the court below of dishonest misappropriation of the cash taken from a wallet which he found on the floor of the Marina Bay Sands Casino (‘the Casino’). He was sentenced to a fine of $2,000 and in default two weeks' imprisonment. He appealed against the conviction and after hearing the parties, I was satisfied that the conviction was safe and...