JULY 14 — Muar MP Syed Saddiq bin Syed Abdul Rahman was charged with two charges under the Penal Code (PC) and two charges under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Act 613) (AMLA).

One of the charges under the PC was for an offence under Section 403 for dishonestly misappropriating the sum of RM120,000 by transferring the sum from the bank account of Armada Bumi Bersatu Enterprise (ABBE) for the accused’s own use. Armada is the youth wing of Bersatu.

Section 403 reads as follows:

“Whoever dishonestly misappropriates, or converts to his own use, or causes any other person to dispose of, any property, shall be punished with imprisonment for a term which shall not be less than six months and not more than five years and with whipping and shall also be liable to fine.”

The actus reus or guilty act of the offence is misappropriation or conversion or causing the disposal of property of another person. In the authoritative commentaries on the Indian Penal Code, Law of Crimes by Ratanlal & Dhirajlals (26th Ed), at p 2264, it states as follows:

“The essence of this offence of criminal misappropriation is that the property of another person comes into the possession of the accused in some neutral manner and is misappropriated or converted to his own use by the accused.”

It is further stated that the ingredients of the offence are as follows:

(a) the property must belong to a person other than the accused;

(b) the accused must have misappropriated property or converted it to his own use; and

(c) there must be dishonest intention on the part of the accused.

In the High Court, the learned trial judge had made a finding of fact that the RM120,000 was for the use of the accused to finance his election expenses.

However, having found that the impugned sum was in fact for the use of the accused to finance his election expenses, the learned trial judge found that there was prima facie evidence that the accused had directed the assistant treasurer of Armada (PW13) to transfer the sum to the accused’s personal account.

The learned trial judge ruled the transfer constituted an offence under Section 403.

On appeal to the Court of Appeal, the appellate court took issue with the learned trial judge’s ruling. Court of Appeal Judge Noorin Badaruddin, who delivered the unanimous judgment of the Court, said:

“We are of the considered view that when the [learned trial judge] found that the RM120,000 which were the proceeds from the fundraising was meant to finance the [accused]’s election campaign, for all intent and purposes, the money belongs to the [accused].

“In examining the evidence of PW13, we further find that even PW13 did not say the RM120,000 belongs to ABBE. Instead, he testified that the account belongs to ABBE and the RM120,000 was deposited therein. PW13 did not say the RM120,000 belonged to him. He was not in the position to say as such because it was him who had suggested the ABBE account be used to hold the money to be used by the [accused].

“In fact, we find not an iota of evidence surfaced showing that the money belongs to ABBE or Armada. There was no attempt by the prosecution to lead evidence that it is ABBE’s monies albeit ABBE’s account was used to receive the donation as a result of the [accused]’s appeal to assist him with his election expenses.

“Premised on the [learned trial judge]’s finding that the money was for the purpose of the [accused]’s political campaign, we are of the considered view that PW13 had held the RM120,000 in trust for the [accused] and not for the donors. In other words, PW13 was accountable to the [accused] as the RM120,000 was on transit in the ABBE’s account.

“The donors have contributed the money to and for the [accused] and the money was deposited into the ABBE account.

“We find that the [learned trial judge] erred in taking into consideration the facts of the transfer of money into the [accused]’s personal account ….

“According to the [accused] the money was his as the money was derived from his plea to the donors to assist him with his political campaign. He is therefore legally entitled to the money.

“Even if his believe [sic] that he is entitled to the money is wrong (which we find he is not), the offence [under Section 403] cannot be said to be committed.

“A wrong opinion that the accused was justified in keeping the thing does not constitute this offence.

“We are of the considered view that if only the donations were deposited directly into the [accused]’s account, the [accused] would not have to face this drawback of being charged for dishonest misappropriation of money which he is entitled to.”

The majority decision of the Federal Court on Monday (July 13) agreed with the Court of Appeal.

So, here’s the simple lesson from Syed Saddiq’s case.

If something belongs to you, keep it yourself.

**This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.